Voyage Charters

Timothy Young KC; Michael Ashcroft; Julian Cooke; Andrew Taylor; John Kimball; LeRoy Lambert; David Martowski; Michael Sturley

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Chapter 36 Nomination of Loading and Discharging Ports

4. NAMING LOADING AND DISCHARGE PORTS
- (a) The Charterer shall name the loading port or ports at least twenty-four (24) hours prior to the Vessel’s readiness to sail from the last previous port of discharge, or from bunkering port for the voyage, or upon signing this Charter if the Vessel has already sailed. However, Charterer shall have the option of ordering the Vessel to the following destinations for wireless orders:

	On a voyage to a port or ports in:
ST.	KITTS Caribbean or U.S. Gulf loading port(s)
PORT	SAID Eastern Mediterranean or Persian Gulf loading port(s)
(from	ports west of Port Said.)

(b) If lawful and consistent with Part I and with the Bills of Lading, the Charterer shall have the option of nominating a discharging port or ports by radio to the Master on or before the Vessel’s arrival at or off the following places:

Place	On a voyage to a port or ports in:
LAND’S	END United Kingdom/Continent (Bordeaux/Hamburg range) or Scandinavia (including Denmark)
SUEZ	Mediterranean (from Persian Gulf)
GIBRALTAR	Mediterranean (from Western Hemisphere).

(c) Any extra expense incurred in connection with any change in loading or discharging ports (so named) shall be paid for by the Charterer and any time thereby lost in the Vessel shall count as used laytime.

36.1 This clause is concerned with the timing and manner of the nomination of the loading or discharging port or ports by the charterer. The subject is discussed more fully in , above. However, the Asbatankvoy charter includes several provisions which require special comment.

Clause 4(a) – loading port(s)

36.2 The first sentence specifies the latest times at which, depending on the circumstances in which the vessel is chartered, the charterer is to nominate the loading port. The charterer may, however, order the vessel to St. Kitts, if on a voyage to a port in the Caribbean or U.S. Gulf, or Port Said, if on a voyage from west of Port Said to the eastern Mediterranean or Persian Gulf, for wireless orders. If no nomination has been made before arrival at St. Kitts

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or Port Said, as the case may be, the charterer must then make a nomination immediately, since the clause confers upon him no right to keep the ship waiting for orders.1 36.3 If no loading range or port has been nominated by the charterer and an order is received to proceed to St. Kitts or Port Said, that order probably involves an abandonment of the option to load at ranges not associated in the clause with that place, so, for example, if the charterer orders the ship to St. Kitts he is not then entitled to order her to load except in the Caribbean or U.S. Gulf. And a similar result will probably apply if the ship is ordered to proceed towards one of the places mentioned in clause 4(b) for discharging port orders. The option of ordering the vessel to St. Kitts or Port Said is introduced by the antithetical “however”. Thus, the effect is only to postpone the time at which the charterer is to nominate a load port and not to confer upon him an additional right of nomination. The separate question of whether the charterer can change his nomination once made is discussed under clause 4(c), below. 36.4 Unlike clause 4(b), clause 4(a) does not state that it is subject to the provisions of Part I. It seems clear, however, that a nomination under clause 4(a) can only be made if it falls within the charterer’s powers of nomination under Part I. Thus, if Part I names a single loading port, clause 4(a) is completely inapplicable.

Clause 4(b) – discharging port(s)

36.5 Clause 4(b) gives the charterer the option of nominating a discharge port by radio before arriving at or off Land’s End, Suez or Gibraltar, depending on the precise voyage. However, there are a number of express qualifications to the option. First, the order must be “lawful”, which presumably means that the voyage which it involves must not be illegal under the proper law of the charter or the law of the place of performance and must not involve a breach of owner’s obligations to the bill of lading holder. If the bill of lading names a specific port or ports, the charterer will normally be regarded as having made a nomination to the like effect under the charter.2 Second, the nomination must be consistent with Part I and the bill of lading, which means that the discharging port(s) so nominated must fall within the geographical range if one has been selected and within the allowed quantity specified in Part I. And if the discharging port is already conclusively identified in Part I, no further nomination can be made under clause 4(b).

Clause 4(c) – change of loading or discharging port

36.6 Under English law a valid nomination under a port charter involves an election and unless the charter otherwise provides the charterer generally has no right to change the nomination.3 Clause 4(c) is difficult to interpret. In the previous editions of this work it was submitted, on balance, that the clause does by necessary implication confer a right of renomination in respect of ports named under clause 4(a) or 4(b), but limited to ports which can fairly be said to be within the same range as the port originally nominated. However, in The Antiparos,4 it was held that there was insufficient basis to imply into clause 4(c) a right to change nomination, the better view being that it merely anticipated, and provided expressly for the consequences of, a situation in which the owners acceded to the charterers’ request to change a nomination.5

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36.7 Some forms of charter confer an express right of renomination in plain terms, although that right may be subject to implied limitations. It has been held by London arbitrators that the express right conferred by the Asba II form lapses after the ship has arrived and given notice at the port originally nominated.6 Some additional clauses go further, but they are strictly construed.

The Jasmine B was chartered on the Asbatankvoy form for a voyage from the Black Sea to a maximum of three discharging ports in various ranges including Mediterranean, U.S.A. and Caribbean. Special Provision M1 conferred on the charterer the right (exercisable as many times as deemed necessary):

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