CONTENTS
By Norman Hansen Meyer 
In a case dating from December 2011, the Norwegian Court of Appeal (Borgarting) had to construe the term “always accessible” and inter alia determine whether the owners or the charterers would have to bear the risk of the vessel being prevented from entering berth due to poor weather conditions and night sailing restrictions. The judgment is of interest both in that it clarifies the interpretation of the term in the context of Norwegian law, and also in that it highlights the different approach taken by the English Commercial Court when interpreting the similar term “reachable on arrival”.
The case concerned a claim for demurrage under a Hydrocharter voyage charter in which the parties had inter alia agreed to “one good safe berth…at all ends always accessible”. It was also agreed that “owners have satisfied themselves about restrictions”. Upon arrival in the port of loading, the berth was occupied by another vessel and The M/V Panormos had to remain at anchorage. Although the berth became available the next day, strong winds prevented the vessel from reaching berth and she had to remain at anchorage for another two days until weather conditions improved.
As it happened, this was unfortunately not the last time that strong winds were to delay the voyage. Upon arrival at the port of discharge, the port was closed due to strong winds. Although it reopened for a short period during the night, the port’s night sailing restrictions prevented the vessel from berthing that night. In the end she had to wait approximately two-and-a-half days before berthing.
The owners claimed demurrage inter alia on the basis that laytime was running while the vessel was prevented from berthing, firstly due to poor weather conditions in the port of loading and secondly due to poor weather conditions and night sailing restrictions in the port of discharge. According to the owners, since the charterers had warranted the berth to be “always accessible”, it must follow, inter alia from the natural meaning of the term and from English case law, that charterers had to bear the risk of all obstacles including nautical obstacles. Charterers, on the other hand, argued that the term “always accessible” did not alter the general allocation of risks as between charterers and owners, and that any nautical obstacle that prevented the vessel from reaching berth was the owners’ risk. Furthermore, the charterers asserted that even though the charter party stated that laytime would run in respect of “time lost in waiting for berth”, in this case laytime did not run since the poor weather conditions would in any event have made it impossible for the vessel to berth.
The court held in favour of the charterers. Firstly, the court considered the term “always accessible” to be ambiguous and held that the question could not be resolved purely by applying a natural understanding of the phrase. The court further determined that neither of the parties had sufficiently established that there was a clear and consistent understanding of the term “always accessible” either within the trade or the shipping industry as a whole. The court referred to several English judgments dealing with the term “reachable on arrival”, a term commonly used in tanker charters that is generally considered to be equivalent to “always accessible” (at least in respect to the matters in question). The court concluded that the position under English law was unclear and that the question whether a “reachable on arrival” or “always accessible” warranty meant that the charterer bore the risk of nautical obstacles was yet to be determined decisively by the English Supreme Court. The fact that two of the most recent cases from the Commercial Court (The Sea Queen, [1988] 1 Lloyd’s Rep. 500 QB and The Fjordaas, [1988] 1 Lloyd’s Rep. 336 QB) both held in favour of owners when interpreting “reachable on arrival” (i.e. the charterers assumed the risk of nautical obstacles until the vessel had arrived) was not discussed in any detail. However, while not directly commenting on the position taken by the Commerical Court in the two latter cases, the Norwegian court noted that the question had not yet been decided by the English Supreme Court and that English legal text-books expressed significant doubt as to the current position under English law. The court further noted that it was impossible to infer from the English cases how the terms “always accessible” and “reachable upon arrival” were generally understood within the shipping industry.
The court then turned to the Norwegian Maritime Code Section 333 (1), which states that laytime runs in the event of congestion and “other hindrances which the owner could not reasonably have taken into account at the time when the contract was concluded”. In the court’s opinion, poor weather was a typical hindrance that the owners could indeed take into account, which would normally mean that laytime did not commence. The court further held that since the term “always accessible” was ambiguous, and since neither party had succeeded in establishing a precise and consistent understanding of the term within the shipping industry, it was reasonable to conclude that the parties had not deviated from the position that would apply under Norwegian background law and Section 333 of the Maritime Code, meaning that the risk of nautical obstacles remained with owners. The court noted, however, that in warranting that the berth was “always accessible”, the charterers had warranted that there would be no physical obstacles preventing or blocking passage to the berth.
The question of whether laytime was running while The M/V Panormos was prevented from proceeding due to night sailing restrictions was dealt with in brief. The court held that by having agreed to the phrase “owners have satisfied themselves about restrictions”, the owners had clearly assumed the risk of delays caused by such restrictions. Accordingly laytime did not run.
Finally the court dealt with the charterers’ argument that laytime did not run while the berth in the port of loading was occupied by another vessel since poor weather would in any event have prevented The M/V Panormos from berthing. The court accepted the assertion that even if a vessel is prevented from berthing due to congestion, laytime will not run provided it is clear that the vessel in any event would have been prevented from berthing due to poor weather conditions. The court however held that the charterers had failed sufficiently to establish that, during the period of congestion, the weather conditions were such that berthing would in any event not have been possible. The charterers’ claim that laytime did not run during the period of congestion was thus rejected by the court.
The court’s ruling accords with Norwegian background law, where there is a general assumption that the owners bear the risk of nautical obstacles unless specifically agreed otherwise. It is interesting to compare the M/V Panormos judgment with the English Commercial Court’s application of the term “reachable on arrival”. Building on Mr. Justice Roskill’s reasoning in The President Brand, [1967] 2 Lloyd’s Rep. 338, where it was stated that “reachable” means inter alia that there must be sufficient water to reach the berth or location, the Commercial Court in two of its more recent cases has taken the position that a “reachable on arrival” warranty means that the charterers have assumed the risk not only of congestion and physical obstacles but possibly even of navigational obstacles, see The Sea Queen and The Fjordaas.
The facts of the latter case bore many similarities with the facts in The M/V Panormos in that the vessel was unable to proceed immediately to berth because of inter alia night sailing restrictions and poor weather conditions. Contrary to the findings of the Norwegian Court of Appeal in The M/V Panormos, in The Fjordaas the Commercial Court refused to rely on the traditional allocation of risk, according to which weather is a typical example of something that is owners’ risk. On the contrary, the court held that the distinction between physical causes of obstruction and non-physical causes rendering a designated place unreachable was not supported by the language of the contract or by common sense. Accordingly the court concluded that the delay caused by poor weather conditions was a breach of charterers’ “reachable on arrival” warranty.
One thing that is clear is that under both Norwegian and English law, if the owners want to ensure that laytime will run even if poor weather conditions prevent access to the berth, it is advisable to include a specific statement to this effect in the charter party.
