Although an implied term is strictly within the field of damages (see later

Chapter 3) it has a bearing on the ‘‘arrived ship’’ concept because of what has been stated earlier in paragraph 11. It is of more than passing interest that shortly before The ‘‘Maratha Envoy’’ went to the House of Lords it had been decided in the High Court that in the case of delivery under a time charterparty there was an implied term that a berth should be available on the vessel’s arrival. In The ‘‘Golfstraum’’17

the time charterparty stipulated (clause 1) that the vessel was to be delivered and placed at the disposal of the charterers at Sfax ‘‘in such available berth where she can safely lie always afloat’’. The Golfstraum arrived at Sfax Roads on 8 March and at 08.00 hours, the master informed the charterers’ agents at Sfax by radio that the vessel was ready to be delivered. Owing to harbour congestion, non-availability of berth and the nature of the commercial operations the Golfstraum was engaged in, no berth was available until 12 March when she was allowed to enter the port and the charterers took delivery of her.

In the arbitration the umpire decided, by way of a special case, that the charterers were under an obligation to direct the vessel on her arrival to an available berth and there take delivery of her, they were in breach of this obligation and could not rely for relief from such breach on the fact that they had no control over the port authority, and that the owners were entitled to damages, based upon the daily amount of hire, for the 8–12 March period. The umpire’s award was upheld in the High Court by Mr Justice Mocatta who stated:

‘‘Clause 1 of the charter does not expressly provide for the time when the charterers must give directions for the available and safe berth to which the vessel is to go to make her delivery, but I think the necessary inference is that the directions must be given either on arrival at Sfax or before arrival. I do not think the clause can be read as imposing no obligation to give the necessary directions until a berth shall become available.’’

The ‘‘Golfstraum’’ was not cited in The ‘‘Maratha Envoy’’ but it is unlikely that it would have swayed the conservative-minded Lord Diplock who contended for a stringent test regarding an implied term in respect of demurrage obligations under a charterparty. The stringency of the test came up in the later case of The ‘‘Damodar General Park and King Theras’’18_{where Mr Justice Steyn (as he then was) decided to} imply a provision into a Sandheads clause which allowed a notice of readiness to be tendered at a place some 40 miles closer to Calcutta than Sandheads. It was found necessary to discharge the cargo into lightening vessels and, under the terms and conditions of the charterparty, time used for discharging from the ‘‘mother vessel’’ was to be disregarded, and laytime had to be calculated with reference to the lightening operation. Clause 38 of the charterparty (the ‘‘Sandheads Clause’’) provided inter alia that, ‘‘if vessel is unable to give notice of readiness by reason of congestion at Calcutta, time shall commence to count at 8 a.m. on the next business day after notice of vessel’s arrival off Sandheads has been given’’.

The lightening vessels could not proceed straight up to Calcutta, and there give notice of readiness in the usual way, because of the congestion at that port. Eight of the nine lightening vessels never reported their readiness on arrival off Sandheads. Each was loaded from the mother vessel after she had shifted from Sandheads to Saugor. Then only did they purport to give notice. Sandheads was some 40 miles off the mouth of the River Hooghli and was the area where vessels would normally wait if they were unable to proceed directly to Calcutta. Saugor was much closer to Calcutta and was at the mouth of the river some 40 miles north of Sandheads.

The charterers contend that notices given on completion of loading at Saugor could not constitute valid notices under clause 38 because what that clause called

for was notice of the vessel’s arrival off Sandheads. It was therefore argued that the Sandheads Clause had no application, and laytime for eight of the nine vessels only started to run as and when each vessel, having reached Calcutta and obtained customs entry and free pratique, gave notice of readiness. The owners of the vessel made a contrary submission.

The arbitrator decided in favour of the owners of the vessel. In so awarding, the arbitrator was constrained to comment on the absurdity of a lightening vessel, loaded at Saugor, having to waste time and money proceeding out to Sandheads in order to comply with the strict letter of the clause. He then said that there could be no real doubt as to the basic intention of the shipowners and charterers, namely that, given a congestion situation, the waiting time should count as laytime as from the day following upon receipt of advice that the vessel was ready to proceed up to Calcutta. Also that, in selecting arrival off Sandheads as the turn-key for the purpose of clause 38, the draftsman plainly overlooked the possibility of tranship- ment being effected, in the words of clause 35 ‘‘closer to Calcutta’’—language which was wide enough to embrace transhipment being carried out, as it was here, at Saugor.

When the dispute came before the Commercial Court it was held that on no view could the phrase ‘‘off Sandheads’’ in clause 38 be given a meaning so extensive as to cover the vicinity of Saugor, and that the owners’ position could not therefore be sustained by any process of construction, the only question being whether it could be supported on the basis of implying a term in the contract.

In deciding the case of favour of the owners and upholding the arbitrator Mr Justice Steyn had this to say:

‘‘Keeping in mind the stringency of the test applicable to the type of implied term under consideration, and the approach enunciated by Lord Diplock in The ‘Maratha Envoy’, I now turn to the question whether an appropriate term can be implied in clause 38.

I do not accept that demurrage provisions under a charterparty are entirely immune from the application of general principles of contract law regarding the implication of terms, I do, however, accept that the stringent test applicable to the implication of such terms will rarely result in a term being implied in commercial contracts, and particularly in the field of demurrage obligations under a charterparty. The question whether a term as set out in Mr Eckersley’s award or in substantially similar terms ought to be implied is not susceptible of detailed analysis. It is a matter of first impression. In my judgment, Mr Eckersley’s descrip- tion of the basic purpose of the relevant contractual provision is manifestly sound. The senselessness and wastefulness of requiring the vessels to return to Sandheads after comple- tion of loading at Saugor in order to give notice at a place substantially further away from the discharging port is obvious. In my view, reasonable men versed in the shipping business, and faced in the real commercial world with the question posed in the two arbitrations, would undoubtedly have said: ‘Yes, of course, the vessels need not undertake an 80 or 100 miles deviation in order to give notice of readiness; they may give notice of completion of loading if the transhipment is effected at a place closer to Calcutta.’ The term implied by Mr Eckersley is in my judgment so obvious that reasonable men, circumstanced as the parties were, would without doubt have assented to the overlooked and unexpressed term set out in Mr Eckersley’s award.’’

The business efficacy approach of the arbitrator and judge was sensible; it may be that a similar approach (also the approach taken by the umpire and judge in The ‘‘Golfstraum’’) will lead eventually to the implication of a term in respect of the

provision of a berth by the charterer in a port charterparty, when a vessel gets as close to the port as she can.