Interruption of laytime and demurrage due to owners refusing to berth.

In London Arbitration 12/22 a dispute arose as to demurrage due under a charter on an amended Gencon 94 form for a voyage carrying coal from Indonesia to China.  The owners refused to berth the vessel when ordered to do so by the charterers, because of the probability of a delay in commencing discharge because the storage yard to which the charterers intended to discharge the cargo was full. Charterers did not confirm they would reimburse the owners for berthing charges levied on the vessel during the period of non-discharge, and the vessel therefore remained at the anchorage until space became available.

The tribunal found that berthing charges levied on the vessel fell to the account of owners under 13(a) of the Gencon 94 form which provides “Taxes and Dues Clause (a) On Vessel – The Owners shall pay all dues, charges and taxes customarily levied on the Vessel, howsoever the amount thereof may be assessed.” The cost of using the berth was not part of the cost of cargo operations, which were for charterer’s account under cl.5.

The tribunal found that following The Stolt Spur [2002] 1 Lloyd’s Rep 786, any non-availability, whether it affected cargo operations or not, or even if none were planned, was sufficient to prevent laytime and or demurrage running. The owners were in breach of their obligation to have their vessel available, whether called upon to perform cargo operations or not, and this applied to a ship at anchorage, especially were a berth was free.

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Professor Simon Baughen

Professor Simon Baughen was appointed as Professor of Shipping Law in September 2013 (previously Reader at the University of Bristol Law School). Simon Baughen studied law at Oxford and practised in maritime law for several years before joining academia. His research interests lie mainly in the field of shipping law, but also include the law of trusts and the environmental law implications of the activities of multinational corporations in the developing world. Simon's book on Shipping Law, has run to seven editions (soon to be eight) and is already well-known to academics and students alike as by far the most learned and approachable work on the subject. Furthermore, he is now the author of the very well-established practitioner's work Summerskill on Laytime. He has an extensive list of publications to his name, including International Trade and the Protection of the Environment, and Human Rights and Corporate Wrongs - Closing the Governance Gap. He has also written and taught extensively on commercial law, trusts and environmental law. Simon is a member of the Institute of International Shipping and Trade Law, a University Research Centre within the School of Law, and he currently teaches at Swansea on the LLM in:Carriage of Goods by Sea, Land and Air; Charterparties Law and Practice; International Corporate Governance.

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