3. Tapscott and others v Balfour and Another

(Court of Common Pleas) [L R] 8 C P 46 (23 November 1872)

Dock charterparty – “load in usual and customary manner” held not to control commencement of laytime

The facts

The vessel was chartered to proceed to a dock, nominated by the charterers, at Liverpool or Birkenhead and there to load a cargo of coal “in the usual and customary manner”.

The vessel was unable to enter the dock due to congestion.

Once docked, further delay was occasioned by having to wait a turn for a position under the coal tip.

The owners argued that they were entitled to demurrage from the time when the vessel was ready to enter the dock while the charterers argued that laytime only commenced once the vessel was under the coal tip.

Findings

Bovill CJ with whom Denman J concurred, held that laytime commenced as soon as the vessel entered the dock, thus taking a middle position between that of the charterers and the shipowners.

Discussion

This is a heavily cited decision which contains the following interesting formula:

“The rule is, that when a port named in the charterparty as the port which the vessel is to proceed, the laydays do not commence upon the arrival of the vessel in the port, but upon her arrival at her usual place of loading in the port, not the actual berth at which she loads, but the dock or roadstead where loading usually takes place. If, when she arrives there, the place is so crowded that she cannot load, the loss must fall on the charterer”.

This is not the test laid down by the House of Lords in the Johanna Oldendorff but it contains the seed of the idea that the only sensible criterion is accessibility to the charterers as opposed to incidental physical location.