REFLECTION OF WIBON CLAUSE IN THE LAW

REFLECTION OF WIBON CLAUSE IN THE LAW

Abstract

This dissertation presents a holistic view reflecting the application of ‘Whether in Berth or Not’ clause in shipping law. As the term has commonly come to be known, WIBON plays a vital role in determining responsibility and liabilities among two parties bound together by a legal document called a charter party. WIBON operates either in isolation or in conjunction with Whether in Port or Not (WIPON), Whether in Free Pratique or Not (WIFPON) and Whether Customs Cleared or Not (WCCON) as it has been implied in several case studies to present evidence on historical application of these pertinent clauses. The two most appreciated cases in this dissertation are Kyzikos and the Armstelmolen which together help in the identification of the WIBON clause as a grey area. This conclusion regarding the existence of a grey area in the reflection of WIBON clause is supported by literature gathered from secondary sources of data which collectively portray the ambiguous interpretations that have been associated with the clause. As stated by some arbitrators, WIBON is at times undetectable because of it elicits varied interpretations in different situations. Furthermore its interaction with laytime and demurrage makes it more confusing and at times null and void. In reality the WIBON clause makes provisions that enable ship owners, also referred to as masters, to estimate laytime with much precision as it is essential in determining laytime in controversial circumstances involving whether in berth or not clauses. This is because the clause assumes that any charterer consenting to the charter party or voyage charter indirectly consented to the WIBON clause. Again, combining WIBON with a notice of readiness to load or discharge makes the charterer liable for consequential risks such as those caused by unavoidable circumstances such as congestion at the berths caused as an after effect of a strike. Whereas WIBON makes provision for liability for delays caused by strikes, civil commotions and lockouts, accidents which cannot be influenced by the charterer or other proximate causes unless the ship had already delayed and was being charged on demurrage, the clause passes the risk of loss from the owner to the charterer. Thus a grey area is created by the realization that the WIBON clause, under various circumstances fails to protect charterers whether at port or not but were affected by congestion which denied the vessels a place to berth.

 

Chapter 1: Introduction

This dissertation examines WIBON clause and its reflection to shipping law[1]. WIBON represents the acronym Whether in Berth or Not. It is part of the berth charter parties where a charter party is any legal printed document that is written in two or more copies and it is binding between a merchant and a ship owner. Whereas the ship owner is constantly referred to as the master, the merchant can also be termed as the charterer. The application of WIBON as a clause is relevant in the event of congestion at the berth. It allows the master to issue the charterer with a notice of readiness, abbreviated as NOR upon entering the usual port for loading or discharge as opposed to a vessel coming to berth. Among the reasons why an NOR could be given while the ship is at the port might result from congestion or any other interruptions such as strikes. The bottom line underlying the applicability of laytime in shipping laws is the principle of chartering or hiring a ship in return for compensation[2].

Before the completion of the agreement, both parties consent to the voyage charter which stipulates compensations for various services such as insurance, crew and the time taken for the voyage. As a result, laytime becomes pertinent in determining the pay rates to be compensated by the charterer while loading and discharging the cargo transported. This is to mean that voyage charters are timed in that if the hirer delays reaching the port and offloading or loading the cargo, then they will have to compensate the agent or the ship owner for the equivalent time lost. This compensation is pegged on the realization that ships can hardly be timetabled and controlled while undertaking voyages from one point to the other. Demurrage which is compensation made to the ship owner for delaying the ship for a longer period than agreed in the charter. Demurrage is calculated at a constant rate which can vary from pro rata per day or per hour. Furthermore incase the ship owner feels that the charterer is responsible for the delay and has proven that it does not contravene the time allowance issued as laytime, the ship owner has the right to sue the other party for detaining the ship.

The court in such a case uses the demurrage rate to calculate compensation to be awarded to the ship owner as detention. Demurrage rate is preferred because it is convenient and additionally it marks the initial compensation that the two parties had consented to in the charter party. In the event that the charter party consented to by both parties has a provision for berthing which refers to the time when a vessel arrives at the dock, then an expression commonly known as Whether in Berth of Not (WIBON) becomes applicable[3]. The WIBON abbreviation represents shorthand for a statement that would alternatively have been whether a berth is available or not. A berth is a place where loading and offloading or discharging activities are undertaken. These activities include wharfing, offshore facility, anchorage or any other location that is specially designed to serve the functions listed.

 

 

Chapter 2: Background (Literature Review)

WIBON represents the acronym Whether in Berth or Not. It is part of the berth charter parties where a charter party is any legal printed document that is written in two or more copies and it is binding between a merchant and a ship owner. Whereas the ship owner is constantly referred to as the master, the merchant can also be termed as the charterer. The veracity of a charter party becomes applicable when charterer hires either one ship or a fleet from a master for an agreed period of time or over a specified voyage. Being that a charter party is a binding document that stipulates terms and conditions, liabilities and remedies for the ship owner as well as the charterer, any compensation awarded by the courts is based on the validity of the charter. The application of WIBON as a clause is relevant in the event of congestion at the berth. It allows the master to issue the charterer with a notice of readiness, abbreviated as NOR upon entering the usual port for loading or discharge as opposed to a vessel coming to berth. Among the reasons why an NOR could be given while the ship is at the port might result from congestion or any other interruptions such as strikes.

In correlation to WIBON, Whether in Port or Not clause (WIPON) is a port charter party whose application is relevant when a ship has been marked as an arrived ship after reaching the port but cannot access the berth because of congestion. Some charters count time lost waiting to berth as discharging and loading time thus under WIPON clause, it is assumed that when the berth is inaccessible and the vessel cannot enter the port, the charterer can still be tendered with a valid Notice of Readiness which will be counted as a delay when accounting for laytime and demurrage[4]. WIPON can in some circumstances equate to ‘time lost’ at the port before the vessel comes to berth. By so doing, WIPON covers the owners against problems arising from detention. To this end, it is appreciated that voyage charter party is a contractual agreement between two parties involved in transporting cargo at sea.  As stipulated in the Carriage of Goods by Sea Act (COGSA), 1992 a voyage charter allows a charterer to hire a vessel by providing a standard form of contact which regulates shipping operations.

It is also prudent to note that this dissertation uses the Gencon, 1994 charter party. This is because Gencon has been endorsed by The Baltic and International Maritime Council (BIMCO). The charter party form was first enacted in 1922 and various amendments have been made including those of 1976 and the most current being the 1994 amendments. Despite is widespread use, the UNCTAD secretariat criticized Gencon citing cases of ambiguities such as Louis Dreyfus & Cie v Parnaso Cia Naviera SA (The Dominator)[5], where Diplock J ruled that the 1922 standard form was poorly amended thus making it inconsistent in certain situations. For instance clause 2 of the Gencon charter party made it clear that ‘Owners are to be responsible for loss of or damage to the goods or for delay in delivery of the goods only in case the loss, damage or delay has been caused by improper … stowage of the goods … or by personal want of due diligence on the part of the owners or their manager…’. Additionally, ‘the owners are responsible for no loss or damage or delay arising from any other cause whatsoever …’.

Another instance of criticism was rife in the case of Salamis Shipping (Panama) SA v Edm van Meerbeeck & Co SA, (The Onisilos)[6] where the form failed to provide a proper interpretation to justify a strike clause as the clause specified that neither the ship owner not the charterer is entitled to suffering economic liabilities and responsibilities arising from strikes, delays or prevention of the vessel from coming to berth. In the event of a strike which by chance affects discharging of cargo, the clause states that the vessel should be discharged within 48 hours but the charterer is obligated to keep the vessel until the strike ends. During an appeal against the provisions made in the clause, Lord Denning said that Gencon was ambiguous because its use of the term ‘consequences of any strike’. During the appeal, it was held that the form provides protection to both the charterer and the ship owner in the event of strikes but failed to protect the charterer against consequential risks such as congestion after the strike. Such risks can cause delay and by so doing, the charterer becomes liable for demurrage[7].

This ruling was further reflected in the Superfos Chartering A/S v NBR (London) Ltd (The Saturnia)[8] where other ambiguity inherent in the Gencon strike clause was noticed.  The main question was whether the charterer was obligated to settle demurrage in the event of a consequential risk caused by a strike. According to the strike clause, the charterer was entitled to paying half demurrage in case a strike occurred after the ship had come to berth. Despite the ambiguities resulting from the poor drafting of the form, Gencom is a vital form when determining WIBON, WIPON, laytime and demurrage. In the case of Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc (The Reborn) [2009] EWCA Civ 531[9], it was reiterated the shipping amended Gencon form described the safety and conditions of the berth and this makes it applicable to this dissertation. Laytime is an important clause in any voyage charter.

A laytime clause is described as determining the period of time a vessel is made to be at the disposal of the charterer for loading and discharging cargo. For instance it is implied that “… where a charterer has undertaken to discharge a ship within a fixed number of days, he is liable in demurrage for any delay of the ship beyond that period unless such delay is attributable to the fault of the ship owner or those for whom he is responsible. The risk of delay from causes for which neither of the contracting parties is responsible is with the merchant…” Thus once a charterer exceeds the allocated laytime, the ship owner becomes liable to compensation for damage which can be settled as either damage for detention or demurrage. Both parties are free to diligently negotiate laytime as it was made clear by Lord Atkinson in Van Liewen v Hollis Bros & Co Ltd (The Lizzie)[10] case. Lord Atkinson stated that a charter party represented an agreement between the charterer and the merchant to load and discharge cargo within an agreed period of time failure to which the circumstances for delay should be caused by congestion.

There are some cases where charter parties make provisions for laytime by including a ‘weather working day’ phrase. As the term was explained by Lord Devlin in Reardon Smith Line Ltd v Ministry of Agriculture, Fisheries and Food[11], a day means a period spanning 24 hours, a working day means 24 hours of continuous working devoid of religious or public holiday. Thus the combination of the terms forms a weather working day which means a 24 hour period where loading or discharging can be undertaken without interference. The case of Compania Crystal de Vapores v Herman [1958] 2 QB 196[12], makes it clear that the clause is only applicable when either the loading or discharge process is affected equally as the safety of the ship. Again laytime can be suspended if the charter party lacks provision stating a fixed laytime and consequently the charterer is faced by a situation beyond humanly control as it was in Hick v Raymond & Reid [13] where Cargo was shipped to a London port using an unspecified bill of lading which lacked a specific laytime for discharging of the cargo. The discharging process was interrupted by a strike by berth workers and the discharge time was delayed. Lord Watson held that laytime can be suspended if in the first case it was not specified in the charter party but on condition that the charterer had no control over the occurrence which was not out of mere negligence.

In case laytime is fixed then such a provision for suspending laytime is not applicable. The charterer bears liabilities caused by intervening occurrences as it was in Budgett v Binnington[14], where a bill of lading laytime and had no exceptional clauses such as the Gencom strike clause. While discharging, a strike occurred but prolonged until the laytime expired. The charterer was liable to settle demurrage charges to the ship owner for delay. But the case of The Fontevivo [1975] 1 Lloyd’s Rep 339, made it clear that if delay is caused by the ship owner then laytime will not be calculated against the cargo owner. The charterer is allowed possession of the vessel for the period agreed in the laytime clause. After agreeing on laytime, the ship owner cannot speed up the charterer. In Margaronis Navigation Agency Ltd v Henry W Peabody & Co of London Ltd[15], the de minimis rule was applied when the ship owner claimed compensation for detention of the vessel after the charterer postponed the vessel until the following day so as to complete loading. The court arbitrator held that the charterer had the right of detaining the vessel until all the cargo was loaded.

There is a difference between laytime and laydays. Whereas the former refers to the time permitted by the ship owner within which the charterer is allowed to load, laydays means the time the ship is supposed to be presented to the ship-owner by the charterer. If the ship arrives after layday then the charter party between the charterer and the ship-owner can be cancelled in what is termed as laycan. Calculating laytime is tricky because of uncertainties incurred during voyage, docking and berthing. But generally, it is assumed that the commencement of laytime is determined using an NOR. This notice is issued to the charterer by the ship owner upon the arrival of the vessel at the port for discharge or loading. To the charterer, an NOR means the ship is ready for discharge or loading and at the end of the time stipulated in the notice of readiness, laytime begins. Likewise the completion of laytime marks the onset of demurrage.

Demurrage claims are made by the ship owner when the charterer breaches charter party contract and retains the vessel for a period longer than that agreed in the laytime clause. Marc Rich & Co Ltd v Tourloti Compania Naviera SA (The Kalliopi A)[16] presents a case where vessels were chattered to a cargo owner for a Rotterdam to Bombay voyage. The charter party made provision for the application of the WIBON clause which could be tendered after a notice of readiness (NOR) was issued. The NOR could be given ‘whether in berth or not’ but upon arrival at Bombay, there was congestion which prevented the vessel from coming to berth. The master made a claim for demurrage but the charterer argued stating that the WIBON clause protected them from paying. The court supported the charterer stating that demurrage was excluded in the event an NOR issued according to ‘Whether in Berth or Not’ clause. Here a berth refers to a specific place where water vessels can dock for loading or discharge.

WIBON is relevant in berth charters because they make use of notice of readiness. The ‘whether in berth or not’ clause becomes applicable when the master issues an NOR to marks the arrival of the ship at the port but lacks a place to berth because of congestion. In exceptional circumstances, an NOR converts a berth charter into a port charter especially when a free berth is not available for berth. There are also complicated situations where a vessel can reach the port and it is at a dispositional point where the ship has arrived at a certain position at the port and the charterer is ready to load or dispatch but the berth is not available, the vessel is marked as an arrived ship. This was implicit in the Zim Israel Navigation Co Ltd v Tradax Export SA (The Timna) [1971] 2[17] Lloyd’s Rep 91 where the ship owner was awarded for damage and demurrage after Lord Denning dismissed the case stating that the ship upon arrival at Bremen port had been marked as an ‘arrived ship’ and consequently issued with an NOR which reflected the use of the WIBON clause.

The applicability of this charter party was exhibited in the Johanna Oldendorff, 1973. The case presided over by Lord Reid of the English House of Lords came to be known as the Reid Test. The English Court of Appeal reaffirmed The Kyzikos by stating that ‘Nobody suggests that Notice of Readiness can be given while the vessel is still at sea . . .’  Thus there are exceptional circumstances under which an NOR can be issued while the vessel is at sea but at an approximate distance from the berth. Such agreements are specified in the berth charter to avoid disagreements. Laytime can then be counted after the elapse of the specified time period as stated in the charter party. Conversely, there have been controversies regarding the use of an NOR where ship owners are restrained from counting laytime while the ship is still waiting for a berth at a place outside the commercial limits accepted by the port. Additional laws could become applicable during industrial action by port employees or workers. In such occurrences, the charterer is protected by the voyage charters against unnecessary demurrage as it was ruled in the between Carboex S.A v Louis Dreyfus Commodities Suisse S.A[18] in the year 2011. A berth charter has provisions regulating the counting of laytime which makes exclusions whenever strikes are experienced at the point of loading or discharging cargo.

Furthermore there are rescue charters that exempt the charterer from demurrage charges. Among such exemptions are applicable to vessels that are affected by the after effect of a strike which mostly leads to congestion of the ports and the berths thus denying some vessels access to docking. The second exemption results from general risks associated with strikes among them being delays resulting from go slows. In the case mentioned above which was presided by the Commercial Court of London which deals in arbitration awards, the ship owner by the name of Louis Dreyfus chartered four vessels to a charterer by the name Carboex. The vessels were contacted using the Am Welsh Voyage Charter Party forms which allowed the charterer to carry coal between Indonesia and Spain. Unfortunately upon arrival, the Spanish port where the vessel was to discharge the cargo was being affected by the nationwide haulage strike that lasted between the months of June and July, 2008.

When the vessels arrived at the port for discharge, they were issued with the Notice of Readiness which was tendered based on the provisions made in the ‘Whether in Berth or Not’ (WIBON) clause. The clause 40 allows from the counting of laytime after the elapse of the time allocated for the NOR. Even though the strike had ended and the employees had resumed work, the Spanish port was still experiencing significant delays caused by the congestion of vessels at the berth. The Carboex ships could not get to the berth because other vessels were still discharging and loading respectively so the ships had to queue as they waited their turn. Since the NOR had been issued and laytime was in order, Louis Dreyfus made a claim for demurrage[19] which was awarded by the court of arbitration. The tribunal supported that clause 9 of WIBON stating that ship owners were not allowed to count time lost during strikes, civil commotions and lockouts, accidents which cannot be influenced by the charterer or other proximate causes unless the ship had already delayed and was being charged on demurrage.

According to the Commercial Court of London, Carboex had to compensate Louis Dreyfus by paying demurrage because the clause lacked that provision. Compared to the case of Leonis Steamship Company v Rank, 1098 and the Armstelmolen[20], 1961 a similar issue relating to consequential effects of strike was made exceptional with regard to their economic implications. The current WIBON clause implies that the charterer will pay demurrage under unclear circumstances and as part of a blanket allocation of demurrage risks caused by waiting delays. There needs to be charter party provisions that make exceptions for the calculation of laytime so that the provision is interpreted sensibly with respect to the commercial implications.

 

Chapter 3: Current Law

Several current laws are applicable to international shipping. Among the laws that are connected to the WIBON clause is the Hague Visby Rules, Notice of Readiness abbreviated as NOR and the laytime charter. These three laws affect WIBON because the principles underlying Whether in Berth or Not are conventionally related to the calculation of laytime. This chapter therefore uses information presented by Christopher Butcher[21] to emphasize on the application of the three current rules to international shipping. Hague Visby Rules represent a set of rules that govern the operation of international carriers of goods using shipping vessels at sea. It was previously drafted and enacted at Brussels in the year 1924 as the International Convention for the Unification of Certain Rules of Law relating to lading but after further amendments such as the Brussels Amendment in 1968, the name was changed to Hague Visby Rules. The last amendment to these rules was made in 1979 but this only affected some articles that were changed while others were added in order to cover for the shortcomings that were exhibited in the previous rules.

The principle behind the functionality of The Hague Visby Rules and the English Common Law is the reality that a charter party enables the carrier to have a higher bargaining power as compared to the shipper or the charterer. Therefore the rules made by this act aims at protecting the interests of the cargo owner by imposing the carrier to the minimum obligations possible. The application of the Hague Visby Rules was enabled by the incorporation of the English laws referred to as the Carriage of Goods by Sea Act of 1971. For instance, whereas the previous Article 1C restricted the shipping of deck cargo and live animals, the current section 1 (7) terms such items as goods. The current Hague Visby Rules further upgrades section 4 of the Carriage of Goods by Sea Act which now states that the bill of lading has to be a conclusive evidence of the receipt. This amendment is contravened by the former article 4, which declared bills of lading as having prima facie rights to act as evidence of the charterers’ cargo.

Current Hague Visby Rules make provisions for carriers’ duties whereby their duty is to load their cargo with the care and organization that it deserves. The carrier further had to abide by the rules guiding the loading and discharging cargo at the port. This means that he or she has to abide by the handling, towing, carrying, caring for and keeping rules as set by various ports and as agreed in the charter party[22]. These duties are supposed to be followed with due diligence as to enable the ship attain seaworthiness and be granted free pratique. The common law also states that the charterer is supposed to use the route agreed upon in the voyage charter or if not agreed upon then the usual route should be used. With the current amendment of the laws, power was given to the charterer to deviate from the previously agreed route whenever they are faced with life threatening situations so as to save lives of the people on board. The amendment moreover gave the carrier the power to make reasonable deviations as this will not be an infringement of the Hague Visby Rules.

The Hague Visby Rule has been vital in accounting for deviations which occur during the course of voyage. Maritime voyage[23] has in the past been faced with controversial laws which have affected operations and the contracting process using charter parties. The Hague Visby Rules and COGSA have all been centered by legislative uncertainties especially during court cases. The rules stated are binding and in case of breach of contract, either the shipper or the carrier will be liable to compensate for the damage and liabilities incurred by the other party. The application of the Hague Visby Rules which are classified under the International Convention makes provisions for immunities for the carrier and the shipper based on contractual basis. According to my analysis, the article regarding carriers’ liability is grounded on the assumption of mere negligence or presumed fault. Likewise, this case calls for the application of the risk approach theory which supports the need to hold the carrier liable in the event of deviations which are bound to be wrongful in the eyes of the law as well as deviations likely to increase the risk of loss beyond that stipulated in the contract.

The Hague Visby Rules also state the conditions for making the bill of lading which is a document presented to the shipper by the charterer indicating the goods that have been loaded or into the vessel. The bill of lading performs the other function of raising issues on how the owner of cargo loaded can be recovered in the event of damage or loss resulting during sea voyage. The Hague Visby Rules which are statute laws have modified other common laws regarding signing of contracts among them being WIBON. The modification has been made in order to change the abilities endorsed to the third parties when suing the other charter party for contract of carriage. The Hague Visby Rules manage to determine the mandate of the parties involved in the charter by imposing mandatory rules aimed at regulating contractual terms and governing the issuance of evidence in the event of loss as stated in the bill of lading. The Hague Visby Rule moreover indirectly makes provisions on how cases apropos the WIBON clause can be handled.

The second shipping law that has proved to be vital in reflecting the application of WIBON clause in international shipping law[24] is the Notice of Readiness (NOR). Maritime law on Notice of Readiness makes provisions for liabilities and further stipulates when these liabilities become operational. The law divides voyage into four stages which divide liabilities to the owner and the charterer. The owner is liable for damages or loss incurred in the preliminary or the loading stages because at these stages the charterers’ liability is limited because the ship has not been provided for loading and discharge. The maritime law states that when the charterer is served with the NOR, it marks the arrival of the vessel at the berth and it further implies the commencement of the agreement made in the charter party. The charterer is thus at liberty to commence operations on the cargo by loading or discharging. When loading begins, risks such as the risk of delay is transferred to the charterer who is at this time running on laytime.

The traditional common law states that Notice of Readiness is required at the port of loading and in the event that the vessel has to load at several ports, then the notice is only given once at the first port.  In contrast are current laws which expressly make provisions for Notice of Readiness by supporting that it should be given at each port of loading or discharging as it was decided in the case between Nippon Yusen Kaisha v Societe Anonyme Marocaine de I’Industrie du Raffinage, (The “Tsukuba Maru”) [1979] 1 Lloyd’s Rep. 459[25] where Mocatta J held that ‘unless expressly provided otherwise, NOR is not required at discharge port if vessel was already on demurrage on departure from load port’. In my opinion, there is no legal obligation demanding that an NOR should be given in a specific prescribed form provided that the statement is accurate in advising the charterer to load or discharge. At this point, it is evident that current laws give the NOR power to perform two interchangeable functions. The first being the purpose of advising the charterer that the voyage is cleared for loading or discharging thus the vessel is at disposal. The second function is that of determining the onset of laytime which is a relevant aspect reflecting the Whether in Berth or Not (WIBON) clause. Kennedy LJ reiterates that an NOR might not be sufficient to inform the charterer that the vessel is at berth stating that there are three criteria as identified in the Leonis Steamship Company Ltd v Rank Ltd[26]., as NOR failed to mark the commencement of laydays.

There is also maritime law regarding the laytime charter. The accurate determination of laytime in any voyage charter is important in determining financial impact which then affects the costs and as a result legal obligations. The case of Glencore Grain Ltd v Flaker Shipping Ltd (The Happy Day)[27] represents a relevant case to understanding the fundamentality inherent in this law. The case asserts that when the charterer decides to commence discharge activities before the vessel is served with a notice of readiness then it is legal for laytime to commence spontaneously. This assertion is supported by understanding the legal concepts underlying laytime. As explained in the previous chapter, laytime determines the time when the carrier or charterer is allowed to discharge cargo after coming to berth. Laytime exempts the charterer from incurring demurrage charges. This means that the calculation of laytime is determined by distinguishable port and berth charter parties.

Apparently, a WIBON clause warranties the master to issue a notice of readiness whether the ship is in berth or not. The insertion of a WIBON clause into the charter party dictates that laytime commences whenever the notice of readiness is served regardless of the ship being in berth or not. The NOR can still be served as long as the ship is within the port or when determined that there is congestion at the port. The exceptions provided for in the WIBON clause transfer risks associated with congestion to be liabilities and obligation of the charterer. Apart from the berth charter there is the port charter which provides a contrast to the former. The later does not reprimand being served from within the dock or berth. In such a scenario, laytime begins when an NOR is served within the port.

Common law allows that a notice of readiness to loan can take any form including the use of an oral notice. It was however supported by the case of Houlder v GSH [1862]3 F & F 170[28] that it is not mandated for an NOR to be issued while discharging a vessel. In some cases charterers use the notice of readiness to load without being marked as an arrived ship thus the ship can berth and load. Such a process has an impact on the ship owner because it makes it impossible to determine laytime and consequently the ship owner will not be in a position to claim demurrage. Lord Mustill made it clear during the Transgrain Shipping BV v Global Transporte Oceanico SA (The Mexico 1)[29] that ‘…unless something happened after the notice was sent to make the laytime start, it never started at all, with the consequence not only that the owners have earned no demurrage, but also that they are obliged to pay the charterers despatch money for the whole of the laytime’. Without laytime, the charterers will be free of time constraint while unloading which will translate into a loss on the side of the ship owner who will in return waste more time and at the same time lack demurrage[30].

Clause 30 of the laytime charter contains a definition for “the happy day” which states that ‘At first or sole discharging port, notice to be given to receivers/agents during normal local office hours and laytime to start counting at 8am next working day, whether in berth or not, whether customs cleared or not’. Thus clause 30 requires that a written NOR has to be issued before laytime commences. This clause is unlike the WIBON clause which provides for commencement of laytime irrespective of the ship coming to berth. Rules regarding the application of the berth charter recommend that if the berth is free from congestion, then the WIBON clause is not sufficient to initiate laytime at that given port. Reflecting back on Glencore Grain Ltd v Flaker Shipping Ltd[31], the charterer was issued with the notice of discharge on the 25^th of September, 1998 which was a Friday. The ship berthed on Friday and discharge commenced on Saturday; one day after the issue of notice of readiness. Discharge was completed in December because the ship owner failed to issue an NOR which adds up to three months after the vessel came to berth. The ship owner filed a claim for demurrage for the time exceeded after laytime.

The arbitrators in the case decided that the WIBON clause was applicable in such a case and that notice of readiness is assumed to have been issued on 25^th September. The charterer appealed the case and argued that laytime was not running because a notice of readiness was not issued, in fact the charterer demanded to be paid for despatch by the ship owner. The court of appeal decided that according to the voyage charter, the charterer was allowed compensation because laytime was only supposed to commence after the issue of an NOR. It is further acknowledged that in the voyage charter, laytime commences after the issue of a notice of readiness failure to which the losses associated with delay of the vessel are settled by the ship owner. Likewise, losses incurred by the charterer are transferred to the ship owner. The current English laws do not permit running of laytime before the issue of a notice of readiness as it was implied in the case of Transgrain Shipping BV v. Global Transporte Oceanio SA (The Mexico I) [1990] 1 Lloyd’s Rep. 507)[32]. The jury of judges ruled that whenever the charterer is transporting cargo as contracted in the charter party, the ship owner has to make a written notification to the charterer advising that the ship is ready or will be ready at a given time so as to avoid inconveniences. Judge Siberry said that ‘…I consider that is a matter of commercial practicality, such an intended recipient of the NOR must have implied authority to waive a condition as to the commencement of laytime’. Thus laytime cannot begin in such a scenario unless an NOR is issued. Nevertheless if discharge commences without a notice of readiness then it is assumed not to have commenced.

Chapter 4: Deep Analysis – interpretation, comparisons, prediction, theorizing

There have been questions about the reflection of WIBON clause in shipping law. The following analysis is synthesized to incorporate the application of interpretations, comparisons, predictions and theories to support or dismiss various clauses based on rulings made in case studies. According to the case Bulk Transport Group Shipping Co. Ltd v Sea Crystal Shipping Ltd, (The Kyzikos)[33] the jury made up of the House of Lords analyzed the meaning of the provisions provided in the voyage charter party regarding commencement of laytime. The reflection of the WIBON clause as used in the Kyzikos case differs from the ruling made in a similar case which was ruled by a different House of Lords. The case of Nertneide S.p.A di Navigazione v Bulk Oil International Ltd (The Laura Prima)[34] was ruled differently even though the underlying principle was the same. In a deeper analysis, the charter party used in the Kyzikos followed the amendments made on Gencon (Box Layout). This was a printed form made in the year 1974 and it contained titles and sub-titles relating to the discharging of cargo. Two clauses of the amendment were enacted with the power to determine laytime with specific focus on loading and discharging.

According to clause 6 and clause 5, there is a time cost that is incurred when a vessel is at berth. This cost is in the form of the time lost while the vessel is waiting for a berth so as to load or discharge. The time is accounted for as being loading or discharge time respectively. The amendment done on clause 5 included the addition of a clause which was again typed stating the commencement of time. The clause further made provisions for Whether in Port of Not (WIPON), Whether in Berth or Not (WIBON), Whether in Free Pratique or Not (WIFPON) and Whether Customs Cleared or Not (WCCON)[35]. These two clauses affected the Kyzikos case because the House of the Lords representing the chambers of appeal used clauses 5 and 6 consequently claiming that they provided a common ground between the charterer and the ship owner. This was resultant of the fact that the dispute between Bulk Transport Group Shipping Company Limited and Sea Crystal Shipping Limited held the settlement of liabilities. These liabilities were to be settled to the port of Houston where discharge activities were supposed to be undertaken but were delayed.

Whereas the ship anchored on December 17^th, 1984 at 6.45AM, and at 12.00 Noon the ship owner issues a notice of readiness advising the vessel to discharge. After the notice, a berth was made available for the ship but congestion prevented the vessel from accessing the dock. The pilot station was closed thus the ship remained at the port but could not reach the berth. Berthing was delayed until December 20^th 1984 at exactly 1450 hours upon which the charterer started discharging. The owner of the ship made claims for compensation of demurrage on the account that the vessel was delayed. The fact that the vessel was prevented from accessing the berth is of utmost concern in this case scenario. The charter party that was signed by the two parties was a berth charter thus no issue was raised concerning the type of charter but the owner relied upon the judicial ruling that was made by Roskill, L. J. in E. L. Oldendorff & Co. G. m.b.H. v Tradax Export S.A. (The Johanna Oldendorff)[36].

Roskill referred to the WIBON clause as having the power to convert a berth charter into a port charter thereby transferring liability to the charterer. Lord Brandon on the other hand refuted saying that the previous case referred to by the ship owner was not applicable to a case where a berth was available but inaccessible because of congestion. In his Lordship view, Brandon considered the question of the vessel not reaching the berth because of inaccessibility thus the meaning of whether in berth or not had to be reassessed to this end. The context in which the acronym WIBON was applicable in a berth charter party was also analyzed. In his first consideration, Lord Brandon acknowledged that since 1912 authorities had interpreted the WIBON phrase to mean that it was applicable either when a berth was available or not. In other words, the clause protected the ship owners from liabilities resulting from congestion. Lord Brandon also made it clear that has never been contented before because it covered a scenario where a berth was freed for the vessel to dock but it failed to.

Accordingly Lord Brandon stated that the summarized meaning of WIBON clause was ‘whether in berth’ refers to a berth being available ‘or not in berth’ meaning a berth not being available. Lord Brandon supported his interpretation stating that the WIBON clause composed of two distinct features. The first feature being that the time lost by the vessels waiting to berth was not deleted. This is because the WIBON clause was not amended to replace or modify time lost during unavoidable occurrences at the port. Contrary to the reasoning of the authorities and the ship owner relating to the time lost provision, Lord Brandon insisted that the features was different and it would be inconsistent to substitute one provision for the other. Because by so doing the time lost provision will render the ‘whether in port or not’ provision superfluous. The same effect of rendering other provisions null and void to the extent of the contenting clauses will also be experienced with the WIBON clause if such a misinterpretation was considered.

Lord Brandon named the second feature reflected in the WIBON clause is its relative appearance to other clauses such as WIPON, WCCON and WIFPON. All these clauses, Lord Brandon said were more concerned with eliminating congestion at the ports but none was directed at handling the situation at hand which was delay.  Custom clearance or free pratique could not be granted for the reason inaccessibility of the berths and this consequently prevented the authorities from reaching the vessel while it was at the port. Additionally WIBON clause is applicable in situations where the water level is insufficient to allow for the ship to pass the bar and reach the berth. Therefore there are many interpretations that can be raised against the WIBON clause. Its application in shipping law is not unlimited and the traditional view accorded to the clause makes it ascertain that the charterer has to bear risks associated with congestion while the ship owners had to bear liabilities arising delays.

Customary shipping law had not considered interpreting WIBON as being applicable to both delays as it was applicable to congestion. With this decision made based on the Lordship view, it was made clear that there was no previous case interpreted by dividing the WIBON acronym into two features. After which it was determined that ‘whether in berth or not’ clause can be applied interchangeably to delays and congestions alike. The reasoning made by Lord Brandon contrasts that made by the House of Lords regarding the Laura Prima and other cases that came after the Laura Prima decision[37]. The House of Lords considered the standard form of the term whether in berth or not to mean that the berth was readily reachable by the vessel upon arrival. This provision is made in the ‘reachable on arrival’ clause which supports the transfer of liability from the charterer as it contravenes a breach of warranty in the event of commercial congestion.  This was implicated in Lord Roskill statement ‘…if a berth cannot be reached on arrival, the warranty is broken unless there is some relevant protecting exception’.

The interpretation made by Lord Roskill proves to be more applicable to the delay provision rather than the congestion provision. The ruling made in the Laura Prima case was deemed inapplicable because the rules presented a traditional view of the WIBON clause where ship owners were totally liable for risks. Other cases relating to the Kyzikos is Palm Shipping Inc. v Kuwait Petroleum Corp. (The Sea Queen)[38]. KIS Arnt J. Moerland v Kuwait Petroleum Corp. (The Fjordaas)[39]. Saville. J and Steyn, J. respectively refuted the statement that the Laura Prima[40] was limited in its applicability in the case. As a commercial judge, Saville regarded WIBON as being a simple acronym that could be defined clearly without eliciting confusion. Being that the main purpose of the courts is to ensure that commercial contracts are followed by the concerned parties to the latter; the courts have to achieve consistency in their interpretation of the shipping law. The cases reflecting on the divergent interpretation of ‘whether in berth or not’ clause portrays the different attitudes which vary from the mere use of the words ‘reachable on arrival’ and restricted, special meaning that underlies WIBON clause. As supported by Christopher Butcher, this argument denotes that according to the interpretation made by the two House of Lords, the WIBON clause is just but an inserted clause.

 

In the case of The Johanna Oldendorff v The Maratha Envoy[41], it was agreed that the port is the usual waiting place for vessels however in the event of delays or congestion at the berth, the charterer can tender a notice of readiness. A NOR can be issue either from the port, whether in port or not (WIPON) or whether in berth or not (WIBON). In case the ‘whether in port or not’ clause is applied in a given voyage charter party then the ship owner can issue a notice of readiness when the ship comes to berth. This is supported by signing of a berth charter where Lord Brandon stressed that the applicability of the WIBON clause is limited by the availability of a berth, and unreachability to the berth due to congestion. This was made clear in the case of Bulk Transport Ltd. v Seacrystal Ltd. (The Kyzikos) [1989] AC 1264 at p.1279[42]. In case the charterer and the ship owner agreed on the port charter, WIPON becomes applicable. The use of WIPON is dictated by congestion of the port which should be caused by factors beyond the charterers or the owners’ control. As it was alleged in Suek AG v Glencore International AG [2011] EWHC 1361[43], both WIPON and WIBON clauses are used only when a port has no free berths at the time of arrival of the ship or when there are free berths but the ship cannot gain access because congestion.

An instance regarding a reflection of the WIBOB clause in the law is the arbitration case where a vessel that had been chartered using Vegoil forms carried cargo from a berth on the port of Dumai in Indonesia headed towards Port Chittagong in Bangladesh. At the Dumai port, there is the Morong Pilot Station which marks the point at which a sea pilot can be issued with a notice of readiness (NOR). The ship was delayed and only managed to berth two days after the issue of an NOR. Based on the WIBON clause, the arbitration tribunal supported that Morong pilot station was not a legit berth since it did not mark the last point where the ship could discharge and load. Reflecting back on the shipping law, the charterer has the duty of procuring all the documents necessary to ascertain that the vessel has been marked as an arrived ship. The charterer also needs to act reasonably and in accordance with the charter party in ensuring that the vessel becomes an ‘arrived ship’. Even though the agreement allowing the charterer to be issued with an NOR[44] ‘whether in berth or not’ tends to transfer the general risk associated with congestion to the charterer instead of the ship owner, some charter parties give the charterer the liberty to exclude some periods of time while calculating laytime. By so doing, some risk is transferred back to the ship owner therefore it becomes the duty of the charterer to prove circumstances under which the delay occurred such as congestions, strikes or any other effective cause.

 

Chapter 5: Conclusion

Critically analyzing this decision by the Commercial Court of London, it is a worthy cause for the ship owner to be compensated in the event that the charterer delays with the ship in such a way that it exceeds laytime and demurrage. In such a case, it is prudent to charge the charterer for inconveniences that might arise from industrial action, strikes or civil commotions among other unavoidable circumstances faced by the charterer. This clause therefore protects the ship owner from loses that he or she might incur as a result of delays caused by the charterer. On the other hand clause 9 of WIBON protects the charterer from uncertainties that could occur unexpectedly at the ports. This clause is rational in the sense that it only protects charterers who abide by the contract party. Apparently, reflecting back on Carboex, he has the right to sue Louis Dreyfus for issuing a NOR before the ship arrived at the berth. Accordingly the WIBON clause becomes applicable in such cases where the charterer feels that their rights and privileges are being infringed by the other party is the event of strikes or unavoidable circumstances. Contrary to the WIBON clause, the Commercial Court of London contravened the clause by exposing its ambiguity.

From the ruling, it becomes evident that the clause failed to protect the charterer from the after effects caused by the unavoidable circumstances faced while at the ports. According to the Commercial Court of London, Carboex had to compensate Louis Dreyfus by paying demurrage because the clause lacked that provision. Furthermore the case was interpreted as being inapplicable to the ejusdem generis[45] whereby congestion was cited as the reason for the delays at the port as it is not listed among the provisions such as strikes, civil commotions and lockouts, accidents which cannot be influenced by the charterer or other proximate causes unless the ship had delayed. The arbitration decision by the court is justifiable given the fact that congestion was not listed among the other proximate causes. Upon the award of settlement to Louis Dreyfus, Field J refuted the award by stating that Carboex was supposed to be protected by clause 9 of WIBON because the strike was an exceptional case listed among the reasons that could exempt the charterer from paying demurrage.

Logically the appeal case mentioned by Field J. is logical because the charterer had no influence over the untimely congestion at the port which resulted in delayed berthing but the legality of the appeal is challenged by the lack of a clause allowing for proximate cause. Whereas the ship owner had contented the case based on the Kyzikos, 1989 Lloyd Rep which used the provisions provided for by WIBON, Field J was logical in his analysis of the provisional clause[46]. In reality the WIBON clause made provisions that enabled the ship owner to calculate laytime whether a berth was available or not. The clause assumed that any charterer consenting to the charter party or voyage charter indirectly consented to WIBON. Again the clause meant that the charterer was liable for the after effects of caused by any unavoidable circumstances which passed the risk of loss from the owner to the charterer. Even though the WIBON clause failed to protect charterers who were at the port but were affected by congestion which denied the vessels a place to berth, the clause protected charterers of any delays caused by strikes occurring after the ships had berthed.  In reality the applicability of the WIBON clause as a shipping law is voided to some extent because of its inconsistency in unavoidable circumstances.

Looking at the provision made in this clause from an equitable view, it would be prudent if the clause allowed for a general apportionment of risks between the charterer and the ship owner or master. This can be enabled by determining when laytime can start in such unavoidable circumstances because the current provisions make exceptions that do not cross-contaminate WIBON provisions regarding laytime and demurrage. With logical considerations based on the need for an equitable view likely to be experienced and the commercial implications caused by the WIBON clause provisions in the case of Carboex S.A v Louis Dreyfus Commodities Suisse S.A[47], there arises the need to amend the this specific provision. In my opinion, the amendments were practical in that they gave the carrier or the charterer a reasonable space to practice personal freedom that comes with contracting for a vessel and in cases of dire need, the carrier can practice care as well as professionalism so as to save lives and the cargo.

Likewise the case of Carboex S.A v Louis Dreyfus Commodities Suisse S.A [2011] EWHC 1165[48] plays the pertinent role of guiding the application of the WIBON clause. As it was held by the Commercial Court, which viewed WIBON as a preliminary issue that opens up for further legal amendments in the context relating to voyage charters. This is because the subject under scrutiny covers the exceptional circumstances under which laytime is applicable and among the subjects topics covered is the issue of strikes. Thus there arises the need to define jurisdictions in which laytime can be calculated after the end of a strike and in the event that a ship is delayed to berth due to the after effect of a strike such as congestion. The conclusion of this case is supported by the judgment made by the Commercial Court which supported the fact that the WIBON provision is but a grey area. This is because, the Court said, the clause does more than starting laytime thus the clause was declared to be a free-standing provision.

Moreover, in the event of a port charter, the clause failed to provide a specific dispositional point within usual ports where laytime could begin being counted. Therefore it is prudent to state that in the eyes of the judges at the Commercial Court, the grey area in the WIBON provision needs to be restructured by correcting the wording in order to make them appropriate thus making the clause exceptional. For instance the current WIBON clause provisions lay the risk of delay to berth caused by congestion on the charterer and that should not be the case. Therefore the clause exhibits a grey area resulting from the fact that in the event that there was a clause to protect the charterers equally as the ship owners are protected, then the risk of congestion due to berthing will be reduced. Additionally, exceptions regarding demurrage hinted at reducing obstruction or hindrances that are likely to be faced by the two parties should be contained in the clause so that laytime is suspended when a vessel is experiencing failure at the point of berth. After the congestion has subsided then laytime can resume. That was the grey area will be removed. The Court also agreed on the reconstruction of the clause 9 in such a manner that the Amstelmolen case was included. This is because the wording made in the statement ‘In case of strikes … beyond the control of the Charterers which prevent or delay the discharging’ there is need to explain all the exceptions that would be made on demurrage and laytime in the event of uncertainties[49].

Even with such provisions made to protect the carrier, there are articles in the Hague Visby Rules that protect the shipper or the ship owner from undesirable situations. Among the obligations is the need to pay freight duties, protection from ship overload done by the carrier. The shipper or the owner is also protected from loading of dangerous cargo which should be signed and consented to by both parties. The carrier is also required by law to practice honesty and accuracy and to ensure that cargo for shipment is availed at the ports at the right time so as to enable the carrier issue the notice of readiness in time. Reflecting on some of the pertinent clauses included in The Hague Visby Rules is the Article I[50] which states the meaning to vital terms included in the charter. The term carrier refers to the charterer or the owner of the cargo to be transported. The carrier enters into a mutual contract with the shipper before the vessels are handed over for loading.  The term goods refer to the merchandise, ware and articles of myriad types except cargo and live animals which are carried on the deck. A ship represents a water vessel that carries goods and cargo over water while the term carriage of goods represents the period starting from the time of loading up to discharge time.

 

Bibliography (Footnote)

Cases

Budgett v Binnington

Bulk Transport Group Shipping Co. Ltd v Sea Crystal Shipping Ltd, (The Kyzikos)

Bulk Transport Ltd. v Seacrystal Ltd. (The Kyzikos) [1989] AC 1264 at p.1279

Carboex S.A v Louis Dreyfus Commodities Suisse S.A [2011] EWHC 1165

Compania Crystal de Vapores v Herman [1958] 2 QB 196

1. L. Oldendorff & Co. G. m.b.H. v Tradax Export S.A. (The Johanna Oldendorff)

Glencore Grain Ltd v Flaker Shipping Ltd (The Happy Day)

Hick v Raymond & Reid

Houlder v GSH [1862]3 F & F 170

KIS Arnt J. Moerland v Kuwait Petroleum Corp. (The Fjordaas)

Leonis Steamship Company v Rank Ltd, 1098 and the Armstelmolen

Louis Dreyfus & Cie v Parnaso Cia Naviera SA (The Dominator), Diplock J

Marc Rich & Co Ltd v Tourloti Compania Naviera SA (The Kalliopi A)

Margaronis Navigation Agency Ltd v Henry W Peabody & Co of London Ltd

Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc (The Reborn) [2009] EWCA Civ 531

Nertneide S.p.A di Navigazione v Bulk Oil International Ltd (The Laura Prima)

Nippon Yusen Kaisha v Societe Anonyme Marocaine de I’Industrie du Raffinage, (The “Tsukuba Maru”) [1979] 1 Lloyd’s Rep. 459

Palm Shipping Inc. v Kuwait Petroleum Corp. (The Sea Queen)

Reardon Smith Line Ltd v Ministry of Agriculture, Fisheries and Food

Salamis Shipping (Panama) SA v Edm van Meerbeeck & Co SA, (The Onisilos)

Suek AG v Glencore International AG [2011] EWHC 1361

Superfos Chartering A/S v NBR (London) Ltd (The Saturnia)

The Johanna Oldendorff v The Maratha Envoy

Transgrain Shipping BV v. Global Transporte Oceanio SA (The Mexico I) [1990] 1 Lloyd’s Rep. 507), Judge Siberry

Van Liewen v Hollis Bros & Co Ltd (The Lizzie)

Zim Israel Navigation Co Ltd v Tradax Export SA (The Timna) [1971] 2

Books

Baughen, S 2012, Shipping Law. Routledge, United Kingdom

G.H. Treitel, “Contract and Crime”, ch 5 of C.F.H. Tapper (ed), Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (London, 1981), 94-95.

H.C Morris (ed), Dicey & Morris on the Conflict of Laws, 10th edn (London, 1980) (hereafter “Dicey & Morris”), vol 2, ch 30.

1. Schofield. Laytime and Demurrage, 4th Ed, (London: Lloyd’s of London, 2000).
2. Schofield. M. A. Laytime and Demurrage, Lloyd’s of London Press LTD edition 1990, page 56.
3. Philip. Deep Sea and Foreign Going: Inside Shipping, the Invisible Industry that Brings You 90% of Everything.
4. Lou. Contract clause comes under fire. American Journalism Review; Jan/Feb99, Vol. 21 Issue 1, p 66, 1p University of Maryland.
5. Hugo, The Law of Demurrage, edition London 1995, page 335, n° 7 “charterer’s duty to have a cargo ready”.
6. Solvang. ‘Laytime, demurrage and multiple charter parties’ [2001] LMCLQ 285.

Todd, P, ‘Start of laytime’ [2002] JBL 217.

Journal articles

Adan Steamship Co v. Andrew Weir & Co (1905), page 137, op cit. See also Schofield John, Laytime and Demurrage; Lloyd’s of London Press LTD edition 1990, page 56.

Hirsch, Sarah. Inhabiting the icon: shipping containers and the new imagination of western space. Western American Literature; Spring/Summer2013, Vol. 48 Issue 1/2, p16-40, 25p, 2 Black and White Photographs

Tiberg Hugo, The Nordic Maritime Code, in Lloyds Maritime and Commercial Law Quarterly, 1995 page 527.

Trappe Johannes, Lay-time problems and comparison of Law, in Lloyds Maritime and Commercial Law Quarterly, 1986 page 251.

 

 

[1] S Baughen. 2012, Shipping Law. Routledge, United Kingdom

[2] S Baughen. 2012, Shipping Law. Routledge, United Kingdom

[3] J. Schofield. M. A. Laytime and Demurrage, Lloyd’s of London Press LTD edition 1990, page 56.

[4] J. Schofield. M. A. Laytime and Demurrage, Lloyd’s of London Press LTD edition 1990, page 56.

[5] Louis Dreyfus & Cie v Parnaso Cia Naviera SA (The Dominator), Diplock J

[6] Salamis Shipping (Panama) SA v Edm van Meerbeeck & Co SA, (The Onisilos)

[7] T. Solvang. ‘Laytime, demurrage and multiple charterparties’ [2001] LMCLQ 285.

[8] Superfos Chartering A/S v NBR (London) Ltd (The Saturnia)

[9] Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc (The Reborn) [2009] EWCA Civ 531

[10] Van Liewen v Hollis Bros & Co Ltd (The Lizzie)

[11] Reardon Smith Line Ltd v Ministry of Agriculture, Fisheries and Food

[12] Compania Crystal de Vapores v Herman [1958] 2 QB 196

[13] Hick v Raymond & Reid

[14] Budgett v Binnington

[15] Margaronis Navigation Agency Ltd v Henry W Peabody & Co of London Ltd

[16] Marc Rich & Co Ltd v Tourloti Compania Naviera SA (The Kalliopi A)

[17] Zim Israel Navigation Co Ltd v Tradax Export SA (The Timna) [1971] 2

[18] Carboex S.A v Louis Dreyfus Commodities Suisse S.A

[19] T. Hugo, The Law of Demurrage, edition London 1995, page 335, n° 7 “charterer’s duty to have a cargo ready”.

[20] Leonis Steamship Company v Rank, 1098 and the Armstelmolen

[21] Trappe Johannes, Lay-time problems and comparison of Law, in Lloyds Maritime and Commercial Law Quarterly, 1986 page 251.

[22] Trappe Johannes, Lay-time problems and comparison of Law, in Lloyds Maritime and Commercial Law Quarterly, 1986 page 251.

[23] Tiberg Hugo, The Nordic Maritime Code, in Lloyds Maritime and Commercial Law Quarterly, 1995 page 527.

[24] Hirsch, Sarah. Inhabiting the icon: shipping containers and the new imagination of western space. Western American Literature; Spring/Summer2013, Vol. 48 Issue 1/2, p16-40, 25p, 2 Black and White Photographs

[25] Nippon Yusen Kaisha v Societe Anonyme Marocaine de I’Industrie du Raffinage, (The “Tsukuba Maru”) [1979] 1 Lloyd’s Rep. 459

[26] Leonis Steamship Company Ltd v Rank Ltd

[27] Glencore Grain Ltd v Flaker Shipping Ltd (The Happy Day)

[28] Houlder v GSH [1862]3 F & F 170

[29] Transgrain Shipping BV v Global Transporte Oceanico SA (The Mexico 1)

[30] T. Hugo, The Law of Demurrage, edition London 1995, page 335, n° 7 “charterer’s duty to have a cargo ready”.

[31] Glencore Grain Ltd v Flaker Shipping Ltd

[32] Transgrain Shipping BV v. Global Transporte Oceanio SA (The Mexico I) [1990] 1 Lloyd’s Rep. 507), Judge Siberry

[33] Bulk Transport Group Shipping Co. Ltd v Sea Crystal Shipping Ltd, (The Kyzikos)

[34] Nertneide S.p.A di Navigazione v Bulk Oil International Ltd (The Laura Prima)

[35] Adan Steamship Co v. Andrew Weir & Co (1905), page 137, op cit. See also Schofield John, Laytime and Demurrage; Lloyd’s of London Press LTD edition 1990, page 56.

[36] E. L. Oldendorff & Co. G. m.b.H. v Tradax Export S.A. (The Johanna Oldendorff)

[37] Nertneide S.p.A di Navigazione v Bulk Oil International Ltd (The Laura Prima)

[38] Palm Shipping Inc. v Kuwait Petroleum Corp. (The Sea Queen)

[39] KIS Arnt J. Moerland v Kuwait Petroleum Corp. (The Fjordaas)

[40] Nertneide S.p.A di Navigazione v Bulk Oil International Ltd (The Laura Prima)

[41] The Johanna Oldendorff v The Maratha Envoy

[42] Bulk Transport Ltd. v Seacrystal Ltd. (The Kyzikos) [1989] AC 1264 at p.1279

[43] Suek AG v Glencore International AG [2011] EWHC 1361

[44] Todd, P, ‘Start of laytime’ [2002] JBL 217

[45] M. Philip. Deep Sea and Foreign Going: Inside Shipping, the Invisible Industry that Brings You 90% of Everything.

[46] G.H. Treitel, “Contract and Crime”, ch 5 of C.F.H. Tapper (ed), Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (London, 1981), 94-95

[47] Carboex S.A v Louis Dreyfus Commodities Suisse S.A

[48] Carboex S.A v Louis Dreyfus Commodities Suisse S.A [2011] EWHC 1165

[49] H.C Morris (ed), Dicey & Morris on the Conflict of Laws, 10th edn (London, 1980) (hereafter “Dicey & Morris”), vol 2, ch 30

[50] P. Lou. Contract clause comes under fire. American Journalism Review; Jan/Feb99, Vol. 21 Issue 1, p 66, 1p University of Maryland.