Express Exceptions To Laytime

Express exceptions to laytime commonly include the following :

General: Where certain specified days (eg Sundays or holidays) are said to be excepted then the running of laytime is suspended for the duration of such days. The fact that, in the port in question, the excepted day is not a day of rest or, despite being a day of rest is a day on which work is in fact carried out, will not result in laytime running during that period. Generally, therefore, if work is done in an excepted period and the parties want that time to count, the words ‘unless used’ are added to the exception. One effect of this additional wording is that if any time is used on a day which would otherwise be excepted, the entire day will count as a non-excepted day, during which laytime continues to run. If the words are not added then the parties must have reached some subsequent agreement (amounting to a variation of the charterparty) if the time used is in fact to count as laytime. Specified Days: Where specified days are stated to be excepted, that will not imply that holidays are also excepted. Equally, merely excluding holidays will not necessarily ensure that Sundays are excepted in Christian countries and Fridays in Islamic countries, for example. Saturdays. Another day which causes controversy is Saturday. It clearly does not qualify as a holiday but is not, for many people, an ordinary working day either. In general, it must be treated for laytime purposes like any other working day unless there is an express exclusion in the charterparty or unless it can be shown to fall within the definition of holiday. The mere fact that overtime is payable on Saturdays will not necessarily prevent Saturday being a working day rather than a holiday. Finally, it has been held that local laws and local customs having the effect of preventing working on Saturdays or Saturday afternoons also do not bring Saturdays within the definition of holiday. Holidays: The principles applying to exceptions for holidays are the same as those described above. However, there is greater scope for a dispute as to whether a particular day is actually a holiday in the port in question. It is a question of fact which will be determined according to the law, practice and custom applicable in that port and all three of those factors have to be considered. Establishing whether a particular day is a holiday may, for political reasons in different ports, be harder than it sounds. One case on the point relates to the loading of a cargo at Leningrad at Christmas time in 1929. The charterer contended that Christmas Day, the following day and New Year’s Day were all holidays and that time should not run. At the time, traditional religious festivals and feasts were still observed in the Soviet Union and it appeared that the work which was done in the port of Leningrad on those days was paid at double rates. On the other hand, the Soviet government attempted in the middle of 1929 to introduce an uninterrupted or continuous working week which involved the abolition of pre-existing holidays. After weighing up all the evidence, the judge found that the days were holidays. Local Holidays:  Some charterparties actually make a specific exception for ‘local holidays’. This has the advantage of making the position clearer although a reference merely to ‘holidays’ does not necessarily mean national holidays only. Finally, it is to be noted that one of the factors which will affect whether a holiday is considered to be a holiday for the purposes of calculation of laytime will be whether workers in the relevant port are prepared to work on the day in question for ordinary wages. It is less likely that something will be identified as a ‘non-working holiday’ if it is possible to get work done without paying extra for it. ‘Weather Permitting’ Bad weather is a fact of life and it can affect both the ship and the cargo during loading and discharging operations. For example, many dry cargoes (eg grain) cannot be loaded or discharged in the rain and the charterers will require operations to be stopped when this happens. Without an express provision in the charterparty dealing with this, laytime will continue to run which means the charterer is responsible for the delay. As it is generally acceptable that charterers are not responsible for the weather (but, of course, neither are owners) it is common to exclude periods of rain or other bad weather. This is done by including the words ‘weather permitting’ in the definition of laytime. Example: Clause 6 of the Gencon 94 charterparty states “the cargo shall be loaded within the number of running hours as indicated in box 16, weather permitting … ” This is an express exception to laytime if the weather does not permit loading. For example, grain cannot be loaded in the rain and, therefore, laytime does not run. But, if other cargoes can be loaded in the rain, then laytime will continue to run because the weather is “permitting” that cargo to be loaded.