Construing The Strike Exception In An AmWelsh Charterparty (Update)

Carboex SA v. Louis Dreyfus Commodities Suisse SA [2012] EWCA Civ 838

The Court of Appeal in this case has decided an appeal in relation to an important question in the context of voyage charterparties, namely whether a strike exception to the running of laytime applies to stop laytime running (i) where the vessel is delayed by the after-effects of a strike which has ended; (ii) where the vessel has arrived after the strike has ended and (iii) where the vessel is delayed in berthing due to congestion that has arisen as a result of the strike.

The Commercial Court decision, which was appealed to the Court of Appeal, was reported in the Ince July 2011 Shipping E-Brief.

The background facts

Four vessels were chartered by the defendant owners to the claimant charterers under a Contract of Affreightment dated 6 March 2008 ("the COA") for the carriage of coal from Indonesia to Puerto de Ferrol in Spain. The COA was on an amended version of the AmWelsh voyage charterparty form and was a berth, as distinct from a port, charter. The relevant clauses of the COA were clauses 9 and 40.

Clause 9 provided for the rate of discharge of cargo and for payment of demurrage. The last sentence of the clause read:

"in Case of strikes, lockouts, civil commotions ... beyond the control of the Charterers which prevent or delay the discharging, such time is not to count unless the vessel is already on demurrage."

Clause 40 stated:

"At port of discharge...If the berth is not available when vessel tenders Notice of Readiness, but provided vessel/Owners not at fault in relation thereto, then laytime shall commence twelve (12) hours after first permissible tide, Notice of Readiness received and accepted, whether in berth or not, whether in free pratique or not, whether in customs clearance or not, unless no customs clearance or no free pratique due to vessel's fault, unless sooner commenced in which case only time actually used to count..."

When the vessels reached Puerto de Ferrol in Spain, there was congestion at the port due to a nationwide Spanish haulage strike and the vessels were delayed getting into berth.

The charterers contended that the discharge of the four vessels was delayed by reason of the strike and that these periods were excluded from computation of laytime by virtue of clause 9. The owners contended that the combined effect of clauses 9 and 40 was that the charterers took the risk of delay caused by congestion at the port, so that it was only delay...