Clause 9 of Asbatankvoy contains a provision that the charterers will provide a berth which is ‘reachable on arrival’. Asbatankvoy is a port charter and it puts the charterers at risk for most delays prior to berthing even though the charterparty at Clause 6 states ‘However, where delay is caused to Vessel getting into berth after giving notice of readiness for any reason over which charterer has no control, such delay shall not count as used laytime.’ Several cases have tested this charterparty but the courts have given a narrow interpretation of the phrase ‘over which charterer has no control’ and has decided that the owner is entitled to damages in cases where berthing has been delayed by congestion, bad weather, strikes etc. Relevant cases here are the Laura Prima (1982) 1 LLR 1, the Sea Queen (1988) 1 LLR 500 and the Fjordas (1988) 1 LLR 336. These and similar cases have led many charterers, when using Asbatankvoy, to delete the words ‘reachable on arrival’ so that other clauses such as the Conoco Weather Clause can be added to the fixture and where this applies weather delays are shared on a 50/50 basis between the owner and charterers. More modern charterparties, primarily drafted by the oil majors, avoid the phrase ‘reachable on arrival’ and it is now an issue generally confined to unamended fixtures under Asbatankvoy. Other Clauses: It is common for charterparties to incorporate additional clauses to clarify when the vessel will become an arrived ship and we examine some common examples here. It should be noted that whilst we have looked at the law as it currently stands there is nothing to stop the owner and charterers agreeing other criteria which will overrule the common law position and such agreements will be upheld by the courts. In fact the more that clarity can be introduced at the time of fixing the more it will reduce the room for argument at a later point when trying to agree the owner’s and charterers’ liabilities under the laytime, demurrage and despatch regime. Clause 6(c) of Gencon 94 states If the loading/discharging berth is not available on the Vessel’s arrival at or off the port of loading/discharging, the Vessel shall be entitled to give notice of readiness within ordinary office hours on arrival there, whether in free pratique or not, whether customs cleared or not. Laytime or time on demurrage shall then count as if it were in berth and in all respects ready for loading/discharging provided that the master warrants that it is in fact ready in all respects. Time used in moving from the place of waiting to the loading/discharging berth shall not count as laytime. This clause gets around many of the issues we have discussed in this chapter concerning where the vessel must be to tender NOR as an ‘arrived ship’. WIPON (Whether in Port or Not) – this will allow NOR to be given under a port charterparty when a vessel arrives at the usual anchorage, even if that anchorage is outside the port limits. A suitable WIPON clause would allow a vessel, on her way to Hull for example, to give a valid NOR upon anchoring at Spurn Head, and her arrival voyage would be deemed to have ended there if it was a port charterparty. WIBON (Whether in Berth or Not) – this will allow NOR to be given under a berth charterparty if the vessel is not in berth provided that a berth is unavailable and the vessel is within the port. It was originally thought that this converted what was otherwise a berth charter into a port charter. However, in the Kyzikos (1989) 1LLR 1, the House of Lords held that the ‘WIBON’ position only assisted the vesselwhen the berth is unavailable (eg due to congestion). If the berth is free but the vessel is simply prevented from reaching it by some other factor, such as bad weather, the vessel is not able to tender NOR before she reaches the berth. A berth charter with both WIBON and WIPON clauses allows a vessel to give NOR under a berth charterparty even if it is waiting outside the port (in the usual anchorage) if the berths are unavailable. London Arbitrators have confirmed this in an arbitration decision. Tanker charterparties Tanker charterparties tend to be very specific when establishing exactly when laytime can start. Clause 6 of Asbatankvoy provides that Upon arrival at customary anchorage at each port of loading or discharge, the master or his agent shall give the charterer or his agent notice by letter, … that the Vessel is ready to load or discharge cargo, berth or no berth, and lay time … shall commence upon the expiration of six (6) hours after receipt of such notice, or upon the Vessel’s arrival in berth … whichever first occurs. This suggests that the customary anchorage must be within the commercial area of the port or place in question even though the customary anchorage for that port is outside the port limits. Traditionally, the phrase “customary anchorage” in clause 6 of Asbatankvoy has been strictly interpreted to mean that, until the vessel is at customary anchorage, it is not an arrived ship and a valid NOR cannot be tendered. However, two recent arbitration decisions suggest that arbitrators are starting to interpret the phrase “customary anchorage” more broadly to protect the owner from arguments about where the customary anchorage is and whether the vessel has to reach that place before being considered an arrived ship and able to tender a valid NOR. In London Arbitration 698 (2006), clause 6 of Asbatankvoy stated that NOR must be tendered “upon arrival at customary anchorage” in the normal way. In fact, NOR was tendered at the entry buoy at Ras Tanura which was a substantial distance from the two anchorages to which all vessels are ordered to wait at Ras Tanura if they cannot go straight to the berth. However, at Ras Tanura instructions are given at the entry buoy by pilots or VHF as to whether the vessel will have to wait at one of the anchorages or whether it can go straight to the berth. The NOR was tendered at this point, ie the entry buoy. The arbitration Tribunal said that, in these circumstances, it was “commercially unrealistic” for the vessel to go to the customary anchorage before an NOR could be tendered because there would be no point if the vessel could go straight to the berth when told to do so at the entry buoy. They found that the practice at Ras Tanura is that the vessel contacts the agents or the terminal at the entry buoy and finds out if it can berth or if it must wait. The Tribunal said this effectively confirms whether the vessel is ready or not and that the entry buoy should be taken as the “customary anchorage” even though it is not an anchorage at all. Therefore, the NOR was valid when tendered at the entry buoy. Although this decision is based on the particular circumstances of Ras Tanura, there may be other ports where the same situation arises, i.e. there is an entry buoy in line with the vessel’s entry passage at which instructions are given before the vessel gets to any proper anchorage. In that situation, the vessel may be deemed to have arrived and able to tender a valid NOR even though clause 6 of Asbatankvoy states that the vessel has not arrived until it reaches the customary anchorage. In London Arbitration 725 (2007) the charter again provided that NOR must be tendered “upon arrival at customary anchorage”. When the vessel arrived at Lagos, it did not go to the customary anchorage but instead tendered NOR in nearby international waters because of the fear of piracy and unwarranted interference by local authorities. The Tribunal decided that the owner was right to do this and disregarded the
“customary anchorage” requirement. They said the NOR was valid even though given in international waters and that time would start counting because of the special circumstances of arrival at Lagos. This could be seen as a surprising decision because it goes against the rule that the vessel must be at the customary anchorage before tendering NOR if that is what the charter states. Although clearly based on the circumstances off Lagos at the time, it appears an owner can now argue that an NOR given outside the customary anchorage is valid if they can show that the vessel would have been under threat if it had gone to the customary anchorage. A different term to clause 6 of Asbatankvoy is clause 13 of SHELLVOY 6 which provides that time at each loading or discharging port shall commence to run 6 hours after the vessel is in all respects ready to load or discharge and written notice thereof has been tendered by the master or owners’ agents to charterers or their agents and the vessel is securely moored at the specified loading or discharging berth. However, if the vessel does not proceed immediately to such berth time shall commence to run 6 hours after (i) the vessel is lying in the area where she was ordered to wait or, in the absence of any such specific order, in a usual waiting area and (ii) written notice of readiness has been tendered and iii) the specified berth is accessible. The clause then goes on to define what amounts to ‘accessible’. Care will be needed to ensure that this definition is met in each case. Clause 6 of BPVOY4 describes when a valid NOR becomes effective and clarifies how the NOR is affected by delays caused by, for example, placing gangways and free pratique.