Most common of these clauses designed to shift the risk of delay is the Gencon clause which provides that ‘Time lost in waiting for berth to count as loading (or discharging) time’. The object of this clause is to shift the risk before the vessel becomes an arrived ship,
i.e. from the time when it could have entered a berth had one been available. Thus in the case of a berth charter, it will cover the period while the vessel is waiting in port until a berth is available. Alternatively, in the case of the port charter, it will apply while the vessel is waiting outside the port and even while it is waiting inside the port in circumstances where, according to The Johanna Oldendorff criteria, it is not ‘immediately and effectively’ at the disposal of the charterer. The crucial question in each case is whether the basic reason for the delay is the unavailability of a berth. The clause in its origins was essentially a berth charter clause which, because of its popularity and effectiveness, was later included in port charters. In fact this extension of use led to confusion since, in the case of port charters, there was the possibility of an overlap between waiting time and the laytime provisions, in that a vessel could be an arrived ship and
still be waiting for a berth. For many years the courts held that the ‘time lost’ clauses should be given precedence and treated independently of the laytime provisions with the result that the charterer had to pay for all time lost irrespective of whether it occurred on a Sunday or public holiday, or whether a laytime exception might otherwise have been applicable. The fallacy of this interpretation was finally recognised by the House of Lords in The Darrah when the previous decisions on this point were overruled. Whether the clause provides that all time lost waiting for a berth is to count as ‘loading time’ or ‘lay-time’ the result is the same.
All such time lost is to be treated as laytime in the same way as if the vessel had become an arrived ship. There is no rule of law that ‘time lost’ clauses and laytime clauses constitute two independent and unrelated codes for computing the amount of permitted laytime that has
been used up. In the words of Lord Diplock, ‘the vessel is to be treated as if during that period she were in fact in berth and at the disposition of the charterer for carrying out the loading or discharging operation . . . and . . . in the computation of time lost in waiting for a berth there are to be excluded all periods which would have been left out in the computation of permitted laytime used up if the vessel had actually been in berth’. In circumstances where waiting time and laytime overlap (i.e. the vessel while waiting for a berth is also an arrived ship), laytime provisions take precedence and the ‘time lost’ clause is regarded as surplusage.