Berthing

The charterers appealed to the High Court who concluded that WIBON did not create primary obligations and could not have the effect of transferring the owner’s duty from one of carrying the cargo to a berth to one of carrying it merely to a port. The Kyzikos (1989) climbed the appeal ladder right to the House of Lords. The charterer won due to the final decision being that where a berth was available on arrival but the named ship, would not reach it by reason of fog (i.e. not because of congestion). The master could not rely upon WIBON to tender his notice of readiness in advance of berthing. It did not affect delay due to navigational difficulties. This is a provision which appears in Voyage and Time charter parties alike and upon which the comments are equally applicable irrespective of whether it is time or voyage. Perhaps the most important point to realise is that the provision operates in the charterer’s favour whether or not the cause of the ship’s late arrival is something for which the owner is at fault. The contractual right to cancel, in other words, accrues fault or not fault. Thus the right to cancel is absolute and it will avail the shipowner nothing to argue that the late arrival of his ship was due to a peril excepted in the charter party, for the exceptions clause is deemed to be applicable to only the carrying (proper) voyage (Smith v Dart [1884]).