Professor Tiberg asks: “What kind of declaratory rule is this, which dictates a contrary meaning to a standard expression?” To a certain extent Professor Tiberg may be right in pointing out that this innovation is not in line with traditional concepts of port/berth charters, but his strong attack on the breach with the traditional system of the Code does not seem to be totally justified. The old Code also had characteristics which deviated from the principles of a “pure” port/berth charter system. For example, in cases where the charter did not stipulate a named berth, but the berth was to be subsequently nominated, the old Code provided for the risk of congestion to be carried by the owner only to the extent that the risk was foreseeable by him when entering into the charter. Since it was (and is) extremely rare to find charters that contain a named berth, the rule of foreseeability was the most practical one. Now the rule is taken one step further and the test of foreseeability is abolished in relation to congestion. This may, of course, be seen as a further departure from the traditional concept of berth charters, but what is gained is that an enquiry into the owner’s knowledge of the congestion risk is no longer needed.

Professor Tiberg tries to ridicule the draftsmens’ reasoning behind the amendment, i.e., that the charterer will usually be the one with the best knowledge of the risk of congestion, by pointing out that this is not always the case. But the fact remains that the draftsmens’ reasoning is reflected also in many standard charterparties issued by charterers. Shellvoy 5 may be illustrative. This standard charter must be categorized as a berth charter, since