Seatrade Group NV v Hakan Agro DMCC, Re The Aconcagua Bay

In a voyage charterparty, a warranty that a berth is always accessible ordinarily concerns both entry to and departure from the berth. The court must construe the wording by reference to the language used, its documentary, factual and commercial context, and the intention of a reasonable commercial person. A warranty concerning berth accessibility should not be confined to entry where the commercial subject is the vessel’s ability to use the berth. By contrast, wording such as reachable on arrival may be used to address arrival alone.

The Owners appealed under section 69 of the Arbitration Act 1996 against an umpire’s award concerning the meaning of a voyage charterparty warranty. The charterparty described the loading berth as “always afloat always accessible”. Damage to a bridge and lock prevented the vessel from leaving the berth for 14 days after loading was completed.

The umpire held that the warranty concerned entry but not departure. The appeal raised a question of law of general public importance: whether “always accessible” required the vessel to be able both to enter and to leave the berth.

1. Appeal allowed. The umpire’s conclusion that “always accessible” concerned entry but not departure was incorrect in law.
2. The applicable principles of contractual interpretation required the wording to be understood as a reasonable person with the parties’ available background knowledge would have understood it, having regard to its documentary, factual and commercial context. The court referred to Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, Arnold v Britton [2015] UKSC 36, Rainy Sky SA v Kookmin Bank [2011] UKSC 50 and Wood v Capita Insurance Services Ltd [2017] UKSC 24.
3. Although “always afloat” referred to the continuing period alongside or in berth, “always accessible” at least covered entry. In the context of a commercial warranty concerning the accessibility of a berth, there was no proper basis for assuming that the parties intended to omit departure. A reasonable commercial party considering berthing would take account of all aspects of access.
4. The earlier award reported as London Arbitration 11/97, which treated “always accessible” as not extending to departure, did not provide a correct answer on the point. The court was cautious about disturbing an established commercial meaning, but the award had not been free from question and did not justify the umpire’s conclusion.
5. The wording “reachable on arrival” provided a useful alternative vocabulary for a provision concerned with arrival alone. “Always accessible” and “reachable on arrival” were therefore not synonymous when departure was in issue, although they had the same effect when considering arrival.

• Arbitration: The umpire held that “always accessible” concerned entry to the berth, not departure.
• High Court (Commercial Court): The appeal under section 69 of the Arbitration Act 1996 was allowed. The umpire’s conclusion was held to be incorrect in law.