Lloyd's Maritime and Commercial Law Quarterly
“STARE DECISIS ET NON QUIETA MOVERE”
Manfred W. Arnold
Vice-President, National Bank of North America; Vice-President, Society of Maritime Arbitrators.
It might appear to be strange to pick this title, which in fact means “to adhere to precedents, and not to unsettle things which are established,”1 but this is what I felt when reading in “Fairplay International”2 the article “Arbitration Clarifies Charter-Party Demurrage Question” dealing with the arbitration on the Atlantic Monarch
3.
Having carefully read the award and underlying briefs, I must confess that matters definitely were not clarified for me, but rather I have come to the conclusion that this award did not contribute to the clarification of the issues.
The dispute submitted to arbitration on the Atlantic Monarch, as well as in other similar cases4, concerned the calculation of demurrage under the “Exxonvoy 1969”5 charter-party form. For the purpose of clarity, I should like to quote the relevant terms, which, with the exception of the “Total Laytime in Running Hours” provision, are standard terms and reflected in print in Part II of the charter-party form:—
“H. Total Laytime in Running Hours: 72 hours6.
“6. NOTICE OF READINESS. Upon arrival at customary anchorage at each port of loading or discharge, the Master or his agent shall give the Charterer or his agent notice by letter, telegraph, wireless or telephone that the Vessel is ready to load or discharge cargo, berth or no berth, and laytime, as hereinafter provided, shall commence upon the expiration of six (6) hours after receipt of such notice, or upon the Vessel’s arrival in berth (i.e., finished mooring when at a sealoading or discharging terminal and all fast when loading or discharging alongside a wharf), whichever first occurs. However, where delay is caused to Vessel getting into berth after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count as used laytime.
“7. HOURS FOR LOADING AND DISCHARGING. The number of running hours specified as laytime in Part I shall be permitted the Charterer as laytime for loading and discharging cargo; but any delay due to the Vessel’s condition or breakdown or inability of the Vessel’s facilities to load or discharge cargo within the time allowed shall not count as used laytime. If regulations of the Owner or port authortities prohibit loading or discharging of the cargo at night, time so lost shall not count as used laytime; if the Charterer, shipper or consignee prohibits loading or discharging at night, time so lost shall count as used laytime. Time consumed by the vessel in moving from loading or discharge port anchorage to her loading or discharge berth, discharging ballast water or slops, will not count as used laytime.
“8. DEMURRAGE. Charterer shall pay demurrage per running hour and pro rata for a part thereof at the rate specified in Part I for all time that loading and discharging and used laytime as elsewhere herein provided exceeds the allowed laytime elsewhere herein specified. If, however, demurrage shall be incurred at ports of loading and/or
1 87 Pa. 286; Ballard County v. Kentucky Debt Commission, 290 Ky. 770; 162 S.W. 2d 771, 773.
2 “Fairplay international Shipping Weekly,” Oct. 23, 1975.
3 Atlantic Monarch Shipping Co. Ltd. v. Hess Oil & Chemical Division Amerada Hess Corporation, May 28, 1975.
4 Rederi A/B Sally v. Amerada Hess Shipping Corporation, Feb. 19, 1976, also Cohansey Steamship Company v. ANTCO Shipping Company, Jan. 21, 1976.
5 Tanker Voyage Charter-Party, Exxon International Company, a division of Exxon Corporation, Supply and Transportation Department.
6 72 hours is the standard total laytime provision; the number of hours is, however, not really relevant to the problem, since there is no dispute as to the vessel’s being on demurrage at the first port.
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