Seatrade Group NV v Hakan Agro DMCC - The Aconcagua Bay
Seatrade Group NV v Hakan Agro DMCC (The “Aconcagua Bay”)
High Court: Commercial Court: Mr Justice Robin Knowles CBE:  EWHC 654 (Comm): 26 March 2018
Nevil Phillips and Ben Gardner, instructed by Birketts LLP, for Seatrade Group NV
Andrew Feld, instructed by Davies Battersby, for Hakan Agro DMCC
VOYAGE CHARTERPARTY: WHETHER “ALWAYS ACCESSIBLE” WARRANTY INCLUDED BOTH ARRIVAL AND DEPARTURE: WHETHER OWNERS ENTITLED TO DAMAGES FOR DETENTION FOLLOWING DELAYED DEPARTURE OF VESSEL
In a voyage charterparty, a warranty that the berth is “always accessible” applies to both arrival and departure.
This note has been contributed by Li Pak Hei, Barrister (Hong Kong), LLB (English Law and Hong Kong Law) (King’s College London), LLB (University of Hong Kong), LLM (Maritime Law) (University College London).
This was an appeal by Seatrade Group NV (“the Owners”), the owners of M/V “Aconcagua Bay” (“the Vessel”) under s.69 of the Arbitration Act 1996. The question of law raised by the appeal was whether the warranty in a voyage charterparty that a berth is “always accessible” meant that the vessel is always able not only to enter but also to leave the berth. In an award dated 23 February 2017 (“the Award”), Mr Ian Kinnell QC, as Umpire, found that a warranty in those terms referred to entry and not to departure.
The charter of the Vessel was for carriage from the US Gulf to the Republic of Congo and Angola. The charterparty, on an amended Gencon 1994 form, provided:
“10. Loading port or place (Cl. 1)
1 good safe berth always afloat always accessible 1-2 good safe ports in the USG in Charterers’ option …”
Whilst the Vessel was loading, a bridge and lock were damaged. As a result, the vessel was unable to use a channel so as to be able to leave the berth until 14 days after she had completed loading. The Owners claimed damages for detention from Hakan Agro DMCC (“the Charterer”) for the period of delay.
In interpreting a contract the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge that would have been available to the parties would have understood them to be using the language in the contract to mean; the court focuses on the meaning of the words in their documentary, factual and commercial context.
The central question was whether the parties intended to provide for departure in the wording they used. The court accepted that the reasonable commercial party looking at the subject of berthing would bear all aspects in mind and not confine itself to getting into the berth. Hence, there was no basis for concluding that, on the issue of accessibility of a berth, they should be taken to have addressed entry alone.
The court was of the view that there is a distinction between “reachable on arrival” and “always accessible”. The former applies to arrival only whereas the latter applies to both departure and entry.
The court noted that, in a previous arbitration award, the term “always accessible” was found not to extend to leaving the berth. However, the tribunal in that arbitration did not have the beneﬁt of seeing the Baltic Code 2003 (and 2007, and see also 2014) which specified that: “Where the charterer undertakes the berth will be ‘always accessible’, he additionally undertakes that the vessel will be able to depart safely from the berth without delay or at any time during or on completion of loading or discharge”. In any event, that award had not been free from question when commentaries referred to it. It was not binding on the court.
A dictionary did not resolve the point of interpretation either. The shorter Oxford English Dictionary defined “access” and “accessibility” as “way or means of approach” and “capable of being approached” respectively. But if regard were had to a wider selection of dictionaries, then capable of “use” or usability is found among the available meanings of accessibility. This, said the judge was material, as “use” can readily be interpreted as including departure. Hence, no definite conclusion could be drawn from the dictionaries.
Comment Practitioners should note the difference between a warranty that the berth is "always accessible" and one that is "reachable on arrival". If the parties (especially the Charterers) are minded to limit the scope of the warranty, they should adopt the latter formulation.