‘Time to count whether in berth or not’ . The so-called WIBON clause has a similar effect to the ‘time lost’ clause, being designed to
deal with the problem of a ship, chartered under a berth charterparty, arriving at her destination and finding no berth available for her. In such circumstances the clause enables the shipowner to give a valid notice of readiness to load as soon as the vessel arrives in port, provided that the other conditions for a valid notice are satisfied. In the view of Roskill LJ, the effect of the clause is to convert a berth charterparty into a port charterparty for purposes of applying the Johanna Oldendorff test and starting the laytime clock.An attempt was made in The Kyzikos to extend the application of the clause to cover a situation where a vessel, on entering the discharging port, was delayed for three days in proceeding to a vacant berth by fog which resulted in the pilot station being closed. Their Lordships were unanimously of the opinion that there was no authority in earlier case law to support such an argument. The clause ‘should be interpreted as applying only to cases where a berth is not available and not to cases where a berth is available but is unreachable by
reason of bad weather’.