The term ‘always accessible’ in a voyage charter has been treated as synonymous with ‘reachable on arrival’ in the light of the decision in London Arbitration 11/97. Consequently the warranty has been thought to apply only to arrival at a berth and not to cover departure. In Seatrade Group N.V v Hakan Agro D.M.C.C. (“The Aconcagua Bay”) [2018] EWHC 654 (Comm), 26 March 2018, the High Court has now held that the warranty covers both arrival and departure from a berth and has overturned the decision of the umpire applying the received wisdom that the warranty did not apply to departure.
Robin Knowles J, C.B.E stated: “Did the parties intend to provide for departure in the wording they used? Where commercial parties have addressed the question of the accessibility of a berth, I can see no basis for a conclusion that they should be taken to have addressed entry alone. Importantly in my view the Umpire did not provide an answer to this. The submission by Mr Nevil Phillips and Mr Ben Gardner for the Owners that the reasonable commercial party looking at the subject of berthing would bear all aspects in mind and not confine itself to getting into the berth, is to my mind decisive….The term “reachable on arrival” is to be found in some charterparties (particularly tanker charters according to London Arbitration 5/12 in LMLN 1 Oct 2012). The Owners submit that this self-evidently applies to arrival only. I am left with the perspective that there is a useful vocabulary from which parties can choose, if “always accessible” applies to departure as well as entry and if “reachable on arrival” applies to entry alone.”
