In voyage charter parties, WIBON (Whether In Berth Or Not) provision has the effect of converting the berth charter into a port charter.
In Notos case, charter-party form stipulated that the ship should load a cargo of crude oil and then proceed to a submarine line as ordered by the charterer and there delivered the cargo. In the event the ship was unable to discharge at the only sea line available, firstly because of the swell existing at the time and secondly because of another ship discharging at the berth.
Notos case is different than the previous Laura Prima case. Particularly, in Notos, there was only one place for discharge to be nominated. Substantial cause of the delay in getting into that only place of berthing was the swell and that was certainly beyond the charterers’ control as it was a feature of the weather conditions then prevailing. Generally, doubt has always existed judicially about the legal effect on a charter party of the WIBON (Whether In Berth Or Not) provisions. Some light has very recently been thrown on this point by a case heard in the Queen’s Bench Division 1989 involving the ship MV Kyzikos chartered on a GENCON charter-party form and including WIBON (Whether In Berth Or Not) provisions. MV Kyzikos was consigned to a named berth to which in the event MV Kyzikos was prevented from access by fog even though it was available. MV Kyzikos incident was taken to arbitration as being a laytime dispute. Arbitrator found that the WIBON (Whether In Berth Or Not) provision had the effect of converting the berth charter into a port charter. Therefore, MV Kyzikos was an arrived ship and time ran against the charterer from the time of arrival except for the few hours of notice time.