Voyage Charters

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

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Chapter 40 Safe Berthing – Shifting

9. SAFE BERTHING – SHIFTING. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival, which shall be designated and procured by the Charterer, provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer. The Charterer shall have the right of shifting the Vessel at ports of loading and/or discharge from one safe berth to another on payment of all towage and pilotage shifting to next berth, charges for running lines on arrival at and leaving that berth, additional agency charges and expense, customs overtime and fees, and any other extra port charges or port expenses incurred by reason of using more than one berth. Time consumed on account of shifting shall count as used laytime except as otherwise provided in Clause 15.

40.1 There are three aspects of this clause: first, the warranty given by the charterer as to the safety and reachability of the place where the vessel is to load or discharge; second, the costs payable by the charterer if more than one berth is used; and third, the provision for the counting of laytime during such shifting. Safety is discussed in the context of the Gencon charter,1 and the counting of time for shifting is discussed in relation to clauses 7 and 15.2

“Reachable on her arrival”

40.2 The warranty of reachability on arrival has already been mentioned in the context of clause 6, where it was pointed out that its effect is to narrow considerably the scope of the last sentence of that clause. The warranty applies to any place, whether a berth, wharf, sea terminal, vessel or lighter where the ship is to load or discharge.3 The word “arrival” does not have its technical meaning (referring to the place where notice of readiness can be tendered under a berth or port charter which contains no special provisions that extend the arrival area) and the charterer’s obligation arises as soon as the vessel has arrived in the popular or business sense and has reached the place where, if no reachable berth is designated, she will be held up.4 In practice, the place in question is likely to constitute the “customary anchorage”, where notice can be given under the provisions of clause 6. 40.3 The obligation of the charterer is to designate and procure a place, where the vessel is to load or discharge, which the vessel is able to reach on her arrival. The cause of any unreachability

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is immaterial5 and no distinction is drawn between commercial congestion and navigational obstacles.6 By contrast, it was held in The Kyzikos 7 that the term “always accessible” is confined to congestion or physical obstructions, and does not cover the situation where the berth cannot be reached on account of bad weather. However, that decision preceded The Fjordaas and The Sea Queen,8 which held that “reachable on arrival” included bad weather and other navigational problems, and there seems little reason in principle to differentiate between the two expressions. 40.4 If the delay resulting from the charterer’s breach of this provision occurs before the vessel is in a position from which she can tender notice of readiness, the damages for the delay will be at large, but once the vessel has become an arrived ship it seems that the owner is obliged to tender notice of readiness within a reasonable time,9 and from the time of the tender of notice the situation is governed by the laytime and demurrage regime.10 On this ground it was held in The Ulyanovsk 11 that the charterer is entitled to order the vessel, after giving notice of readiness, to wait before berthing, and a failure by the vessel to wait renders the owner liable in damages. However, the decision leaves a number of problems unresolved relating to the effect of clause 9, and the nature and scope of the charterer’s right to use laytime as he wishes, and in The Eurus 12 Staughton L.J. preferred to leave open the question whether the charterer was entitled to give contractually binding orders of this nature. 40.5 If the charterer performs his duty of designating and procuring a loading or discharging place through an agent such as the shipper, receiver or port authority, any failure by such agent will be a failure by the charterer.13

Shifting

40.6 Strangely, although the first sentence of the clause goes to some lengths to define the places to which the vessel may be sent, it does not mention “berths”, whereas the second sentence speaks only of “berths”. It must be that all the places referred to in the first sentence are to be treated as berths for the purposes of the shifting provisions of the clause, whether or not they fall naturally within that description.14 40.7 However, the provisions of the clause relating to shifting do not apply where the vessel is not ordered to shift from one loading or discharging berth to another, but is merely ordered to vacate the berth. Thus, in The Afrapearl,15 where the vessel was twice ordered off berth in order that repairs could be effected to the shore installation, on each occasion proceeding to

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the anchorage and subsequently returning to the same berth, the owner was not entitled to recover the expense of shifting under clause 9.

U.S. Law

Safe berthing – shifting in general

40A.1 The principles discussed above in are applicable under the Asbatankvoy form.16 Additional cases involving safe port or safe berth disputes under the Asbatankvoy and other tanker forms are discussed below.

Adverse weather and tidal conditions

40A.2 In The Cities Service Valley Forge,17 known and predictable heavy swells at the unprotected sea line designated by the charterer caused delays in berthing, interruptions during discharge, and the vessel’s deviation to replenish bunkers. In awarding some of the owner’s claims, the panel weighed the adequacy of the facility, weather and tidal conditions, and the parties’ knowledge and options, and discussed the relationship between clauses 6, 8, 9, and 19:

The berth designated for discharge at Mohammedia by Charterer was not a safe berth for the CITIES SERVICE VALLEY FORGE, at that season of the year, and the designation of that berth constituted a breach of the safe berth warranty contained in Clause 9 of the Charter.

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