Voyage Charters

Timothy Young KC; Michael Ashcroft; Julian Cooke; Andrew Taylor; John Kimball; LeRoy Lambert; David Martowski; Michael Sturley

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Chapter 5 Loading and Discharging Ports, Places and Berths

[clause 1 continued]
The said vessel shall proceed to the loading port or place stated	8
in Box 10 or so near thereto as she may safely get and lie always	9
afloat, …	10
… and being so loaded the vessel shall proceed to the discharging	15
port or place stated in Box 11 as ordered on signing Bills	16
of Lading or so near thereto as she may safely get and lie always	17
afloat…	18
[clause 1 is continued below]

“Port or place”

5.1 The vast majority of voyage charter forms leave the choice of the location for loading and discharging to the parties, whether by the provision of a box to be filled in or a simple gap in the standard form. A binding fixture cannot come into existence unless these choices are made or machinery is specified for making them. 5.2 There is a distinction drawn in many forms, as in the Gencon form, between a “port” and a “place”, although there is a considerable overlap between the two. A “port” is usually also a “place”; so also a berth within a port is a “place”. But not all loading and discharging “places” might be considered to be a “port”.1 Whether a charter is “berth charter” or a “port charter” is, however, often of importance in the context of laytime and where a vessel may serve NOR.2 5.3 There is no comprehensive definition of a “port” appropriate to all contexts. In Sailing Ship “Garston” Co. v. Hickie & Co.3 the Court of Appeal held that the word “port” in a charterparty is to be understood in its popular business or commercial sense. Just because a loading or discharging place is defined by the local law as a “port”, it does not follow it will be treated as a “port” for all purposes of a charterparty.4 The issue may arise in the context of

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disputes as to whether two or more loading or discharging places in the same area are parts of a single port or separate ports.5 It may also arise in the context of disputes about whether a charterer may order a vessel to load or discharge into barges or lighters at a lightering position or an anchorage. There is no reason in principle why such a position could not be a “place” even though it is in the open sea. In Harrower v. Hutchinson 6 a “port” was held, in the context of a marine policy, to include “… all places to which ships may be accustomed to resort for the purposes of taking in cargo …”. In that case, loading took place only from lighters in the roads. It would, however, always depend upon both the wording of the charter and the custom of the port or place selected as to whether the use of lighters would be permitted by the charter; thus, if the parties complete the charter form with the name of a port, without more, then, unless lightening at that port is a customary method of cargo handling, the charterer is not entitled to require the ship to work from or into lighters.7 Even where lightening may be a customary method, if the parties complete the box expressly with a reference to a “berth”, the use of lighters would not be contractual save where lighters are customarily used for cargo handling alongside berthed vessels. Where a “port” is specified, it may not encompass the roads, where lighterage, even customary lighterage, takes place if the only purpose is to lighten in order to enable the vessel safely to reach the named port.8

The identification and nomination of the port, place and berth

5.4 Although the parties may be exhaustively specific in their choice as it appears in the charter, for example, “the Tate & Lyle berth at Silvertown”, most of the usual methods of fixing a vessel will require some further act of identification on the part of the charterer to enable the shipowner to know precisely where the vessel should proceed. The obligation to make all necessary nominations is the charterer’s9 (see the following). 5.5 The principal ways used in practice for identifying the port or ports to which the vessel must go are:

(i) by identifying a named port, such as “Rotterdam”;
(ii) by stipulating a number of named ports from which a choice of one or more is to be made, such as “Amsterdam/Rotterdam/Antwerp”; and
(iii) by stipulating a number of unnamed ports within a specified range, from which a choice is likewise to be made, such as “Bordeaux/Hamburg range”.10

In each of the preceding, it is implied, if not express, that the charterer will also nominate a berth or place within the nominated port. It is common to specify expressly the number of permitted berths or places and to specify a warranty of safety, such as “1/2 safe berths 1/2 safe ports Bordeaux/Hamburg range”. However, even without such an express term, the charterer is impliedly both entitled and obliged to designate a berth or place within the port chosen,11

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but does not normally have any implied right to designate more than one.12 The question whether he impliedly warrants the safety of the berth so designated is discussed later.13

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