16. Government of Ceylon v Societe Franco-Tunisienne D’armement-Tunis (The “Massalia”) (No.2) [1960] 2 Lloyd’s Rep 352

Cargo overstowed – Notice of Readiness given prior to accessibility – laytime commencing upon
accessibility and no need for second notice.

“Time lost” clause held operative irrespective of premature notice of readiness.

The facts

Flour was shipped in bags from Europe to Colombo under a Gencon form charterparty. After providing for the giving of a Notice of Readiness, the clause “time lost in waiting for berth to count as loading time” appeared.

En route to Colombo, the vessel stopped at Port Said to take on general cargo which was stowed on top of the flour in some holds.

On arrival in the port, Notice of Readiness was given despite the fact that not all holds containing flour were accessible due to the overstowage of general cargo.

About 5 days elapsed before a berth became available. Discharge of the flour was delayed by the time taken to offload the overstowed cargo.

By the time Notice of Readiness could validly have been given, ie. when all the flour became accessible, the charterers were already in the process of offloading at some of the other hatches where there had been no overstowing.

The owners claimed demurrage for the time lost in obtaining a berth while the charterers claimed credit for the time lost in removing the overstowed cargo.

Findings

In an ex tempore judgment, Diplock J found that both parties’ arguments were valid and ordered each party to pay its own costs, the sums claimed in each case being roughly equivalent.

Commentary

The outcome is commendable, preferring substance over form with proper emphasis on the facts.

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