27. Reardon Smith Line, Ltd v East Asiatic Company [1938] 62 Ll.l Rep. 23

WIBON CLAUSE – further clause providing time not to count due to factors beyond charterers’ control – latter clause operative

The facts

The vessel was ordered to proceed to a port in North East China to load a cargo of soya beans destined for Europe.

The clause providing for the commencement of laytime included a “whether in berth or not” clause.

A further clause of the charterparty provided that any time lost through riots, detention by ice and civil commotions etc., would not support a demurrage claim but could be set off against despatch.

Loading was delayed because the authorities had requisitioned a number of berths for use by military vessels.

The owners argued that the WIBON clause took precedence over the “civil commotions” clause and that demurrage was payable by the charterers.

Findings

The Kings Bench Division (Branson J) considered that Leonis Steamship Company Ltd v Joseph Rank Ltd (No. 2), where the charterparty contained a virtually identical “civil commotions” clause, was binding on him.

The court held, in effect, that the WIBON clause was inserted to deal with delay by ordinary congestion only and not the special type described in the “civil commotions” clause.

Commentary

The interpretation of a specific contract, being a factual enquiry should, in strict law, not constitute binding precedent.

[In any event, the existence of the WIBON clause in this case constituted a substantial distinguishing feature, diminishing the assistance to be derived from Leonis] – so what? The wibon here was overridden by the disturbance clause.

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