Going In and Getting Out - "The Aconcagua Bay"
Posted on 6th April 2018 at 10:13
In an appeal from a 2017 Award, the 26 March ruling in Seatrade Group NV v Hakan Agro DMCC (The “Aconcagua Bay”) 2018 is the first English High Court decision on an important question.
The issue was whether the common “always accessible” warranty in a voyage charterparty meant that a vessel must be able not only to reach the berth, but also to leave it, without delay.
Just looking at the word “accessible”, as a matter of impression to many people it seems confined to reaching a location, and does not include coming away again. To most, access suggests getting to, rather than from, somewhere. If a place is accessible, you can get there. Leaving probably does not readily come into the thinking.
The vessel had been fixed for carriage from the US Gulf to the DRC and Angola under an amended Gencon 1994 form which included the following:
“Loading port or place ... 1 good safe berth always afloat always accessible 1-2 good safe ports in the USG in Charterers’ option …”
Damage to a bridge and lock during loading meant that the vessel could not leave the berth afterwards, and owners claimed damages for detention.
(Many charterparties provide for delay to be counted as half laytime or at half the demurrage rate in respect for example of “failure of equipment, plant or machinery in or about any loading or discharge port”, but it seems that none such applied here.)
The judge observed that:
1. Many decisions on “always accessible” have considered a vessel’s arrival but not its departure; however
2. London Arbitration 11/97 (1997) LMLN 463 said this warranty did not extend to leaving the berth, and this might have influenced thinking on this during the last two decades;
3. While the textbooks offered little assistance and dictionary definitions were not decisive, there was some slight inference that this term does not apply to leaving the berth; however
4. In several editions, the Baltic Code provides that by using it the charterer promises that the vessel will also be able to depart from the berth without delay, and similarly a 2013 BIMCO circular.
The judge said that the core point was whether the parties intended to provide for departure, and ruled (as decisive) that reasonable commercial parties looking at berthing would bear all aspects in mind and not restrict themselves to simply reaching the berth.
So this common voyage charterparty phrase was not confined here to the approach to the berth, and charterers had thus warranted also that the vessel could leave it without delay. The vessel had been trapped for about a fortnight and charterers were liable.
The Tribunal’s decision had been in charterers’ favour. It is notoriously difficult to get permission to challenge Arbitration Awards, so appeals are uncommon and successful ones are rare.
The judge refused to allow charterers to go to the Court of Appeal with this, but perhaps on a very narrow ground they might be able to get that permission from the Court of Appeal itself. We will provide an update if this matter goes further.
The Present Position
As the judge noted, the term “reachable on arrival” is also common, perhaps especially so in tanker fixtures.
Owners had here submitted that this plainly applies to arrival only, although some textbook commentators have treated it and “always accessible” as meaning the same thing.
As things stand, charterers who want to confine an accessibility warranty to the approach or arrival need to use “reachable on arrival” or similar wording, though the entire fixture text should always be considered as a whole. The ruling here is a decision on one charterparty, and will not necessarily determine this issue amid other provisions where perhaps importantly different wording has been used.
The vital thing is what the parties intended by their wording, and they should always first consider what they want and then set about choosing the words to achieve that. This decision has come as a surprise to many, and it is a reminder now to carefully re-examine an issue that may have become dormant, perhaps considered long settled, or even thought not to arise.
These matters are already causing pre-fixture queries, as parties review spot wording or consider what might be long-standing “last done” terms, especially amid options on calls at ports where difficulties have occurred or might be expected.
If you would like to discuss any point or topic in this article please contact firstname.lastname@example.org.
Share this post: