Lloyd's Maritime and Commercial Law Quarterly
AN INCONSISTENCY OF APPROACH?
The Kyzikos
In Bulk Transport Group Shipping Co. Ltd. v. Sea Crystal Shipping Ltd. (The Kyzikos),1 the House of Lords considered the meaning of a provision in a voyage charterparty that laytime should count “whether in berth or not”. The reasoning and effect of their Lordships’ decision provide a marked contrast with another case decided by the House on a different but related clause, namely, the decision in Nereide S.p.A. di Navigazione v. Bulk Oil International Ltd. (The Laura Prima).2
The charterparty in The Kyzikos was on an amended Gencon (Box Layout) 1974 printed form. Box 11, headed “Discharging Port or Place”, contained the words:
1/2 Safe always afloat, always accessible berth(s) each port—1/2 safe port(s) U.S. Gulf excluding Brownsville and no port North of Baton Rouge.
Clauses 5 and 6 dealt with laytime for loading and discharging respectively. They both contained a “time lost in waiting for berth to count as loading/discharging time” provision. Clause 5 was amended by the addition of a typed clause stating that time was to commence “WIPON/WIBON/WIFPON/WCCON”, the acronyms standing respectively for: whether in port or not; whether in berth or not; whether in free pratique or not; and whether Customs cleared or not. In the Court of
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