Two arbitrations reported in 1985 were concerned with the problem of the

geographical arrival of a vessel in circumstances where the waiting places were many hundreds of miles from the actual loading ports. Both related to the Arabian Gulf.

In the first arbitration30_{the vessel loaded a cargo at a European port for discharge} in Iran; the charterparty called for discharge at Bandar Abbas or Bushire and the latter became the nominated port when the vessel passed Suez. The charterparty included a Wipon (whether in port or not) provision so that it was not, strictly speaking, a port charterparty; however the arbitration is of interest, in a port charterparty context because of the approach of the arbitrators to ‘‘Wipon’’ and ‘‘the usual waiting place’’ as per The ‘‘Johanna Oldendorff ’’. It also has relevance to later paragraph 29 which considers ‘‘Wipon’’. The vessel arrived at Bandar Abbas in September 1981, anchored there, and the master cabled an intended notice of readiness. Eventually, the vessel joined a convoy for Bushire late in November 1981 and she reached Bushire Roads in early December, berthing a few days later and completing discharge towards the end of December.

The owners brought a claim for demurrage and argued that the vessel was an ‘‘arrived ship’’ when she had reached Bandar Abbas even though the contractual discharge port of Bushire was almost 400 miles distant. The owners submitted that, although the vessel was not then at the nominated discharge port, she was ready to discharge and fully at the disposal of the charterers; therefore, two out of three tests derived from The ‘‘Johanna Oldendorff ’’25_{were satisfied. The third test (the physical} arrival at the contractual port of discharge) was, according to the owners, displaced by the operation of clause 22 of the charterparty which stipulated that a notice of readiness could be tendered ‘‘whether in port or not’’ (‘‘Wipon’’).

The owners argued that the Wipon stipulation operated in the very special circumstances extant at Iranian ports at that time to make valid a cabled notice of readiness tendered by the master in September. They further contended that those same circumstances made Bandar Abbas the ‘‘usual waiting place’’ for vessels going

27. [1971] 1 Lloyd’s Rep. 506. 28. 1977.

29. 1978.

to Bushire. The owners also argued that there was no evidence put forward by the charterers to show that the vessel was waiting for a convoy. It was plain, said the owners, that the vessel was not waiting for any purpose of theirs.

It was decided by the tribunal that, by agreeing to go to Bushire (which was not described as a safe port in the charterparty) the owners held out that they had made all proper enquiries on their own initiative as to the navigational and like problems which would attend the voyage from Europe to Bushire, and that they accepted for their own account the risks, particularly of delays, arising from such a voyage—save where protected by exception clauses or if there were a relevant default by the charterers. The general situation in Iran at that time was well known and the owners ought to have been aware that some sort of convoy system was in operation. On proper enquiry, they would or at least should have discovered the edict of the Iranian Ports and Shipping Organisation which provided:

‘‘We hereby nominate Bandar Abbas as ‘Mother Port’ and it is required that all ships carrying cargoes for Iranian Ports, on passing Ras al Kuh, contact Bandar Abbas in order that they may be allocated an anchorage position within Bandar Abbas port limits. The diversion thereafter of any vessel to Bushire . . . will take place according to Ports and Shipping Organisation planning and programme schedules.’’

The arbitrators decided that the wait at Bandar Abbas could only be regarded as an interruption to the voyage on which the vessel was engaged, a voyage which was only completed when the vessel arrived at Bushire Roads. A place which was almost 400 miles distant from the port of destination could not possibly be held to be within the ambit of Wipon. If it were to be the place at which a valid notice could be given, that could only be achieved by very clear and special wording in the charterparty.

The main reason for rejecting the owners’ case turned on the arbitrators’ analysis of why the ship waited at Bandar Abbas. The owners’ statement that the wait was not for their purpose could not be accepted. The vessel was plainly waiting to join a convoy to go to Bushire. That was the very convoy system which the owners ought to have known about, and in all probability did know about. The vessel could not complete her voyage until she was permitted to join a convoy. That was as much a hazard of the voyage falling to the owners’ account as any other awkward naviga- tional impediment which could arise, such as a mishap blocking the Suez Canal shortly before the vessel intended to transit it. Clause 22, and in particular the Wipon aspect, related only to the port of Bushire and to the normal waiting place before entering that port which was Bushire Roads.

In addition, the arbitrators considered that Bandar Abbas, despite the Port and Shipping Organisation’s edict, could not be viewed as the ‘‘usual waiting place’’ for Bushire in the sense acquired by that particular phrase in The ‘‘Johanna Olden- dorff ’’.31 _{In colloquial language it would have been natural to have referred to} Bandar Abbas Roads as the required waiting place for a vessel wishing to go to Bushire when discussing how the Iranian naval convoy system operated. But that did not elevate the status of Bandar Abbas Roads to being the ‘‘usual waiting place’’ for Bushire in the legal sense which attached to the phrase for notice of readiness

purposes. Accordingly the owners’ claim failed. It is submitted that a different tribunal might well have taken a different approach when analysing the combination of ‘‘usual waiting place’’, ‘‘Wipon’’, and the then edict of the Iranian Ports and Shipping Organisation.

In the second reported 1985 arbitration32_{the vessel was chartered on the Asba-} tankvoy form in 1982 for the carriage of crude oil from Kharg Island to India. She tendered a notice of readiness at Sirri Island (some hundreds of miles from Kharg) where she anchored for four days before proceeding to the loading terminal at Kharg Island. The owners contended that the time spent at anchor at Sirri should count as laytime on the basis that the anchorage at Sirri Island was a customary anchorage for the loading port in accordance with clause 6 of the charterparty which read: ‘‘Upon arrival at customary anchorage at each port of loading . . . the Master . . . shall give the Charterer . . . notice by . . . and laytime . . . shall com- mence upon the expiration of six hours after receipt of such notice . . . ’’

It was decided by the tribunal that under the terms of the charterparty the actual steaming time between Sirri and Kharg could not count as laytime but that there was no doubt that the regulations of the Iranian authorities governing the movement of vessels through the Arabian Gulf to the terminal at Kharg Island rendered the anchorage at Sirri Island a ‘‘customary anchorage’’ for Kharg Island so that the owners were entitled to count the time spent at Sirri Island as laytime after the six hours’ notice time had run out. It would appear that the arbitration turned very much on its own very special facts (Iraq/Iran war and Iranian regulations) since, otherwise, it is difficult to see how an anchorage at Sirri Island could be a customary anchorage for another loading port several hundred miles away.

In a much later reported arbitration, LMLN 274—5 May 1990, the vessel was chartered on the Ferticon form to carry a cargo of bulk supplies to ‘‘1/2 safe ports/ safe anchorages East Court India . . . in charterers’ option’’.

The charterers nominated Haldia. The vessel arrived at Sandheads and gave notice of readiness. One of the issues in the arbitration was whether Sandheads was a place where the vessel could give notice of readiness.

It was held that Haldia was a comparatively new port which was developed during the 1970s on the banks of the Hooghli and Haldia Rivers. It was some 120 km from Calcutta by road. Calcutta and Haldia were treated as two separate ports notwith- standing the fact that following a Government of India Notification dated 26 February 1977 the operation of Haldia came under the management of Calcutta Port Trust (‘‘CPT’’).

The chart indicated a point outside the Haldia lock as Haldia anchorage. The charterers contended that the Haldia anchorage was that point just outside the lock gates and that as Sandheads was outside the limit of the jurisdiction of CPT, a vessel could only be considered to be at the Haldia anchorage when outside the lock gates. However, the evidence showed that the anchorage was only used for temporary purposes, such as waiting to enter the locks, or in cases of emergency such as for bunkers or supplies or medical assistance. Vessels did not customarily wait there to enter the port in the event of congestion.

The evidence showed that on arrival at Sandheads vessels gave notice of readiness and immediately came under the control of the port authority (CPT), which either arranged for a pilot to bring the vessel into dock or gave orders regarding anchoring.

It was not disputed that vessels did customarily wait at Sandheads, but the charterers had contended that at some ports of the world it was not sufficient for a vessel to reach the place where vessels customarily waited outside the port limit. The charterers had contended that Haldia was one such port, and that as Sand- heads was outside the port limits, the vessel was not an ‘‘arrived ship’’.

The evidence showed that CPT, as far back as 1977, did not consider the Haldia anchorage to be the point just outside the locks. It took about two hours to reach the port from the anchorage. Accordingly the anchorage had to be where Sandheads was shown on the chart.

All the evidence indicated that the commercial practice that had developed was for vessels to arrive at Sandheads and there give notice of readiness.

Accordingly, the vessel was an ‘‘arrived ship’’ when she gave notice of readiness at Sandheads.

In LMLN 409—8 July 1995 (a 1993 arbitration) the vessel was chartered on the Euromed form as amended. Notice of readiness was tendered at the first loading port, Rosario, as soon as the vessel reached the Zona Comun anchorage in the lower reaches of the river at 14.40 hours on 30 May. The owners submitted that laytime began to run from 06.00 hours on 3 June. The Zona Comun was the anchorage where vessels were customarily held awaiting berths when there was congestion at the up-river loading ports of San Lorenzo and Rosario.

The charterers contended that the NOR as tendered by the vessel whilst in the Zona Comun was invalid, and that no valid NOR had been tendered at the loading ports. They argued that at the time NOR was tendered the vessel was outside the limits of the nominated loading port and thus failed to meet a fundamental require- ment of the ‘‘arrived ship’’ criterion. They also argued that at the time the NOR was tendered certain essential requirements were absent.

It was held that so far as the charterers’ first contention was concerned, the fact that Zona Comun was outside the Rosario port limits was clear on the evidence. What was really in contention was the effect that that factor might have upon the ‘‘arrived ship’’ doctrine (i.e. the Johanna Oldendorff test). Although the general rule was that, for a vessel to be treated as having arrived at her destination she had to be within the port limits, that had to be understood as being subject to an exception where the Port Authorities had designated another area within their administration where vessels had to wait before proceeding to a berth. Such interpretation of the law as it stood on that point had been widely accepted in commercial arbitrations and made good commercial sense where, as in the present case, the vessel became effectively an ‘‘arrived ship’’ when waiting off the port at a place where it was customary for vessels to be held pending the availability of a berth, and when it had been shown that the designated loading port exercised administrative control over the waiting area.

This arbitration has relevance to earlier paragraph 9 (Lord Reid—‘‘Some powers with regard to pilotage and other matters may extend far beyond the limits of the

port. But those that regulate the movements and conduct of ships would seem to afford a good indication’’) and also earlier paragraphs 14 (The ‘‘Anco Elias’’ and ‘‘Torm Estrid’’ arbitrations) and 15 (The ‘‘Gundulic’’ arbitration) and also to later, paragraph 18, where an arbitrator in an earlier 1988 arbitration took the view that a vessel at the Zona Comun anchorage was not an arrived ship in respect of Rosario: however, it may well be that the administrative limits of Rosario altered between 1988 and 1993.

The arbitrations referred to above, also those referred to earlier in paragraphs 14 and 15 above, more than suggest that arbitrators continued to have problems put to them regarding the geographical arrival of vessels under port charterparties, thus defying the forecasts of the law lords, in the Johanna Oldendorff and the Maratha Envoy cases that there should be no real difficulty in deciding whether a usual waiting place was or was not within the port.