Court clarifies the meaning of “always accessible” - Ben Gardner

Wed, 28 March, 2018

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.

Click here for a copy of the judgment.

Ben Gardner

Ben practises primarily in shipping, commodities and international trade, energy, insurance and conflict of laws, within a broad commercial practice.  He is recommended as a leading junior by Chambers & Partners and the Legal 500 for his shipping and commodities work, where he is described as "Very clever and a very good advocate", "An excellent barrister, who is precise, commercial and practical in his focus and forceful and effective in his arguments", "very impressive", "A super-bright guy who is very accessible and easy to work with", "a great junior counsel and very user-friendly" and "mature beyond his years" .

Ben often appears in the High Court and in the Court of Appeal, as sole counsel and as part of a counsel team.  He has also appeared in the Supreme Court twice and acted on a number of recent, important cases including:

  • Fulton v Globalia (The New Flamenco) [2017] 1 WLR 2581 (SC), with Simon Croall QC: Ben acted for the Respondents on the appeal to the Supreme Court an important judgment on the scope of mitigation in the law of damages, relating to whether the benefit of selling a cruise ship two years early is an act of mitigation.
  • Stemcor UK v Global Steel Holdings (Commercial Court, 2018): Ben acted for the successful claimant creditors in their claim for US$165m against the guarantors of a coke manufacturer.
  • Containerships Denizcilik v Shipowners' Mutual (The Yusuf Cepnioglu) (SC) (2017), with Chriag Karia QC: Ben acted for the insurers in an appeal to the Supreme Court which settled in October 2017 relating to the availability of anti-suit injunctions in support of an arbitration agreement against a direct action claimant.
  • Versloot Dredging v HDI Gerling (The DC Merwestone) [2017] AC 1 (SC), with Colin Edelman QC: an important insurance case in which the Supreme Court overturned settled authority and held that there is no defence of fraudulent device in an insurance policy.  Ben also acted in the trial and in the Court of Appeal. 
  • Yemgas v Superior Pescadores (The Superior Pescadores) [2016] All ER (Comm) 104 (CA), with David Goldstone QC: the leading authority on the interpretation of paramount clauses and the meaning of ‘Hague Rules as enacted’ in bills of lading and charterparties.
  • South West SHA v Bay Island Voyages (The Celtic Pioneer) [2015] Lloyd’s Rep. 652 (CA), with Simon Kverndal QC: an key recent decision by the Court of Appeal on the scope of the Athens Convention on Carriage of Passengers by Sea and the nature of the limitation defence.
  • MOL v Salgaocar [2015] 2 Lloyd's Rep. 518 (Commercial Court): Ben was successful at trial in obtaining judgment for US$14m in a claim under a guarantee that raised issues of enforceability of guarantees, the interaction between claims against a debtor and guarantor, and the calculation of damages for repudiation of a long-term time charter.

> view Ben's full profile

Nevil Phillips

Nevil Phillips is among the most highly-regarded advocates at the Commercial Bar. He has consistently been listed for many years as a first-ranked Leading Junior in Shipping, Commodities, and Trade & Customs by The Legal 500, Legal 500 Asia Pacific, Chambers UK, Chambers Global, Who's Who Legal, and Best Lawyers where he has been variously cited as: “Absolutely top-notch”; “User-friendly, innovative, proactive, and the best advocate money can buy.”; "Excellent. Extremely approachable and very bright"; "an outstanding advocate, incredibly fast thinking and a real problem solver"; "a very polished advocate, who gets results through his preparation and through his clear and compelling presentation of the client's case".

Nevil was the winner of the Chambers & Partners UK Bar Award for Shipping Junior of the Year 2017, was shortlisted for that award in 2016 and was shortlisted for the Legal 500 award for the Leading Shipping Junior of 2017, and was Acquisition International's "Best Shipping Barrister – UK" in their 2015 Legal Awards.

Nevil's practice envelops all aspects of commercial and shipping advisory and advocacy work, encompassing the broadest spectrum of contractual, international trade, commodities, shipping, maritime, energy, insurance, reinsurance, banking, and jurisdictional disputes and associated areas and remedies. He appears regularly in commercial arbitration (both domestic and international, with experience before a wide variety of arbitral institutions, bodies and trade associations, including LMAA, GMAA, LCIA, ICC and associated bodies), the Commercial Court, and the appellate courts.

Nevil has featured as successful counsel in countless high-profile commercial and shipping cases, both before the Courts and in International Arbitration.

Examples of Nevil’s reported cases include Regulus Ship Services Pte Ltd v Lundin Services BV [2016] EWHC 2674 (Comm) (one of the most important new decisions in the field of international towage), SBT Star Bulk and Tankers (Germany) GmbH Co KG v Cosmotrade SA (The Wehr Trave) [2016] EWHC 583 (Comm) (the leading case regarding the scope of charterers' rights under a time charter trip), Spar Shipping AS v Grand China Logistics Holding (Group) Co Ltd [2015] EWHC 718 (Comm) and [2016] EWCA Civ 982 (the leading case regarding renunciation under time charters and whether payment of timely advance hire is a condition), and Libyan Navigator Ltd v Lamda Maritime Holdings Sp. z. o. O [2014] EWHC 1399 (Comm) (the leading case regarding the interpleader procedure in the context of liened sub-hires and sub-freights).

> view Nevil's full profile