26. Carga Del Sur Compania Naviera, S.A. v Ross T Smyth & Co Ltd (The “Seafort”) [1962] 2 Lloyd’s Rep 147

Port Charterparty – WIBON clause – “commercial area” test

The facts

Wheat in bulk was shipped from a range of loading ports including Vancouver to one or two ports in the United Kingdom under a Baltimore Berth Grain charterparty.

The laytime clause included a WIBON provision.

The second port nominated by the charterers was Hull.

It was common cause that the only place at Hull were the discharge of bulk grain could be effected was the King George Dock which was full. The vessel was ordered to wait 22 miles away at the Spurn Head anchorage being the usual place for a vessel of that size to wait for a berth. It was also the nearest place to the docks where a vessel of her size could safely wait.

It was common cause that the Spurn Head anchorage was outside the legal, fiscal and geographical limits of the port of Hull.

The owners argued that laytime commenced once the vessel had reached the Spurn Head anchorage as the vessel was immediately accessible to the charterers and the only impediment to discharge was congestion at the berth.

Findings

The Commercial Court ( McNair J) following the Aello found in favour of the charterers.

Commentary

The “commercial area” test formulated in the Aello was applied to achieve this patently incorrect result.

This line of cases, including the Johanna Oldendorff, which overruled the Aello, are an illustration of the pigeon-holing error described in Bosma v Larsen, a case on clause 8 of the NYPE.

The WIBON clause signals the parties’ intention for laytime to commence as soon as the vessel is placed at the effective disposal of the charterers. The prime consideration is the unavailability of a berth coupled with the necessity of waiting at the nearest convenient anchorage.

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