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.
