In the recently published decision in the High Court case of Portolana Compania Naviera v. Vitol SA - “The Alfrapearl”, the judge, Mr. Justice Tomlinson, had to consider the difficult question of what constituted equipment and the circumstances where the charterers could rely on the half rate provisions of Asbatankvoy Part II Clause 8 (as amended by Vitol’s additional chartering clauses). The charterers had instructed the vessel to discharge via the M’bao sealine at Dakar. Unfortunately, this line was in poor condition and had leaked on several previous occasions. Although the master claimed that he had observed oil on the surface of the sea as he was proceeding to the berth, discharge was allowed to commence. However, it quickly became apparent that oil was leaking from the sealine and the vessel had to leave its mooring. Two attempts to repair the line failed. The vessel was able to discharge, at the third berthing, only after the final section of the sealine and the end manifold had been replaced by flexible hoses.
The judge decided that the delays to the vessel were not “delays in berthing” and were therefore not covered by the last sentence of clause 6 of Asbatankvoy. Furthermore, the delays could not be considered as time moving from the anchorage to the berth as defined in clause 7.
Turning to clause 8, he had difficulty in accepting that the sealine, which incidentally was cased in concrete, was equipment. Nevertheless, the judge conceded that the pipeline end manifold where the leak occurred might be defined as equipment. The flanges on this manifold were apparently corroded as a result of inadequate maintenance. The leak in question had not been cured by attempts to tighten the bolts on the flange or by the application of quick-drying cement. Mr. Justice Tomlinson, who has considerable experience of hearing shipping disputes, decided that in these circumstances it was not appropriate to describe the leak as a breakdown. He concluded that it was a problem that had been allowed to continue unremedied for a considerable period of time. The owners were therefore entitled to recover in full their claim for demurrage and shifting costs. Significantly, the charterers have been granted leave to appeal.
In the last few months we have encountered a surprising increase in the number of disputes relating to the scope of the charterer’s warranty in clause 9 of Asbatankvoy Part II to provide “a berth reachable on arrival”. It seems that some ship owners have been encouraged by an unpublished award from a single arbitrator who apparently concluded that the “reachable on arrival” warranty overrode not only the exceptions to laytime/ demurrage in the Asbatankvoy form but also cancelled out the effect of exceptions contained in the additional clauses. It would appear that this decision has ignored the words of Lord Roskill in The “Laura Prima” : "‘Reachable on arrival’ is a well-known phrase and means precisely what it says. If a berth cannot be reached on arrival, the warranty is broken unless there is some relevant protecting exception….” It also contradicts all the other arbitration awards which we have seen over recent years where arbitrators have accepted that the “Laura Prima” referred specifically to the application of the last sentence of clause 6 of Asbatankvoy. The normal conclusion is that the half-rate exceptions to demurrage in clause 8 and the exceptions in additional clauses such as the Conoco Weather Clause will apply regardless of whether or not the berth is available on arrival. Please refer to News Update No.4 for further comment on the application of the Conoco Weather Clause and to News Update No.20 for additional information on The “Laura Prima” judgment. Needless to say, ship owners who persist in holding that all time will count regardless of any exceptions to the contrary if a berth is not immediately available when their vessel arrives at the port, are encouraging charterers either to strike out the “reachable on arrival” warranty or to switch to a more charterer-friendly charter party.