In the first edition of this book no consideration was given to clauses such as

‘‘To be loaded as per colliery guarantee’’, ‘‘In regular turn’’, ‘‘Custom of the port’’, because it appeared that they had no modern practical application whatsoever. However, it seems that ‘‘custom of the port’’ (‘‘COP’’) has been making something of a comeback in certain trades and should be considered.

If the parties have agreed a ‘‘custom of the port’’ clause evidence will be admis- sible to show that there is a recognised and established custom of the port which has a bearing upon when a vessel becomes an ‘‘arrived ship’’. By custom it may be necessary for a vessel to reach a particular part of the port or to be in some particular place before she can be an ‘‘arrived ship’’. The English cases which have relevance to the subject have considerable vintage but are none the worse for that; they simply became irrelevant because ‘‘custom of the port’’ became obsolescent.

In Brereton v. Chapman45_{the port of discharge was Wells, a port formed by an} inlet of the sea the entrance to which was very distant from the quay where ships were unloaded. It was proved that, by a custom of the port, laytime for discharging did not commence until the vessel was at the unloading quay and that this would be applicable to the charterparty in question.

Brown v. Johnson46_{concerned the port of Hull where the vessel was ordered to} discharge. She arrived and was reported on 1 February, entered the discharging dock on 2 February and moved into the discharging berth on 4 February. By custom the usual place of discharge was the dock and laytime therefore commenced on 2 February and not at the earlier date when the vessel arrived at the port.

Custom of the port seems to have resurfaced in some of the far eastern trades and, as stated already, its effect may be detrimental to owners of vessels regarding a ship reaching the agreed destination. In some ports in the Far East it may well be that a vessel will not have reached the agreed destination in a port charterparty, with a ‘‘custom of the port’’ stipulation, because of a custom that a vessel is not considered to be at the immediate and effective disposition of the charterer until she reaches an

45. (1831) 7 Bing. 559. 46. (1842) 10 M. & W. 331.

inner anchorage where inspections take place, rather than anchoring at an outer anchorage within the port where she would otherwise satisfy the Oldendorff test and be an ‘‘arrived ship’’.

It has to be emphasised that a party who attempts to show a binding custom has a heavy duty to discharge, the more so in the modern context of substantially extended and diverse commercial activity. The difficulty is all the more apparent when it is sought to show that words, which are fairly capable of having a perfectly comprehensible meaning on an ordinary reading, have a particular meaning by virtue of some custom.

It was normal to prove a custom by adducing expert evidence and frequently by collecting statements from a large number of people in the relevant industry as to an alleged custom. To succeed on a ‘‘custom’’ argument a party has to show that there is a custom which is notorious, certain and reasonable and while a party might be able to satisfy the last two ingredients fairly easily there are obvious problems in showing that there is a custom which is notorious. See for example LMLN 401—18 March 1995 which concerned the quality of low pour fuel oil from Nigeria. In that arbitration the respondent buyers argued that in a contract for the sale of inter alia a cargo of low pour fuel oil from Nigeria, the phrase ‘‘ . . . grade . . . as per usual Nigerian export quality’’ meant, in particular, that the cargo had to have a sulphur content of not greater than 0.37% by weight. The claimant sellers contended that the phrase had to be given its ordinary, everyday meaning, i.e. ‘‘the quality of oil usually lifted out of Nigeria’’, and that said—which was hardly disputed—that the sulphur content of such oil varied between 0.30 and 0.40%.

It was held, that a party who attempted to show a binding custom had a heavy duty to discharge, the more so in these days of substantially extended and diverse commercial activity. This difficulty was all the more apparent when it was sought to show that words, which were fairly capable of having a perfectly comprehensible meaning on an ordinary reading, had a particular meaning by virtue of some custom. It might not be without significance that of the half dozen cases which post- date 1952 listed under the heading ‘‘Custom’’ in Lloyd’s Law Reports Subject Index for 1919–1986, a custom was only successfully shown in one, and that was in relation to a custom of a port.

It was normal to prove a custom by adducing expert evidence and frequently by collecting statements from a large number of people in the relevant industry as to the alleged custom. To succeed on the ‘‘custom’’ argument, the buyers had to show that there was a custom which was notorious, certain and reasonable. There could be no argument about the certainty and reasonableness of the custom they sought to set up, but they first had to show that there was a notorious custom.

The buyers relied on the evidence of the President of their company. He had said that for the past 21

2years or so he had been involved in purchasing about 80% of all Nigerian fuel oil cargos, always from intermediate buyers. He had said that it was standard practice when traders of Nigerian fuel oil talked to refer to ‘‘usual’’ or ‘‘standard’’ specifications or guarantees for Nigerian fuel oil as a shorthand for a particular specification provided by Nigerian exporters which included a maximum of 0.37% sulphur content. The buyers had also relied on some contract documenta- tion, but this was certainly not complete, and there was no documentation relating

to any transaction at around the time of the contract in the present case. Moreover, whilst such documentation as had been produced invariably referred to a 0.37% sulphur content, in one instance the contract contained price adjustment provisions to cover the eventuality that the content might be higher. In another, that was also true, and there were provisions for the content to be determined on the basis of a sample at the loading port as well as a special condition to cover the repeatability/ reproduceability difficulties of testing; and in a third instance (where the price provisions were not included in the papers) a particular testing method was actually spelt out.

Moreover, although the buyers said that they purchased some 80% or so of Nigerian fuel oil cargoes, that still left 20% unaccounted for. It would have been helpful to have had evidence from some at least of the buyers of those cargoes. Similarly, evidence would have been desirable from those involved in selling such cargoes to the buyers. It was also curious that there should be a custom as to a specific sulphur content when the Nigerian sellers themselves sold on the basis of a specified content, but with a price adjustment provision to cover the eventuality that the sulphur content was higher, and when as a matter of fact the range of sulphur contents of Nigerian fuel oil varied between 0.30 and 0.40%, with a not insub- stantial proportion exceeding 0.37 as the evidence clearly showed. It could not be safely concluded that there was a custom as the buyers had alleged. On the contrary, the words ‘‘usual Nigerian export quality’’ had to be given their ordinary meaning and be read as covering the normal range or specified elements. In the present case, that meant that the cargo complied with the terms of the contract.

However, in The ‘‘Eurus’’47_{there was a finding by the arbitrators that the 8 o’clock} rule (any oil shipment in Nigeria which was completed before 0800 on the first day of any month was treated as though it had been completed on the last day of the proceeding month) was a custom of the Nigerian oil export trade. See later para- graph 62 for details of the case under the assessment of damages.