Portolana Compania Naviera Ltd. v Vitol S.A. Inc & Anor

Laytime and demurrage exceptions in a voyage charter must be construed according to the stage of the maritime adventure reached and the charter as a whole. A clause concerning delay in getting into berth after notice of readiness generally applies to the vessel’s first berthing, not to later departures and reberthings. A clause excluding movement from anchorage to berth likewise concerns the initial movement after arrival. A long-standing, pre-existing defect in a consignee’s pipeline is not necessarily a breakdown of equipment. Whether it is a breakdown is a matter of impression, including the duration, cause, magnitude and remedial measures. Repeated departures from and returns to the same berth may constitute shifting between berths for the purpose of recovering additional expenses.

The Owners claimed demurrage and additional agency expenses under a voyage charterparty after the vessel encountered a leaking and unusable submarine sealine at Dakar. The Charterers relied on clauses excluding or reducing laytime and demurrage for delay getting into berth, movement from anchorage to berth, and breakdown of equipment at the consignee’s plant. They also sought, at trial, to amend their Defence to rely on a 90-day claims time bar and on delay awaiting tide, pilot or tugs.

The central issues were the construction and application of those charterparty provisions, the recoverability of expenses caused by repeated shifting, and whether the late amendments should be permitted.

1. Clause 6. The clause concerning delay in getting into berth was directed to the period after the vessel’s arrival at the port and tender of notice of readiness, before its first berthing. It did not apply to delays occurring after the vessel had first berthed and was later ordered away. The approach was consistent with Societe Anonyme Marocaine De L’Industrie Du Raffinage v Notos Maritime Corporation 1987 1 LLR 503.
2. Clause 7. The exclusion for time spent moving from anchorage to berth applied, by implication from the charter as a whole, to the first movement after arrival. It did not exclude later movements from berth to anchorage or subsequent returns. Those movements were governed by clause 9.
3. Clause 8. Assuming that the relevant pipeline was equipment in or about the consignee’s plant, the leak was not naturally characterised as a breakdown. The question was one of impression. Relevant considerations included the duration, cause and magnitude of the problem and the remedial measures required. The defect pre-dated the charterparty, had remained unrepaired for a substantial period, and ultimately required removal and replacement of part of the pipeline. The Charterers were therefore not entitled to the half-rate demurrage exception.
4. Shifting expenses. Requiring the vessel to leave and return to the same sealine berth on separate occasions was, in substance, shifting from one safe berth to another within clause 9. The subsequent orders of the consignee were attributable to the Charterers because the Charterers had delegated their right to give shifting orders. Cosmar Compania Naviera S.A. v Total Transport Corporation 1982 2 LLR 81 was distinguished.
5. Late amendments. Permission was refused to introduce the time-bar defence and the additional delay point on the first day of trial. The Charterers had deliberately withheld the time-bar point for tactical settlement reasons, despite knowing of it and being asked to clarify their position. The lateness caused forensic prejudice and prejudice to other court users. In any event, the 18 October 2001 communication and accompanying documents were capable of presenting the claim within the commercial purpose of the clause, namely enabling investigation while the facts remained fresh. That purpose was explained in The Oltenia 1982 1 LLR 448.
6. The Owners were entitled to recover US$455,851.44 demurrage and US$100,007.03 additional agency fees and expenses, subject to any unresolved issue concerning watchman expenses.