Seatrade Group NV v Hakan Agro DMCC, “The Aconcagua Bay”
In a clear and concise decision on 26 March 2018 by Knowles J on an arbitration appeal, the Court determined the meaning of a well worn phrase found in voyage charterparties: berth warranted “always accesssible”. This warranty has been in circulation for more than 30 years and a number of reported decisions have considered what it means in the context of vessels attempting to reach a berth, and in particular what sort of obstacles will put the charterer in breach of the warranty (see for example The Kyzikos).
A less well understood aspect of the warranty is its temporal scope. Must the berth be “always accessible” on arrival, so that it is effectively synonymous with “reachable on arrival”, or must the berth be capable of being reached and departed from? This question had arisen once before in London Arbitration 11/97, where the tribunal gave the answer that “always accessible” meant “always reachable”. The umpire in the present case reached the same view on the basis that “accessible” naturally means “reachable”. This conflicted with the view of the authors of the BIMCO Laytime Definitions (2013) and the Baltic Code (2014), who considered “always accessible” to be a warranty covering both arrival at the berth and departure from the berth.
The facts of the case were straightforward. The vessel was unable to leave the berth on completion of loading because a lock had broken. The owners sued for damages for breach of the “always accessible” clause. Knowles J held that there was a breach of contract . He considered that “accessible” could sensibly mean “usable” and not just “reachable”. The word “always” was an important qualifier, particularly in the context of the adjacent clause “always afloat”, which was a warranty covering the whole time that the vessel was in berth. The decisive point for the Judge was that a commercial party looking at the subject of berthing would bear all aspects in mind and not confine itself to getting into the berth, so that the clause covered departure from the berth.
This decision therefore resolves the tension between London Arbitration 11/97 and the BIMCO and Baltic laytime definitions. It is now fairly clear that a charterer who warrants that a berth is “always accessible” promises that the vessel can leave the berth when cargo operations are complete. Charterers who want to give a narrower warranty should stick to “reachable on arrival”.
Nevil Phillips and Ben Gardner were instructed by Alex Davey and Tom Hodges of Birketts LLP for the shipowners.
