Настоящая статья посвящена фразе, состоящей всего из трех слов: “вне контроля фрахтователей”, включенной в чартер. Автор подробно исследует влияние подобной оговорки на исполнение договора. Особое внимание уделяется влиянию этого условия на ответственность из договора.
Статья впечатляет использованной юрисдикционной практикой и глубиной исследования.
Other than “subjects are lifted,” one of the more commonly cited three word phrases in the shipping business is “beyond charterer’s control.” At first glance, the focus of this phrase seems quite apparent, but, in practice, the phrase is ambiguous, subject to differing interpretations.
Most, if not all, charterparty boilerplate terms include “beyond charterer’s control” wording. Examples are the last sentence of clause 6 of the ASBATANKVOY [ASBA] “… for any reason over which charterer has no control…” and clause 17 of the BPVOY4 “Any delay arising…shall count as one-half laytime…provided always that the cause of the delay was not within the reasonable control of Charterers or Owners….” Other charter party forms expand the reach of interpretation of “beyond charterer’s control” by including the word “whatsoever” thereby leaving one with the impression the exceptions are all-encompassing. For instance, clause 4 of the AMWELSH 79 “any time lost… or any cause whatsoever beyond the control of the charterer… not to be computed as part of the loading time.” Additionally, most charterparties have rider clauses to personalize the contract to reflect specific requirements of the charterer, voyage, or cargo in question. These rider clauses serve to expand the reach of excepted events deemed beyond the charterer’s control. Although most charterparties vary, the commonality with all is that the terms of the charterparty are interrelated, and therefore one should not consider any particular clause in isolation and should ensure that a provision of any one clause does not overlap the provisions of another.
Undoubtedly, one of the most cited cases supporting charterparty clause co-dependency would have to be the House of Lords decision in The Laura Prima. 1 This decision dealt with the relationship between two ASBA clauses, notably beyond charterer’s control wording in the last sentence of clause 6 and reachable on arrival wording in clause 9 (emphasis added):
Clause 6 NOTICE OF READINESS: …However, where delay is caused to vessel getting into berth and after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count as used laytime
. . .
Clause 9 SAFE BERTHING – SHIFTING: The vessel shall load .… any safe place or wharf, or alongside vessels .… reachable on her arrival, which shall be designated and procured by the Charterer .…
The Laura Prima arrived at her loading place in Libya and tendered notice of readiness but was unable to proceed to her loading berth due to berth occupancy. This remained the situation for almost two weeks. The charterer relied on clause 6 to prevent the running of laytime, arguing that the berthing delays were beyond charterer’s control. The shipowner countered this argument by pointing out that the charterer was in breach of clause 9 as charterer had not procured a berth that was reachable on arrival for the vessel. The House of Lords held that clause 9 prevailed. If the vessel was unable to proceed to the berth on arrival then charterer was in breach of its obligations under the charterparty and thus could not rely on the “beyond charterer’s control” exception to laytime in clause 6.
In The Law of Admiralty, 2 Gilmore and Black state:
Delay in loading or unloading is often occasioned by circumstances beyond the control of the Charterer; inability to get a berth to which to order the ship is an illustration. When such a case comes to court, it is necessary to decide whether, given the actual terms of the charter, the Charterer is to be excused. These tend to be the most significant financially of the demurrage cases, for some delays imposed by outside circumstances may be of quite long duration. The general rule is that the Charterer having undertaken absolutely to see the ship loaded in a stated time assumes the risk of all casualties preventing this and the obligation of paying demurrage if anything goes wrong.
New York arbitrators review each case on its own merits, specific to the events of each particular dispute. The Mountain Blossom3 is a good example. In that case, the vessel, fixed under an ASBA form charterparty, arrived at the load port and anchored due to berth unavailability. While waiting to berth, the Port Authorities closed the port due to fog. The charterer sought protection under ASBA clause 6, arguing the port closure was an event beyond its control. The sole arbitrator, paraphrasing an interpretation in an earlier award,4 commented “The meaning of the last sentence of clause 6 must be found in the words ‘getting into berth.’ The sentence applies to a delay to the vessel when getting into her designated berth, not when waiting for a berth to be ready” (emphasis added). The arbitrator found for the Charterer stating “There is no question that the closure of the port by an accepted authority regardless of cause is an event over which Charterer has no control. All the authorities citied by both parties agree that this is the proper construction of the last sentence of clause 6.” The arbitrator ruled laytime did not count for the period of the delay.
Weather condition[s] delaying berthing is a common argument charterers present as an occurrence beyond their control. The ASBA charterparty, however, does not specifically address weather, only “storm.” One popular rider clause addressing this shortcoming is the Conoco Weather clause which broadens the scope of the “storm” provision to “weather conditions.” The clause simply states that delays in berthing for loading and discharging and any delays after berthing which are due to weather conditions shall count as one half laytime or, if on demurrage, at onehalf the demurrage rate. The Poitou5 is an example of this clause trumping a “beyond charterer’s control” argument.
On an ASBA II form the Poitou charter provided for the carriage of Nigerian crude oil for discharging at Genoa. Noteworthy is that the ASBA II form contains “whatsoever”wording. The vessel arrived at the port of Genoa, anchored due to berth occupancy, and tendered her NOR. Similar to the facts in The Mountain Blossom, while waiting to berth, the port authorities closed the port due to bad weather, delaying berthing in excess of 13 days. Unlike the charter in The Mountain Blossom, however, this charter party also incorporated the Conoco Weather clause. Citing the clause, charterer argued the time lost waiting berthing should count as one-half time or, alternatively, that if the panel determined the Conoco Weather clause to be inapplicable, then charterer should have protection under the last sentence of clause 6 because no time should count during this period as the port closure was beyond charterer’s control. The Panel found for the charterer citing the applicability of the Conoco Weather clause. In this instance, although the Port Closure was an event beyond charterer’s control, the Conoco Weather clause represented an overriding condition in the charter party, reducing protection to fifty percent. Had the Mountain Blossom charter included the Conoco Weather clause, the outcome would likely have been the same as that in The Poitou.
Terminal breakdown[s] or repairs also are occurrences commonly cited as “beyond charterer’s control.” The An An6 is an example of berthing delays caused by terminal equipment failure at the discharge port. There, the charter party provided for the vessel to load a full-cargo of sugar at Mozambique for carriage to one/two safe ports in the US Gulf or US East Coast; charterer declared Baltimore as the sole discharge port. Upon arrival, inoperable cranes delayed berthing for over one month. Charterer claimed the delay was beyond its control. Rejecting charterer’s argument, the sole arbitrator pointed out that it was charterer which nominated Baltimore as the discharge port even though charterer had other options and that charterer knew, or should have known, that the Baltimore terminal had completely shut down because both of its cranes were out of commission.
Similarly, in The Martha A, 7 the charterer claimed that berthing delays owing to the port authority having closed the berth at the discharge port for scheduled maintenance were beyond its control. The vessel fixed a part cargo of three chemical parcels under the ASBA form for transport from Antwerp to Tampa and Houston. At the time of fixing, the ETA Tampa for the M/T Martha A was December 27/30. The vessel encountered weather delays crossing the Atlantic, as well as delays at a prior discharge port (New York). The combination of these delays resulted in a revised ETA Tampa of January 7, coinciding with a pre-announced closure of the berth by the Tampa Port Authority. The panel stated: “Charterer’s reliance on clause 6 is misplaced. This is not a case where a properly nominated berth suddenly became unavailable for reasons of unforeseen circumstances. . . . On the contrary, charterer advised owner as early as December 27 of the planned shutdown.” The panel held that charterer knew the vessel’s arrival date conflicted with the planned berth shutdown but did not attempt to seek alternative discharge arrangements.
In the words of an article by a learned colleague,8 “Those conversant with charter party forms will recognize the phrase ‘or any cause whatsoever’ as being part of an exceptions clause. Those unfamiliar may wonder why anyone in their right mind would agree or accept such a condition.” The answer is simple: negotiating terms is all about managing risk. During any charterparty or contract negotiation, the parties address compliance with various clauses and their inherent obligations and responsibilities. Understanding any associated risk by accepting, or deleting, a particular clause, effectively chancing that the occurrence will not be applicable, is all part of the compromise. In the end, the charterparty is the culmination of these prior negotiations, highlighting the terms and conditions for which the parties bargained. Nevertheless, but for those instances where one party is not paying attention, exposing themselves to the “devil is in the details,” most parties accept their responsibility for the various charter party provisions.
“Beyond charterer’s control” wording is not a blank check allowing one to escape responsibility. “The charterer, in order to gain the protection of an exception, must prove not only the existence of the excepted cause, but also that he could not by reasonable exertion or precautions have prevented the operation of the cause. He is not entitled to fold his arms and do nothing.”9 When commercial people enter into transactions, a general understanding of legal principles, while helpful, should not be the guiding light toward concluding the deal. Instead, the reasonable expectations of the parties for performance should be the primary influence. “The law has nothing to do with the actual state of the parties minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct.”10
1. Nereide SpA di Navigazione v. Bulk Oil International Ltd (The Laura Prima)  1 Lloyd’s Rep 1.
2. G. Gilmore and C. Black, The Law of Admiralty, at 275 (2nd ed. 1975).
3. M/T Mountain Blossom, SMA 3067 (1994) (van Gelder).
4. M/T Messiniaki Fontis, SMA 1630 (1982) (Bauer, Arnold, Berg).
5. M/T Poitou, SMA 2898 (1992) (Berg, Zubrod, Fox).
6. M/V An An, SMA 3792 (2003) (Nichols).
7. M/T Martha A, SMA 3861 (2004) (Arnold, Siciliano, Notias).
8. Manfred Arnold, “…Or Any Cause Whatsoever,” The Maritime Advocate (July 2002).
9. Scrutton on Charterparties, at 14-037 (22nd ed. 2001).
10. O.W. Holmes, The Common Law, Lecture IX (1881)
Автор: Robert C. Meehan, SMA Member and Partner, Eastport Maritime