CARBOEX SA V LOUIS DREYFUS COMMODITIES SUISSE SA

[2012] EWCA Civ 838, Court of Appeal, Civil Division, The Master of the Rolls, Lord Justice Moore-Bick and Lord Justice Toulson, 19 June 2012

Contract of affreightment - Liability for delay - Laytime - Berthing - Congestion - Strike - Causation - American Welsh Coal Charter form (1979 amendment), clauses 4, 9 and 40

Carboex (charterers) and Dreyfus (owners) concluded a contract of affreightment on the American Welsh Coal Charter form (1979 amendment) containing a clause 4 which provided that any time lost through strikes affecting delivery and/or loading of the cargo at the loading port would not count against laytime. Clause 9 read that in case of strikes which prevent or delay discharging, such time was not to count. Four vessels nominated by Dreyfus arrived at the discharging port and gave notice of readiness; however they had to wait for berthing and could not immediately discharge the cargo due to a nationwide haulage strike and resulting congestion. The issue whether time lost by the vessels counted against laytime as per clause 9 was disputed in arbitration where the tribunal agreed that clause 9 applied neither in the case of a vessel which is delayed by the after-effects of a strike, nor which has arrived after a strike has ended. The award was set aside by Field J who also answered affirmatively to a third issue raised by the parties at the appeal, namely that the strike exception in clause 9 applied to a vessel which was unable to berth due to berth congestion caused by strike. Owners appealed and contended that the charter as a whole transferred the risk of congestion upon the charterers and that clause 9 operated during the continuation of the strike and did not extend to delay caused by congestion which was a consequence of the strike.