It appears that the only implied absolute obligation of the charterers which has

relevance to the commencement of laytime is that in respect of providing a cargo, all other obligations appeared to revolve around the test of reasonableness.

An interesting recent case concerning the absolute obligation of the charterers and the unreadiness of the vessel to load cargo when she arrived at the loading port is that of the Court of Appeal in The ‘‘Nikmary’’,33 _{where the decision of the} commercial judge was upheld; he had decided that the charterers were liable to the owners for a sizable sum of demurrage in respect of the detention of the vessel. The vessel was charterered on the Asbatankvoy form with the standard notice of readi- ness clause and the standard cleanliness clause. An amended operations clause 30 stipulated:

‘‘ . . .

(i) The Owner shall clean the tanks, pipes and pumps of the Vessel to the satisfaction of the Charterer’s Inspector who shall inspect the Vessel as per local and/or Charterer’s require- ments prevailing at the time.

. . .

(v) Owner shall indemnify Charterer for all direct and/or indirect costs and consequences as a result of the Vessel not being clean to the satisfaction of jointly appointed Inspector and should the Charter not be cancelled all time until connection of hoses, after the Vessel has been passed as clean to the satisfaction of jointly appointed Inspector, shall not count as laytime, or if on demurrage, as time on demurrage.’’

On 2 December 2000 the vessel arrived at the Indian port of Sikka and gave readiness to load a cargo of gasoil. She entered berth on 3 December where her tanks were inspected by a surveyor (Caleb Brett) on behalf of charterers Vitol and the shippers Reliance Petroleum Ltd. (Reliance).

The vessel was rejected on the ground that the tanks were unfit to load gasoil. The vessel shifted to the anchorage to carry out further cleaning. On 5 December the vessel’s tanks were passed fit for loading and the master gave notice at 19.30 that day.

From 5 December until 2 January 2001 the vessel remained at the anchorage waiting for a cargo. On 2 January the vessel entered berth at 15.00 and loading was completed on 3 January.

The owners claimed demurrage in respect of the time spent waiting at Sikka. They contended that the delay was due to the absence of cargo. The charterers submitted that the vessel had simply lost her turn in the queue as a result of the time taken to carry out additional cleaning and had been forced to wait while cargo was supplied to other vessels which had arrived within their nominated loading periods. They further argued that by virtue of clauses 6, 7, and 30(v) none of the time spent waiting at Sikka counted for the purpose of calculating laytime and demurrage. The delay of the vessel was caused by the fault of the owners themselves and the charterers were relieved of liability to pay demurrage.

It was held by the Court of Appeal (inter alia) that: 33. [2004] 1 Lloyd’s Rep. 55.

(1) A voyage charterer owed an absolute and non-delegable duty to provide a cargo for loading, and charterparty exceptions would normally be read as protecting a charterer only in respect of its duty to load, and not as covering its duty to provide cargo, although they might cover the latter if sufficiently clear and distinct words were used.

(2) The charterer’s duty was to provide the cargo for loading within the stipulated lay days; Universal Cargo Carriers Corp. v. Citati (No. 1),34 considered.

(3) The problem faced by the charterers was not a problem in obtaining access to or loading immediately accessible cargo; the reason why the Nikmary was not permitted to berth was not that the other vessels were occupying the shipper’s berth or had arrived first at the anchorage, to wait their turn to do so; it was a contractual reason, namely that, in so far as the charterers had any continuing contractual right to cargo at all, it was one which was postponed to all those other buyers to whom the charterers had or incurred December commitments; the shipper’s problem was a contractual procurement problem which related to the charterers’ busi- ness and arrangements and meant in effect that the charterers had no cargo available until early January 2001 for loading.

(4) The delay in getting into berth could not be delay caused for a reason over which the charterers had no control.

(5) Clause 30(v) could not assist the charterers. Despite the unqualified language of the clause it could not extend to circumstances of delay caused by a charterer’s failure to provide a cargo ready for loading. The charterers were in breach of charter in failing to have cargo available for loading when or six hours after the vessel became ready to load at 22.00 on 5 December 2000 or at any later time until 2 January 2001. In that situation, clause 30(v) did not apply.

(6) The delay was not caused by anything which could properly be regarded as either a breach of contract or relevant fault on the part of the owners; the vessel did not fail to proceed with due despatch; nor did the crew fail to do as much as they could have done during the voyage to clean her; nor could the vessel with reasonable efforts have been made ready to load before 5 December; the fact that she presented after the cancelling date was not a breach; it merely gave the charterers a right to cancel which they chose not to exercise; rejection by the ‘‘jointly appointed inspector’’ under clause 30 would have had a similar effect; all that happened was that the vessel gave an (ineffective) notice of readiness and presented before clean- ing had been completed; that was not a breach but even if it were to be regarded as involving a breach or a fault it caused no delay in loading. The appeal would be dismissed.

If ever a case emphasises the importance of the absolute obligation of a voyage charterer to provide a cargo for shipment it must surely be this decision by the

Court of Appeal. The case also has relevance to Chapter 4 regarding cargo spaces (paragraph 64 and onwards) and to Chapter 5 in respect of breach of contract (paragraph 90 and onwards).

The duty to exercise reasonable dispatch applies to owners as well as charterers but, in practice, the implied obligation is a sword more frequently used by owners to attack charterers rather than the reverse. However, the implied obligation was tried by a charterer in The ‘‘Pericles Halcoussis’’35_{arbitration where the main dispute} between the parties concerned the commencement of laytime and the loading port of Dumai and/or whether or not the owners were in breach of contract because of the absence of an SKU certificate at the relevant time. The salient facts, as far as the latter point was concerned, were:

(a) The vessel arrived off Dumai at 05.00 on Thursday, 11 August; an appro- priate notice of readiness was tendered at that time by the master but was not accepted by the shippers until 15 August.

(b) An SKU permit was issued at Jakarta on Friday, 12 August valid from 10 August until 10 November 1983. An urgent cable to this effect was sent from the owners’ agents in Jakarta to agents in Dumai on Friday, 12 August.

(c) The vessel did not berth until 03.45 on Monday, 15 August; pratique was granted at 03.55 and cargo lines were connected at 05.30. The notice of readiness was accepted by the shippers at 03.45 on 15 August, the time that the vessel berthed.

(d) There was no express clause in the charterparty about an SKU certificate.

On the alleged breaches of contract that the vessel did not have an SKU certificate at the time of contracting or at the time that the vessel arrived off the loading port, the tribunal emphasised the promptness of the fixture and decided that, although there was no valid SKU certificate for the vessel at the date of the fixture, the owners wasted no time in getting one so that, in the event, it was effective as from the time that the vessel arrived off the port; even if it were not, the owners had still acted with reasonable dispatch in obtaining the SKU certificate. This according to the tribunal, substantiated that there was no breach of contract by the owners regarding their obligation to exercise the utmost dispatch to obtain an SKU certificate.

In another arbitration, LMLN 248—6 May 1989, the charterers prayed in aid an implied term in respect of the master of the vessel. The ship was chartered on the Asbatankvoy form containing a ‘‘reachable on arrival’’ provision and the usual clause 6 which provided:

‘‘Upon arrival at customary anchorage at each port . . . the Master or his agent shall give the charterer or his agent notice by letter, telegraph, wireless or telephone that the vessel is ready to . . . discharge cargo, berth or no berth, and laytime, as hereinunder provided, shall com- mence upon the expiration of six hours after receipt of such notice, or upon the vessel’s arrival in berth . . . whichever first occurs. However, where delay is caused to vessel getting into berth after giving notice of readiness for any reason over which charterer has no control, such delay shall not count as used laytime.’’

The vessel arrived off the discharge port at 23.00 on Saturday, 2 February. At 23.50 a cable was sent to the official agents advising them of the fact and that the ship was ready to discharge. That cable was not received by the charterers’ agents until 08.42 on 3 February.

The charterers submitted that that notice was invalid. They argued that there was an implied term of the charter that ‘‘the master and/or crew would do as soon as practically possible any and all the things necessary or customary to be done by them on arrival at the discharging port in order to facilitate the prompt berthing of the ship and the discharge of her cargo’’. The charterers maintained that the ship should have called the Port Control by VHF immediately on her arrival so as to register.

The point was that the master (as the tribunal found) had not registered the vessel with the port authority, so that by the time the vessel was in a position to get into an available berth a subsequent vessel, which had registered in the early hours of 3 February, was given priority for berthing.

It was held that the implied term contended for satisfied none of the usual tests. Neither the officious bystander, nor the parties, would say that ‘‘of course’’ it was to be implied. It was not necessary to give business efficacy to the contract, and it was not even reasonable.

The officious bystander, if asked, would say that the detailed arrangements for berthing the ship—including the giving of any necessary notice to the authorities so as to allow prompt berthing arrangements to be made—was something that fell within the sphere of responsibility of the charterers. That was all the more so when a particular port had or might have special requirements, knowledge of which was unlikely to be at all widespread, especially because such requirements might be changed without notice or might be more or less rigorously enforced according to whim. Masters were normally entitled to expect that agents would deal with formal- ities and give particular advice if the ship itself was required to take some steps.

The charter was, in a business sense, perfectly workable without the implication of any term such as that contended for. The burden was expressly put on the charterers to designate and procure a berth reachable on the ship’s arrival. There were detailed provisions for the giving of notice and the running of laytime. Shortly after the charter was fixed, the charterers had provided detailed voyage orders, including particulars as to the giving of various notices. Yet they said nothing about the alleged need to register by VHF immediately on arrival at the discharge port.

In any event, even if such a term was to be implied, the charterers had not proved that the master had failed to do anything that he ought reasonably to have known was required by regulations, custom or practice. Accordingly, the notice of readiness was valid.

The implied term ploy of the charterers appeared to have been made to get around the ‘‘reachable on arrival’’ provision of the charterparty but failed in princi- ple and on the facts.