The term "strike" contained in an exclusion clause within a berth charterparty extended to include the congestion period which followed the "strike" itself. Carboex SA v Louis Dreyfus Commodities Suisse SA (2011)
These proceedings were an appeal by the charterers against an arbitration award in favour of the owners.
The charterers had unsuccessfully attempted to defeat a demurrage claim which had arisen from a delay in discharge caused by a two-week congestion which followed a strike at the port of El Ferrol, in Spain.
Charterers had attempted to rely on Clause 9 of the amended AmWelsh voyage charterparty which stated: "In case of strikes, lockouts, civil commotions or any other causes ... which prevent or delay the discharging, such time is not to count unless the vessel is already on demurrage."
Clause 40 stated that if a berth was not available when the vessel tendered Notice of Readiness (subject to the owners not being at fault) laytime would start to run 12 hours after the first permissible tide, whether the vessel was in berth or not (WIBON). The owners argued that, the effect of Clauses 9 and 40 combined, meant the charterers had accepted the risk of delay caused by the congestion. Owners further argued that the strike exclusion under Clause 9 applied only once the vessels had berthed, and as the strike was over when the vessels eventually berthed, no time stood to be deducted from laytime.
In setting aside the arbitral tribunal's award for error in law, the Court relied on the decision in the "AMSTELMOLEN" (1961)1 where it was held that the effect of WIBON was no more than to start the laytime clock ticking and that the exceptions clause (in this case, Clause 9) was to be construed as a free standing provision. There was no cross-contamination between the provisions. The Court held that on their ordinary meaning, the words of the exclusion clause covered delay in discharging caused by congestion due to the after effects of a strike that had ended, as well as congestion due to a strike where the vessel arrived after a strike had ended.
1 Reederj Amsterdam NV v President of India, the "AMSTELMOLEN" (1961)
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