14. Inca Compania Naviera S.A. and Commercial and Maritime Enterprises Evanghelos P. Nomikos S.A v Mofinol Inc. (The “President Brand”) [1967] 2 Lloyd’s Rep 338

Reachable on arrival clause – vessel unable to reach berth due to insufficiency of water – charterers liable for detention.

The facts

The vessel was chartered to carry oil from the Persian Gulf to one or two ports Mombasa/Cape Town range.

The charterparty contained a “reachable on arrival” clause and a “berth or no berth” provision.

In addition, the charterparty contained a “maximum draft” provision with reference to the Port of Lourenco Marques.

The vessel was unable to enter the estuarine port being impeded by a sandbar. The vessel had to wait almost 4 days for the water to rise sufficiently for it to cross the bar into the port.

A notice of readiness was tendered on arrival at the pilot station at the sandbar. A second notice was tendered once the vessel had entered the port.

The owners argued that the reachable on arrival clause entitled them to damages for detention calculated from time of arrival at the bar until the vessel actually berthed. The charterers contended that the word “arrival” in the clause referred to the technical sense when the vessel became an arrived ship which only occurred once the second notice of readiness had been given, after the ship had crossed the bar into the port.

Findings

Mindful of the Angelos Lusis, Roskill J recognized the need to interpret this particular charterparty afresh. He found that the vessel had only arrived in the technical sense once the second notice of readiness had been given but that “arrived” in the “reachable on arrival” clause meant physical arrival at the pilot station at the sandbar.

The vessel took slightly more than one day to berth after the second notice of readiness had been given and the court held that ordinary laytime would commence after the giving of the second notice of readiness. The court, however awarded damages for detention for the 4 days in waiting for sufficient water.

Commentary

The charterparty contained a “as near as may safely get always afloat” clause which could have caused the commencement of laytime proper as soon as the ship reached the bar. This would only have made a practical difference if damages for detention were calculated at a different rate to laytime.

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