It was in the case of the Finix [1975] 2 Lloyd’s Rep 415 where the judge decided that if a charter party described the loading or discharging ports as “One safe berth, London” the charter party is a berth charter whereas the words “London, one safe berth” means that the charter party is a port charter party.
Of course it matters whether the charterparty is a berth or port charter party as this dictates where the vessel may tender its Notice of Readiness and who takes the risk of delays prior berthing. In a berth charter party the NOR can only be tendered at the berth unless there is congestion or a lack of cargo. As such the Owner, under a berth charter takes the risk of delays such as tide and bad weather. As seen in the case of the Happy Day an NOR given at the anchorage under a berth charter party is not valid.
I don’t know what charter party form the Finix was fixed on but I assume it was a form where the words in the body of the charter gave no indication of whether it was a berth or port charter.
The Finix is often mentioned on a course where I am one of the speakers and I occasionally have a debate with the other speakers regarding the phrases “One safe berth, London” and “London, one safe berth”. There is a view that these phrases change a charter party to a berth or port charter party irrespective of what the printed words say in the body of the charter party.
I don’t subscribe to this view as I believe the Finix judgement is there as guidance when there are no other clues. Where the body of the charterparty clearly states where NOR can be tendered then the words “One safe berth, London” or “London, one safe berth” cannot overrule this. To interpret these words in any other way would, I think, cause chaos in the business as I suspect such care is not normally taken over recaps in the tanker world.
Where I think it could cause charterers a real problem is the use of either phrase where the body of the charterparty states that charterers will exercise due diligence in nominating a safe port. The use of these phrases could be argued to bind the charterers to an absolute warranty of providing a safe berth which is a higher hurdle than exercising due diligence, but that is a different matter.
What do you think about these phrases? Do they change the body of the charterparty? Have you come across other phrases in recaps which cause confusion or conflict? Share your thoughts and experiences by posting your comments here.
2 thoughts on “One safe berth, London or London, one safe berth”
Case not readily to hand, but remains useful key in seeking to determine whether one is dealing with a port or berth charter. That the refence to a berth precedes that of a port would presuppose the intention the voyage is not completed until the ship berths, although additional clauses may well alter that position eg time lost waiting for berth, whether in berth or not, reachable upon arrival etc.
In construing contract terms, type written terms would seek to overide printed terms, on premise the former represent more properly those terms the parties have finally agreed to. .
I believe that the London tribunal got it right in Arbitration 27/04 i.e. one had to try to give, wherever possible, a sensible meaning to all words in a contract, and not to "blue pencil" any on the grounds of redundancy, or to look for ambiguity if a sensible meaning could be found without resort to such tactics. …it is necessary to have regard to the whole of the charter.
For example, the order of the naming of the berth prior to the port in Part I would not change ASBATANKVOY into a berth charter unless there were amendments to Part II, namely Clause 6, Notice of Readiness.
Lastly, bear in mind that ambiguity in a contract is deemed against the originator.