NOVOLOGISTICS SARL V FIVE OCEAN CORPORATION (THE "MERIDA")

[2009] EWHC 3046 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Gross, 27 November 2009

Charterparty (voyage) - Construction of charterparty - Whether a berth or a port charterparty

The parties had entered into a voyage charterparty (containing no reference to a pro-forma) for MV Merida for the carriage of a part cargo of steel plates, from Xingang to Spain. The vessel arrived at Xingang and tendered NOR at 04.00 on Saturday 10 March 2007. She then anchored, awaiting a berth. A pilot boarded at 17.00 on Friday 30 March and the vessel proceeded to the berth at 17.15; she was "all fast" at 19.50. Loading commenced at 21.25 on 30 March and was completed at 06.00 on 31 March. Owners commenced arbitration claiming demurrage on the ground that the charterparty was a port charterparty so that laytime had commenced on 10 March. The charterers argued that it was a berth charterparty so that no demurrage was owed. The two arbitrators agreed with owners that it was a port charterparty, based on clause 2 which notably "qualified the wording contained in the terms set out earlier in the recap by referring to both safe ports and berths". Charterers appealed the decision. Gross J allowed the appeal, holding that owners' claim for demurrage failed. The charterparty was a berth and not a port charterparty: a charterparty must be read as a whole. Clause 1 defined the contractual destinations in a manner which, if it stood alone, must mean that it was a berth charterparty. First, the opening term was in a form which identified the destination as the berth. Second, the opening term provided expressly for charterers to nominate the berth at Xingang. Clause 2 was such as to completely deprive clause 1 of any meaning, if interpreted as the arbitrators had done. There was no apparent reason why the charterparty would have started out in the opening term as a berth charterparty and then undergone a fundamental alteration in term two to become a port charterparty. If instead clause 2 were to be viewed as introducing a safe port warranty and reiterating the safe berth warranty, then there would be no inconsistency between the opening term and clause 2.