12. Seacrystal Shipping Limited v Bulk Transport Group Shipping Co. Ltd (The “Kyzikos”) [1987] 1 Lloyd’s Rep 48; [1987] 2 Lloyd’s Rep 122; [1989] 1 Lloyd’s Rep 1

Vessel arrived in port – unable to reach berth due to fog – WIBON clause held to apply only to inaccessibility due to congestion.

The facts

Steel products were shipped under a Gencon form from Italy to Houston.

The discharging port or place was defined as “always accessible berth(s) each port”.

The charterparty contained a WIBON clause.

The vessel arrived within the port and gave notice of readiness.

The vessel was prevented over a period of about 3 days from entered a berth due to fog.

The owners argued that the WIBON clause allowed laytime to commence upon giving notice of readiness.

The charterers argued that the navigational risk of getting into a berth is normally for the owner’s account and that the impediment caused by the fog in this case was part of the navigational risk.

Findings

The arbitrator (Mr Bruce Harris) found in favour of the owners. The Commercial Court (Webster J) found in favour of the charterers. The Court of Appeal (Lloyd and Glidewell LJJ and Sir John Megaw) restored the arbitrator’s decision.

In the House of Lords (Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Templeman, Lord Ackner and Lord Oliver of Aylmerton – judgment by Lord Brandon) the pendulum swung back and they held that the charterers were right.

Webster J and the House held that the WIBON clause had in all previous authorities applied only to congestion and therefore it was not intended to shift the risk of delay due to natural causes such as fog to the charterers.

Commentary

Lloyd LJ’s judgment in the Court of Appeal to the effect that there was no grammatical reason to confine the effect of the WIBON clause to congestion in the contract is preferable. The mere fact that there was no precedent for a WIBON clause applying to the current situation does not give rise to the inference that the parties intended to confine the operation of the clause to congestion.

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