Customary Laytime

Customary Laytime

Where the parties to a Charterparty or Contract of Affreightment (COA), namely the Shipowner and Voyage Charterer, do not specify the period allowed for loading or discharging the ship's cargo, and where the contract does not use expressions such as ''Liner Terms (LT)'' or ''Customary Despatch (CD)'', the law will imply that the cargo operation must be completed within a Reasonable Time.

This situation may arise because the Charterparty contains no reference at all to the time within which loading or discharging must be completed. It may also arise where the wording is general, such as a requirement to proceed ‘‘with all Dispatch according to the Custom of the Port’’. In either case, the time allowed is not a fixed contractual period. It depends on the conditions existing at the particular port, for the particular ship, cargo, trade, and circumstances at the relevant time. For that reason, unlike Fixed Laytime, Customary Laytime cannot normally be calculated in advance before loading or discharging begins.

What Constitutes a Reasonable Time?

The obligation to discharge, and by implication to load, within a Reasonable Time where no fixed period has been agreed, developed from two early cases decided only a few days apart. Both cases involved cargoes being discharged into bond, and in both, delay occurred because of congestion in the docks.

In Rodgers v. Forresters, the Charterparty expressly provided that ‘’the said freighter should be allowed the usual and Customary Time to unload the ship or ship at her port of discharge’’. Lord Ellenborough held that the usual and Customary Time meant the period normally required to discharge the cargo into bonded warehouses under the actual conditions then prevailing at the docks.

In Burmester v. Hodgson, heard three days later before Mansfield CJ, there was no Charterparty, and the dispute arose under a Bill of Lading (B/L). The Bill of Lading (B/L) said nothing about the time allowed for discharge, and the operation lasted approximately 63 days. Mansfield CJ explained the position as follows:

“Here the law could only raise an implied promise to do what was in Rodgers v. Forresters stipulated for by an express covenant; viz. to discharge the ship in the usual and customary time for unloading such a cargo. That has been rightly held to be the time within which a ship can be unloaded in turn, into the bonded warehouses. Such time has not been exceeded by the defendant. If the brandies were to be bonded they could not be unloaded sooner, and the defendant seems to have been as anxious to receive, as the plaintiff was to deliver them.”

In Ford and others v. Cotesworth and another, the reasoning in Burmester v. Hodgson was developed further. Counsel argued that what was usual and Customary for a port should be assessed objectively by reference to the ordinary conditions of that port, rather than by reference to the circumstances actually encountered at the time of discharge. If accepted, that argument would have implied that the Charterparty should be treated almost as though it contained a fixed number of Lay Days, with the number being determined later by evidence of what was usual and Customary for that port and that ship.

Blackburn J firmly rejected that approach. Blackburn J held that where a Charterparty requires a ship to proceed to a named port and deliver cargo there, or as near thereto as the ship can safely reach, in the usual and Customary manner, but contains no express provision fixing the time for discharge, the law implies an obligation on both sides to exercise reasonable diligence in performing the part of the delivery operation that, according to the custom of the port, falls upon each of them. There is no implied promise that discharge must be completed within the period normally required at the port under ordinary conditions.

A different impression appeared in Ashcroft v. Crow Orchard Colliery Co and Wright v. New Zealand Shipping Co, where parts of the judgments seemed to suggest that performance should be measured by the time usually required in practice. Considerable judicial and academic effort has been spent attempting to reconcile those cases with later decisions of the House of Lords. The better view, however, is that those earlier cases were either limited by their particular facts or later understood too broadly.

The matter was then examined in depth by the House of Lords in Postlethwaite v. Freeland. The case concerned the Cumberland Lassie, which had been chartered to carry steel rails and fastenings from Barrow-in-Furness to East London, South Africa. The Charterparty stated that the ‘‘cargo to be discharged with all Dispatch according to the Custom of the Port’’. At East London, the established practice required ships of this kind to anchor outside the harbour limits while the cargo was discharged into lighters. The lighters were then moved manually into the harbour. The operation was controlled by a private organization that dealt with ships in turn, although mail steamers were given priority.

Because there were not enough suitable lighters and the port was heavily congested, the Cumberland Lassie waited idle for about 31 Working Days (WD) before discharge could begin. The House of Lords held that the claim for Demurrage could not be sustained. Lord Selborne LC summarized the governing principle in these terms:

“There is no doubt that the duty of providing and making proper use of sufficient means for the discharge of cargo, when a ship which has been chartered arrives at its destination and is ready to discharge, generally lies upon the Charterer. If, by the terms of the Charterparty, he has agreed to discharge it within a Fixed Period of Time, that is an absolute and unconditional engagement, for the non-performance of which he is answerable, whatever may be the nature of the impediments which prevent him from performing it and which cause the ship to be detained in his service beyond the time stipulated. If, on the other hand, there is no Fixed Time, the law implies an agreement on his part to discharge the cargo within a Reasonable Time; that is (as was said by Mr Justice Blackburn in Ford v. Cotesworth24 ‘‘a reasonable time under the circumstances’’). Difficult questions may sometimes arise as to the circumstances which ought to be taken into consideration in determining what time is reasonable. If (as in the present case) an obligation, indefinite as to time, is qualified or partially defined by express or implied reference to the custom or practice of a particular port, every impediment arising from or out of that custom or practice, which the Charterer could not have overcome by the use of any reasonable diligence, ought (I think) to be taken into consideration.”

Lord Blackburn, who had earlier given judgment as Blackburn J, was also a member of the House of Lords in Postlethwaite v. Freeland and reaffirmed his earlier analysis. Lord Blackburn drew support from Taylor v. Great Northern Railway, where it had been held that “Reasonable Time’’ must be assessed by reference to the circumstances actually existing at the time of performance. Lord Blackburn also distinguished Ashcroft v. Crow Orchard Colliery Co and offered an explanation for Wright v. New Zealand Shipping Co that avoided treating those decisions as inconsistent with the broader principle.

The issue came before the House of Lords again in Pantland Hick v. Raymond & Reid. The question was whether Reasonable Time should be measured by ordinary conditions or by the factual circumstances existing at the time performance was required. The cargo in that case was carried under a Bill of Lading (B/L) that contained no explicit discharge period. After the ship arrived, the dock authority began unloading, but the operation was stopped by a Strike involving dockworkers. The consignees could not obtain alternative labour, and the court held that they were not responsible for the resulting delay.

Attempts to confine Postlethwaite v. Freeland to cases involving a specific custom of the port were rejected. Lord Herschell explained the principle in clear terms:

“I would observe, in the first place, that there is of course no such thing as a reasonable time in the abstract. It must always depend upon circumstances. Upon ‘’the ordinary circumstances’’ say the learned counsel for the appellant. But what may without impropriety be termed the ordinary circumstances differ in particular ports at different times of the year. I appears to me that the appellant’s contention would involve constant difficulty and dispute and that the only sound principle is that the ‘‘reasonable time’’ should depend on the circumstances that actually exist. If the cargo has been taken with all Reasonable Despatch under those circumstances I think the obligation of the Consignee has been fulfilled.”

The effect of these authorities is that Customary Laytime is not a hidden form of Fixed Laytime. It does not convert the contract into an agreement for a fixed number of days determined after the event. Instead, it requires the cargo operation to be carried out within a Reasonable Time, judged by the actual circumstances at the port, including the relevant custom or practice, congestion, available facilities, labour conditions, lighterage arrangements, and any impediments that could not reasonably have been overcome.

The key distinction is therefore between an absolute promise and a reasonable diligence obligation. Under Fixed Laytime, the Charterer normally assumes the risk of ordinary delay unless the Charterparty provides otherwise. Under Customary Laytime, the Charterer is not automatically liable merely because the ship is delayed beyond what might usually be expected. The question is whether the Charterer, Consignee, or other party responsible for the cargo operation acted with reasonable diligence in the circumstances that actually existed.

For Shipowners and Voyage Charterers, this distinction has major commercial consequences. Fixed Laytime offers certainty but places delay risk more sharply on the Charterer. Customary Laytime offers flexibility but creates evidential and factual uncertainty, because the parties must examine what was reasonable at the relevant port and time. For that reason, modern Charterparties usually prefer express Laytime provisions, but Customary Laytime remains important where the contract is silent, where traditional expressions are used, or where discharge is governed by local port practice rather than a fixed contractual allowance.

A similar interpretation was given by Lord Herschell in Carlton SS Co Ltd v. Castle Mail Packets Co, again in the House of Lords, where Lord Herschell stated:

“There is no such thing as Reasonable Time in the abstract. The question is whether, having regard to all the obligations of the contract, to its conditions, to its restrictions and to its limitations, more than a reasonable time has been taken in the performance of any one of these obligations in respect of which the parties have not, by their contract, expressed any limit of time for its performance.”

The same principle was later explained by Romer LJ in Lyle Shipping Co Ltd v. Corporation of Cardiff, where Romer LJ considered the meaning of the familiar Charterparty wording requiring a ship to be discharged ‘with all Dispatch as customary’. Romer LJ stated:

“The first question we have to consider is as to the meaning of the not uncommon provision in a Charterparty as to the ship being discharged ‘with all Dispatch as customary’. I think it is now settled that such a provision means that the discharge shall take place with all reasonable dispatch, and that in considering what is reasonable you must have regard, not to a hypothetical state of things (that is, to what would be reasonable in an ordinary state of circumstances), but to the actual state of things at the time of discharge and in particular to the customs of the port of discharge.”

Later authorities have not changed this approach. They have merely reaffirmed that Reasonable means reasonable in light of all the circumstances of the particular case. The inquiry is therefore factual and commercial rather than abstract. The court or Arbitrator must consider the real conditions at the port, the relevant custom, the available facilities, congestion, labour conditions, cargo arrangements, and the degree of diligence exercised by the party responsible for loading or discharging.

Customary Despatch (CD)

The Charterparty Laytime Definitions 1980 define Customary Despatch in the following terms:

‘‘CUSTOMARY DESPATCH’’—indicates that the charterer is required to load and/or discharge as swiftly as conditions at the time of loading or discharging realistically allow.

There appears to be no decisive authority establishing whether the phrase “as fast as is possible in the circumstances’’ is materially different from an obligation to load or discharge within a reasonable time, or within the usual and customary time associated with Customary Laytime. In practice, the expressions may produce much the same result. Each directs attention to what could reasonably be achieved in the actual circumstances existing at the port when the cargo operation is being performed.

The commercial function of Customary Despatch (CD) is therefore to require active and practical diligence, but not to impose the strict absolute liability normally associated with Fixed Laytime. The Charterer must proceed as quickly as the real conditions allow, but the Charterer is not treated as having guaranteed a fixed number of days or hours unless the Charterparty clearly says so.

Effect of Custom

The words ''Custom'' and ''As Customary'' may appear expressly in the Laytime Clause. Their presence may be important, but their absence is not always decisive. Even without express wording, the law may require loading or discharging to be performed in accordance with the established practice of the relevant port and trade. In Postlethwaite v. Freeland, Lord Blackburn explained the meaning of custom in this context:

“Custom in the Charterparty did not mean custom in the sense in which the word is sometimes used by lawyers, but meant a settled and established practice of the port.”

The question of how long a practice must exist before it becomes a recognized commercial custom was considered by Kennedy J in Sea Steamship Co Ltd v. Price, Walker and Co Ltd. In that case, it was argued that about 14 years earlier Merchants, lighter owners, and local Stevedores had agreed on a discharge rate for certain ships, and that the agreement had become a custom. Kennedy J rejected that argument and stated:

“In my opinion, in order to establish a mercantile custom it is necessary, not only to show that a large number of influential people at the place have agreed that it would be a good thing, but also that the agreement was acted upon, because, unless it is acted on, no one will challenge it. A custom cannot be established merely by three or four important classes of persons in a community of a port agreeing that it is desirable. It must be enforced.”

A custom must therefore be more than a local preference or a proposed arrangement among influential commercial participants. It must be acted upon in practice, recognized in the trade, and applied with sufficient consistency to become part of the commercial background against which contracts are made.

There is, however, no prohibition on setting out the custom in written form. Port customs are sometimes reduced to written rules or documents for the convenience of Shipowners, Merchants, agents, receivers, and others involved in cargo operations. In Norrkopings Rederiaktiebolag v. Wulfsberg & Co, Greer J explained:

“The custom of the port, for the convenience of Shipowners and Merchants, has been reduced to writing, and though one does not necessarily interpret the document in exactly the same wording as one would a document which was written out for the purpose of containing the terms of a particular contract, still effect has got to be given to the words used, because people going to the port of Hull must be presumed to know, and probably do know, that the custom of the port has been put into the document, and can be found there just as readily as the Rule for Preventing Collisions at Sea.”

Once a custom has become established, it is not automatically destroyed merely because parties occasionally exclude it by express agreement. However, if exclusion becomes so common that contracting out of the custom becomes the usual practice, the custom may eventually cease to exist. The continued existence of a custom therefore depends on its continuing recognition and application in the port or trade concerned.

An example of express exclusion can be seen in Maclay and others v. Spillers & Baker Ltd. In that case, the Bill of Lading (B/L) required the Consignee to receive the cargo ‘‘immediately’’ once the ship was ready to discharge and to do so continuously, “any custom of the port to the contrary notwithstanding.” The Court of Appeal reversed the lower court and held that this clear wording displaced the port custom. The decision shows that even a well-established custom may be overridden by express contractual language.

Where the words ‘‘Custom’’ or ‘‘Customary’’ are used, they primarily concern the method by which cargo is loaded or discharged, not the precise length of time required for the operation. In Castlegate Steamship Co v. Dempsey, Fry LJ explained the point:

“They, therefore, primarily refer to manner of discharge, and secondarily only to time. They are not entirely disconnected with time, because the dispatch is to be in the customary manner, and that manner may be one which expedites or delays the discharge of the cargo.”

Lord Dunedin expressed the same idea in The Lizzie, stating that “a Custom consists in a method of doing something.” This distinction is important. A custom usually tells the parties how the operation is to be performed; the time consequence follows from that method. If the customary method is slow, the operation may take longer, but the delay may still be justified if the cargo is being handled according to the recognized custom of the port.

Good & Co v. Isaacs illustrates the same point. The decision confirms that performance according to the customary method may not always be the fastest possible method and may result in additional time being consumed. The case also makes clear that ‘‘As Customary’’ refers to the mode of discharge and delivery by the ship, not to the separate process by which the Consignee takes delivery after the cargo has been made available.

After it has been shown that a custom exists, a further question must be considered: whether the custom is reasonable. In Nelson v. Dahl, Jessel MR described the requirements of a true custom in the following terms:

“It must be so notorious that everybody in the trade enters into a contract with that usage as an implied term. It must be uniform as well as reasonable and it must have quite as much certainty as the written contract itself.”

A valid commercial custom must therefore be notorious, uniform, certain, and reasonable. It must be so well known in the relevant trade that parties contracting in that market can fairly be treated as having contracted with reference to it. It must also be sufficiently definite to be applied in practice, because an uncertain custom cannot sensibly be incorporated into a commercial contract.

In Sea Steamship Co Ltd v. Price Walker & Co Ltd, the alleged custom concerned the wood trade at Sharpness. The court rejected the alleged custom as unreasonable for two principal reasons. First, it favoured ships arriving from Baltic ports over ships arriving from the other side of the Atlantic even where the cargo was identical. Second, it required the same daily discharge rate regardless of the size of the ship. The court observed that under such an arrangement, a larger ship “would practically be converted into a warehouse”.

The effect of these authorities is that custom may play a central role in Customary Laytime, but it is not accepted uncritically. A party relying on custom must prove that the practice exists, that it is sufficiently established, that it is known or capable of being known in the trade, that it is certain, that it is reasonable, and that it has not been excluded by the contract. Custom can shape the manner and pace of cargo operations, but it cannot override clear contractual wording, nor can an unreasonable or uncertain practice be imposed on a party merely because some local interests have attempted to treat it as customary.

Commencement of the Obligation to Load/Discharge

In a Charterparty governed by Customary Laytime, it is still often necessary to determine when the approach voyage or carrying voyage has come to an end. However, the exact moment at which the ship becomes an Arrived Ship is generally less decisive in this context than it is under a Charterparty containing a Fixed Laytime provision. The reason is that, under Customary Laytime, the central question is not simply when the Laytime clock begins, but whether the party responsible for cargo operations has acted with reasonable diligence in the actual circumstances.

Although principles similar to those applied in Fixed Laytime cases have long been recognized, they remain subject to the express terms of the parties’ contract. Shipowner and Charterer may alter the ordinary legal position by clear wording. Viscount Cave explained this principle in United States Shipping Board v. Strick & Co Ltd:

“these rules like all other rules of construction, must yield to the express terms of the contract entered into between the parties; and if the contract contains terms which are inconsistent with the application of the general rules of construction, the contract and not the rules must prevail.”

Accordingly, in Bargate Steam Shipping Co Ltd v. Penlee & St Ives Stone Quarries Ltd, the Charterparty expressly provided that Laytime for discharge would begin from the first high water after the ship’s arrival at or off the discharging Berth. Clauses of this precision are unusual. In most Charterparties, the contractual destination is described more generally as a Berth, a Dock, or a Port, and the court or Arbitrator must then decide when that destination has been reached.

As in a Fixed Laytime Charter, a Berth Charter normally requires the ship to reach the named or designated Berth before the contractual destination is satisfied. In Good & Co v. Isaacs, the Court of Appeal went further and indicated that a ship is not properly “in Berth” unless she occupies the Berth with the approval or direction of the harbour authority. If the ship is then ordered away by the Port Authorities, she cannot be treated as having arrived for the purpose of triggering the Charterer’s obligations.

In Nelson v. Dahl, Brett LJ reviewed earlier authorities concerning the completion of the voyage under both Fixed Laytime and Customary Laytime Charters. Brett LJ concluded that, in either type of Charterparty, the contractual destination is reached once the ship enters the dock itself, even if she has not yet obtained a Berth. This approach reflected the importance attached at that time to the dock as the commercial destination for discharge.

Hulthen v. Stewart & Co also raised the question of when the Charterer’s obligation to discharge began. The main issue, however, was different: whether the measurable practice for discharging timber ships converted a Customary Laytime Charter into a Fixed Laytime Charter. That argument was rejected at every level.

The facts were that the Anton reached Gravesend while proceeding toward the Surrey Commercial Docks. Because of Congestion, the ship was delayed before entering the Docks and again before obtaining a Berth. Timber was customarily discharged either into lighters or onto the quay. All courts agreed that although Gravesend was within the Port of London, the Anton did not become an Arrived Ship merely by reaching Gravesend. Phillimore J held that “she was an arrived ship only when she reached a place at which she could discharge.” Later commentary has sometimes understood this as requiring arrival at the Berth, although, given the customary use of lighters, arrival at the dock may also have been sufficient. At that stage, the law had not yet fully settled when a ship became an Arrived Ship under a Port Charter.

The modern position was later clarified in Leonis Steamship Co v. Rank (No 1), which became a foundational authority on the Commencement of Laytime under Port Charters. Although Leonis concerned Fixed Laytime, the authorities examined in the case included many Customary Laytime decisions. Later, the House of Lords in The Johanna Oldendorff confirmed the broader approach. These decisions do not draw a material distinction between Customary Laytime and Fixed Laytime when deciding whether a ship has become an Arrived Ship. If any earlier difference existed, it has effectively disappeared.

Accordingly, where a Customary Laytime Charter is also a Port Charter, the contractual destination is reached when the ship, if unable to proceed immediately to a Berth, has reached the recognized waiting place or anchorage within port limits for ships of that type and is then immediately and effectively at the Charterer’s disposal. The ship must be in a position where, commercially and legally, she is available for the loading or discharging operation once the Berth becomes available.

This does not mean that the Charterer must begin loading or discharging at once. Nor does it mean that every delay after the ship becomes an Arrived Ship automatically falls on the Charterer. The difference between arrival and liability must be kept clear. Bargate Steam Shipping Co Ltd v. Penlee & St Ives Stone Quarries Ltd illustrates this distinction. In that case, the ship arrived off the discharging Berth but could not berth because of Congestion. Since the delay was beyond the Charterer’s control, the Charterer was not liable for it. The fact that the ship had arrived did not itself determine the financial consequences of the later delay.

The parties may, however, agree a different allocation of risk. A Charterparty may expressly provide that delays caused by Congestion are for the Charterer’s account. Alternatively, the wording may protect the Charterer and leave such delay with the Shipowner. Clauses of this kind were upheld in Charlton Steam Shipping Co v. T W Allen & Sons and Gabriel, Wade & English. The outcome therefore depends on the language of the Charterparty and the way in which the parties have chosen to allocate the risk of waiting.

A Charterparty may also name a specific destination while adding that the ship is to proceed “as near thereto as she may safely get.” This wording was central in Robert H Dahl v. Nelson, Donkin and others. In that case, the ship reached the Surrey Commercial Docks but was refused entry because of Congestion. When the Charterer declined to nominate another place, the Ship Master moved the ship to the Deptford Buoys, which were the nearest safe location, and discharged the cargo by lighter into the Surrey Commercial Docks. The House of Lords held that the Ship Master had acted properly and that the Shipowner was not required to wait indefinitely for a Berth.

The principle emerging from these authorities is that, where the contractual destination cannot be reached because of conditions such as Congestion, the ship may satisfy the arrival requirement by reaching the nearest safe point from which the contractual cargo operation can effectively be performed, especially where discharge is in fact carried out from that position. The phrase “as near thereto as she may safely get” is therefore commercially important. It prevents the Shipowner from being trapped indefinitely by an inaccessible Berth or dock where a safe and workable alternative is available.

The correct conclusion is that a ship may become an Arrived Ship when she reaches the nearest safe point to the specified destination and cargo discharge is in fact performed from that position. In Customary Laytime cases, however, arrival is only one part of the analysis. The wider question remains whether the cargo operation was carried out with reasonable diligence, according to the applicable custom of the port, the contractual wording, and the actual circumstances affecting the ship, cargo, Shipowner, Charterer, and receivers.

Delays Due to Charterers/Shippers/Receivers

All parties involved in the performance of the voyage must exercise Reasonable Diligence in the circumstances actually existing at the time, so that the ship may be loaded and discharged within a Reasonable Time. In this context, the expression cargo interests is often used as a collective description for Charterers, Shippers, Receivers, Consignees, or other parties connected with the cargo operation. The cases in this area show how the courts have approached allegations that one or more of these parties failed to act with the required diligence.

Failure to Provide a Berth On Arrival

One recurring issue is whether cargo interests are responsible where a Berth is not ready when the ship arrives. In some disputes, it has been argued that the Custom of the Port requires a Berth to be available immediately upon arrival. In others, the complaint has been that cargo interests, by managing their business or other ships in a particular way, caused or contributed to the absence of an available Berth.

The first type of argument appeared in Aktieselskabet Hekla v. Bryson, Jameson & Co. In that case, the court held that, in 1908, the established custom and uniform practice at the port of Hull imposed an absolute obligation on the receiver of a wood cargo to provide, immediately on the ship’s arrival in dock, a suitable Berth together with sufficient quay space or enough railway bogies to permit the cargo to be discharged. The decision treated the local custom as creating a strict obligation on the receiver.

However, the position was later reconsidered in The Lizzie. Roughly ten years after Aktieselskabet Hekla v. Bryson, Jameson & Co, the House of Lords held that even if such a custom existed, delay could still be excused where the failure to comply occurred despite the exercise of Reasonable Diligence. This shifted the emphasis away from an automatic liability for the absence of a Berth and toward the question whether the relevant cargo interest had acted reasonably in the circumstances.

The effect of competing commercial commitments by cargo interests was considered in Harrowing and others v. Dupre, one of several cases involving the port regulations at Maryport. Those regulations provided that, where other ships were waiting to Berth, each receiver could have only one ship at the quay at any one time. In that case, four other ships belonging to the same Receivers were already ahead of the Ethelreda in the queue. The Charterers, who were also the Shippers but not the Receivers, were sued for the resulting delay.

Bigham J held that the delay could not properly be attributed to the Charterers. The delay was of a type that both parties should reasonably have had in mind when the Charterparty was made. Where delay results from the ordinary and reasonable conduct of cargo interests’ business, and not from any unreasonable act or default, the Shipowner cannot treat that delay as an actionable breach. The Shipowner must accept such delay as part of the reasonable circumstances of the adventure.

A similar principle was applied in Barque Quilpue Ltd v. Brown. That case concerned a sailing ship chartered by a Colliery. Before the ship could obtain a Berth, she had to produce a loading order from the Colliery. The order was delayed because other ships already chartered to the same Colliery were ahead of her in the loading sequence. There was no evidence that the Colliery had accepted more tonnage than it could reasonably handle in the ordinary course of its business.

The Court of Appeal held that the Charterparty had been concluded on the implied understanding that the Charterers would continue to conduct their business in the normal way. The Charterers were not required to rearrange their ordinary commercial commitments merely because the ship had arrived. Since the Charterers had not acted unreasonably, they were not liable for the delay caused by the ordinary loading sequence at the Colliery.

These cases show that, under Customary Laytime, the absence of an immediately available Berth does not automatically create liability. The decisive question is whether the relevant cargo interests exercised reasonable diligence and whether the delay arose from normal port or trade conditions that the parties should be taken to have contemplated. Unless the Charterparty imposes a stricter obligation, ordinary congestion, queuing, and the regular conduct of cargo interests’ business may fall within the Reasonable Time allowed for performance.

Failure to Have Cargo in Readiness

A different issue arises where the complaint is not merely that a Berth was unavailable, but that the cargo itself was not ready. Unless the Charterparty provides otherwise, the Charterer's duty to provide a cargo is Absolute. This principle was reaffirmed by the House of Lords in the Scottish case of Arden Steamship Co v. Andrew Weir & Co. The House of Lords held that even if the Shipper is prevented by events entirely beyond his control from having the cargo ready, he may still be liable in damages for failing to perform the obligation to provide cargo.

That strict rule must, however, be distinguished from a situation where the Charterer or Shipper is not yet required to have cargo physically ready because, in the normal sequence of events, the ship is not yet in a position to load. The Charterer or Shipper is not required to anticipate every unexpected development, such as a Berth becoming available earlier than anyone reasonably expected. This distinction is central to Little v. Stevenson, a decision that has often been misunderstood. The House of Lords treated the Shipper’s or Charterer’s obligation as one requiring the cargo to be ready when the ship is ready to load in the ordinary course of events, not when some unforeseen opportunity arises outside the parties’ reasonable contemplation.

Jones Ltd v. Green & Co illustrates the point. In that case, a ship was chartered to load coal at Newcastle, New South Wales, from a Colliery nominated by the Charterers. Under the Custom of the Port, a ship could not Berth until a coaling order had been issued, confirming that coal was available. The nominated Colliery had limited output, and all parties knew that its coal was in very strong demand. Some delay was therefore commercially foreseeable from the outset.

The Court of Appeal held that the Charterers were not obliged to have cargo ready in advance merely because the ship might arrive on a particular day. Their obligation was satisfied if the ship obtained her proper place in the queue of ships waiting to load at the nominated Colliery. If that occurred, the cargo was treated as having been made available within a reasonable time, assessed by reference to the circumstances that the parties must be taken to have contemplated when the Charterparty was agreed.

The practical conclusion is that where the cargo comes from a specific supply source known to both Shipowner and Charterer, and where the Charterparty contains no fixed loading period, the Charterer is not under an unconditional responsibility to have cargo waiting at the exact moment the ship arrives. The Charterer must act with reasonable diligence according to the ordinary sequence of the trade, the capacity of the supply point, the queueing system, and the facts known to both parties.

At the same time, Arden Steamship Co v. Weir makes it essential to distinguish delay in loading from a true failure to provide cargo. A delay may be excused or treated as reasonable where it results from ordinary port practice, congestion, supply sequence, or circumstances within the parties’ contemplation. By contrast, where the Charterer fails to perform the Primary Duty of providing a cargo at all, the case is not simply one of delay under Customary Laytime. It is a breach of the fundamental obligation to furnish cargo for the ship.

The difference is commercially significant. Customary Laytime protects a Charterer from strict liability for every delay encountered in the ordinary and reasonable performance of loading or discharging. It does not relieve the Charterer from the basic contractual obligation to provide the cargo that the ship was fixed to carry. The law therefore balances two principles: reasonable allowance must be made for real port and trade conditions, but cargo interests cannot rely on Customary Laytime as an excuse for failing to perform their essential contractual obligations.

As Fast As the Ship Could Deliver

London Arbitration 2/01 concerned a discharge operation performed on liner out terms. The Shipowners claimed Damages for Detention, arguing that the Charterers or Receivers had failed to remove bagged cargo from the jetty at a speed corresponding to the rate at which the ship was able to discharge. The Charterers answered that the delays should "lie where they fall'', meaning that the loss should remain with the party on whom it naturally fell in the circumstances.

The Tribunal adopted a more balanced approach. It accepted that, under liner out arrangements, many ordinary delays would remain for the account of the Shipowners. However, the Tribunal also held that where the ship was seriously delayed by a matter within the control of the Receivers, it would be commercially unfair to allow the Charterers to avoid responsibility entirely. An implied obligation was therefore recognized, preventing the Charterers or Receivers from doing anything that obstructed, slowed, or interfered with the discharge or delivery of the cargo.

The effect of that implied obligation was that the Receivers had to collect the cargo with Reasonable Despatch. However, the obligation did not go so far as to create an implied promise that the Charterers or Receivers would remove the cargo as fast as the ship could physically deliver it. The standard remained one of reasonable conduct in the actual circumstances, not a guarantee that shore-side removal would match the ship’s maximum discharge capacity at every moment.

Alternative Methods of Discharge

There are situations in which a Custom of the Port recognizes more than one acceptable method for discharging cargo. One method may be the ordinary or preferred practice, but another may still be recognized as proper and available under the same custom. Where the usual method cannot be used, the party responsible for receiving or handling the cargo may be required to adopt the alternative method instead of allowing the ship to remain delayed.

In Rodenacker v. May and Hassell Ltd, the Charterparty required a cargo of Danzig oak logs to be discharged at Milwall Dock “with all dispatch as fast as steamer can deliver, as customary.” The ordinary practice was to discharge the logs into railway trucks. However, discharging into lighters was also an accepted method under the port practice. When railway trucks were not available, the court held that the Receivers were obliged to use lighters instead. They could not rely on the unavailability of the preferred method where another customary method remained available.

The same principle was developed further in Fitzgerald v. Lona (Owners). In that case, the Charterparty allowed the Consignees to choose whether cargo should be discharged onto the quay or into lighters. A strike among lightermen prevented the practical use of lighters, but the Consignees still insisted on that method. The Shipowners discharged the cargo onto the quay instead. The court held that the Shipowners were not merely entitled to do so, but were required to do so. They did not have to notify the Consignees or invite them to choose another method. The Consignees’ original choice was not final regardless of later events; it depended on whether the selected method remained practicable at the time of discharge.

These cases show that custom is not rigid where more than one customary method exists. If the preferred method becomes unavailable, a party cannot insist on that method in a way that detains the ship unnecessarily. The obligation is to perform the cargo operation according to a recognized and workable method, using reasonable diligence in the circumstances actually prevailing at the port.

Provision of Defective Cargo

Where delay is caused by the condition of the cargo itself, the Shipowners' ability to recover damages depends on whether the Shipowners knew, or reasonably should have known, about the defect that produced the delay. This principle extends the traditional rule concerning dangerous goods, under which a Shipper must warn the Shipowner of risks that are not already known, or reasonably knowable, to the Shipowner.

The leading authority on this wider principle is Mitchell Cotts & Co v. Steel Bros & Co Ltd. In that case, a ship carrying rice was detained for 22 days while passing through the Suez Canal because the required permission to proceed to the named destination had not been obtained. The Charterers knew that permission was required, failed to secure it, and did not inform the owners. They were held liable for the resulting delay. Atkin J stated:

“Whatever may be the full extent of the Shipper’s obligations, it appears to me that it amounts at least to this; he stipulates that he will not ship goods likely to involve unusual danger or delay to the ship without communicating to the owner facts which are within his knowledge indicating that there is such risk, which facts the owner does not and could not reasonably know of. I think that is putting the obligations of the Shipper within very moderate limits, and it may be considerably wider.”

This doctrine applies under both Fixed Laytime and Customary Laytime Charterparties. Its scope depends on whether the delay arose from a risk known to the Shipper or Charterer and unknown to the Shipowner, and whether the Shipowner could reasonably have discovered the risk before or during the cargo operation.

In Transoceanica Societa Italiana di Navigazione v. Shipton & Sons, the ship was discharging barley by suction under a Customary Laytime Charter. The discharge slowed because stones and other foreign materials were mixed with the barley. The court held that the Receivers had still taken delivery as fast as the ship could reasonably deliver in the circumstances. The delay therefore did not fall within the Mitchell Cotts principle.

A similar result was reached in Acatos v. Burns, where sprouting maize caused difficulty during discharge. The Shipowner’s claim failed because the Shipowner had had an opportunity to inspect the cargo. Since the relevant condition was not hidden from the Shipowner in the necessary sense, the delay could not be shifted to the Charterers under the Mitchell Cotts doctrine.

By contrast, in a London Arbitration, Shipowners recovered damages where a cargo of wheat had been loaded without prior inspection by the US Department of Agriculture. That inspection was shown to be standard practice, and the risk of rejection created by the absence of inspection was not something the Shipowners could reasonably have known. The Arbitrators held that the case fell within the Mitchell Cotts rule. The Charterers were therefore liable for delay caused by loading defective cargo, because the failure amounted to a lack of reasonable diligence in performing their part of the loading operation.

The principle is therefore not that every defect in cargo makes the Charterer liable for delay. The question is whether the cargo created an unusual risk of danger or delay, whether that risk was known or should have been known to the Charterer or Shipper, and whether the Shipowner was unaware of it and could not reasonably have discovered it. Where those conditions are satisfied, liability may arise because the cargo was provided without proper warning or preparation.

Delays Arising without the Default of either Shipowners or Charterers

As a general rule, where delay is caused by independent third parties, natural causes, or other circumstances not attributable to the Default of either Shipowner or Charterer, the Shipowner will usually have no legal remedy unless the Charterparty provides otherwise. In such cases, the loss remains where it falls. This principle is especially important under Customary Laytime, where the question is whether the cargo operation was carried out within a Reasonable Time having regard to the actual circumstances.

Many delays encountered in port operations do not result from any breach by the Charterer, Shipper, Receiver, or Shipowner. They may arise from congestion, insufficient port equipment, shortage of lighters, labour disruption not caused by the parties, weather conditions, port authority decisions, tidal restrictions, or other external circumstances. Unless the contract reallocates the risk, those factors are normally considered when determining what was reasonable in the circumstances.

Congestion

Postlethwaite v. Freeland, discussed earlier, is a leading example of delay caused by congestion. The ship was delayed by a combination of heavy port congestion and an inadequate supply of lighters. Lord Blackburn commented:

“But if there had been either fewer ships waiting, or more lighters available, this ship would not have been kept so long. There was evidence that the number of ships was unusually great, owing to the fact that the railway material was then being discharged.”

Lord Blackburn later added:

“the point for which the ruling in Burmester v. Hodgson is in this case valuable—that in considering what is reasonable dispatch under the circumstances, the number of ships there, though unusually large, is one of the circumstances to be taken into account.”

The House of Lords unanimously held that the delay was not unreasonable. The consequence was that the loss rested with the Shipowner. The congestion, although serious, formed part of the actual circumstances that had to be considered in deciding whether discharge had taken place within a Reasonable Time.

Hulthen v. Stewart provides another example. Part of the delay occurred after the ship had entered the Docks, where congestion prevented her from obtaining a Berth promptly. The appeal to the House of Lords was dismissed. The Lord Chancellor, the Earl of Halsbury, stated:

“The master has shown all possible diligence, and this is an attempt to impose an unconditional term on the respondents (the Charterers) for which there is no foundation in the Charterparty.”

The result is that delay caused by congestion does not normally fall on the Charterer under a Customary Laytime Charterparty, unless the Charterparty expressly transfers that risk. This is true whether the congestion arises before the ship becomes an Arrived Ship or after arrival. If the delay occurs before arrival, it remains part of the approach or carrying voyage. If the delay occurs after arrival, it becomes one of the factual circumstances relevant to deciding what constitutes a Reasonable Time for loading or discharging.

The important distinction is that Customary Laytime does not impose a fixed deadline or an absolute guarantee against congestion. The Charterer must act with reasonable diligence, but the Charterer is not automatically liable merely because the port is crowded, lighters are insufficient, or the ship must wait her turn under ordinary port arrangements. If Shipowner and Charterer intend congestion to be for the Charterer’s account, the Charterparty must say so in clear language.

Strikes

The impact of a Strike on loading or discharging has been considered by the courts on several occasions. In Castlegate Steamship Co Ltd v. Dempsey and others, the evidence showed that, according to the Custom of the discharge port, the dock company normally performed the whole discharge operation. This included work that, in other circumstances, might have been divided between the Shipowners and the Charterers. When dock labourers went on Strike, discharge was delayed for four days.

In the Court of Appeal, Lord Esher MR explained the position in these terms:

“By reason of the very same cause, viz. the strike of the dock labourers, the share of the work for which the Shipowners would originally be responsible was prevented from being done, as well as the share of the work for which the Charterers would be responsible. It seems to be impossible, under these circumstances, in the case of a Charterparty which fixes no definite time, to say that the Charterers are to bear the whole burden of what happened.”

Lord Esher MR also indicated that a similar result might follow even where the Strike affected only the Charterers’ part of the cargo operation. That position is close to the facts considered in Pantland Hick v. Raymond & Reid.

By the time Pantland Hick v. Raymond & Reid reached the House of Lords, it had already been accepted that the Cesser Clause was effective, so that responsibility had shifted from the Charterers to the consignees. The consignees were therefore the parties responsible for discharging the cargo and would have been liable for delay caused by their own default. A Strike by dock labourers again delayed the operation. In that case, however, the Shipowner’s only remaining duty was to trim the cargo, and the crew was ready and able to perform that work despite the Strike.

It was therefore clear that the dock company was acting only as the agent of the consignees and not as the agent of the Shipowner. Even so, the consignees were not held liable for the delay. They could not obtain substitute labour, and they were not in a position to perform the discharge themselves. The delay was therefore treated as one arising from circumstances beyond their practical control, rather than from a failure to exercise reasonable diligence.

In both Castlegate Steamship Co Ltd v. Dempsey and Pantland Hick v. Raymond & Reid, the Strike involved employees of an independent third party. This raises an important question: would the answer be different if the striking workers were employed by the Charterers or by the consignees themselves? The better view is that the result should not necessarily change, provided the affected party can show that no alternative labour could reasonably have been obtained and that reasonable steps were taken to overcome the difficulty.

However, in Hick v. Raymond & Reid, Lord Ashbourne’s wording suggests that there may also be a further question: whether “the happening of the strike was entirely beyond and outside the control of either” party. If this simply means that the party affected by the Strike must make reasonable efforts to find replacement labour or alternative means of performance, the principle is clear and commercially workable.

If, however, the statement requires a court or Arbitrator to investigate the causes of the Strike and decide whether one side was responsible for provoking or failing to prevent it, the inquiry becomes much more difficult. The origin of industrial action may involve labour relations, wage disputes, working conditions, union decisions, political pressure, or local port practices. Determining whether a Charterer, consignee, or other cargo interest was legally at fault for the Strike may therefore be a complex and contentious exercise.

The general position under Customary Laytime is that a Strike will not automatically make the Charterer or consignee liable for delay. The question remains whether the party responsible for cargo operations acted with reasonable diligence in the circumstances. If the Strike prevents discharge or loading and no reasonable alternative is available, the resulting delay will usually be treated as part of the circumstances relevant to Reasonable Time rather than as a breach.

Actions of Port and Other Authorities

Where loading or discharging is delayed because port authorities, customs officials, harbour boards, dock authorities, or other bodies acting either De Facto or De Jure obstruct or suspend cargo operations, the Shipowner cannot normally shift the resulting loss to the Charterers unless the Charterparty expressly provides for that result.

This principle was applied in Ford and others v. Cotesworth and another. While the ship was discharging at Callao, news was received that a Spanish fleet was approaching. Because of the risk of bombardment, the local Customs authorities refused to allow further cargo to be unloaded into the Custom House until all goods already landed had been removed. The ship remained only partly discharged for seven days and was then ordered to leave the harbour for safety. She later returned and completed discharge.

The trial judge held that the Shipowner had no claim for the period during which the ship was absent from Callao. The full court went further and held that the Shipowner also could not recover for the period during which discharge was stopped by the orders of the Customs Authorities. The delay was caused by official action, not by any default of the Charterers.

A similar result was reached in Good & Co v. Isaacs. The ship was carrying oranges to Hamburg and arrived to find the usual fruit Berth occupied and the fruit warehouses full. Both the warehouses and the cranes needed for discharge were controlled by government officials, who refused to permit the ship to Berth for five days. The Court of Appeal rejected the Shipowner’s claim for damages. Kay LJ stated:

“I think the true result of the evidence is that there was no delay except what was occasioned by the custom of the port, and for this the Charterers are not responsible.”

The same approach was adopted in Weir & Co v. Richardson, where the delay was caused by the dock authority, the River Wear Commissioners. The rule applied even though the dock authority had been negligent in carrying out the discharge. The negligence of an independent port authority did not, without more, make the Charterers liable under a Customary Laytime arrangement.

These cases show that official or port authority action is normally treated as part of the factual environment in which Reasonable Time must be assessed. Unless the Charterparty transfers this risk to the Charterer, delay caused by customs restrictions, harbour orders, government control of berths or warehouses, dock authority decisions, or similar interventions will not automatically create a claim for Demurrage or Detention against the Charterer.

Delay Due to Other Third Parties

Delays caused by unrelated third parties are generally treated in the same way, provided the relevant cargo interests have not caused, contributed to, or failed reasonably to avoid the delay. Under Customary Laytime, the essential question is whether the cargo operation proceeded with reasonable diligence in the circumstances, not whether the ship was delayed by every external inconvenience encountered at the port.

In Lyle Shipping Co Ltd v. Corporation of Cardiff, the Charterparty required Customary Despatch (CD). According to the Custom of the Port, discharge was carried out into railway wagons. Wagons belonging to any railway company could be used, but in practice consignees usually contracted with one particular railway company to supply them. That company became overwhelmed with work and failed to provide enough wagons, causing discharge to proceed more slowly than expected.

Both Bigham J and the Court of Appeal held that the consignees were not liable for the resulting detention. The delay was caused by the failure of an outside railway company to provide enough wagons, not by any lack of reasonable diligence on the part of the consignees. The consignees had followed the ordinary commercial practice of the port and were not required to guarantee the uninterrupted performance of the third-party railway company.

Similarly, in Akties Glittre v. Gabriel, Wade & English, a shortage of labour at the loading port was treated as an excusable delay. The shortage was not caused by the Charterers or cargo interests, and it formed part of the circumstances affecting the port at the time. In the absence of clear contractual wording shifting the risk, the delay did not give the Shipowner a separate claim.

The broader principle is that delays caused by independent third parties, labour shortages, railway shortages, port authority decisions, customs restrictions, or other external factors will usually be considered part of the actual circumstances relevant to Reasonable Time. Cargo interests must act diligently and must not obstruct the operation, but they are not insurers against every difficulty caused by persons or bodies outside their control.

For Shipowners and Charterers, the practical lesson is that Customary Laytime allocates risk differently from Fixed Laytime. Under Fixed Laytime, delay often falls on the Charterer unless the contract contains an exception. Under Customary Laytime, delay caused by outside parties or natural causes may simply be part of the circumstances used to decide whether performance was reasonable. If the parties want Strikes, port authority action, labour shortages, wagon shortages, or other third-party delays to fall on one side specifically, the Charterparty should state that allocation clearly.

Weather and Other Natural Phenomena

The leading authority on the effect of weather and natural conditions under Customary Laytime is Carlton Steamship Co Ltd v. Castle Mail Packets Co Ltd, a House of Lords decision concerning insufficient water depth at the loading Berth during neap tides. The ship, Carlton, was ordered to load at Senhouse Dock, Maryport, on terms requiring her to remain ''Always Afloat (AA)'' and under Customary Laytime. Before reaching the port, the ship took bunkers, increasing her aft draught. After about one-fifth of the cargo had been loaded, it became clear that the remaining cargo could not be loaded before the onset of neap tides and that, at low-water neaps, the ship could not remain ''Always Afloat (AA)''. Carlton therefore left the port and, by agreement, returned during the next spring tide cycle, when loading was completed. The dispute concerned which party should bear the delay and additional expense.

The Shipowner argued that the ‘‘Always Afloat (AA)’’ requirement should be disregarded when deciding whether loading had been completed within a reasonable time. The House of Lords rejected that argument. Lord Herschell stated:

“It is admitted, my Lords, that the ship could not by any human being have been loaded, whatever the diligence employed, an hour sooner than she was loaded, if she was to be loaded Always Afloat (AA). Under these circumstances it seems to me impossible to hold that where the obligation has been performed as soon as it could, owing to the natural circumstances of the port, the person performing it has taken more than a reasonable time to do so.”

Lord Macnaghten expressed the same conclusion in practical terms:

“I cannot understand how it can be unreasonable when it is the period required by the character of the harbour, the laws of nature, and the regular recurrence of spring tides.”

The principle was later applied in Latus, Linsley & Co v. J H Douglas & Co and in Aktieselskabet Dampskibs Cleveland v. Horsley, Smith & Co Ltd, where ice obstructed loading. In both cases, ice was treated as part of the factual circumstances that had to be considered when deciding whether a reasonable loading period had been exceeded.

Although Carlton Steamship Co Ltd v. Castle Mail Packets Co Ltd concerned tides, and the later cases concerned ice, the reasoning is not limited to those specific natural phenomena. The principle is broad enough to include weather, tidal conditions, ice, swell, surf, seasonal water levels, or other natural events, provided that the natural condition is the real cause of the delay. Under Customary Laytime, the question is not whether the ship was delayed in the abstract, but whether loading or discharging was carried out within a reasonable time in the actual conditions that existed at the port.

Other Terms of the Charterparty

Other Express Terms in the Charterparty may also affect the assessment of what constitutes a reasonable time. In Carlton Steamship Co Ltd v. Castle Mail Packets Co Ltd, Lord Herschell made clear that the court cannot ignore contractual provisions that affect the time required for performance. Lord Herschell stated:

“Therefore it seems to me quite inadmissible to shut out any of the provisions of the Charterparty which would render the time in certain circumstances longer, when you are inquiring whether more than a reasonable time has been taken..”

Lord Herschell illustrated the point by referring to a clause restricting loading to daylight hours. If the parties have agreed such a limitation, it must be considered when deciding whether loading was completed within a reasonable time. It would be artificial to judge the Charterer’s performance as if night work were available when the Charterparty itself restricted the operation to daylight.

However, not every clause that appears to restrict or excuse performance will materially change the legal position. In Hulthen v. Stewart, the Court of Appeal held that a Strike Clause was redundant because the Consignees were already adequately protected by the general law governing Customary Laytime. In general, an Exclusion Clause that merely excuses delay caused by circumstances entirely outside the control of the party relying on it may add little or nothing to the protection already available under the ordinary principles of reasonable time.

By contrast, where a clause imposes obligations beyond the default position under the general law, that clause will be given effect. Maclay and others v. Spillers & Baker Ltd provides an important example. The Bill of Lading (B/L) required the Consignee to receive cargo “immediately the ship is ready to discharge and continuously at all such Hours as the Custom House Authorities may give permission for the ship to work, any custom of the port to the contrary notwithstanding”. The Court of Appeal held that this wording imposed an absolute obligation on the Consignee to receive the cargo continuously once the ship was ready to discharge, even if suitable labour or equipment was not available.

The distinction is therefore important. A clause that merely repeats what the law would already imply may have little practical effect. A clause that clearly increases the duty of the Charterer, Shipper, Receiver, or Consignee will be enforced according to its terms. Under Customary Laytime, the court must consider the entire contractual framework, including any express wording that modifies the ordinary test of reasonable diligence in the circumstances.

Where Customary Laytime is Exceeded

When Shipowner and Charterer agree that loading or discharging will proceed under Customary Laytime, they may still include a clause providing that Demurrage will become payable if the customary allowance is exceeded. At one time, it was suggested that the presence of a Demurrage Clause might indicate that the parties intended to Fix Laytime. That argument was firmly rejected in Castlegate Steamship Co v. Dempsey.

After dismissing the argument, Lord Esher MR explained:

“It has often been held that there cannot be Demurrage days in the proper sense of the term, unless there is a fixed number of preceding Lay Days. In this Charterparty there are no Lay Days properly so called; there is no fixed number of Lay Days. So we must construe the Charterparty as meaning that the Demurrage specified is to commence after the time when the cargo ought to be discharged as customary if all dispatch were used.”

The effect is that a Demurrage Clause can operate even where Laytime is customary rather than fixed, but the point at which Demurrage begins is determined differently. Under Fixed Laytime, Demurrage begins when the fixed Laytime allowance is exhausted. Under Customary Laytime with a Demurrage provision, Demurrage begins only after the time by which the cargo ought reasonably to have been loaded or discharged according to the applicable custom and with proper dispatch.

If the Charterparty contains no Demurrage provision, or if there is no express Laytime clause at all and Customary Laytime is Implied by Law, the Shipowner’s remedy for delay beyond the reasonable or customary period will not be Demurrage in the strict sense. Instead, the remedy will be a claim for Damages for Detention. This is because Demurrage is a contractual liquidated sum, while Detention is an unliquidated damages claim for loss caused by wrongful detention of the ship.

The commercial distinction matters. Demurrage gives the parties a pre-agreed daily rate and reduces uncertainty once liability arises. Detention requires proof of loss and may involve a more detailed assessment of the Shipowner’s actual damage. For that reason, where parties use Customary Laytime but wish to avoid uncertainty, they often include an express provision dealing with the financial consequences of delay beyond the customary or reasonable period.

Customary Quick Despatch (CQD)

The expression ''Customary Quick Despatch (CQD)'' adds the word "Quick" to the ordinary concept of ''Customary Despatch''. The addition is intended to create a more demanding commercial standard. It refers to the average rate of loading or discharge that would normally be expected at a particular Berth or port, assuming that work is not interrupted by bad weather, holidays, labour disruption, or other external causes.

At some ports, Customary Quick Despatch (CQD) has developed into a recognized operational standard. In practical terms, the phrase reflects an attempt to define what ‘‘As Fast As is Possible’’ means within the framework of ‘‘Customary Despatch’’. It moves the inquiry away from a purely open-ended assessment of reasonableness and toward the rate that is ordinarily achievable under normal working conditions at that port or Berth.

However, Customary Quick Despatch (CQD) does not convert the contract into a Fixed Laytime arrangement unless the wording clearly produces that result. As with ordinary Customary Despatch (CD), Charterers will usually be excused where the loss of time is caused by matters beyond their control, such as severe weather, port restrictions, official intervention, strikes, or other external events. In those circumstances, the lost time normally remains for the Shipowner’s account unless the Charterparty reallocates the risk.

Where a port or Berth has no established Customary Quick Despatch (CQD) Rate, the expression may add little in practical terms. In such cases, operating under Customary Quick Despatch (CQD) may be treated much like operating under ordinary Customary Despatch (CD). The court or Arbitrator will still examine the actual circumstances, the relevant port practice, the available facilities, the cargo, the ship, and the conduct of the parties to decide whether loading or discharging was performed with the required degree of diligence.

The practical lesson is that Customary Quick Despatch (CQD) should not be used casually. If the parties intend a measurable rate, they should state that rate expressly. If they intend the cargo operation to follow a recognized local CQD standard, they should ensure that such a standard actually exists and can be proved. Otherwise, the phrase may lead to uncertainty and dispute, especially where the port practice is variable, weather-sensitive, or dependent on equipment, labour, and berth availability.