Wibon, wipon and ‘time lost waiting for berth’
My background is very much in the tanker world but I have become more conversant with dry cargo in recent years since some of the lectures I do cover both sides of the business. Clearly a lot of the case law we work from in the tankers comes from dry cargo cases. My impression has always been that tanker laytime and demurrage clauses have always been more detailed than those in the dry cargo world and I believe our dry cousins could make use of some of the clauses we apply in our business such as early loading clauses.
However I have been reading Donald Davies’ book Commencement of Laytime and I think I have found something from the dry trade which could be useful in tankers.
Wibon is the acronym for Whether in Berth or Not and is added to berth charter parties so that, in the case of berth congestion, a master may tender an NOR on arrival at the port as opposed to the berth. We don’t see berth charters although many people believe Shellvoy6 to be a berth charter.
Wipon is the acronym for Whether in Port or Not and is added to port charters to allow NOR to be tendered where a vessel is unable to enter a port by reason of berth congestion.
‘Time lost waiting for berth to count as loading or discharging time’ is added to some charters and I understand it means that where a vessel cannot enter a port and tender a valid Notice of Readiness time will still count against the charterer for this delay.
I have written on my blog about the problems in tendering an NOR where the vessel has been instructed to wait at a place outside the port and adding wipon or the ‘time lost’ clause could cover these problems without Owners having to revert to claiming damages for detention in these cases.
Would these words solve these problems or would there still be more arguments? I’m sure there would still be arguments as the parties would need to establish the reason why a vessel could not enter the port to ‘arrive’ and tender a valid NOR. As an example a vessel held outside a port because of bad weather could not expect such waiting time to count as laytime or demurrage using these clauses. What happens if it is a combination causes preventing the vessel from entering?
If owners chose to wait outside to save port dues then again these words, in my view, would not give the Owners any protection.
As noted on my blog there are specific ‘River’ clauses that allow NORs and/or time to start before the vessel has reached the destination but do you think Wipon and Tim Lost would cover these cases instead?
What do you think about these words and phrases? Do you already use them and can you share your experiences? Do you have any other views, perhaps as a charterer who would not be so keen on this solution?
One thought on “Can we Learn Something from the Dry Cargo Trade”
With Tanker C/Ps the common acronym is berth or no berth, where again a NOR may be tendered & time commence provided a valid tender is given following the ship's arrival at the port, thereby casting risk, subject invariably to exceptions defining whether time lost is to be shared or excepted, of any waiting time upon the Charterers. Shellvoy is phrased differently, but again may cast upon the Charterer waiting time under circumstances where the ship is unable to proceed immediately to berth, is in a usual waiting area and the berth is deemed to be accessible.
The various acronyms, many of which have their origins in the dry cargo trade, have been subject of hard fought litigation, but are clearly intended to cast the risk of delays in berthing upon the Charterer under circumstances where, in their absence, the ship would not be considered as arrived until in berth.
In those circumstances where the ship is prevented from entering the port, say on account the cargo has not been sold, so she is ordered to await instructions, it is common to charge the delay as detention, albeit using the demurrage rate + bunkers consumed, albeit the latter can be subject to dispute to extent the bunkers charged incorporate those by way of 'hotel bunkers', included in the demurrage rate.
The usage of acronyms raises the question whether a ship, which has not 'arrived' at a port, but is simply ordered to wait elsewhere, could nevertheless tender a valid NOR, such acronyms being ordinarily introduced and intended to turn what was otherwise a berth, into a port C/P, so inviting potential problems when used under another scenario
The Mississippi port clause is an example of a clause constructed for a specific purpose, here intended to permit a valid tender at the SW passage, where otherwise the tender would be seen as premature and invalid. River clauses are not dissimilar, but hardly user friendly from a Charterers viewpoint.
David