Fixed Laytime
Where the Charterparty provides that the Charterer must complete loading or discharging within a specified period, the Charterer’s obligation is treated as “an absolute and binding commitment.†If that commitment is not fulfilled, the Charterer is responsible for the consequences, even where the delay has been caused by obstacles outside the Charterer’s control, provided the delay keeps the ship in the Charterer’s service beyond the agreed time.The same principle was stated clearly by Lord Hunter, the Lord Ordinary, in the Scottish decision of William Alexander & Sons v. Aktieselskabet Dampskabet Hansa and others:
“It is firmly established that when a Merchant has undertaken to unload a ship within a certain number of days, he is obligated to pay Demurrage for any delay of the ship after that time unless the delay stems from fault on the part of the Shipowner or those answerable to the Shipowner. The risk of delay from reasons for which neither party is to blame falls upon the Merchant.â€
The parties to the contract, namely the Shipowner and Charterer, are of course free to agree that certain periods, events, or causes of delay will not count against the Charterer. This can be achieved through the Laytime wording itself, for example by using Weather Working Days (WWD), which excludes time lost through weather conditions that prevent cargo operations. The same result may also be achieved by inserting an Additional Clause that expressly removes particular periods from the Laytime calculation.
The commercial advantage of Fixed Laytime for the Shipowner is that the Shipowner can estimate in advance how long the ship is likely to remain committed to cargo operations, assuming no Exceptions apply. If Exceptions are included, the Shipowner can still evaluate the possible impact of those Exceptions and assess which risks remain for the Shipowner’s Account and which risks fall to the Charterer’s Account. Fixed Laytime therefore gives the parties a clearer financial and operational framework than a purely customary arrangement.
Fixed Laytime may be expressed in several different ways. It may be stated directly as a number of days or hours, or it may be linked to a cargo-handling rate. Where Laytime is expressed by reference to a rate of loading or discharging, the allowable time becomes calculable once the cargo quantity is known. Even in that form, however, the clause still contains a time element, and the general principles of Laytime continue to apply. At the same time, rate-based Laytime also gives rise to particular rules that must be considered separately.
Calendar Days
With the increasing use of steamships during the second half of the nineteenth century, the law began to develop more precise rules for calculating time allowed for cargo operations. The commercial value of time to a steamship owner was emphasized by Mathew LJ in Yeoman v. Rex, where Mathew LJ stated:“At 9 o’clock on Saturday morning the Lay Days were finished, or rather the Lay Hours since in this charter, as is usual with steamships, time is measured by Hours and not by days.â€
During the sailing ship period and the early steamship era, Charterparties commonly allowed a fixed number of Lay Days but did not always identify exactly when Laytime would begin after the ship’s arrival. This omission caused little difficulty because commercial practice generally treated Laytime as beginning on the day after arrival, unless the Merchant chose to start loading or discharging earlier. The Lay Days then ran as calendar days, from midnight to midnight, one after another. Any part of a day was counted as a whole day, so there was usually no need for a pro-rata calculation in the Demurrage Clause, because Demurrage would normally be assessed in complete days.
Lord Devlin explained the historical position in Reardon Smith Line Ltd v. Ministry of Agriculture in the following terms:
“Originally, a day meant a calendar day—a Monday, a Tuesday, or a Wednesday. Work would start, we may assume, in the morning and finish in the evening, the number of Hours varying by port and by trade. But whatever the hours worked, once Monday ended, one Lay Day had passed, and at Tuesday’s close another; and if operations extended into Wednesday, that counted as an entire day because of the rule that part of a day was treated as a whole. Thus the Charterer had no duty to use a partial day. If Notice of Readiness (NOR) was tendered during the day, the Charterer could wait until the next day so that operations could start with a full day.â€
The effect of these rules can be seen in Commercial Steamship Co v. Boulton. In that case, all Lay Days at the loading port had already been used. The ship then reached the discharge dock at 05:00 on a Tuesday. Discharge began at 08:00 on Wednesday and was completed at 08:00 on Thursday. The court held that the Charterers were liable for two full days of Demurrage, because the fractional use of time was treated according to the ordinary rule that part of a day counted as a whole day.
The same approach to fractions of time also applies when Laytime is calculated by reference to a cargo-handling rate. In Houlder v. Weir, the Charterers were entitled, on the figures, to 29 days and part of an additional day for discharging the cargo. The court held that, in the absence of contrary wording, the Charterers were entitled to a full 30 days. This reflects the traditional rule that where the calculation produces a fraction of a day, the Charterer receives the benefit of the complete day unless the contract provides otherwise.
Although Lay Days normally run one after another, their continuous running may be interrupted if Sundays and Holidays are excluded. Such exclusion must arise from an Express Provision in the Charterparty or from an established and applicable local custom. Without such wording or custom, Lay Days will generally continue to count consecutively.
Lord Esher MR explained the ordinary method of computing Lay Days in Nielsen v. Wait, observing:
“They must begin from the instant the ship is at her Berth in the customary place of delivery, where she is capable of discharging. They must start then, and—unless the contrary is shown—they are to be tallied successively. That does not follow because the words expressly state so, but because it is implied as the mutual understanding of the parties, that from the moment the ship commences unloading, the counting proceeds every successive day, and neither party may take a holiday at will without consent from the other.â€
The possibility that local custom may affect the meaning of Lay Days was illustrated in Cochran v. Retberg. In that case, the court held that the word “days†in a Bill of Lading (B/L) relating to the carriage of goods from the River Elbe to London meant “working days†according to the custom of the port of London. The result was that Sundays and Customs House holidays were excluded from the calculation.
Conventional Days
A Conventional Day differs from a Calendar Day. Instead of running from midnight to midnight, a Conventional Day is a period of 24 Hours beginning from the expiry of the Notice of Readiness (NOR) period or from another contractually agreed starting point. Where Shipowner and Charterer provide that Laytime is to begin at a particular hour, the traditional rules about split calendar days are displaced.This point was considered at first instance in a judgment of Bingham J, later upheld on appeal. Bingham J stated:
“If the clause had concluded with the words ‘Cargo to be loaded at the rate of 200 tons per Running Day, Sundays and holidays excepted,’ I would have taken it to mean cargo was to be handled at 200 tons per calendar day—that is, a day measured midnight to midnight. However, the clause continues: ‘Time for loading shall commence to count 12 Hours after written notice has been given by the Ship Master on working days between 9 a.m. and 6 p.m. to the Charterers or their Agents that the ship is in readiness to receive cargo.’ In my judgment, this modifies the interpretation otherwise applied, causing the Laytime to begin at some hour within the twenty-four, calculated with reference to the notice issued by the Captain.â€
Where Sundays and Holidays are Excepted, any period falling within those excluded days must be deducted from the Conventional Days affected by the exclusion. This means that a Conventional Day may be split by excepted time, and the final Laytime calculation must account for the excluded period precisely.
A further question is whether the traditional rule that part of a day counts as a whole day applies to Conventional Days in the same way as it applies to Calendar Days. The issue is important because Conventional Days are artificial periods of 24 hours rather than named calendar days beginning and ending at midnight.
In Reardon Smith Line Ltd v. Ministry of Agriculture, Lord Devlin considered this issue and explained the position as follows:
“In Verren v. Anglo-Dutch Brick (1927) Ltd (1929) 34 Ll L Rep 56, at p. 58, Mr Justice Roche decided that it did not. In the Court of Appeal (1929) 34 Ll L Rep 210, at p. 213, Lord Justice Scrutton left the matter unresolved. Nevertheless, it has become the usual practice, as your Lordships were informed, to treat part of an artificial day as a proportional fraction.â€
The modern practical approach is therefore to treat part of a Conventional Day proportionally, unless the Charterparty clearly provides for a different result. This reflects the commercial nature of Conventional Days. Because they are measured by exact 24-hour periods starting from a contractual trigger, it is more consistent and commercially accurate to calculate fractions of such periods on a pro-rata basis rather than automatically treating every part of a Conventional Day as a whole day.
Running Days
The expression Running Days developed toward the close of the nineteenth century as commercial parties sought to distinguish ordinary “Days†from “Working Days.†The purpose of the phrase was to remove uncertainty about whether time should count continuously or only during periods when cargo work was normally carried out at the port.The leading authority on the meaning of Running Days is Nielsen v. Wait, particularly the judgment of Lord Esher MR. Lord Esher MR explained the distinction in the following terms:
“ ‘Days’ include every day. If the word ‘days’ is inserted into the Charterparty—so many days for loading and unloading—and nothing else, that encompasses Sundays and Holidays. ‘Working Days’ are separate from ‘Days.’ Yet, I assume, and take it, that another dispute might arise regarding what ‘Days’ would signify. If ‘Days’ are written in, it almost guarantees debate about how long a day is, during which the Charterer must be ready to take delivery or the Shipowner must deliver, since the length of a day may vary depending on port customs. In some countries, for all I know, the local custom might allow work only four Hours a day, and if ‘Days’ are included in the Charterparty, disputes might arise—although I would not say such an argument would hold under English law—whether the day meant more than four Hours. Merchants and Shipowners therefore created this maritime expression that avoids ambiguity. They coined the phrase ‘Running Days.’ Its meaning is evident. What is the run of the ship? How many days does it take a ship to travel from the West Indies to England? That is the running of the ship. The run of a ship is a well-recognized expression.â€
Lord Esher MR later clarified the commercial meaning of the expression by stating: “‘Running Days’ thus mean the entirety of each day when a ship is operating. And what does that signify? It signifies every day, without interruption, day and night. It could not be clearer. These are the days during which, if the ship were sailing, she would be in motion. That includes all days.â€
The effect of this reasoning is that Running Days count continuously. They include ordinary weekdays, Sundays, Holidays, daytime, nighttime, and periods outside normal port working hours, unless the Charterparty or an applicable custom provides otherwise. The phrase was therefore designed to create certainty. If the parties agree a number of Running Days, the starting assumption is that time runs without interruption from one day into the next.
However, Lord Esher MR also recognized that the consecutive running of days could be interrupted. This may occur where there is an Express Provision in the Charterparty excluding certain periods, or where a binding Custom at the relevant port establishes that particular days are not to count. The expression Running Days therefore creates a strong presumption of continuous time, but that presumption can be displaced by clear contractual wording or proven local usage.
The Voylayrules 1993 define the expression in concise terms: “Running Days or Consecutive Days refer to days that succeed one another without interruption.†This definition reflects the central idea that Running Days are sequential days counted one after another, rather than days selected only from those on which work is normally performed.
Some Charterparties use the related expression Running Hours. Where this wording is adopted, time counts continuously by the hour, around the clock, both during and outside ordinary working periods, unless a specific exclusion applies. Running Hours clauses are particularly common in tanker and oil trades, where time calculation is often linked with detailed Exclusion Clauses, pumping warranties, cargo heating obligations, hose connection or disconnection provisions, and other performance Warranties concerning the efficiency of the ship.
A clear example of an Express Provision interrupting Running Days appears in Burnett Steamship Co Ltd v. Joint Danube & Black Sea Shipping Agencies. In that case, the Laytime Clause provided for loading at a specified rate per Running Day, but also stated that Sundays and non-working Holidays were Excepted. The clause therefore preserved the general idea of continuous counting while expressly removing certain periods from the calculation.
Working Days
A Working Day (WD) is a day in the ordinary sense of a period comprising Twenty-Four Hours (24 HRS), but it is used in Laytime Clauses to identify days at the relevant port when work is normally expected to be carried out. The phrase has a long history and predates the more developed expression Weather Working Day (WWD), which adds a weather-related qualification to the basic concept of a Working Day.In its earlier use, Working Day (WD) was commonly employed to Exclude Sundays and Holidays. In Cochran v. Retberg, Lord Eldon held, in relation to the practice of the Port of London, that “the fourteen days stated in the Bill of Lading (B/L) must be interpreted as Working Days (WD), meaning a construction that Excludes Sundays and Holidays.†The decision illustrates how the term Working Days (WD) may take its meaning from the working habits and commercial practice of the particular port.
The local character of Working Days (WD) was explained in greater detail by Lord Esher MR in Nielsen v. Wait. Lord Esher MR observed: “but Working Days (WD) in England are not identical to Working Days (WD) in foreign ports, because in England, according to English custom and habits, if not law, Sundays are excluded. At a foreign port, Working Days (WD) may also exclude Saints’ Days. Where the custom or rule of the foreign port dictates that no work is to be carried out on Saints’ Days, then Working Days (WD) exclude those days. If, under the custom of the port, particular days are Holidays, meaning no work is performed on those days, then Working Days (WD) do not include them. In an English Charterparty, if there is no indication to the contrary, Working Days (WD) also exclude Christmas Day and other commonly recognized Holidays. Consequently, ‘Working Days (WD)’ signifies days at the port when, by custom, work is performed in loading or unloading ships, and does not include Sundays.â€
This passage shows that the meaning of Working Days (WD) is not determined by a universal calendar. It depends on the port, the trade, local practice, and the days on which cargo work is ordinarily performed. A day may be a Working Day (WD) in one port but not in another. Religious practice, local law, public holidays, port regulations, and established commercial custom may all affect whether a particular day counts.
In Nelson & Sons Ltd v. Nelson Line (Liverpool) Ltd (No 3), Channell J stated that where a Charterparty refers to “Working Days (WDs),†there is generally no need to add separate wording excluding Sundays and Holidays, since those days are already excluded by the nature of the phrase. The same reasoning also extends to the local equivalent of Sunday in non-Christian jurisdictions. For that reason, in Reardon Smith Line Ltd v. Ministry of Agriculture, Lord Devlin observed: “But there may, of course, be days in some ports, such as the Mohammedan Friday, which are not Working Days (WD) and yet cannot properly be classified as Sundays or Holidays.â€
Lord Devlin approved a broader formulation given by Hamilton J in British and Mexican Shipping Co Ltd v. Lockett Brothers & Co Ltd, where Hamilton J stated: “‘Working Days (WD)’ in this Charterparty signifies something distinct from days which are not Working Days (WD), a day of work in contrast to days of leisure or rest; and it is irrelevant whether such leisure or rest is due to religious or secular reasons, whether prescribed historically by the Church or contemporaneously by the state.â€
Although the Court of Appeal later reversed the decision on other grounds, counsel for the Plaintiffs summarized the first-instance conclusion by saying that the judge had decided “that a Working Day (WD) included every day except days designated for prayer or play.†The expression captures the broad idea that Working Days (WD) are contrasted with days of rest, observance, or holiday, regardless of whether the reason for non-work is religious, social, legal, or customary.
There was, however, another line of judicial reasoning that gave the phrase Working Days (WD) an even narrower meaning. According to this approach, “Working Days (WD)†not only distinguished working days from non-working days, but also reduced the meaning of a day from a full Twenty-Four Hours (24 HRS) to the actual part of the day during which work was normally performed. Under this view, the word “working†did more than identify which days counted; it also limited the number of hours within each counted day.
This reasoning reached its most developed form in Alvion Steamship Corporation Panama v. Galban Lobo Trading Co SA of Havana, commonly known as The Rubystone. In that case, the Court of Appeal considered the meaning of Working Day (WD), and the leading judgment was given by Lord Goddard, then Lord Chief Justice. Lord Goddard stated: “I venture to think that if you asked a workman or an employer: ‘What is your Working Day (WD)? How many Hours does it last?’, they would not reply: ‘Twenty-Four Hours.’ That cannot be a Working Day (WD); one spends much of those Hours asleep. To equate a Working Day (WD) with Twenty-Four Hours (24 HRS) entirely disregards the fact that the word ‘working’ qualifies the word ‘day’ and restricts its scope.â€
The significance of The Rubystone lies in its emphasis on the working portion of the day rather than the whole calendar period. This approach can materially affect Laytime calculations, especially in ports where cargo operations are normally carried out only during limited shifts or prescribed working hours. It also demonstrates why clear drafting is essential. If Shipowner and Charterer intend Laytime to count for full 24-hour periods, for ordinary port working days only, for actual working hours, or for weather-permitting working time, the Charterparty should state that intention with precision.
The distinction between Running Days and Working Days (WD) is therefore fundamental. Running Days normally count continuously, without regard to whether work is actually performed. Working Days (WD), by contrast, are tied to the working practice of the relevant port and may exclude Sundays, Holidays, religious rest days, local non-working days, or even, in some interpretations, hours outside ordinary working time. The selection of one expression rather than another can shift substantial delay risk between the Shipowner and Charterer, particularly where berth congestion, limited port shifts, local holidays, or restricted working customs affect the speed of cargo operations.
In The Rubystone, the Charterparty provided that the cargo was to be loaded at a fixed rate per Weather Working Day (WWD), while the ordinary Working Day (WD) was stated to consist of eight Hours (8 HRS). The Court of Appeal affirmed the decision of McNair J and held that the expression “Working Day (WD)†should not be interpreted by reference to a full Calendar Day of 24 Hours. Instead, the Court of Appeal treated the expression as referring to the Normal Working Hours of the day.
Support for that interpretation was said to be found in the observations of Lord Esher MR in Nielsen v. Wait, where Lord Esher MR stated: “Now ‘Working Days (WD)’ if that term is used in the Charterparty, will vary in different ports; ‘Working Days (WD)’ in the Port of London are not the same as Working Days (WD) in some other ports, even in England.†The argument was that if Working Days (WD) vary from port to port, the expression must be linked not merely to the calendar character of the day but also to the working practice of the port.
Lord Goddard also referred to the Scottish decision in Mein v. Ottman in support of this approach. However, Lord Devlin later examined this reasoning in Reardon Smith Line Ltd v. Ministry of Agriculture and treated it with caution. Lord Devlin observed: “In the Scottish case of Mein v. Ottman, it was held that a Working Day (WD) was a day of 12 Hours, but it does not appear how the figure was calculated. This is the only case cited before The Rubystone in which ‘Working Day (WD)’, unless qualified in some way in the Charterparty, has been held to mean a number of Working Hours. Mr Justice Hamilton, in his judgment in British and Mexican Shipping Co Ltd v. Lockett Brothers & Co Ltd, contrasts a Working Day (WD) ‘as a term of Hours’ and a Working Day (WD) ‘in its ordinary English sense’. But no authority before Mein v. Ottman and The Rubystone has been cited for the idea that the term ‘Working Day (WD)’ by itself signifies a number of working Hours; Lord Goddard treats it as obvious.â€
The House of Lords in Reardon Smith Line Ltd v. Ministry of Agriculture decisively rejected the reasoning that had treated a Working Day (WD) as limited to the portion of the day spent in working. Viscount Radcliffe expressed the point directly: “I regard the decision of the Court of Appeal in (The Rubystone) as misconceived in so far as it treats a Working Day (WD) as a period of Hours shorter than a Calendar Day or ties the notion of Working Day (WD) to the individual employee’s Hours of work at standard or basic pay rates.â€
Lord Devlin developed the same reasoning further. Lord Devlin stated: “The truth is that the rights and obligations of the Charterer as to the Hours in which he can load or discharge have nothing to do with the computation of the Lay Days,†and then summarized the principle in the following terms: “First, I conclude with respect that it is contrary to all authority before 1955 to say that a Working Day (WD) is a Calendar Day reduced in length. ‘Working’ does not indicate a fraction of a day but describes the character of the day as a whole. Secondly, I conclude that the character of a day as a Working Day (WD) cannot be defined by asking whether work was carried out on that day, or part of it, at standard rates. There is no prior authority for this interpretation, which I believe arises from the mistaken notion that the ‘Working Day (WD)’ of the Laytime Clause has something to do with the Hours of the day during which the ship may be required to work.â€
On this basis, the House of Lords held that Saturday in Vancouver was a Working Day (WD) for the full day. The decision confirmed an important distinction. Whether a day is a Working Day (WD) is normally determined by the character of that day at the port generally, not by the number of hours actually worked by a particular ship, the working schedule of a specific gang, or the wage arrangements applying to individual employees. In other words, the day is assessed as a whole.
The practical result is that a Working Day (WD) should not ordinarily be reduced into a smaller unit merely because cargo operations are limited to certain shifts or because port labour works only during specified hours. Unless the Charterparty clearly provides otherwise, the expression Working Day (WD) identifies the type of day that counts for Laytime purposes, rather than the number of working hours available within that day. This distinction is commercially important because the opposite interpretation could greatly reduce Laytime and create uncertainty in every port where labour hours, shifts, overtime practices, or local working customs differ.
Before leaving the subject of Working Days (WD), two related expressions should be noted:
1- Running Working Days (RWD)
2- Colliery Working Days (CWD)
The phrase ‘‘Running Working Days (RWD)’’ appeared in the Gencon Charterparty until 1976. The expression created difficulty because the ordinary meanings of “running†and “working†point in different directions. “Running†suggests time that continues without interruption and includes Sundays and Holidays. “Working,†by contrast, normally excludes non-working days such as Sundays, Holidays, and other locally recognized rest days. As a result, the two words were not easy to reconcile when applied to Lay Days.
To give the phrase a workable meaning, the word “Running†had to be treated as having little or no operative effect, so that Laytime was calculated by reference to Working Days (WD). This was not an ideal drafting solution, because it required one part of the expression to be substantially disregarded in order to avoid contradiction. The problem demonstrates the importance of precision in Laytime terminology, where a single word can materially affect the allocation of delay risk between Shipowner and Charterer.
After 1976, the Gencon Charterparty Form moved away from this inconsistent wording and expressed Laytime in terms of Running Hours. This change avoided the tension between “running†and “working†by shifting the calculation to continuous hourly time. The 1994 revision of the Gencon Charterparty Form later used the wording Running Days/Hours, with the apparent intention that the word “Running†should apply to both “Days†and “Hours.â€
The second variation is the ‘‘Colliery Working Day (CWD)’’. This expression, together with the related concept of the colliery guarantee, developed in Coal Charterparties before the nationalisation of the coal industry. Many of the reported cases concerning this terminology came from the final decade of the nineteenth century, and several were connected with the 1898 general strike in the South Wales coalfield.
The usual commercial structure involved a Charterer who had contracted with a particular Colliery for the supply of coal to a named ship. The Colliery Guarantee was important because the Charterer wanted the obligations owed by the Colliery to be reflected in the Charterparty. In Monsen v. Macfarlane, McCrindell & Co, Smith LJ described the commercial function of the Colliery Guarantee in these words: “It is a document which the Charterer who takes coal from a Colliery wherewith to load a ship is anxious to have incorporated into the Charterparty so that as regards the time to be occupied in loading the ship he may be under no more obligation to the Shipowner than the colliery is under obligation to him.â€
As that case shows, the Charterparty could be concluded before the Colliery Guarantee was issued, with the guarantee being incorporated into the contractual arrangement later. These guarantees were commonly based on standardized wording, reflecting the regular nature of coal shipments and the repeated use of similar commercial terms in the coal trade.
Under the Colliery Guarantee, and therefore under the Charterparty where the guarantee was incorporated, loading was required to take place within a specified number of Colliery Working Days (CWD). A Colliery Working Day (CWD) meant a day that would ordinarily be treated as a normal working day for the Colliery under ordinary conditions. Sundays and Holidays were excluded, as were local observances such as Mabon’s Day in South Wales, where those days were recognized as non-working days in the coalfield.
However, a day on which the Colliery would normally have worked did not cease to be a Colliery Working Day (CWD) merely because work was stopped by a strike. In that situation, the day retained its ordinary character as a working day, even though no coal was actually supplied. This distinction was commercially important because it determined whether the delay risk caused by industrial action remained with the Charterer or was excluded from the Laytime calculation.
The broader lesson from Running Working Days (RWD) and Colliery Working Days (CWD) is that Laytime terminology cannot be understood in isolation from the trade in which it is used. Running Working Days (RWD) exposed the difficulty caused by combining inconsistent expressions, while Colliery Working Days (CWD) reflected the special working practices of the coal trade and the relationship between the Charterer and the Colliery. In both cases, the wording affected the central commercial question in Laytime law: which party bears the risk when the ship is delayed?
Weather Working Days (WWD)
A Weather Working Day (WWD) is a particular type of Working Day (WD). It refers to a Working Day (WD) during which the prevailing conditions of weather allow the intended ship to load or discharge the relevant cargo at the place or position agreed by the Shipowner and Charterer for that operation. The test is concerned with whether the weather permits the cargo work to be performed. If the ship has not yet reached the Berth and is still in queue for her turn to Berth, the day still qualifies as a Weather Working Days (WWD) if the weather at the Berth to which she is destined would have allowed the relevant cargo operations to take place. It is not necessary that loading or discharging was actually scheduled for that day.Where adverse weather only partially interrupts work, the day does not automatically lose its character as a Weather Working Day (WWD). Instead, the affected portion of time is deducted from the Laytime calculation. This can produce different results for different ships at the same port. Two ships lying at adjacent Berths may be treated differently for Laytime purposes if the weather prevents the handling of one cargo but does not interfere with the handling of another. The question is always whether the weather affected the cargo operations relevant to the particular ship and cargo under the Charterparty.
The Charterparty Laytime Definitions 1980 define the expression in the following way:
“Weather Working Days (WWD) means a Working Day (WD) or part of a Working Day (WD) during which it is or, if the ship is still waiting for her turn, it would be possible to load/discharge the cargo without interference due to the weather. If such interference occurs (or would have occurred if work had been in progress), there shall be Excluded from the Laytime a period calculated by reference to the ratio which the duration of the interference bears to the time which would have or could have been worked but for the interference.â€
Under English law, unlike American law, it is not necessary to prove that the weather actually caused the failure to load or discharge. The expression operates by describing the character of the day, or part of the day, rather than by creating an exception that requires proof of causation. In that sense, the weather reference is descriptive. If the weather would have prevented the relevant work, the time is excluded, even if no work had in fact been planned or attempted during that period.
The phrase Weather Working Days (WWD) appears to have entered Charterparty usage in the late nineteenth century. At that time, delays under a Fixed Laytime Voyage Charter generally fell on the Charterer unless the contract provided otherwise. In Thiis v. Byers, the Charterer attempted to avoid liability for Demurrage where discharge had been delayed by Bad Weather, arguing that the Ship Master was not ready to deliver. The argument failed. Lush J, delivering the judgment for Blackburn and Lush JJ, stated:
“We took time to look into the authorities, and are of the opinion that, where a given number of days is allowed to the Charterer for unloading, a contract is implied on his part that, from the time when the ship is at the usual place of discharge, he will take the risk of any ordinary vicissitudes which may occur to prevent him releasing the ship at the expiration of the Lay Days.â€
Lush J also emphasized the practical value of this rule, adding: “The obvious convenience of such a rule in preventing disputes about the state of the weather on particular days, or particular fractions of days, and the time thereby lost to the Charterer in the course of discharge, makes it highly expedient that this construction should be adhered to, whatever may be the form of words used in the particular Charterparty.â€
Despite that strict approach, the courts later had to consider Charterparty wording that expressly referred to Weather Working Days (WWD). When the phrase first came before the courts, counsel noted that it had not previously received a judicial definition. Lord Russell of Killowen CJ, who presided, did not consider it necessary to provide a final definition at that stage. Many years later, Pearson J in Compania Naviera Azuero SA v. British Oil & Cake Mills Ltd and others observed: “As there is no decisive authority, I must consider and decide the question as best I can, and the question is: What is the proper meaning of the expression ‘‘Weather Working Days (WWD)?â€
In Nelson & Sons Ltd v. Nelson Line (Liverpool) Ltd (No 3), Channell J described the expression in simple commercial terms: “the words used are ‘‘Seven Weather Working Days (WWD)’’ which practically means seven fine days.†However, Channell J also noted that it might be argued that seven Weather Working Days (WWD) could include a fine Sunday, which explained why the draftsman in that case had expressly Excepted Sundays and Holidays. The point was not finally resolved in that case by Channell J, the Court of Appeal, or the House of Lords. As a general proposition, however, Sunday is not normally treated as a Working Day (WD).
The question of whether a Custom of the Port could alter the meaning of Weather Working Days (WWD) arose in Bennetts & Co v. J & A Brown, decided by Walton J. The Charterparty provided for discharge at “one or two good Safe Ports (SP) between Valparaiso and Pisagua†at a stated rate per Weather Working Days (WWD). The Charterers nominated Valparaiso, where discharge was carried out from an anchorage into lighters, which then delivered the cargo either to other ships or to the beach. Evidence was given that, according to a Custom of the Port, the Port Captain could declare certain days to be surf days when beach discharge was unsafe, and such days were treated locally as not being Weather Working Days (WWD). On those surf days, discharge into lighters continued, but lighters due to discharge on the beach could not do so.
Walton J held that the Charterers could not rely on that Custom of the Port to change the ordinary and natural meaning of the words “Weather Working Days (WWD)†under the Charterparty. The local custom could not be used to rewrite the Laytime expression itself. However, the Charterers were still able to rely on a separate Exception dealing with detention caused by surf as an explanation for the delay.
Walton J explained the meaning of “Weather Working Days (WWD)†in the following terms:
“I think it has a natural meaning—namely, a day on which the work, whether it be loading or, as in this case, discharging, is not hindered by Bad Weather. It may cover half a day as well. Part of the day may not qualify as a Weather Working Day (WWD) while the remainder may count as one, but that, in my opinion, represents the plain meaning of the expression.â€
A different approach to the potential effect of custom was taken by the Court of Appeal in British and Mexican Shipping Co v. Lockett Brothers, a case concerning Iquique. That claim involved discharge under a Charterparty that provided for a rate per Working Day (WD), not per Weather Working Day (WWD), and specifically concerned the port of Iquique. At first instance, Hamilton J followed the reasoning of Walton J and held that the Custom could not be relied upon as a defence. The Court of Appeal, however, dealing with a preliminary issue of law, rejected the Plaintiffs’ argument that such a Custom could never be relied upon as a defence to a Demurrage claim. The Court of Appeal limited its decision to the legal point before it and indicated that, where Shipowner and Charterer intend a Laytime term to bear a special meaning in the Charterparty, there is no rule of law preventing them from doing so.
Another important judicial view of Weather Working Days (WWD) was expressed by Lord Goddard CJ in Alvion Steamship Corporation Panama v. Galban Lobo Trading Co SA of Havana. Although that case is no longer authoritative on the length of a Working Day (WD) or the precise method for calculating weather interruptions, Lord Goddard CJ’s explanation remains useful. Lord Goddard CJ stated:
“There does not appear to be disagreement between Shipowner and Charterer as to the sense of ‘Weather.’ It signifies that from the Working Day (WD), of whatever duration, must be deducted the periods when labourers are stood off, or loading is suspended, due to rain or other weather conditions. For instance, a hurricane or similar occurrence might prevent work; in essence, it means that the Working Day (WD) is reduced by the time lost owing to the weather.â€
This subject was later examined in detail by Pearson J in Compania Naviera Azuero SA v. British Oil & Cake Mills Ltd. In that case, rain occurred during the discharge period, but the rain did not actually delay discharge because no cargo operations were being carried out at the relevant time. Pearson J reviewed the earlier authorities and considered whether the weather wording should be treated as an exceptive provision requiring a causal link with actual delay, or instead as a descriptive provision identifying the character of the day. Pearson J then formulated the following definition:
“In my opinion, the accurate definition of a ‘Weather Working Day (WWD)’ is a day on which weather conditions allow the relevant work to be performed, regardless of whether anyone takes advantage of that allowance; in other words, so far as weather alone is concerned, it constitutes a Working Day (WD). Equally, the opposite follows: a day is not a Weather Working Day (WWD) if, due to its weather, the relevant work cannot be performed, and it is irrelevant whether any person planned or intended to work that day. The status of a day as wholly, partly, or not at all a Weather Working Day (WWD) is determined exclusively by its weather, not by outside circumstances such as human action or intention.â€
The reasoning avoids an obvious commercial difficulty. Without this approach, a day of continuous heavy rain, snow, or sleet could still be treated as a Weather Working Day (WWD) merely because no one happened to arrange cargo work for that day. That would contradict the function of the expression. The proper question is not whether anyone was ready or intending to work, but whether the weather would have allowed the relevant work to be done.
In Reardon Smith, Lord Devlin confirmed the same principle, stating: “It is a firmly established principle that the determination of whether a day qualifies as a Weather Working Day (WWD) is governed by the actual nature of the day itself, not by the fact of whether work was in practice interrupted. This principle has recently been examined in detail by Mr Justice Pearson in Compania Naviera Azuero SA v. British Oil & Cake Mills Ltd and others [1957] 2 QB 293; [1957] 1 Lloyd’s Rep 312, and the correctness of that decision was not disputed by either side.â€
Weather may also affect the ship before she reaches the Berth, or after she has berthed. If weather prevents the ship from proceeding to the Berth, Laytime may still begin provided the ship has become an Arrived ship, or is treated as an Arrived ship under an Additional Clause. Once the ship has reached that legal status, ordinary Fixed Laytime principles apply.
Under the general rules applicable to Fixed Laytime, Laytime then continues uninterrupted unless the Charterparty contains wording that stops it, or unless the delay is caused by a default attributable to the ship. Where Laytime is expressed as Weather Working Days (WWD), waiting time caused by the ship’s inability to obtain a Berth, whether because of weather or congestion, will still count, except for periods during which loading or discharging would have been impossible because of weather if the ship had actually been at the Berth.
The effect of Weather Working Days (WWD) where a ship is forced to leave her Berth because of expected Bad Weather was considered in Compania Crystal de Vapores v. Herman & Mohatta (India) Ltd, known as The Maria G. In that case, the Harbour Master ordered the Maria G to leave the Berth and anchor at buoys because a “bore tide†was expected. The Master was concerned that remaining at the Berth might cause damage both to the jetty and to the ship.
Devlin J, as he then was, assumed without deciding that a “bore tide†might fall within the meaning of weather. Even on that assumption, Devlin J held that the phrase “Weather Working Days (WWD)†could not be extended so far as to cover that situation. Devlin J reasoned that where weather does not directly affect the loading operation itself, but instead makes the Berth Unsafe, the resulting loss of time is not within what Shipowner and Charterer would ordinarily be taken to have intended when using the expression Weather Working Days (WWD).
Where weather first stops cargo work and later causes the ship to leave the Berth, Laytime expressed in Weather Working Days (WWD) will not count from the time the cargo operation ceased until weather conditions improve to the point where loading or discharging would again have been possible if the ship had returned to the Berth. It does not matter that the same weather may still physically prevent the ship from returning to the Berth. The decisive question is whether, assuming the ship were back at the Berth, the relevant cargo operation could have been performed.
Computation of Weather Interruptions within Weather Working Days (WWD)
The leading authority on the calculation of Weather Interruptions within Weather Working Days (WWD) is Reardon Smith Line Ltd v. Ministry of Agriculture. Before examining that decision, however, it is useful to understand how the courts approached the issue historically and how earlier methods of calculation were gradually refined.The distinction between Calendar Days and Conventional Days has already been considered. Even where Laytime was expressed in Calendar Days, meaning that Laytime would run continuously from one midnight to the next, the courts began, after 1897, to allow Weather Interruptions to be credited in fractional periods rather than by treating every affected day as either wholly counted or wholly excluded. This development arose from the view expressed by Lord Russell of Killowen CJ in Brankelow Steamship Co Ltd v. Lamport & Holt.
In that case, the ship Highfield was fixed to load cargo at two ports, the first being Rosario. The Charterparty provided for loading at a rate of 175 tons per Weather Working Days (WWD), producing a total Laytime allowance of 16.7 Weather Working Days (WWD), conventionally rounded up to 17 days. During loading at Rosario, rain interrupted cargo operations on at least one occasion, although the weather later improved enough for a substantial quantity of cargo to be loaded during the same day. The Shipowners argued that the whole day should count against the Charterers. The Charterers argued that only the usable part of the day should count. Lord Russell accepted the Charterers’ approach and stated:
“Assume that on a particular day the weather at first allows the reasonable belief that a full day’s work can be performed, but after a few Hours conditions deteriorate to the point that further work becomes impracticable. Should the Charterers then lose a full day merely because they acted in good faith while the Weather Permitted? Such reasoning would, in my view, be unfair. There might be multiple days on which work commenced only to be abandoned later. If each of those days were treated as complete, the Charterer would in reality lose a large portion of the time agreed upon under the contract. On the other hand, excluding such days entirely is also inequitable, since the ship does benefit through Despatch. The fairest course, therefore, is to avoid dividing time into tiny fragments, but if approximately half a day is utilized, it should be treated as a half day; if twelve Hours are used, then it ought to be treated as a full day.â€
This approach introduced a practical but approximate method of dealing with weather interruptions. Instead of applying an all-or-nothing rule, the court allowed the affected day to be divided, usually in broad segments such as half days. The method attempted to balance fairness to the Charterer with the commercial reality that the Shipowner’s ship had still been used for part of the day.
In Alvion Steamship Corporation Panama v. Galban Lobo Trading Co SA of Havana, known as The Rubystone, Lord Goddard CJ criticized this “rule of thumb†method. In his view, limiting the calculation to half-day allowances was too rough and did not provide sufficient precision. On this specific point, the House of Lords in Reardon Smith later agreed with Lord Goddard, although the House of Lords rejected his wider method of computation. The Rubystone is no longer authoritative on the main issue, but it remains important because it illustrates the difficulty of interpreting the phrase “Weather Working Days (WWD).†Lord Goddard expressed his approach as follows:
“I take the view that a Working Day (WD) is a block of time consisting of the Hours normally worked at the port of loading or discharge according to the Custom of the Port. The inclusion of the word ‘weather’ qualifies this by requiring that, from those Ordinary Hours of the Port, there must be deducted whatever portion of time is lost as a result of interference from the weather.â€
The meaning of “Ordinary Hours of the Port†became central in NV Maatschappij Zeevart v. Friesacher Soehne, known as The Leto. The issue was whether overtime should be included when calculating the number of hours available for cargo work. Elwes J held that overtime should not be included, and that the relevant measure was the number of hours worked at the regular standard rate.
Under that method, a Working Day (WD) was treated as the Working Portion of the Day rather than as a full day characterized by whether it was a working or non-working day. The Laytime account would be prepared by recording, for each Calendar Day, the actual hours worked, subject to a maximum equal to the Ordinary Hours of the Port. From that total, time lost due to weather or other excepted causes would be deducted. Laytime would be exhausted once the recorded hours equalled the number of Ordinary Hours of the Port multiplied by the number of Weather Working Days (WWD) allowed under the Charterparty.
For example, suppose the Charterparty allowed three Weather Working Days (WWD) as Laytime; the Ordinary Hours of the Port were 07 00–19 00; and Laytime began at 16 00 on 1 May. Assume also that there were two interruptions: rain from 10 00–12 00 on 2 May and a winch breakdown from 08 00–10 00 on 3 May.
| Day | Hour | |
| Tuesday, 1 May | 3 00 | |
| Wednesday, 2 May | 10 00 | Rain 10 00–12 00 |
| Thursday, 3 May | 10 00 | Winch failure 08 00–10 00 |
| Friday, 4 May | 12 00 | |
| Saturday, 5 May | 1 00 | |
| Total 3 Days 00 Hours | Equivalent to 36 Hours of Actual Work |
However, the House of Lords in Reardon Smith confirmed that a Working Day (WD) should not be treated as a shortened Calendar Day. The term “Working†was meant solely to distinguish it from Non-Working Days such as Sundays or Holidays. For that reason, the method illustrated above is no longer regarded as correct.
Reardon Smith Line v. Ministry of Agriculture is therefore the key decision on the modern approach. Viscount Radcliffe, Lord Keith of Avonholm, and Lord Devlin each considered how time should be calculated where adverse weather conditions prevent, or would have prevented if the ship had been at the loading or discharging Berth, cargo operations during part of a day. The remaining Law Lords accepted Lord Devlin’s reasoning without adding separate analysis. Although the relevant observations were technically Obiter, they have long been treated as highly persuasive in Laytime law.
All three Law Lords accepted that where weather affects only part of a Working Day (WD) ought to be allowed on a fractional basis. The precise calculation depends on the facts, including the period during which work was being performed or could reasonably have been performed, and the extent to which weather interfered with that work.
Lord Devlin, who had previously identified the difficulty of defining Normal Hours of work, rejected the approach taken in The Leto that normal hours should exclude overtime. Lord Devlin considered that in many ports overtime was not exceptional but part of the normal practical pattern of cargo operations. Developing the point further, Lord Devlin stated:
“I think that the best that can be done by way of expansion of the phrase ‘Weather Working Days (WWD)’ is to infer that it is intended by it that a reasonable apportionment should be made of the day—Lord Russell of Killowen CJ based his decision on an ‘equitable view’ according to the incidence of the weather upon the length of the day that the parties either were working or might be expected to have been working at the time.â€
Viscount Radcliffe expressed the method in more structured terms. Viscount Radcliffe stated:
“But in my opinion the basic calculation in such case should be determined by ascertaining what part of the Calendar Day was used, if loading was actually being done, or could reasonably have been used, if there was in fact no loading. The proportion which this bears to the Working Hours of the ship should be charged to the Shipper. Thus, if those Hours are decided by the Arbitrator to have been 16 Hours out of the 24, and, of those 16, four have been obstructed by Bad Weather, three-quarters of the whole day, that is 18 Hours, are for the Shipper’s Account.â€
Viscount Radcliffe also made clear that weather interference outside Working Hours should not affect the calculation. Lord Keith adopted the same general approach and summarized the principle in the following way:
“If the amount of interference, or interruption, by weather with work during Working Hours is applied proportionally to the period of 24 Hours, a reasonable and equitable result is, I consider, achieved.â€
The effect of the Reardon Smith approach is that Weather Interruptions are not calculated by simply deducting the actual clock hours of rain, wind, snow, or other adverse weather from Laytime. Instead, the calculation requires a proportion. The period of weather interference during the working time of the ship is compared with the period during which cargo operations were being carried out or could reasonably have been carried out. That proportion is then applied to the full 24-hour day. This reflects the principle that a Working Day (WD) remains a day as a whole, while still allowing a fair deduction where weather prevents work during the relevant working period.
This method also avoids the artificiality of the older “Ordinary Hours of the Port†approach. Laytime is not reduced to a mere count of standard labour hours, nor is it governed solely by the wage arrangements or ordinary shift structure of the port. The focus is on the ship, the relevant cargo operation, and the period during which work was actually performed or could reasonably have been expected to be performed, subject to the interference caused by weather.
Accordingly, the computation of Weather Interruptions within Weather Working Days (WWD) requires careful factual analysis. It is necessary to identify the working period relevant to the ship, determine the extent to which weather interfered with that period, and then apply a reasonable proportional calculation to the 24-hour day. The result is intended to produce a commercially fair balance between Shipowner and Charterer, preserving the character of a Working Day (WD) while ensuring that time genuinely lost to weather is not charged against the Charterer.
Applying these judicial views requires answering several essential questions:
- Did the adverse weather occur on a Working Day (WD)?
- What were the relevant working Hours for the particular cargo operation?
- Did the weather interruption fall within those working Hours?
- What proportion did the interruption bear to the total daily working Hours?
- What period does that proportion represent when applied to the full 24-hour day?
Accordingly, if the ship normally loads or discharges during the working week for 12 Hours per day, for example between 07:00 and 19:00, those Hours should be treated as the Pertinent Hours for the purpose of the calculation. The basic working Hours of related trades, such as longshoremen, crane drivers, terminal labour, elevator operators, or other shore-side personnel, are not decisive by themselves. Once the relevant Hours have been established, the remaining steps become largely arithmetical. The result of the fifth question gives the period to be deducted from that day when calculating how much Laytime has been used.
Where Laytime is expressed in Conventional Days (CD), as is now common in practice, it may still be proper to prepare the Laytime statement on a Calendar Day (CD) basis, allowing for fractions of a day at the beginning and end of the Laytime Period. Viscount Radcliffe’s observations suggest that this is the more accurate method. However, some practitioners still use a strict Conventional Day (CD) method, under which the time used is charged against each Weather Working Day (WWD). On that basis, the first Weather Working Day (WWD) begins at the exact hour when Laytime starts. For example, one Weather Working Day (WWD) could begin at 08:00 on Saturday and continue until 08:00 on Monday, with Sunday excluded from the calculation.
Whichever system is used, the final result should be the same if the calculation is performed correctly. In the example below, the Calendar Day (CD) method is applied. The assumptions are as follows: three Weather Working Days (WWD) are allowed as Laytime; the normal working Hours are 07:00 to 19:00; Laytime starts at 16:00 on 1 May; and two stoppages occur. The first stoppage is caused by rain between 10:00 and 12:00 on 2 May, and the second is caused by a winch breakdown between 08:00 and 10:00 on 3 May.
| Day | Hour | |
| Tuesday, 1 May | 8 00 | |
| Wednesday, 2 May | 20 00 | Rain 10 00–12 00 |
| Thursday, 3 May | 22 00 | Winch failure 08 00–10 00 |
| Friday, 4 May | 22 00 | |
| Total 3 Days 00 Hours | Equivalent to 72 Hours |
This method creates a proportional, or “gearing,†effect. The actual weather interruption is increased according to the ratio between the 24-hour day and the relevant daily working Hours. In the present example, because the ship worked 12 Hours per day, the ratio is 24:12, or two to one. A two-hour weather interruption is therefore converted into a four-hour deduction from Laytime. This multiplication applies only to weather-related interruptions. It does not apply to other Excepted Periods, such as mechanical breakdowns, unless the Charterparty expressly provides otherwise.
On these facts, the ship entered Demurrage at 22:00 on 4 May. If the same facts were calculated under the Rubystone formula, Demurrage would begin at 08:00 on 5 May, approximately 10 (Ten) Hours later. However, the Reardon Smith method does not always cause Laytime to expire earlier. In some cases, it may delay the point at which Demurrage begins. What is clear is that where weather interruptions occur, the two calculation models yield different results. The method derived from Reardon Smith is the proper and authoritative approach to be applied.
Saturdays And Other Incomplete Days
Where a ship is to load or discharge at a port where weekend cargo operations are unusual or restricted, the Charterparty will often provide that time shall not count from a specified point, such as 17:00 on Friday or after mid-day on Saturday, until 08:00 on Monday. Clauses of this kind may shorten the effective working period on Friday, Saturday, or Monday. When Laytime is expressed in Weather Working Days (WWD), the calculation of weather-related delays during such shortened days becomes more difficult. Sunday usually creates less difficulty because it is normally not a Working Day (WD). Although the discussion below refers mainly to Saturdays, the same principles may apply to any other day where the Charterparty reduces the period during which time is to count.In the absence of a special clause, Saturday is treated as an ordinary Working Day (WD), and the general method for calculating weather interruptions applies in the usual way. In Reardon Smith, Viscount Radcliffe explained the point as follows:
“The only thing that matters in this case is, I think, that Saturday was not a holiday at the Port of Vancouver and the possibilities of working were not affected by Bad Weather. If so, Saturday counts among the Lay Days that are imputed to the Charterers and it counts as a whole day, since the parties have made no stipulation for charging fine working days by any more meticulous scale.â€
The consequence of this reasoning is that, unless the parties have agreed a different method, a Saturday that is not a holiday and is not affected by Bad Weather will count as a full day. Even if the actual working period on Saturday is shorter than on an ordinary weekday, the normal weekday working period may still provide the reference point for calculating weather interruptions. Where the Charterparty contains wording that time is not to count after a stated hour on Saturday, three possible methods of calculation may be considered.
Method A
Under Method A, the Saturday Exception Clause is applied according to its literal wording. If the clause provides that “time shall not count after 12:00,†the maximum amount of time chargeable to the Charterers on that Saturday is the 12 Hours before noon. Any deduction for time lost because of Bad Weather is then calculated in the same way as for an ordinary weekday.
For example, if the normal weekday working period is 12 Hours and one Hour is lost because of weather on Saturday morning, the interruption is converted proportionally by applying the usual Reardon Smith method. One Hour lost out of a 12-hour working period represents one-twelfth of the working time. Applied to a 24-hour day, that produces a deduction of two Hours. Therefore, instead of charging 12 Hours against Laytime, only 10 Hours would count.
Method B
Method B approaches the Saturday clause differently. If Saturday work normally begins at 08:00 and the Charterparty provides that time shall not count after 12:00, the effective working period for that Saturday is treated as 08:00 to 12:00. On this basis, the available working period is only four Hours. If one Hour is lost because of adverse weather, one-quarter of the available working period has been lost. The Charterers would therefore be charged with three-quarters of a full day, equal to 18 Hours of Laytime.
This method treats the shortened Saturday working period as the relevant base for the weather calculation. It gives substantial effect to the weather interruption, because even a short loss of time within a reduced working period can translate into a large deduction when converted into a fraction of the full 24-hour day.
Method C
Method C combines elements of the first two approaches. Like Method A, it gives literal effect to the Saturday clause by treating 12 Hours as the maximum time chargeable to the Charterers. However, the weather interruption is then measured against the reduced time that could actually count on that Saturday. If one Hour is lost because of Bad Weather, and the relevant period is 12 Hours, one-twelfth of the available period is lost. That fraction is then applied to the 12 Hours that could otherwise have counted, producing a deduction of one Hour and leaving 11 Hours to count against Laytime.
On another variation of this method, if the effective working period is treated as four Hours, one Hour lost would represent one-quarter of the Saturday period, and that fraction would be applied only to the maximum time countable under the Saturday clause, rather than to the full 24-hour day. The attraction of Method C is that it attempts to respect both the Saturday exception and the principle of proportional weather deduction without producing an extreme result.
In all three methods, only interruptions occurring during established Working Hours are relevant. Bad Weather outside the relevant working period does not affect the calculation. This follows from the principle that the weather interruption must interfere with work that was being carried out or could reasonably have been carried out during the relevant Hours.
Method A can be supported by Viscount Radcliffe’s formulation in Reardon Smith, where Viscount Radcliffe stated:
“But in my opinion the basic calculation in such cases should be determined by ascertaining what part of the calendar day was used, if loading was actually being done, or could reasonably have been used, if there was in fact no loading. The proportion which this bears to the working Hours of the ship while in the particular port is the proportion of the calendar day which should be charged to the Shipper.â€
This reasoning suggests that the working Hours applicable to the ship at the relevant port should be used consistently, even where the actual day in question is shortened by a Saturday clause. Method A therefore preserves the ordinary Reardon Smith proportional method while separately applying the contractual exclusion after the stated Saturday hour.
Method B may also be argued from parts of Viscount Radcliffe’s speech, especially the reference to the possibility of applying a “more meticulous scale†when measuring fine working days. Under this interpretation, the shortened Saturday period becomes the relevant working period for the day. Although this may be conceptually possible, it can produce results that appear commercially severe, particularly where a short weather interruption during the reduced Saturday working period generates a large deduction from the full 24-hour day.
Method C is more difficult to justify as a matter of strict legal authority, but it is often regarded as the most commercially balanced solution. Method A may produce an unsatisfactory result where all available Saturday working time is lost, because some Laytime may still be charged against the Charterers. Method B may also be problematic because, if there is no weather interruption, it may charge a full Weather Working Day (WWD), thereby giving insufficient effect to the Saturday clause. Method C avoids both extremes. It charges 12 Hours where no time is lost and charges nothing where all relevant Saturday working time is lost.
The practical appeal of Method C lies in the argument that, by inserting a Saturday clause or any clause that creates a shortened working period, the parties intended to create a special form of Weather Working Day (WWD) for that particular day. On that approach, the calculation should reflect the shortened day as the commercial unit agreed by the parties. However, this reasoning comes close to the logic of the Rubystone formula, which the House of Lords later rejected in its broader form. For that reason, while Method C may often produce the fairest result in practice, it should be applied with caution unless the Charterparty wording supports it clearly.
The safest drafting solution is for Shipowner and Charterer to state expressly how weather interruptions are to be calculated on Saturdays, Fridays after a specified hour, Mondays before a specified hour, holidays, half-holidays, or any other incomplete day. Without clear wording, the calculation may become uncertain, and different methods may produce materially different results. In Laytime disputes, that difference can determine not only when Laytime expires, but also when Demurrage begins.
VOYLAYRULES 1993
The VOYLAYRULES 1993 provide standardized meanings for a number of important Laytime expressions, including Weather Working Day (WWD), Weather Working Day (WWD) of 24 Hours, and Weather Working Day (WWD) of 24 Consecutive Hours. Under these rules, the relevant expression is defined as follows:“shall mean a Working Day of 24 Consecutive Hours except for any time when weather prevents the loading or discharging of the ship or would have prevented it had work been in progress.â€
This wording is closely aligned with the definition found in the Charterparty Laytime Definitions 1980 for a Weather Working Day (WWD) of 24 Consecutive Hours. Its practical effect is to treat the Working Day as a complete 24-Hour period. Any period during which weather prevents loading or discharging must be excluded, and the same applies where weather would have prevented the relevant cargo operation had work actually been underway.
The definition also covers the notional situation where the ship is not yet in Berth. If the ship is waiting for a Berth, the question becomes whether the weather would have prevented loading or discharging had the ship already been alongside and ready for cargo operations. In this way, the VOYLAYRULES 1993 reduce the influence of local port working practices, ordinary labour hours, or trade customs when the parties have expressly adopted this definition.
The advantage of this approach is simplicity. The calculation is based on a 24-Hour Working Day, with weather-related time excluded directly from that period. However, this simplified method applies only where the VOYLAYRULES 1993 have been explicitly incorporated into the Charterparty. Unless incorporated, the rules do not automatically govern the parties’ contract, although they may sometimes be considered as useful guidance when interpreting similar wording.
Working Days, Running Hours, Running Days, Weather Permitting
At first sight, the insertion of “Weather Permitting (WP)†before or after a Laytime Clause may appear to create a simple exception for periods when adverse weather actually stops loading or discharging. On that view, the phrase would operate in the same way as an ordinary Exception Clause. However, that is not the full legal position. When “Weather Permitting (WP)†forms part of the Laytime Clause itself, it may operate descriptively, in much the same way as the word “Weather†qualifies “Working Day†in the expression Weather Working Day (WWD).The present legal understanding developed from two important judicial decisions delivered within a relatively short period. The central principle is that once a ship has become an Arrived Ship and is in the place or condition contemplated by the parties for loading or discharging, Laytime will not count during periods when weather prevents that particular ship from performing the relevant cargo operation. The focus is therefore on the effect of weather on the ship and the cargo operation required under the Charterparty.
The same reasoning applies where the ship has already obtained the status of an Arrived Ship but is still waiting for a Berth. If the ship cannot yet load or discharge because no Berth is available, time will still not count if the weather conditions at the Berth would have prevented the relevant cargo operation had the ship already been there. This preserves the link between weather and the cargo operation, even where the ship is not physically alongside.
In Stephens v. Harris, the Laytime Clause required loading “at a rate of 400 tons per Weather Working Day (WWD), Weather Permitting (WP).†The ship had reached the loading Berth and was placed under the spouts ready to receive ore cargo. The cargo itself, however, was located five miles away, and severe weather delayed its movement to the ship. A strike also occurred. The court held that Laytime was not interrupted by the weather because the weather did not directly prevent loading operations at the ship. Instead, it delayed the transport of cargo to the loading point.
Lord Devlin later considered this decision in Reardon Smith Line Ltd v. Ministry of Agriculture and stated:
“if the weather was to be treated as if it were an excepted peril excusing work only when it was actually operating, words could, of course, be found to do it. In Stephens v. Harris & Co, the Court of Appeal held that the phrase ‘Weather Permitting’ in that Laytime clause had that effect. I see no reason to doubt the authority of that decision although there has been some controversy about it.â€
Lord Devlin then added:
“If the parties (Shipowner and Charterer) want to keep closer to reality, they should use ‘Weather Permitting’ or some other phrase of exception.â€
The meaning of Lord Devlin’s observations was later examined by Sir John Donaldson MR in The Vorras. Sir John Donaldson MR explained:
“Undoubtedly Lord Devlin was saying that ‘Weather Permitting’ is a ‘phrase of exception’ which requires regard to be had to the actual effect which weather is having on the loading process and he was basing himself on the Court of Appeal decision in Stephens v. Harris. But regard can be had to the actual effect of the weather in two different ways. You can look to see whether the loading process is in fact prevented by the weather or you can look to see whether it is the weather which is the actual cause of the particular ship not being loaded.â€
The essential point is that “Weather Permitting (WP)†is not concerned with every consequence that weather may have on the wider commercial movement of cargo. It is concerned with whether weather directly affects the loading or discharging process of the ship itself. Weather that delays transport, supply, paperwork, or other external arrangements will not necessarily stop Laytime unless it also prevents the cargo operation at the ship.
Sir John Donaldson MR further emphasized that the factual situations in Stephens v. Harris and in the point considered by Lord Devlin led to the same legal conclusion. In neither case did the prevailing weather conditions directly prevent the ship from being loaded. In Stephens v. Harris, the ship could not load because the cargo had not reached her. In Reardon Smith, Strikes prevented the elevators from operating and thereby stopped the loading process. Lord Devlin was therefore not dealing with a case where weather alone prevented a ship already alongside from loading, nor with a case where weather operated together with another factor such as the ship not yet being in Berth.
The relationship between weather wording and berth delay was examined more directly in The Camelia and The Magnolia. In that case, Brandon J considered a Laytime clause providing for Laytime at “750 metric tons per day of 24 Consecutive Hours per Weather Permitting Working Day.†The Charterparty also included a “Berth Occupied†Clause, under which time was to count during delay before the ship actually obtained a Berth.
Brandon J had to consider two main questions. The first concerned the meaning of “Per Weather Permitting Working Day†after the ship had reached the Berth and was in position to load or discharge. The second concerned the effect of the same words during the notional Laytime period while the ship was still waiting for a Berth. On the first question, relying on Stephens v. Harris, Brandon J held that it made no material difference whether the phrase “Weather Permitting†appeared before or after “Working Day.†The phrase still required attention to whether weather prevented the relevant cargo operation.
The commercial importance of this distinction is clear. If “Weather Permitting (WP)†is treated as a phrase that looks only at actual interruption of work, then Laytime may continue where the ship cannot work for reasons unrelated to weather, even if weather affects other parts of the cargo chain. If the phrase is treated as part of the Laytime description, the inquiry becomes whether the day or part of the day is one during which weather permits the contemplated operation. The exact outcome therefore depends on the wording of the Charterparty and the factual connection between weather and the inability to load or discharge.
These authorities show that careful drafting is essential. Expressions such as Working Days, Running Hours, Running Days, Weather Working Days (WWD), and Weather Permitting (WP) may appear familiar, but their legal consequences are not identical. Running Days and Running Hours usually point toward continuous time. Working Days identify days on which work is normally performed. Weather Working Days (WWD) qualify that concept by reference to weather. Weather Permitting (WP), depending on its placement and wording, may require a closer inquiry into whether weather actually prevented the ship’s cargo operation.
For Shipowners and Charterers, the practical lesson is that weather wording should not be inserted casually. If the parties intend Laytime to stop only when weather directly prevents the ship from loading or discharging, the Charterparty should say so clearly. If they intend time also to be excluded when weather would have prevented operations had the ship been in Berth, that should also be made express. Clear wording reduces disputes and ensures that the allocation of weather risk reflects the commercial bargain actually made by Shipowner and Charterer.
“a Working Day which counted unless work was actually prevented by the weather.â€
On the second issue, Brandon J held that although weather could not affect the running of Laytime under that particular wording unless the ship was already in Berth, the presence of the “Berth Occupied†Clause placed the parties in the same position as if the ship had already been alongside. The effect was that weather interruptions during the waiting period had to be treated as if the ship had been moored at the Berth and ready to work. In practical terms, the clause created a notional alongside position for the purposes of counting Laytime while the ship was still waiting.
That conclusion was later questioned by Sir John Donaldson MR in The Vorras, where he observed that Brandon J’s reasoning was “based upon a misreading of Stephens v. Harris.†The later authorities therefore required a more careful distinction between weather that actually prevents the cargo operation and weather that merely forms part of the surrounding circumstances while the ship is not yet in Berth.
The first of the more modern decisions dealing directly with this type of Laytime wording was Gebr Broere BV v. Saras Chimica SpA, decided by Parker J. The Laytime clause in that case used the expression “Running Hours Weather Permitting.†Parker J held that, so far as the effect of weather was concerned, there was no material difference between “Working Days Weather Permitting,†“Running Days Weather Permitting,†and “Running Hours Weather Permitting.†In Parker J’s view, where the contract was a Port Charter, any period during which weather would have prevented loading, had the ship been in Berth on arrival, should be excluded from Laytime.
Parker J acknowledged that Brandon J had earlier taken the view that weather could not physically interrupt work where the ship was not yet in Berth. Nevertheless, Parker J relied on The Camelia and The Magnolia and also on the House of Lords’ decision in The Darrah as support for the broader approach. The difficulty with that reasoning is that The Camelia and The Magnolia does not clearly support the proposition for which it was cited, while The Darrah was later regarded by Sir John Donaldson MR as being of limited relevance because it concerned a Weather Working Day clause rather than the precise form of wording before the court in The Vorras.
Although Sir John Donaldson MR appeared to agree with the ultimate result reached by Parker J, he was careful not to approve the reasoning adopted in Gebr Broere. This distinction is important. The conclusion that weather may be relevant even while a ship waits for a Berth may be commercially sound in some contexts, but the route by which that conclusion is reached must depend on the actual words used in the Charterparty.
In The Vorras, after reviewing the earlier authorities, Sir John Donaldson MR approached the clause by giving the words their natural meaning. The clause referred to “72 Hours Weather Permitting.†Sir John Donaldson MR stated:
“I have to construe the words used in their natural meaning. The words are ‘72 Hours Weather Permitting’. The essence of the owners’ argument is that this phrase means ‘72 Hours unless the weather prevents the ship from loading’. There would be something to be said for this if the antonym for ‘permitting’ was ‘preventing’. But it is not. It is ‘prohibiting’. If the phrase is to be inverted, it reads ‘72 Hours unless the weather prohibits loading’. In my judgment the weather prohibited any ship of this general type from loading and it is nothing to the point that owing to the presence of another ship in the Berth, the prohibition was not the operative cause which prevented the ship from loading. I would construe ‘72 Hours Weather Permitting’ as meaning ‘72 Hours when the weather was of such a nature as to permit loading’.â€
The importance of this passage lies in the distinction between weather that is the operative cause of the ship not loading and weather that is, in itself, of such a character that loading would not be permitted. Sir John Donaldson MR treated the phrase “Weather Permitting†as requiring an assessment of whether the weather allowed loading, not whether weather was the immediate factual reason why the particular ship did not load at that moment.
Some commentators have suggested that when Sir John Donaldson MR referred to weather prohibiting “any ship of this general type from loading,†he was not creating a test based on a hypothetical generic ship. Rather, he was observing that the weather conditions were such that a comparable ship of similar construction and engaged in a similar operation could not have loaded. In Gebr Broere, Parker J spoke more directly of the particular ship involved. That is the preferable approach. References to a general category of ships, such as tankers or dry cargo ships, should not obscure the main principle: the assessment must remain connected to the actual ship, the actual cargo, and the operation contemplated by the Charterparty when determining the effect of weather on Laytime.
Gebr Broere also considered the effect of weather where a ship cannot enter the Berth, or where the ship must leave the Berth for reasons of safety. Parker J noted the established principle that, unless Specific Exceptions apply, Laytime is not ordinarily suspended merely because a ship has to leave the Berth in order to protect the ship and cargo. However, Parker J held that where adverse weather first prevents loading and then also forces the ship to vacate the Berth, Laytime would be suspended throughout both periods. While the ship remained alongside, the weather prevented loading. When the same weather later required the ship to leave the Berth, the weather-related interruption continued.
Parker J explained the matter in the following terms:
“If this be right, it must follow that if the ship for her own safety, refrains from going into Berth, Laytime will be interrupted if the weather is such that it would both have prevented loading and required the ship to leave her Berth had she been in Berth. It will not be interrupted, albeit she could not for safety reasons reach her Berth if loading would not have been interrupted by weather had she been in Berth.â€
This reasoning is commercially persuasive. If the weather would have prevented loading in any event, it should not matter that the same weather also made it unsafe for the ship to enter or remain at the Berth. Conversely, if the ship could not safely reach the Berth but, had she been there, loading would not have been affected by the weather, the weather should not interrupt Laytime merely because it created navigational or berthing difficulty. The decisive question remains whether the weather prevented, or would have prevented, the relevant cargo operation.
These broader principles can be reconciled with the interpretation adopted by Sir John Donaldson MR in The Vorras. Although some parts of the reasoning in Gebr Broere have been criticized, the central distinction remains sound: weather must be examined by reference to what it permits or prohibits in relation to the ship’s intended loading or discharging operation, not by reference to remote or unrelated consequences.
At the end of his judgment in The Vorras, Sir John Donaldson MR offered a helpful classification of Laytime wording. He stated:
“Prima facie, any clause defining Laytime is descriptive and any Clause providing that time shall not count against Laytime so define is exceptive. If it matters, I would classify the expression ‘72 Running Hours Weather Permitting’ as descriptive.â€
The other Lords Justices in the Court of Appeal gave shorter judgments but agreed with the same result. The classification is important because a descriptive Laytime Clause defines the kind of time that counts in the first place, while an exceptive clause removes time that would otherwise count. The phrase “Weather Permitting,†when used as part of the Laytime definition, is therefore capable of describing the time that is to count, rather than merely operating as a separate exception after Laytime has already been identified.
When considering interruptions under a descriptive Laytime Clause of this kind, the essential question is what the weather permitted. The parties’ intentions, expectations, or practical plans for work are not decisive. Nor is it necessary to ask whether cargo operations were actually intended to take place at the precise moment of the weather interruption. The relevant inquiry is whether the weather conditions allowed the operation contemplated by the Charterparty. The only important qualification is that where “Weather Permitting†qualifies “Working Day,†it cannot apply on Sundays or Official Holidays, because those days are not Working Days in the first place.
For Laytime statement purposes, the practical method is usually straightforward. The actual duration of the weather interruption should be deducted from the total time used, provided the wording and factual circumstances bring the interruption within the scope of “Weather Permitting.†This is different from the more elaborate proportional calculation used for some Weather Working Day (WWD) cases, because the wording “Running Hours Weather Permitting†directs attention to hours that run unless the weather does not permit the relevant operation.
Sometimes the phrase “Weather Permitting (WP)†is added unnecessarily to the expression “Weather Working Day (WWD),†producing wording such as “Five Weather Working Days Weather Permitting.†In such cases, the additional phrase is generally redundant. Since the concept of Weather Working Day (WWD) already incorporates the weather element, the extra words “Weather Permitting†are unlikely to add any separate legal effect. The clause should ordinarily be read simply as “Five Weather Working Days (WWD),†unless the Charterparty contains further wording showing a different intention.
The parties to a Charterparty may also express Laytime by reference to a fixed number of Hours of work rather than by days. This is often combined with a cargo-handling rate. A typical clause may provide:
“and discharge to be at the rate of 350 tons per Working Day of 24 Hours, Weather Permitting (WP).â€
For present purposes, the important element is the time provision rather than the rate of cargo handling. The principles discussed above in relation to “Weather Permitting (WP)†apply equally to such clauses. The court or tribunal must identify whether the phrase forms part of the Laytime definition, whether it operates descriptively or exceptively, and whether the weather permitted the relevant loading or discharging operation for the ship and cargo concerned.
The practical lesson is that Weather Permitting (WP) clauses must be drafted with precision. If the parties intend only actual weather interruption at the Berth to stop time, the Charterparty should say so clearly. If they intend weather to be considered even while the ship is waiting for a Berth, that intention should also be expressed directly. Ambiguous wording may lead to difficult disputes over whether weather merely forms part of the background circumstances, whether it prevents the cargo operation, or whether it describes the type of time that counts as Laytime. In every case, the central question remains whether the weather permitted the operation that the ship was required to perform under the Charterparty.
As with other Laytime Clauses, the court will begin by examining all relevant provisions of the Charterparty in order to identify the contractual intention of the parties. This explains why, in the reported authorities dealing with this type of clause, one decision appears to take a slightly different route from the other two. However, once it is established that Shipowner and Charterer intended to create a fixed working period expressed as “Working Days of 24 Hoursâ€, the calculation becomes relatively straightforward. The number of Working Days agreed in the Charterparty is multiplied by 24, producing the total number of Working Hours available to the Charterers.
A “Working Hour†must, by its nature, form part of a Working Day (WD). The difficulty lies in identifying what counts as a Working Hour. The question is whether the term refers only to the Normal Working Hours observed in the relevant port or trade, or whether it also includes hours that are customarily worked as overtime. The better view is that hours during which overtime is normally performed, whether or not actually used in the particular case, should be included. This follows the same practical reasoning applied when identifying the working period for Weather Working Days (WWD). Where the actual working period is longer than the ordinary standard, the longer period should be taken into account.
For example, if a Charterparty provides for “Three Working Days of 24 Hours,†and each Working Day is found in practice to contain 12 Working Hours, the Laytime allowance would extend over Six Calendar Days (CD) before being exhausted. The phrase therefore does not simply create three calendar days. It creates a fixed number of working hours, which must then be applied to the working pattern at the relevant port or under the relevant trade practice.
The leading authority on this form of Laytime Clause is Forest Steamship Co Ltd v. Iberian Iron Ore Co Ltd, which ultimately reached the House of Lords.
In that case, the Shipowners and Charterers entered into an arrangement under which the Shipowners undertook to provide ships for the carriage of iron ore from Seville to ports in the United Kingdom and elsewhere during a twelve-month period. The agreement was based on a standard Single Voyage Charter, modified to suit the commercial arrangement. The relevant Charterparty wording provided:
“Charterer to be allowed 350 tons per working day of 24 (twenty-four) Hours Weather Permitting (Sundays and Holidays Excepted), for loading and discharging. Steamer to work at night if required, also on Sundays and Holidays, such time not to count as Lay Days Unless Used (UU).â€
The Plaintiff Shipowners argued that the Charterers were entitled to only one Working Day for every 350 tons of cargo, regardless of how many hours constituted a Working Day at the relevant port. This interpretation was rejected by Smith LJ in the Court of Appeal. Smith LJ stated:
“the plaintiffs’ contention appears to me to give the go-by to the words which presumably were inserted for some purpose in the charter—viz. ‘of twenty-four Hours’—and reads the Charterparty as if those words were not there. Why were these words inserted? It seems to me for the express purpose of giving to the Charterers a fixed period of twenty-four working Hours wherein to load or unload each 350 tons of ore, no matter what number of Hours might constitute a working day at the port of loading or the ports of discharge.â€
Smith LJ added:
“But a ‘working day of twenty-four Hours’ is not the same as ‘a working day.’â€
Smith LJ also considered that the presence of the “Unless Used (UU)†Clause, particularly in relation to night work, strongly supported the Charterers’ construction. If the Shipowners’ interpretation had been correct, that provision would have been largely redundant. The fact that the Charterparty specifically dealt with time worked at night, on Sundays, and on Holidays indicated that the parties had intended a more precise calculation based on working hours rather than ordinary calendar days.
Rigby LJ dissented. In Rigby LJ’s view, the Charterers’ argument distorted the accepted meaning of “Working Day (WD)†by converting it into an artificial unit of 24 Working Hours. Vaughan Williams LJ, however, agreed with the Charterers’ interpretation. The Court of Appeal therefore held by majority that the Laytime Clause gave the Charterers 24 Working Hours for every 350 tons of iron ore loaded or discharged.
The decision was later affirmed by the House of Lords, although not without some hesitation. The only detailed speech was given by the Earl of Halsbury LC, who treated the wording as showing that Shipowner and Charterer had intentionally created a conventional or artificial day made up of a fixed number of hours. The parties were therefore not simply referring to an ordinary Working Day (WD), but to a specially defined contractual unit.
The next significant authority was Watson Brothers Shipping Co Ltd v. Mysore Manganese Co Ltd. In that case, the Laytime provision stated: “500 tons per Clear Working Day of 24 Hours (Weather Permitting) Sundays and Holidays Excepted.†The Charterparty also provided that where work was performed during excepted days, half of that time would count as Laytime. In addition, the ship was required to Work Day and Night if requested.
Hamilton J held that the Charterparty before him was, in substance, indistinguishable from the wording considered in Forest Steamship. Hamilton J observed:
“apart from authority the natural construction of the clause would be that the defendants (the Charterers) are to have, not a day by the calendar or a day which is a Working Day as distinguished from a Calendar Day which is a holiday, but a certain number of Hours upon which work in the ordinary course may be done.â€
This reasoning again treats the expression “Working Day of 24 Hours†as a formula for calculating a fixed number of working hours, rather than as a reference to an ordinary calendar day that happens to be a Working Day (WD). The result is that the Charterer receives the agreed number of working hours for the handling of the specified quantity of cargo.
A different approach was later adopted in Orpheus Steamship Co v. Bovill & Sons, decided by Scrutton J. This is notable because Scrutton J had previously appeared as counsel for the unsuccessful Plaintiff Shipowners in the earlier litigation. The case concerned discharge of a grain cargo at Avonmouth. The Charterparty required operations to be carried out “in accordance with the rules of the Bristol Channel and West of England Corn Trade Association.†Those rules allowed eight “Working Days of twenty-four Hours each,†Sundays excluded. The rules also provided that time began to run from the ship’s arrival off Avonmouth, whether or not the ship was already in Berth. There was no allowance for Bad Weather.
On those facts, Scrutton J held that the parties had agreed to eight Working Days (WD). He placed emphasis on the absence of wording dealing with periods outside ordinary Working Hours. Unlike Forest Steamship and Watson Brothers, the Charterparty did not contain a separate provision explaining whether time outside Working Hours was to be excluded, counted only if used, or treated in some other way.
Scrutton J explained:
“There is no provision as there was in the other cases about what you are to do with the period after the Working Hour. In this case there is no provision either authorising you to exclude it or saying what will happen if it is worked. In these circumstances it seems to me that it is part of the Working Day. It is a day on which work can be done between the parties and the parties can require work to be done during that time. I see no reason to exclude it.â€
On this analysis, Orpheus Steamship Co v. Bovill & Sons can be understood not as a direct contradiction of Forest Steamship, but as a case turning on different contractual wording and different trade rules. The parties may be treated as having agreed that 24 hours represented the standard daily working period for that port and trade. If read in that way, the decision can be reconciled with the earlier authorities. The difference lies not in a rejection of the earlier principle, but in the particular way the Charterparty and trade rules defined the relevant working period.
Lord Devlin later referred to this category of clause in Reardon Smith Line Ltd v. Ministry of Agriculture. Lord Devlin observed:
“It is, of course, possible, and it is sometimes done, for the Lay Days to be defined as a number of Working Hours. Or they may be defined as Working Days of 24 or some other number of Hours, though the authorities are not entirely agreed on what that means.â€
The final part of Lord Devlin’s observation most likely reflects the difficulty created by Scrutton J’s reasoning in Orpheus Steamship Co v. Bovill & Sons. The authorities show that the phrase “Working Day of 24 Hours†does not always produce a simple answer unless the Charterparty makes clear whether the parties are creating a fixed number of Working Hours, adopting a 24-hour artificial day, or referring to the working system of a particular port or trade.
The practical conclusion is that clauses expressed as “Working Days of 24 Hours†require careful construction. The court or Arbitrator must examine the whole Charterparty, including any “Unless Used (UU)†wording, night-work provisions, Sunday and Holiday exceptions, weather wording, port or trade rules, and clauses dealing with work outside ordinary hours. Where the language shows that the parties intended a fixed number of Working Hours, the calculation should be made on that basis. Where the wording links the expression to a particular port or trade system, the clause may instead be interpreted by reference to that commercial framework. Clear drafting is therefore essential, because the difference between an ordinary Working Day (WD), a Working Day of 24 Hours, and a fixed number of Working Hours can materially affect when Laytime expires and when Demurrage begins.
Working Hours Per Working Day
An important issue in Laytime calculation is identifying which Hours within a Working Day (WD) should be counted. As Smith LJ observed in the Court of Appeal in Forest Steamship Co Ltd v. Iberian Iron Ore Co Ltd, the number of Hours that constitute a Working Day may vary substantially from one port to another. His reasoning also suggests that where cargo operations are carried out beyond the ordinary working schedule of the port, those additional Hours may have to be credited if they are actually used. In that case, however, the Charterparty contained an “Unless Used (UU)†Clause, which was particularly relevant to work performed during night Hours.In the House of Lords, the Earl of Halsbury made the practical observation that:
“nobody supposes people work for twenty-four Hours.â€
However, the Earl of Halsbury did not define precisely how many Hours should be treated as making up the relevant working period. The question therefore remained dependent on the wording of the Charterparty, the custom of the port, and the commercial circumstances of the cargo operation.
In Watson Brothers Shipping Co Ltd v. Mysore Manganese Co Ltd, Hamilton J referred both to the “usual Hours of working at the port†and to the “Hours upon which work in the ordinary course may be done.†Hamilton J also considered the position where work is carried out at abnormal times, even in the absence of an “Unless Used (UU)†clause. Hamilton J stated:
“I take it that if he (the Shipper) does require the ship to work in Hours not usually worked on, and the ship complies with its obligation, the Shipper could not deny that such Hours having been used were part of the working day of 24 Hours.â€
This reasoning shows that the concept of Working Hours cannot always be confined to the ordinary basic hours of the port. If cargo interests require work outside normal hours and the ship performs that work, those Hours may become part of the relevant working period for Laytime purposes.
In Reardon Smith Line Ltd v. Ministry of Agriculture, Lord Devlin emphasized the practical nature of the inquiry:
“The number of Hours of a day or Working Day which a Charterer can use will depend on how he can mobilize the resources of the port and what rights he has got to exact co-operation from the ship.â€
Lord Devlin then added another commercially important observation:
“Overtime in ports is the rule rather than the Exception.â€
From these authorities, the better conclusion is that Usual Working Hours should generally include Regular Overtime, where overtime forms part of the ordinary operational practice of the port or trade. The precise Hours must be determined by reference to the actual commercial and operational practice at the relevant port, the type of cargo, the available facilities, the labour system, and the customary method of working that particular trade.
For any particular day, the Hours to be counted should normally be whichever is greater: the Total Normal Hours (including routine overtime) or the Actual Hours Worked. This approach prevents the calculation from ignoring genuine operational work merely because it falls outside basic port hours, while also preventing one party from artificially narrowing the working period by reference to limited standard labour hours.
If a Laytime Clause does not include the words “Weather Permitting (WP),†then the ordinary principles of Fixed Laytime apply. In that situation, weather conditions, however severe, will not normally suspend or interrupt the running of Laytime unless the Charterparty contains some other clause producing that effect. The Charterer bears the risk of delay unless the wording clearly transfers or excludes that risk.
Where the phrase “Weather Permitting (WP)†is included, the position changes. The expression becomes part of the Laytime Clause itself rather than a separate external Exception. It operates descriptively rather than exceptively. The central question is not what the parties expected to do, or whether they intended to work at a particular moment, but what the Weather Permits (WP) in relation to the cargo operation.
The intentions or expectations of the Shipowner and Charterer are therefore not decisive. What matters is whether the Weather Interruption occurred during a Working Day (WD) and within the relevant working period. That period may consist of the Hours actually worked, or the Hours normally and practically available for work at the port, including regular overtime where appropriate. Weather disturbances outside those Hours do not affect Laytime and must be disregarded.
In simple terms, the Laytime Clock must already be running for reasons independent of the weather before adverse weather can interrupt or affect it. Once weather becomes relevant, the actual duration of the weather-related stoppage should be deducted from the Laytime used, provided the interruption falls within the scope of the Weather Permitting (WP) wording.
Working Days of 24 Consecutive Hours, Working Days of 24 Running Hours, Weather Permitting (WP)
At first sight, expressions such as Working Days of 24 Consecutive Hours, Working Days of 24 Running Hours, and Weather Permitting (WP) may appear very similar to the Laytime Clauses already discussed. However, small changes in wording can significantly alter the legal and commercial result. In practice, there is no real distinction between the use of “Consecutive†and “Running.†Both expressions point toward time that proceeds continuously without interruption, subject only to the exclusions stated in the Charterparty.A Working Day of 24 Consecutive Hours or 24 Running Hours means a continuous period of 24 Hours, covering both day and night, provided the day is a Working Day (WD) as opposed to a Sunday or Holiday. The whole 24-hour period counts toward Laytime. This is different from clauses that refer merely to a Working Day without the words “Consecutive†or “Running,†where the calculation may depend on the Hours normally or actually worked at the port.
The main authority on this type of wording is the Scottish case Turnbull, Scott & Co v. Cruickshank & Co. The dispute concerned the shipment of iron ore from Spain to Ardrossan on the Clyde. The Charterparty provided that loading and discharging were to be performed “at the rate of 500 tons per Working Day of 24 Consecutive Hours, Weather Permitting (WP), Sundays and Holidays always Excepted.â€
The Charterers relied on Forest Steamship Co Ltd v. Iberian Iron Ore Co Ltd and argued that they were entitled to a sequence of theoretical 24-hour periods made up only of the Hours ordinarily worked at the port. On that basis, 500 tons would have to be loaded or discharged within each such notional working period. The Shipowners rejected that interpretation. The Shipowners contended that the words gave them a literal period of 24 actual Consecutive Hours for every 500 tons, so that, except for Weather Interruptions, Sundays, and Holidays, Laytime would run continuously.
At first instance, the Sheriff-substitute observed that the phrase “Consecutive Hours†could not reasonably mean anything other than Hours that follow immediately one after another without a break. The Court of Session upheld the Shipowners’ interpretation. Lord Trayner distinguished Forest Steamship on the basis that the earlier clause referred to 24 Working Hours, not 24 Consecutive Hours. Lord Trayner explained:
“In the Clause before us there is the Exception that Hours when the weather did not permit of loading or discharging were not to be reckoned against the Charterers, nor were Holidays nor Sundays. But in every twenty-four Consecutive Hours from the commencement of the loading or discharging, 500 tons were to be loaded or discharged if the weather did not hinder it or a Holiday or Sunday intervene. And in my opinion the words ‘Working Day’ in the Clause before us are used only in antithesis to the days which were Sundays or Holidays.â€
The effect of this reasoning is that the phrase “Working Day†identifies the kind of day that may count, while the words “24 Consecutive Hours†define the measuring unit within that day. The Charterers were not entitled to reduce the period to ordinary port working hours. Instead, each qualifying day was treated as a full continuous 24-hour period, unless the Charterparty expressly removed time for weather, Sundays, or Holidays.
The inclusion of “Weather Permitting (WP)†in this type of clause has the same general effect as in other Laytime provisions containing similar wording. If weather prevents cargo handling, or would have prevented cargo handling had operations been planned or had the ship been in a position to perform them, the affected time must be excluded from Laytime.
This principle may apply even where the bad weather occurs at night, regardless of whether work was actually scheduled at that time. Because the clause refers to 24 Consecutive or Running Hours, the whole period is potentially relevant. If weather during any part of that 24-hour period would not have permitted the relevant cargo operation, that time may be deducted.
This interpretation is consistent with the Court of Appeal’s approach in The Vorras, where the inclusion of “Weather Permitting (WP)†was treated as making the clause descriptive rather than exceptive. In other words, weather is built into the definition of the Laytime that is to count. The question is not simply whether an external exception has stopped time that would otherwise run. The question is whether the weather permitted the relevant time to qualify as Laytime in the first place.
The practical distinction is important. A clause referring to Working Days of 24 Consecutive Hours, Weather Permitting (WP), is not the same as a clause referring only to Working Days or to Working Hours. The addition of “Consecutive†or “Running†points toward continuous time. The addition of “Weather Permitting (WP)†then removes from that continuous period the time during which weather does not permit the relevant loading or discharging operation.
For Shipowners and Charterers, this form of wording provides a more continuous and predictable Laytime structure, but it also makes precise weather evidence important. Since the clock runs through the full 24-hour period unless excluded, the party relying on weather must be able to identify when the weather prevented, or would have prevented, the relevant cargo work. Clear records from the ship, terminal, port authority, agents, and weather reports may therefore become essential in any later Laytime or Demurrage dispute.
The broader lesson is that Charterparty wording must be read with close attention to every qualifying word. “Working Day,†“Working Day of 24 Hours,†“Working Day of 24 Consecutive Hours,†and “Working Day of 24 Running Hours†may appear similar, but they do not necessarily produce the same result. The addition of Weather Permitting (WP) adds another layer of analysis. Proper construction depends on the whole Charterparty, the trade background, the port practice, and the commercial purpose of the clause.
Weather Working Day of 24 Consecutive Hours
Under the Charterparty Laytime Definitions 1980, the expression Weather Working Day of 24 Consecutive Hours is defined in the following terms:“‘WEATHER WORKING DAY OF 24 CONSECUTIVE HOURS’ means a Working Day or part of a Working Day of 24 Hours during which it is, or if the ship is still awaiting her turn it would be, possible to load or discharge the cargo without interruption from weather conditions. If such interference occurs—or would have occurred had operations been underway—the time during which the weather hindered or would have hindered work shall be Excluded from the Laytime.â€
A similar definition appears in the Voylayrules 1993, which provide:
“‘WEATHER WORKING DAY OF 24 CONSECUTIVE HOURS’ shall mean a Working Day of 24 Consecutive Hours except for any time when weather prevents the loading or discharging of the ship or would have prevented it had work been in progress.â€
These definitions make clear that the time to be deducted from Laytime is the actual or notional period during which weather prevents, or would have prevented, cargo operations. The calculation is not governed by the ordinary working routine of the port, the customary labour hours, or the amount of time normally worked during the day. The relevant unit is a full 24-hour period, and any weather interruption falling within that period must be excluded.
This means that it does not matter whether the weather interruption occurs during ordinary daytime working hours, during overtime, at night, or at another time when cargo work was not actually being performed. If the weather would have prevented the loading or discharging of the relevant cargo had work been in progress, the affected time is excluded from the Laytime calculation.
The addition of the words “of 24 Consecutive Hours†distinguishes this expression from an ordinary Weather Working Day (WWD). A simple Weather Working Day (WWD) may require a more detailed inquiry into the working hours of the ship or the relevant port operation. By contrast, a Weather Working Day of 24 Consecutive Hours creates a fixed 24-hour working period for each qualifying day. The parties therefore avoid disputes about ordinary port hours, labour shifts, overtime practice, or the length of the working day.
If the phrase Weather Permitting (WP) is added to this wording, it will usually add nothing of substance. The weather element is already built into the definition of Weather Working Day of 24 Consecutive Hours. The additional phrase merely repeats the same idea, unless the Charterparty contains further wording showing that Shipowner and Charterer intended it to have a separate legal effect.
Laytime Determined by Reference to Cargo Handling Rates
Some Laytime Clauses do not simply state a fixed number of days or hours. Instead, they calculate the Laytime allowance by reference to a rate of loading or discharging. This rate may be expressed as an overall daily rate for the whole ship, or it may be stated by reference to a particular cargo-working unit, such as a “Rate Per Hatch†or “Per Hook.†In clauses of the latter kind, the Charterparty may provide for a specified tonnage per Hatch, per Working Hatch, or “Per Working (or Available Workable) Hatch.â€In each form of rate-based Laytime, the time element may still be described by one of the familiar expressions already considered, such as “Per Day,†“Per Working Day,†“Per Weather Working Day,†“Per Running Day,†or another agreed measure of time. The cargo-handling rate identifies the quantity to be loaded or discharged within that time unit. Once the cargo quantity and the applicable rate are known, the Laytime allowance can be calculated.
Rate Per Working Hatch (or Available Workable Hatch)
A typical clause of this kind may read:
“At the Average Rate of 500 tons Per Working Hatch Per Day (PWHPD).â€
A Working Hatch (WH) means a Hatch from which cargo is actively handled on the relevant day. Once the corresponding Hold has been fully loaded or fully discharged, that Hatch ceases to be a Working Hatch because there is no longer cargo in that Hold to be handled through it. The total output of the ship on any day is therefore the combined result of the Hatches still in operation.
This has an important practical consequence. If all Hatches are worked evenly at the start of operations, the total daily rate will gradually reduce as individual Holds are completed. The work continues until the last Hold, usually the Hold containing the largest quantity of cargo, has been completed. For this reason, the Laytime allowance can often be calculated by identifying the Hold with the largest quantity of cargo and dividing that quantity by the agreed daily rate applicable to the Hatch or Hatches serving that Hold.
The Voylayrules 1993 define this calculation more precisely:
“PER WORKING HATCH PER DAY (WHD) or PER WORKABLE HATCH PER DAY (WHD) shall mean that the Laytime is to be computed by dividing (A), the quantity of cargo in the hold with the Largest Quantity, by (B), the product obtained by multiplying the agreed daily rate per Working Hatch or Workable Hatch by the number of Hatches serving that hold.â€
This formula is designed to produce a consistent and commercially workable result. It avoids the uncertainty that would arise if Laytime depended on the actual sequence in which the Charterers chose to load or discharge the Holds. It also allows the Laytime calculation to reflect the physical working capacity of the ship’s cargo spaces and Hatches rather than the changing number of Hatches in use at different stages of the operation.
Largest Quantity in One Hold
Laytime = Largest Quantity in One Hold / Daily Rate per Hatch × Number of Hatches Serving that Hold = Days
For the purposes of this calculation, each set of Parallel Twin Hatches is treated as One Hatch. However, if a Hatch can be operated by Two Gangs at the same time, it is counted as Two Hatches. The classification of Hatches can therefore materially affect the Laytime result and should be examined carefully in light of the ship’s actual design and cargo-handling arrangements.
In practice, the final Laytime calculation can only be made accurately after loading has been completed, because the actual quantities stowed in each Hold must be known. Before completion, any calculation can only be provisional unless the cargo distribution is already fixed and reliably recorded.
The leading authority on the interpretation of this type of clause is The Sandgate. The case concerned a Charterparty based on the Welsh Coal Charter 1896 Form for the carriage of coal from Cardiff to San Rosario. The Charterparty provided for discharge at “an average rate of discharge of 125 tons Per Working Hatch Per Day (WHD).†The ship had four Hatches. The Shipowners argued that the clause created a total discharge rate of 500 tons per day. The Charterers argued that as soon as a Hold was emptied, the corresponding Hatch was no longer a Working Hatch, so the total daily discharge obligation reduced as each Hold was completed, while the rate per Hatch remained constant.
Both Hill J at first instance and the appellate court accepted the Charterers’ interpretation. Hill J explained the practical calculation in these terms:
“I suppose worked out most accurately you would take these several quantities (that is the quantity in each hold) and start with 500 and go on reducing to 375, reducing to 250 and finally 125; but you get exactly the same result, and the Shipowner would have no difficulty in doing the arithmetic if he took the quantity in the hold which contains the largest quantity and divided that by 125, then that would give you the period in which the discharge had to be carried out, and you would then take into account Sundays and Holidays.â€
On appeal, Scrutton LJ rejected the Shipowners’ argument and stated:
“the phrase cannot be read as a roundabout way of saying what might have been said quite simply: ‘I will discharge 500 tons per day out of four cargo Hatches, 125 tons for each Hatch’. What it does mean is to assume that the amount may vary per day, according as there is a Working Hatch—a Hatch which can be worked because there is coal in it. Whether it was a reasonable agreement to make or not, it is not for me to say.â€
The same broad approach was later applied by Devlin J in Compania de Navigacion Zita SA v. Louis Dreyfus & Cie. In that case, Clause 5 of the Charterparty provided that the cargo was to be loaded “at an average rate of not less than 150 metric tons Per Available Workable Hatch Per Day.†During the hearing, both parties accepted that, for the purpose of calculating Laytime, there was no material difference between the expression Working Hatch used in The Sandgate and the expression Available Workable Hatch used in the case before Devlin J.
The Shipowners contended that Laytime should be calculated by reference to the number of Available Workable Hatches at each stage of the loading operation. On that basis, if five Workable Hatches were available, the daily loading rate would be 750 tons. If the number of available Hatches later reduced to three at the second loading port, the daily rate would fall to 450 tons. If only two Hatches were available for the final part of the cargo, the rate would reduce again to 300 tons.
The Charterers argued for a different method. They maintained that the correct approach was to identify the largest single quantity of cargo loaded into any one Hold and divide that quantity by 150. Devlin J accepted the Charterers’ argument and rejected the Shipowners’ approach. Devlin J stated:
“There is, I think, an overwhelming objection to the Shipowners’ construction of the Clause. It is that on that construction the number of Lay Days depends upon the way in which the Charterers choose to load the ship. There may possibly be good reasons why they should load one hold after the other, but there may also be bad ones; and on the Shipowners’ construction there is no way of distinguishing between excusable delay and wanton delay. The fundamental error in them [the Shipowners’ submissions] is that they treat Clause 5 as if it were laying down a method of loading. If it were, it would be appropriate to suggest that it should not be construed as requiring the Charterers to load each hold each day at exactly the same rate and for exactly the same time. Clause 5 in my opinion is not prescribing a method, but setting a standard; it is drawing a notional line above which there will be a bonus and below a penalty. But it is reasonable to think that the standard set will be one which assumes that as far as possible work will go on simultaneously on all the Holds, because that is the way that is most economical of the ship’s time.â€
The importance of The Sandgate and Compania de Navigacion Zita SA v. Louis Dreyfus & Cie lies in the distinction between a loading or discharging method and a performance standard. A Per Working Hatch or Per Available Workable Hatch clause does not normally prescribe the exact sequence in which cargo must be loaded or discharged. Instead, it sets a notional standard against which the time used is measured. If the operation is completed faster than the standard, Despatch may arise if the Charterparty provides for it. If the operation falls below the standard and Laytime is exceeded, Demurrage may become payable.
This method produces a fairer and more commercially predictable Laytime calculation. It prevents the number of Lay Days from being manipulated by the order in which cargo is placed into, or removed from, the Holds. It also reflects the practical capacity of the Ship’s Holds and Hatches, rather than the changing operational choices made during the cargo work itself. For Shipowners and Charterers, the key point is that rate-based Laytime clauses must be read as setting a measurable contractual standard, not as a detailed instruction for how the cargo operation must be physically performed.
In The Sandgate, the dispute concerned a single discharge port. In Compania de Navegación Zita SA v. Louis Dreyfus & Cie, two separate loading ports were involved, but no argument appears to have been advanced that the number of loading or discharging ports should alter the interpretation of the Laytime Clause.
The issue was later considered more directly by Hobhouse J in Cargill Incorporated v. Marpro Ltd, known as The Aegis Progress. The case concerned the sale of two FOB (Free On Board) parcels of sugar, with Antwerp and Dunkirk nominated as loading ports. The sale contract provided for loading at a rate of 150 tonnes Per Workable Hatch. Before arriving at Antwerp, the MV Aegis Progress had already loaded an unrelated parcel of cargo at Rouen.
The Buyers argued that, because four of the ship’s seven Holds were available for loading at each port, the total quantity loaded at Antwerp and Dunkirk should be divided by four, and the agreed loading rate should then be applied to that resulting figure. On this approach, it would not matter which particular Holds were used at each port. The Sellers, however, argued that each loading port required a separate calculation, based on the largest quantity loaded into any one Hold at that port.
Hobhouse J accepted that the Laytime Clause was intended to operate by reference to a single overall calculation. However, on the particular facts, he held that the correct calculation was not based simply on identifying the one Hold with the largest combined quantity from both ports. Instead, the calculation required adding the quantity in the most heavily loaded Hold at Antwerp to the corresponding relevant Hold figure at Dunkirk. Hobhouse J stated:
“In most cases the required calculation can be done by identifying the critical Hatch or Hold and then calculating the Laytime for that Hatch; in exceptional cases and this is one, more than one Hatch is critical and therefore more than one Hatch has to be taken into account in calculating the Laytime.â€
Earlier in his reasoning, Hobhouse J also made an important observation about workability and uneven loading:
“When one is considering workability one must disregard uneven loading (or discharge) which arises from the Shippers’ choice as opposed to reasons which disable them from Working the Hatches Evenly.â€
This means that, in some cases, it may be necessary to adjust the Quantities Actually Loaded through each Hatch in order to reflect the quantity that would theoretically have been loaded had the cargo work been distributed evenly. The largest of those adjusted quantities at each port may then become the proper basis for calculating the total Laytime allowance.
The reason for this adjustment lies in the nature of the clause itself. Earlier authorities treated this type of Laytime wording as establishing a performance benchmark, not as a method by which the Charterers may manipulate the Laytime calculation through the order or pattern of loading. The standard assumes, so far as reasonably possible, that work is spread evenly across the available Hatches. In practice, the issue most often arises in part cargo situations, especially where loading or discharging is divided between different ports, parcels, or Holds.
A related question arose in Cargill Inc v. Rionda de Pass Ltd, known as The Giannis Xilas, before Bingham J. That case concerned a parcel of bagged sugar shipped from Antwerp on a ship with an unusual cargo arrangement. One Hatch gave access, through a shared ’Tween Deck Opening, to two separate lower Holds. The Buyers argued that because one of those Holds could also be reached through another Hatch, the cargo quantity in that Hold should be divided or apportioned between the two Hatches.
Bingham J rejected that argument. Bingham J stated:
“I find no warrant in the language used for thinking in terms of notional Hatches or notional metal bars, nor do I think it legitimate to pay attention to cargo spaces, which are not mentioned, in preference to Hatches which are.â€
The judgment is important because it focuses attention on the actual contractual wording. If the clause refers to Hatches, the calculation should not be redirected toward cargo spaces or artificial divisions that are not mentioned in the contract. The court was not prepared to invent notional Hatches or divide cargo by reference to theoretical access arrangements where the Charterparty language did not require such an approach.
Bingham J was also referred to the Charterparty Laytime Definitions 1980, which, like the Voylayrules 1993, provide that a Hatch capable of being worked by two gangs at the same time may count as two Hatches. However, Bingham J held that although such an arrangement might be theoretically possible and might occur in some trades, it would have conflicted with established operational custom at Antwerp. For that reason, it could not be treated as the correct approach under accepted maritime practice in that case.
The meaning of “Available Workable Hatch†was also examined in a London Arbitration award. The ship in that case had four Holds and five upper-deck Hatches. Hold No 4 was served by two Hatches. Each Hatch was fitted with two pairs of winches, except No 2 Hatch, which had two winches forward and two aft, allowing both ends of No 2 Hatch to be worked at the same time.
The Charterers argued that Laytime should be calculated by identifying the Hatch or Hold containing the largest cargo quantity and dividing that quantity by the agreed loading rate. On the facts, this was Hatch/Hold No 2. The Shipowners argued for a different method. They maintained that Hatches No 4 and No 5, both serving Hold No 4 and being of the same dimensions, should each be treated as having handled half of the cargo loaded into Hold No 4. Since the total cargo in Hold No 4 exceeded the quantity in Hold No 2, the Shipowners argued that this should control the calculation.
The Shipowners also argued that because Hatch No 2 was double-rigged, it should be treated as two Hatches. They relied on the Charterparty Laytime Definitions to support that position. On this basis, the Shipowners contended that loading through Hatches No 4 and No 5 would still have continued after Hatch No 2 had completed operations.
The Arbitrators rejected the Shipowners’ arguments. The key issue was the proper construction of the phrase “Per Available Workable Hatch.†Applying the principles established in the earlier authorities, the Arbitrators accepted the Charterers’ interpretation. The Charterparty Laytime Definitions were intended to provide clarity where expressly incorporated, but the parties had not incorporated them into the Charterparty. They therefore had no direct application to the dispute.
The Arbitrators further held that the decisive fact was that the Largest Quantity of cargo had passed through Hatch No 2. Whatever its size or technical capability, Hatch No 2 could not be converted into two Hatches by theoretical reasoning. The same approach applies under the Voylayrules 1993, unless the parties expressly agree otherwise. A Hatch capable of being worked by two gangs may have greater operational capacity, but it remains one Hatch unless the contract clearly provides that it is to be counted as two.
The practical effect of these authorities is that Per Workable Hatch and Per Available Workable Hatch clauses must be applied as objective performance standards. The calculation should not depend on tactical loading choices, artificial cargo-space divisions, or theoretical Hatch configurations that are not supported by the contract. The court or tribunal will look first at the Charterparty wording, then at the physical arrangement of the ship, the actual cargo distribution, the custom of the port, and whether any definitions such as the Charterparty Laytime Definitions 1980 or the Voylayrules 1993 have been expressly incorporated. Where they have not been incorporated, they may explain industry terminology, but they do not automatically govern the parties’ rights.
Availability of Holds
The addition of the word Available in the expression Per Available Working Hatch does not change the basic formula used to calculate the Laytime allowance. Instead, it operates as an Exceptions Clause built into the wording of the Laytime provision itself. In Compania de Navegación Zita SA v. Louis Dreyfus & Cie, Devlin J explained the point in the following terms:“Unavailability, therefore, stands outside the scope of the formula and is to be treated as a distinct adjustment. The basic figure under the formula is adopted in the same way as a fixed number of Lay Days, from which deductions must then be made—where necessary—for Sundays, Holidays, inclement weather, or non-availability of Hatches. It is worth emphasizing that the absence of availability must have a practical impact; in other words, it must actually hinder the operation. For instance, if a Hatch became inoperative after the relevant Hold had already been completely loaded, such a failure would be of no significance. Similarly, if a smaller Hold were out of action for a short time at the beginning, perhaps four days, it would likewise make no difference, since the Hold could still be loaded within the standard time allowed.â€
The effect is that unavailability differs from the role played by weather in the expression Weather Working Day (WWD). Weather in that expression is descriptive of the kind of day that counts. By contrast, an exclusion for unavailability requires a direct causal connection between the condition relied upon and the actual interference with loading or discharging. If the unavailability has no practical effect on the cargo operation, it does not reduce the Laytime allowance.
Where the word Available is not included in the Laytime expression, issues concerning unavailable Hatches, defective gear, blocked access, or other operational restrictions must normally be considered under the Exception Clauses contained elsewhere in the Charterparty. The absence of express wording may therefore become significant, particularly where one party seeks to deduct time on the basis that a Hatch could not be used.
However, in Cargill Inc v. Marpro Ltd, known as The Aegis Progress, Hobhouse J suggested that even where the word Available is absent, the concept of Workable may itself be broad enough to exclude periods when a Hatch cannot in fact be used. Hobhouse J stated:
“Availability and Workability may overlap in meaning. The relevant clause in the Zita case expressly employed both expressions—‘Available’ as well as ‘Workable’. Mr Justice Devlin regarded unavailability as an exception rather than part of the definition of Laytime. As noted by Mr Justice Bingham in The Giannis Xilas, operational issues such as winch malfunctions can interrupt loading or discharging and may conveniently be classified as periods of unavailability. Personally, I remain unconvinced that the insertion of the term ‘Available’, whether in the clause itself or in judicial commentary, contributes anything of substance. It is a mistake to assume that the word ‘Available’ must be introduced to address situations in which a Hatch cannot be used for reasons other than fullness or emptiness. Linguistically, ‘Workable’ already captures that concept—it is not confined by such limitations. Nor was that the understanding of Mr Justice Bingham, who explicitly included in his explanation of ‘Workable’ the phrase: ‘being a Hatch the party responsible for loading or discharging is not for any reason disabled from working.’ While fullness and emptiness are the most common causes and hence most frequently discussed in judgments, The Sandgate decision clearly recognizes other possible circumstances. In my view, Mr Justice Bingham’s formulation of the definition was entirely appropriate and correct.â€
This reasoning indicates that the expression Workable Hatch may, depending on the Charterparty wording and factual circumstances, already include the idea that the Hatch must be capable of being worked in a practical operational sense. A Hatch may therefore be unworkable not only because the corresponding Hold is full or empty, but also because the party responsible for cargo operations is prevented from using it for some other reason. The point remains one of construction, and the court or Arbitrator must examine the language used in the particular Charterparty.
Rate Per Hatch
A common form of Laytime Clause may provide:“At the average rate of 125 tons Per Hatch Per Working Day.â€
The question whether this wording should be interpreted in the same way as a clause referring to a Rate Per Working Hatch came before the Court of Appeal in Lodza Compania de Navigacione SA v. Government of Ceylon, known as The Theraios. In the arbitration proceedings that led to the appeal, the Arbitrators held that an Average Rate Per Hatch Per Day should be applied according to its literal meaning. On that approach, the total daily rate was obtained simply by multiplying the agreed rate by the total number of Hatches. The total cargo quantity was then divided by that combined daily rate to produce the allowed Laytime.
When the matter reached the High Court, Mocatta J rejected that method. Mocatta J held that the Laytime allowance should be calculated in accordance with the Sandgate formula used for Rates Per Working Hatch. Under that approach, the calculation would be based on dividing the largest quantity loaded in any one Hold by the Agreed Rate. The Court of Appeal, however, reversed Mocatta J’s decision and unanimously restored the approach taken by the Arbitrators.
Salmon LJ explained the commercial effect of the clause in these terms:
“What truly concerns the Shipowners is the actual duration spent on the loading and discharging operations. As this ship possesses five Hatches, the clause seems to me merely an indirect way of expressing that the ship is to load and discharge cargo at an average rate of 600 tons per day—five Hatches at 120 tons each. Admittedly, this could have been more plainly written as ‘the cargo is to be loaded and discharged at an average rate of 600 tons a day.’ However, Charterparties are seldom admired for their precision or simplicity of wording.â€
Widgery LJ reached the same conclusion and stated:
“Since there is no explicit mention of Working Hatches, and no essential necessity to imply that term to make the contract workable, I cannot agree that the Arbitrators committed any error of law in accepting the owners’ interpretation of the Charterparty.â€
The distinction is important. A clause referring simply to Per Hatch Per Day does not automatically import the special meaning of Per Working Hatch Per Day. Unless the Charterparty uses the word “Working,†or unless such an interpretation is necessary to make the contract operate commercially, the calculation is normally made by multiplying the agreed rate by the number of Hatches on the ship.
In London Arbitration 16/03, the Tribunal considered a clause providing for discharge at “150 mt Per Hatch Per Weather Working Day (WWD).†The ship had three Hatches and was due to discharge at three separate ports. A Stowage Plan (SP) had been arranged before the voyage, and it was clear that only one Hatch would be used for discharge at each port. The Charterers argued that, for practical purposes, the ship should be treated as a one-hold ship at each discharge port, so that the discharge rate should be only 150 metric tonnes Per Weather Working Day (WWD).
The Tribunal rejected that argument. There was no basis for inserting the word “Working†into the Laytime clause in order to make it commercially acceptable to the Charterers. If the Charterers wanted a rate of 150 tonnes per day, they could have negotiated wording to that effect. Since the ship had three Hatches, the contractual rate was 450 metric tonnes per day. In fact, the actual discharge rate achieved was more than twice that amount.
The Charterparty Laytime Definitions 1980 explain the expression in the following way:
“PER HATCH PER DAY†signifies that Laytime should be determined by multiplying the Agreed Daily Rate Per Hatch for loading or discharging the cargo by the number of Hatches on the ship, and then dividing the total amount of cargo by the product obtained.
Quantity of Cargo
Laytime = ————————————————- = Days
Daily Rate × Number of Hatches
A Hatch capable of being worked by Two Gangs at the same time is to be treated as equivalent to Two Individual Hatches. This can increase the effective number of Hatches for the purpose of the formula, but only where the physical and operational arrangement genuinely permits simultaneous working by two gangs.
In London Arbitration 30/92, the Laytime Clause provided for loading at “500 metric tons per Hatch, Two Hatches. Basis Two Hatches.†The ship had four Holds and seven Hatches. Twin Hatches served No 2 Hold, which was the Hold nominated for loading the cargo. The Charterers argued that the Laytime calculation should proceed on the basis that only one Hatch was available. They also contended that their plan to use Two Gangs per Hatch, four in total, could not be achieved in practice.
The Tribunal doubted whether the Charterers’ proposed method would have been workable even if Two Separate Hatches, each serving a separate Hold, had been allocated for the cargo operation. In any event, the Tribunal decided in favour of the Shipowners. The wording of the Charterparty clearly referred to “Two Hatches,†and the Charterers had in fact been provided with two Hatches for the purpose of the operation.
This result should be compared with the definition of “Per Hatch Per Day†in the Voylayrules 1993, which provides:
“PER HATCH PER DAY†signifies that Laytime should be computed by dividing (A) the amount of cargo by (B) the result derived from multiplying the agreed daily rate per Hatch by the number of Hatches on the ship. Accordingly:
Quantity of Cargo
Laytime = —————————————- = Days
Daily Rate × Number of Hatches
Under the Voylayrules 1993, each set of Parallel Twin Hatches is treated as One Hatch. However, a Hatch that can be operated by Two Gangs working at the same time is to be treated as Two Hatches. These provisions apply only where they are expressly incorporated into the Charterparty. The rule that, Prima Facie, a Twin Hatch counts as One Hatch operates as a clarification of the earlier Charterparty Laytime Definitions 1980.
If those definitions had been incorporated in the arbitration referred to above, the outcome would still have been the same. The Prima Facie presumption that a Twin Hatch counts as One Hatch would have been displaced by the evidence that the Hatch could in fact be worked by Two Gangs simultaneously, although not by four gangs as the Charterers had argued. From a commercial standpoint, it is sensible that a Twin Hatch should be treated as Two Hatches only where it is physically and operationally capable of being worked by Two Gangs at the same time.
A further London Arbitration considered a Laytime clause under which the permitted Laytime was to be calculated by reference to “150 metric ton Per Hook PWWD (Per Weather Working Day (WWD)) of 24 Consecutive Hours.†The ship had three Holds, each served by its own Hatch. The internal configuration of the cargo spaces allowed a maximum of four Gangs to work simultaneously. The ship was fitted with six Derricks and two Cranes. For bagged copra and similar cargoes, the derricks were normally used in union purchase, meaning that each pair of Derricks operated together as one “Hook.†Taking into account the cranes and the restricted working space inside the Holds for loading and discharging Gangs, the ship was properly described as a “four-hook ship.â€
The Shipowners argued that, since the ship could employ four Gangs at the same time, the relevant loading or discharging rate should be 600 tonnes per day. The Charterers argued that Laytime should be calculated by reference to the number of Hooks actually used during the operation, namely two at the loading ports and three at the discharge ports.
The Arbitrators accepted the Shipowners’ position. They considered that defining the ship by reference to “Hooks†gave a more realistic measure of her cargo-handling capacity than simply counting Holds or Hatches. Although additional Hooks might physically exist because of ship’s gear or shore cranes, the expression “Hooks†in this context referred to the number of Gangs that could work concurrently on the ship. The number of Hooks therefore provided a practical indication of the speed with which cargo operations could be performed, taking into account both the ship’s design and local operating conditions.
Some Holds were suitable for only one gang, while other cargo spaces had sufficient room and Hatchway access to permit two Gangs to work efficiently at the same time. Describing the ship as a “four-hook ship†was therefore equivalent to describing it as a “four-gang ship,†provided that traditional loading gear was being used, whether shipboard gear or shore equipment. The Arbitrators accordingly held that the Laytime allowance should be calculated on the basis of 600 tonnes per day for both loading and discharging.
The figure was not based on the maximum number of Hooks that could theoretically be suspended above the Hatches, because some of those Hooks could not be served by a working gang. Nor was the calculation based on the number of Hooks actually used during the operation, as the Charterers had argued. The correct test was the ship’s practical concurrent cargo-working capacity, measured by the number of Gangs that could realistically and efficiently work at the same time.
The broader principle is that Per Hatch and Per Hook clauses must be interpreted according to their precise wording and commercial purpose. A Per Hatch clause normally produces a total daily rate by multiplying the agreed rate by the number of Hatches, unless the Charterparty refers to Working Hatches or otherwise requires a different approach. A Per Hook clause, by contrast, is concerned with the cargo-handling capacity represented by the number of Gangs or Hooks that can operate concurrently. In both cases, the aim is to establish a workable Laytime standard that reflects the ship’s actual cargo-handling potential rather than a purely theoretical or artificial calculation.
Laytime Expressed as a Total Daily Rate
A commonly used Laytime Clause may provide:“The steamer shall be loaded at the rate of… tons per Running Day and at destination cargo to be received at… tons per weather working day.â€
At first sight, this type of clause appears relatively straightforward. Since the Laytime allowance is calculated by dividing the quantity of cargo by the agreed daily rate, it might seem unlikely to generate serious disputes. In practice, however, several cases have required courts and tribunals to determine how the Laytime Allowed should be calculated where the cargo quantity, number of ports, number of Hatches, lightening operations, or other operational circumstances complicate the calculation.
In Hain Steamship Co Ltd v. Minister of Food, one of the main issues was whether the Lay Days should be calculated, as the Shipowners argued, by reference to the actual quantities loaded and discharged, or, as the Charterers contended, by applying a formula derived from the Freight Clause. The umpire, Sellers J, the High Court, and the Court of Appeal all reached the same conclusion. They held that the Lay Day Clauses operated independently from the provisions dealing with the calculation and payment of Freight. The Shipowners were therefore entitled to Demurrage calculated by reference to the Actual Quantities loaded and discharged. The difference between the loaded and discharged quantities was small and arose from cargo shrinkage during the voyage, the cargo consisting mainly of bagged wheat.
In Clerco Compania Naviera SA v. The Food Corporation of India, known as The Savvas, the question was whether discharge Laytime should be calculated on the whole cargo carried by the ship or only on the reduced quantity remaining after lightening had taken place. The Charterparty included the following additional clauses:
“18. Cargo is to be discharged by Consignee’s Stevedores free of risk and expense to ship at the average rate of 1500 tons.â€
“22. Lightening, if any, at discharging port to be at Owners’ risk and expense and time used not to count as Laytime.â€
A further issue concerned the meaning of the phrase “time used in Lightening.†The question was whether it referred only to the physical period during which cargo was transferred from the ship, or whether it also included waiting time while lighters were being obtained. Once it was decided that the phrase had the narrower meaning and covered only the actual lightening operation, all three decision-makers—the umpire, the High Court, and the Court of Appeal—held that Laytime should be calculated on the Full Cargo Carried.
Parker J explained the commercial reasoning in the following terms:
“With regard to the other matter, whether the Laytime is to be calculated on the full amount of the cargo or only on the reduced amount, the argument centred upon the use of the words ‘Cargo is to be discharged by consignee’s stevedores free of risk and expense,’ and it was submitted that the result of those words was that the clause could only be applicable to the cargo remaining at the end of the lightening process. To give that significance to those words appears to me to be unwarranted. As a matter of commercial sense, if a Charterer is to have time running against him from the moment that the fully laden ship arrives at the port, he should have available for dealing with the cargo on board that number of Lay Days appropriate to the cargo then on board.â€
The point is commercially important. Where Laytime begins when the fully laden ship arrives, the Charterer should ordinarily receive Laytime by reference to the cargo then on board, not merely the cargo remaining after part of it has been removed by lightening. Otherwise, the calculation would not correspond to the quantity that the Charterer was responsible for dealing with when the ship arrived.
In The Siam Venture and Darfur, the Shipowner and Charterer had agreed a discharge rate expressed as 2,500/3,000 tonnes per day. The issue was whether that range was too uncertain to impose a definite obligation or provide a valid method for calculating Laytime. Sheen J rejected that argument. The Shipowners could enforce the agreement only in the way least burdensome to the Defendants. Since the Defendants would have avoided Demurrage if they had discharged at 2,500 tonnes per day, Laytime was calculated on that lower figure.
Another recurring issue concerns whether, where a Charterparty provides for loading or discharge at more than one port, Laytime should be calculated separately for each port or by a single overall calculation. In United British Steamship Co Ltd v. Minister of Food, the case involved one receiver and two discharge ports. In Compania Naviera Azuero SA v. British Oil and Cake Mills Ltd and others, there were two discharge ports and 14 receivers. In the latter case, Pearson J considered whether separate calculations might be made for each Bill of Lading (B/L), at least where the receivers rather than the Charterers were liable for Demurrage. However, he rejected that possibility as commercially impractical.
In each case, the Laytime Clause referred to an average rate in the singular. Pearson J emphasized the significance of this wording:
“Then the clause has the words “Average Rate” suggesting one calculation, whereas Average Rates in the plural, or Average Rate at each Discharging Port, or some similar phrase, could have been used to suggest two separate calculations if that had been the intention.â€
Pearson J also approved the reasoning of Croom-Johnson J in United British Steamship Co Ltd v. Minister of Food, where Croom-Johnson J stated:
“This is, I think, after all is said and done, a perfectly simple situation. This is one adventure and one enterprise. If the parties (Shipowner and Charterer) wanted to make an agreement under which they were going to pay Demurrage for delay at one point and only get one-third of the Demurrage for any time they saved at the other port, they could no doubt have framed an appropriate clause which would have produced that result.
It is quite plain that they have not done it, and it seems to me that, looking at this Charterparty as a whole, when I see ‘cargo to be discharged at the average rate of’ so-and-so, I think those words really mean what they say. It looks to me as if it would have been so simple to say, ‘cargo to be discharged at the average rate of so-and-so at each port’. But they never did it.â€
The courts therefore concluded in both cases that there should be a single Laytime Calculation. The phrase “average rate†pointed toward one calculation for the whole discharge operation rather than separate calculations at each discharge port. If Shipowner and Charterer intend separate port-by-port calculations, the Charterparty must state this clearly.
In The Tropwave, the Laytime Clause provided:
“1000 metric tonnes provided minimum 5 Hatches or Pro Rata, if less than 5 Hatches available, per Weather Working Day (WWD).â€
At the beginning of discharge, only four Hatches were available, and the Arbitrator therefore calculated the discharge rate at 800 tonnes per day. The buyers of the cargo argued that, because one Hatch might have had to be discharged at 500 tonnes per day in order to achieve the total rate, the clause should be construed as if it provided a discharge rate of 200 tonnes Per Hatch Per Day. Parker J rejected that argument and stated:
“The argument is highly ingenious but it involves reading the clause as if it said 200 tonnes per Hatch per day and it does not. It is an overall rate and the Charterer or receiver is free to discharge in what order and at what rate he chooses. Since one Hatch will very often if not always be longer than the others, the buyers’ construction would involve the result that the specified rate was seldom if ever 1000 tonnes even if five Hatches were available at the outset. This is wholly inconsistent with the wording.â€
The decision confirms the difference between an overall daily rate and a Per Hatch rate. Where the clause states an overall rate, the court will not normally rewrite it as a Per Hatch formula merely because the physical arrangement of cargo or Hatches makes the calculation more complex. The Charterer or receiver remains free to determine the order and pace of discharge, provided the agreed overall rate is achieved.
In London Arbitration 8/96, the Charterparty provided for discharge at a rate of 2,000 mt per Weather Working Day (WWD) of 24 Consecutive Hours. The Charterers argued that the rate should be reduced to 1,600 mt because one of the ship’s six Holds contained other cargo. The Shipowners pointed out that 1,600 mt was not five-sixths of 2,000 mt. The ship was described as having a “minimum five Holds/Hatches,†and there was no representation or warranty that all Hatches would be available for the Charterers’ cargo. The Tribunal held that, in the absence of any clause altering the Laytime basis and in the absence of any breach by the owners, there was no justification for adjusting the Laytime allowance or awarding damages by reducing the agreed rate.
A similar attempt to reduce the discharge rate was made before New York Arbitrators in The Sea Wind. In that case, the Charterers chose to load only three of the five available Hatches and then sought to reduce the discharge rate accordingly. The Tribunal rejected the argument. A Charterer’s own operational choice to use fewer Hatches does not ordinarily reduce the contractual rate unless the Charterparty provides for such a reduction.
London Arbitration 3/99 concerned a ship fixed to carry two different cargoes under separate Charterparties. Both cargoes were shipped by the same Shippers and loaded by the same Stevedores under the direction and control of the Ship Master, who was responsible for Stowage. Most Holds contained both cargoes. Initially, the two cargoes were to be loaded one after the other, but the Shipowners agreed to permit simultaneous loading. This resulted in several periods when loading of the first cargo was interrupted in one or more of the four Hatches assigned to it.
The Charterers successfully argued that time should be reduced proportionally during the periods when fewer than four Hatches were available for the first cargo. The award demonstrates that, where the agreed basis of cargo operations assumes a certain number of Hatches and those Hatches are not available for the relevant cargo, a proportional adjustment may be appropriate, depending on the wording of the Charterparty and the facts of the operation.
Similar problems often arise where cargo-handling gear fails and one or more Hatches become unusable. In such cases, the usual commercial methods are either to reduce the loading or discharging rate, thereby increasing the Total Laytime, or to adjust the time used proportionally by comparing the number of Operational Hatches with the number that should have been available. If applied correctly, both methods should produce the same practical result.
A different type of dispute arose before Devlin J in V M Salgaoncar E Irmaos v. Goulandris Brothers Ltd. The relevant Laytime Clause, Clause 5, provided:
“The cargo to be shipped at the rate of 600 tons when ship is in Berth and 350 tons whilst in stream.â€
In that case, known as Granford, the ship was chartered to proceed to Mormugao to load “at one or two safe Berths in Charterers’ option†a full and complete cargo. On completion, the cargo amounted to 9,600 tons. The Shipowners argued that Laytime at Mormugao should be calculated by dividing the quantity actually loaded in Berth by 600 and the quantity actually loaded in stream by 350. The Charterers argued that the nominal rates should instead be applied to the periods the ship spent in Berth and in stream, so that Laytime would expire only when the cumulative total reached 9,600 tons. This interpretation favoured the Charterers because waiting time in the stream, when no loading took place, would be charged at the lower rate.
Devlin J summarized the Charterers’ position by explaining that they insisted waiting days should count because Clause 5 stated:
“The cargo to be shipped at the rate of 600 tons when a ship is in a Berth and 350 tons whilst in stream.â€
The Charterers argued that the Shipowners’ mistake was to count only the days on which loading physically occurred. In their view, the Shipowners were effectively reading the clause as though it said:
“The cargo to be loaded (shipped) at the rate of 600 tons when ship is loading in Berth and 350 tons whilst loading in stream.â€
Devlin J rejected the Charterers’ construction and found in favour of the Shipowners. Devlin J stated:
“Clause 5 is not really prescribing what the ship has actually got to do. It is setting a standard by reference to which the Lay Days can be calculated. The Lay Days are not intended to be made more or less according to the directions which may be given to the ship. The only thing in this type of clause that depends on actuality is the exact quantity of the cargo loaded in each place; if that were known in advance, the exact period for loading could be specified in the Charterparty.â€
The decision confirms that a Laytime rate clause is normally a contractual benchmark for Calculating Laytime, not a literal record of how the ship physically works from hour to hour. The actual quantities loaded at the different places may be relevant, but the calculation should not fluctuate merely because the Charterers direct the ship to wait, shift, load in stream, load in Berth, or use a particular operational sequence. The commercial function of the clause is to establish a predictable standard against which time can be measured.
The broader principle emerging from these authorities is that total daily rate clauses must be interpreted according to their wording and commercial purpose. Where the Charterparty states an average rate, the presumption is normally that one overall calculation is required. Where the clause contains a pro rata Hatch provision, the adjustment should follow the words used, not a rewritten Per Hatch formula. Where Holds or Hatches are unavailable, the adjustment must be supported by the Charterparty or by a proven breach or operational restriction. Above all, rate clauses are generally treated as standards for measuring Laytime, not as detailed instructions controlling the precise manner in which cargo operations must be performed.
Laytime Stated as a Total Daily Rate Based on Available Workable Hatches
Laytime may also be expressed as a Total Daily Rate calculated by reference to a stated number of Available Workable Hatches. This form of clause has appeared for many years in Governmental Charterparties and is commonly drafted in terms similar to the following:“Cargo to be discharged at the average rate of 1,000 metric tonnes basis 5 or more available Workable Hatches, pro rata, if less number of Hatches per Weather Working Day (WWD).â€
The legal meaning of this type of Laytime Clause was examined in a series of related Arbitrations that were later consolidated into one appeal and ultimately reached the House of Lords. These disputes are collectively known as The General Capinpin, after the lead ship in the proceedings. Each Arbitration concerned the proper method of calculating Laytime at the discharge port. Although the wording of the Laytime Clause differed slightly from one Charterparty to another, the parties accepted that those differences were not material.
The central question was whether the clause should be treated as invoking the “Available Workable Hatch†method of calculation, or whether it instead created a fixed overall discharge rate for the ship as a whole. The distinction was commercially significant. If the clause operated on a Hatch-by-Hatch basis, the applicable discharge rate could reduce as individual Holds were emptied. If it operated as an overall ship rate, the starting point would be the total cargo quantity divided by the agreed daily rate for the ship, subject only to any adjustment expressly required by the clause.
In the Arbitrations, the Charterers argued that the Laytime Clause meant the contractual discharge rate should decrease progressively as individual Holds became empty. On that basis, they contended that the total Laytime should be calculated by identifying the Hold containing the largest quantity of cargo and dividing that quantity by 200 tonnes per day in the case of a five-Hatch ship. This argument was rejected in all four Arbitration awards.
The Charterers relied heavily on passages from Bingham J’s judgment in The Giannis Xilas, which had referred to earlier authorities including The Sandgate and Compania De Navegación Zita S.A. v. Louis Dreyfus & Cie, also known as The Corfu Island. Before the High Court, the Shipowners relied on the reasoning adopted by the Arbitrators in The General Capinpin. The Arbitrators stated:
“The passage (from The Giannis Xilas) upon which the Charterers relied made it quite clear that the judge was addressing himself to the question of clauses where the cargo is to be loaded or discharged at a quantity per Workable Hatch per day. Where, as in this case, a figure for the entire ship is used, it seems to us that one arrives at the total permitted Laytime by dividing the total cargo tonnage by the daily rate of the ship. The words ‘Available Workable’ are not thereby ignored, because they are relevant for how Laytime is to be adjusted if a Hatch is unworkable for any reason other than merely the fact that it is empty. The difference of emphasis in the two different formulae, one based on a rate for the ship and the other based on a rate for a Hatch, seem to us to make a crucial difference.â€
Webster J recognized that the authorities contained conflicting judicial observations on whether a clause expressed as a rate for the ship differed in substance from one expressed as a rate per Hatch. Webster J observed:
“There are, unhappily, conflicting dicta on the question whether there is any difference between a formula based on a rate for the ship and one based on a rate for a Hatch. According to two Dicta of Lord Justice Scrutton (in The Sandgate) and Mr Justice Parker (as he then was) (in The Tropwave) there is a difference, but according to two other dicta of Lords Justices Salmon and Megaw (in The Theraios), there is not.â€
The issue therefore reflected a deeper tension in Laytime law. One approach treats the clause as providing a total daily allowance for the ship, while the other treats the reference to Hatches as requiring a calculation based on the productivity or availability of individual Hatches. The choice between these approaches can materially alter the point at which Laytime expires and Demurrage begins.
After considering the competing Dicta, Webster J preferred the reasoning of Scrutton LJ and Parker J, at least to the extent that 200 tonnes per Hatch per day multiplied by five Hatches may mathematically equal 1,000 tonnes per day for the ship, but the reverse does not necessarily follow. A ship rate of 1,000 tonnes per day does not always mean that each Hatch is intended to contribute exactly 200 tonnes per day. In practice, the ship may need to discharge through some Hatches at more than 200 tonnes per day in order to achieve the overall daily rate.
Webster J therefore accepted that the Laytime Clause before him differed from the clauses considered in some of the earlier authorities. However, in Webster J’s view, the real question was whether that difference altered the meaning of the word “workable.†He held that it did not. Following The Sandgate and the subsequent authorities, Webster J concluded that a Hatch above an empty Hold could not properly be described as a workable Hatch. Webster J added:
“If the answer were otherwise, and if the arbitrators and the umpire were right in their conclusion on this point, it would mean that the expression ‘Available Workable Hatches’ has one meaning for the purpose of a discharge clause expressed as an average rate for the ship and a different meaning in a discharge clause expressed as a daily rate per Hatch. For the reasons I have given, I see no reason for making any such differentiation.â€
On that basis, Webster J decided this point in favour of the Charterers.
The Court of Appeal took a different approach. Neill LJ, delivering the judgment of the Court of Appeal, observed that Webster J had approached the matter as though the central question was whether “workable†should have the same meaning in both forms of Laytime clause: clauses providing a rate per Hatch and clauses providing a rate for the ship as a whole. The Court of Appeal considered that this was not the correct starting point. The Court stated:
“We see the force of the argument that a daily rate which is expressed to be based on ‘Available Workable Hatches’ is only apt to describe a daily rate which reduces as the Holds beneath the Hatches are filled or emptied and the available workable Hatches become fewer in number. In our view, however, this argument fails to give proper weight to the fact that the obligation to discharge in the present case is expressed to be at the average rate of 1000 metric tonnes per weather working day. The obligation to discharge is qualified, it is true, but the obligation is imposed by reference to rate for the ship and not to a rate per Hatch. In the opinion of this Court this is a fundamental distinction.â€
The Court of Appeal also considered that this interpretation was consistent with the principles emerging from The Sandgate and The Tropwave, even though The Tropwave did not expressly refer to The Sandgate. The Court summarized its conclusion as follows:
“We would therefore answer the first question in favour of the owners. We have reached this conclusion with some diffidence as we are differing from the opinion of a distinguished commercial Judge. On the other hand, it is satisfactory to observe that the construction which we prefer is that which appealed to a number of the most experienced arbitrators in this branch of the law.â€
The matter then proceeded to the House of Lords. The majority judgment in favour of the Shipowners was delivered by Lord Goff. Lord Goff emphasized that the original Arbitrators had unanimously reached the same construction and had treated the clause as providing an overall discharge rate for the ship, qualified by the availability and workability of Hatches, rather than as a true rate-per-Hatch clause. Lord Goff stated:
“It is plain that what really struck the Arbitrators was that the clause did indeed provide for an overall rate of discharge, and did not expressly provide for a rate per Hatch, despite the existence of well-known authorities dealing with clauses which so provided. They were simply not prepared to ignore the express provision for the overall rate; they preferred to treat the reference to ‘Available Workable Hatches’ not as substituting a rate per Hatch for the expressly provided overall rate for the ship, but rather as imposing a qualification upon it.â€
The effect of the House of Lords’ decision is that a clause expressed as an overall daily rate “basis†a number of Available Workable Hatches is not automatically converted into a Per Hatch Per Day clause. The reference to Available Workable Hatches qualifies the ship’s overall rate; it does not replace that rate with a different Hatch-by-Hatch calculation. If the parties intend a true Per Workable Hatch formula, the Charterparty should say so expressly.
A second issue arose from the Arbitrations concerning The Proteus and Dinara. Both ships had been ordered to smaller Indian ports where discharge had to take place in the stream using the ships’ own cranes. Each ship had five Hatches but only four cranes. The Charterers argued that the discharge rate should be reduced to 800 tonnes per day on the basis that only four Available Workable Hatches could be operated. This argument was rejected in both Arbitrations.
Webster J agreed with the Arbitrators on this point. Webster J reasoned:
“I agree with this conclusion which seems to me to follow inevitably from the hypothetical example of a gearless ship sent by Charterers to discharge at a port where discharge has to take place in the stream and where there are no floating cranes. In such a case, if the Charterers’ contention were correct and if Shipowners and Charterers were to stand on their rights, Laytime would continue indefinitely until the contract was terminated by frustration. This would seem to me to be an absurd result.â€
Webster J further held that a Hatch should not be equated with a crane, derrick, winch, or other item of loading or discharging equipment. Nothing in the relevant authorities supported the view that Laytime wording based on “Hatches†was intended to refer to the availability of cargo-handling gear. Webster J also commented that Hobhouse J’s earlier reference to “winch†breakdowns in the analysis of previous cases was mistaken, because no such breakdowns had in fact occurred in those decisions.
The Court of Appeal upheld the findings of the Arbitrators and the High Court. The Court observed:
“The Charterer was given an option as to the safe port or anchorage which he could choose; the Charterer was given the right to use ships’ gear but was not obliged to do so. In these circumstances it seems to us that the Laytime provisions cannot be affected by the fact that the Charterer ordered the ships to be discharged by small ports in India where shore cranes could not be used, so that only the four cranes on board each ship could be employed to unload the five Hatches.â€
The Court accepted that the outcome might have been different if one or more of the Hatches had been unworkable due to structural or mechanical failure. That was not the factual position. The Hatches themselves were available and workable; the limitation arose because the Charterers had ordered the ships to ports where shore cranes were unavailable and only the ships’ own gear could be used. The Court therefore concluded:
“The calculation of Laytime cannot be affected by the fact that only four cranes were available for the five loaded Hatches.â€
The House of Lords did not consider it necessary to deal with this secondary issue.
The broader significance of The General Capinpin line of authority is that the wording of the Laytime Clause must be respected. A total daily rate for the ship, even when qualified by a reference to Available Workable Hatches, remains fundamentally different from a rate expressed Per Workable Hatch Per Day. The first creates an overall standard for the ship’s discharge performance, subject to adjustment where the clause genuinely requires it. The second bases the calculation on Hatch productivity and may reduce the rate as Hatches cease to be workable. Similarly, the availability of Hatches is not the same as the availability of cranes or other cargo-handling gear, unless the Charterparty clearly makes that connection.
For Shipowners and Charterers, the lesson is clear. If the parties intend Laytime to reduce as Holds become empty, the clause should be drafted as a true Per Working Hatch or Per Available Workable Hatch provision. If the parties intend a fixed overall ship rate subject only to limited pro rata adjustment when fewer Hatches are genuinely available or workable, that should also be stated clearly. Ambiguous references to Available Workable Hatches in an overall rate clause can lead to complex disputes, particularly where discharge takes place at smaller ports, in stream, or under local operational restrictions.