Suek AG v Glencore International AG

Contractual laytime provisions must be construed as a whole. Where a clause expressly permits notice of readiness to be tendered when the berth is occupied, that wording is not displaced by shorthand expressions such as Wibon or Wipon. Where berth unavailability and tidal or weather conditions concurrently prevent access, the berth-occupation exception may operate unless the contract clearly makes berth unavailability the sole cause of delay. The court should not impose a general allocation of delay risk or rewrite clear contractual language by importing a primary obligation inconsistent with the contract’s structure.

The parties submitted an agreed-facts Part 8 claim concerning the construction of laytime and demurrage provisions in a CIF coal sale contract. The seller had arranged shipment of the coal, while the buyer was obliged to provide a safe berth.

When the vessel arrived at Amsterdam, the intended berth was occupied and tidal conditions also prevented access. The master tendered notice of readiness at the usual waiting place. The central issue was whether that notice was valid under clause 7.13, for the purposes of clause 7.15, where both berth unavailability and tidal conditions prevented the vessel reaching the berth.

1. Construction of clause 7.13. Clause 7.13 was to be read as a whole. Its third sentence created an exception to the general requirement that notice of readiness be given upon arrival at the discharge berth. The words permitting notice to be tendered at the usual waiting place where the berth was occupied were clear.
2. Concurrent causes. The exception was not limited to cases in which berth unavailability was the sole cause preventing access. The contract contained no overriding or primary obligation requiring the seller to carry the cargo to the berth. The seller’s contractual responsibility was to arrange shipment to the discharge port, whereas the buyer was responsible for providing a safe berth.
3. Authorities. The Kyzikos [1989] 1 Lloyd’s Law Rep 1 was materially different. Its treatment of Wibon depended on the context of an available berth and a causative distinction between berth unavailability and bad weather. It did not require the court to override the clear longhand wording of clause 7.13 in a case involving concurrent causes. The first-instance decision in The Kyzikos [1987] 1 Lloyd’s Law Rep 48 did not justify importing a primary obligation into this sale contract.
4. The proposed construction would require rewriting clause 7.13 so that the berth-occupation exception applied only where berth unavailability was the sole reason for inaccessibility. There was no basis for doing so. The master was therefore entitled to tender notice of readiness at the usual waiting place, and the issue was answered in the affirmative.