Ship Reachable on Arrival

Reachable on Arrival: When the charter party provides that the ship is to proceed to a berth reachable on arrival, it is up to the charterers to provide a berth for the vessel on arrival in the port.

“Reachable on arrival is a well-known phrase and means precisely what it says. If a berth cannot be reached on arrival the warranty is broken” (The Laura Prima, 1982), Where there is a reachable on arrival provision in a charter party and a further clause provides that “where delays are caused to the vessel getting into berth, after giving notice of readiness (NOR), for any reason over which the charterers have no control, such delay shall not count as used laytime,” this clause will only apply if the reachable on arrival provision is complied with.

What is the Reachable on Arrival Clause?

Ship Reachable on Arrival shall mean that the CHARTERERS undertakes that an available loading or discharging BERTH be provided to the ship on arrival at the port which the ship can reach safely without delay.

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Ship Reachable on Arrival

Within the Charterparty Laytime Definitions 1980, “Reachable Upon Arrival” phrase is defined as the Charterer’s undertaking that upon the ship’s arrival at the port, there will be a loading or discharging berth readily available, allowing the ship to proceed without any delay.

Consequently, Reachable on Arrival expression is initially associated with the ship’s status as an “Arrived Ship” and the commencement of laytime.

The term “Reachable Upon Arrival” was examined in The Laura Pima 1982 Case. The vessel was under a berth charter based on the EXXONVOY 1969 Charterparty Form. However, it couldn’t berth due to port congestion. The courts were tasked with determining whether the delay was the responsibility of the charterers or the shipowners. The clauses in the charterparty stated:

6. “Notice of Readiness. Upon arrival at customary anchorage at each port of loading… the master… shall notify the charterer… that the vessel is ready to load… cargo, regardless of the berth’s availability, and laytime… shall commence six hours after receiving such notice or upon the vessel’s arrival in berth, whichever occurs first. However, if there is any delay in reaching the berth after giving notice of readiness for reasons beyond the Charterer’s control, such delay shall not count as used laytime.”
7. “Safe berthing-shifting. The vessel shall load and discharge at any safe place or wharf… reachable upon her arrival, which shall be designated and arranged by the Charterer…”

The House of Lords concluded that the latter clause took precedence over the former. While the former clause protected the charterers in case of delay caused by uncontrollable factors, such as port congestion, the court held that the latter clause (Clause 7) obligated the Charterers to designate a discharging place reachable upon the vessel’s arrival. If, upon arrival, the vessel was unable to proceed to the discharging place for any reason, the Charterers would be in breach of their contractual obligation.

The presiding judge stated:

“Reachable upon arrival” is a widely recognized phrase that precisely conveys its literal meaning. If a berth cannot be reached upon arrival, the warranty is breached, unless there is a relevant exception providing protection… The berth must possess two characteristics: safety and reachability upon arrival.”

The decision was considered unreasonable since it appeared to eliminate all protection for the Charterer under the first clause, despite the berth being unreachable due to factors beyond the Charterer’s control. Attempts were made to distinguish this decision based on the grounds of congestion, but these attempts by the charterer were generally unsuccessful.

For instance, in The Fjordaas 1988 Case, the vessel was once again chartered under the ASBATANKVOY Charter Party Form. Upon arrival at the discharging port of Mohammedia in Morocco, the vessel had to discharge at a sea-line due to its size. Initially, it was unable to berth because the port authorities prohibited night navigation, and no tugs were available until later in the morning. When the pilot finally boarded about 10 hours after the vessel had given the NOR (notice of readiness), bad weather hindered berthing. Eight days after arrival, a strike by the tug crew prevented berthing. Only after ten days of arrival, the vessel was able to berth. The charter allowed a total laytime (Reversible Laytime) of 72 hours for loading and discharging, and approximately 20 hours had already been utilized at the loading port. Shipowners claimed demurrage due to the delay.

Initially, the arbitrators ruled in favor of the Charterers based on Clause 6 of the charterparty. Their reasoning was that the main cause of the delay was the restrictions imposed by the port authorities, preventing the berth from being reached on arrival.

On appeal, the English Commercial Court deemed the approach of the arbitrators incorrect. Arbitrators had failed to interpret the words “Reachable Upon Arrival” in their ordinary sense. This meaning was not limited to a physical cause upon which the charterers seemed to rely. “Reachable” implies “able to be reached.” Therefore, regardless of whether a clause may seem unfair to Charterers, what matters is the precise meaning of the words as stated in the Charter Party.

The vessel experienced a delay in berthing due to causes unrelated to congestion, the primary factor in The Laura Prima case. Congestion is a physical cause. Nevertheless, the judge proclaimed that no distinction should be made between physical and non-physical causes. The latter category includes berthing prohibition by port authorities and strikes by tug crews.

In another case decided by a different judge, The Sea Queen 1988 Case, under the same charterparty form with identical clauses, the vessel encountered a delay of approximately seven hours upon arrival at the loading port Mina al Ahmadi in Kuwait due to the unavailability of tugs. When the tugs became available, bad weather obstructed the berthing for an additional two days. Throughout this delay period, the berth remained unoccupied. Once again, the arbitrators ruled in favor of the charterers, who had no control over the tugs, and once again, the court held the Charterers responsible for the delay under Clause 9.

The judge stated:

“It is evident from the decision of the House of Lords in The Laura Prima… that clauses 6 and 9 of the charter… must be read together, and the word ‘berth’ in the last sentence of clause 6 means a berth that the vessel can reach upon her arrival, as designated or arranged by the charterers in accordance with clause 9…”.

Furthermore,

“It appears to me that the charterers have clearly and simply warranted that there will be a berth reachable by the vessel upon her arrival. Therefore, if there is no berth for whatever reason, the charterers have failed to fulfill this part of their agreement.”

In The Kyzikos 1989 Case, the term “Reachable Upon Arrival” was also examined in relation to berth availability upon arrival and the possibility of issuing a NOR (Notice of Readiness) “Whether In Berth or Not” (WIBON). When the Kyzikos arrived at the discharging port, fog prevented vessel movements, although the berth was available. In the English High Court, the shipowners were unable to prove that the Charterers had breached their absolute obligation to designate a berth that was always accessible. Following the definition provided earlier, this can also be considered to include a berth reachable upon arrival. When the case reached the Court of Appeal and the House of Lords, the focus shifted solely to the phrase “Whether In Berth or Not” within the WIBON Clause. The House of Lords stated that this phrase should be interpreted as applying only in cases where a berth was unavailable, not when a berth was available but unreachable due to inclement weather.

Hence, the unrestricted meaning of the expression “Reachable” (and “Accessible”) remains consistent with the High Court’s description. It signifies that the berth is “capable of being approached,” implying an unobstructed means of approach. The expression “Always Accessible” (AA) serves as an adjectival description, characterizing the berth as capable of being approached.

The meaning and consequence of the expression can be altered by adverse weather conditions and other navigational risks.

 

Reachable On Arrival and Always Accessible (AA)

Within the Charterparty Laytime Definitions 1980, “Reachable Upon Arrival” phrase is intertwined with “Always Accessible (AA).” These expressions signify the Charterer’s commitment that upon the ship’s arrival at the port, a berth for loading or discharging will be promptly available.

The President Brand Case, the judge stated:

“The term ‘reachable,’ grammatically speaking, means ‘able to be reached.’ There can be numerous reasons why a specific berth or discharging location may not be reachable… Accordingly, in my judgment, the Charterers’ obligation is to designate a berth that the vessel can reach upon arrival, and they are in breach of that obligation if they are unable to do so.”

In The Laura Prima 1982 Case, the same judge further clarified:

“‘Reachable On Arrival’ is a well-known phrase that precisely conveys its literal meaning. If a berth cannot be reached upon arrival, the warranty is breached unless there is a relevant exception.”

 

Congestion and Reachable On Arrival

In this case, the vessel experienced a delay in reaching the loading berth due to congestion. The charterers failed to provide a berth that was reachable upon arrival.

This decision was followed in The Sea Queen and The Fjordaas Case, both decided in November 1987, within days of each other, in the English High Court by different judges. In The Sea Queen Case, the vessel encountered delays in berthing due to a lack of available tugs and adverse weather conditions. In The Fjordaas Case, the vessel was unable to berth at an unoccupied and available berth due to a combination of factors, including restrictions on night navigation and compulsory pilotage. Neither case involved congestion, yet they followed the ruling in The Laura Prima Case, and the berths were deemed “unreachable on arrival.”

Charterer’s Responsibility for Reachable On Arrival

If the berth is not reachable upon arrival, the delay in berthing falls under the charterer’s responsibility. The NOR (Notice of Readiness) and Laytime Clause may state, for example:

“Upon arrival at customary anchorage at each port of loading or discharge, the Master or his agent shall notify the Charterer or his agent… that the vessel is ready to load or discharge cargo, regardless of the berth’s availability, and laytime… shall commence six hours after receiving such notice… (ASBATANKVOY or EXXONVOY 1969).” In such a situation, as demonstrated in the aforementioned cases, the charterer may become liable for demurrage or damages resulting from detention.

 

Reachable Upon Arrival vs Always Accessible (AA) in Ship Chartering

In the context of ship chartering, “reachable upon arrival” and “always accessible” refer to two different levels of availability for a chartered ship. Here’s a brief overview:

1. Reachable Upon Arrival: This phrase is typically used to indicate the time at which a ship can be accessed or available. It signifies that the ship will be ready and available for use as soon as it reaches its designated port. However, it’s crucial to note that the availability could be influenced by factors such as port congestion, weather conditions, or other unforeseen delays. “Reachable upon arrival” usually relates to voyage charters, where the vessel is chartered for a single, specific journey.
2. Always Accessible: This phrase suggests that the ship is continuously available for use, regardless of location or time. It signifies that the ship can be utilized at any moment, which is essential for time charters, where the vessel is chartered for a specified period. “Always accessible” indicates a higher level of availability and flexibility than “reachable upon arrival,” as it’s not bound by the location or the arrival time of the vessel.

These terminologies and their interpretation can be subject to the specific terms and conditions laid out in the charter party agreement, which is the contract between the shipowner and the charterer.

1. Reachable Upon Arrival: While the notion of a ship being “reachable upon arrival” seems straightforward, several factors can affect when the ship can actually be used. For instance, if the port is busy or congested, the ship might not be able to dock immediately upon arrival. Weather conditions or technical issues could also introduce delays. Hence, while the ship is promised to be reachable upon arrival, the actual usage time might be later than the arrival time. This could potentially affect the charterer’s schedules and plans, especially if they are dependent on the timely arrival and availability of the ship. Therefore, when a charter agreement mentions “reachable upon arrival,” it’s prudent for charterers to account for potential delays.
2. Always Accessible: On the other hand, a ship that is “always accessible” provides a higher degree of convenience and flexibility. This means that the charterer can use the vessel whenever required during the charter period, without being dependent on the ship’s location or any external factors. The charterer essentially has control over the vessel’s schedule and operations. However, this also means the charterer has a higher level of responsibility, including managing the vessel’s operations, maintenance, and crewing during the charter period.

In a nutshell, the choice between “reachable upon arrival” and “always accessible” will depend on the charterer’s specific needs and circumstances. If a charterer has a one-time need for a vessel, “reachable upon arrival” might be sufficient. But if the charterer needs continuous access to the vessel for a period, then “always accessible” would be the better choice.

Remember that each type of charter carries its own benefits and risks, and it’s important for both shipowners and charterers to fully understand the terms of the charter party agreement. They may need to negotiate terms and conditions to balance the risks and benefits, ensuring both parties’ needs and expectations are met. The presence of legal professionals during these negotiations can be beneficial to protect the interests of both parties involved.