The Aconcagua Bay

29 March 2018

'Always accessible' means the vessel must be able to enter and leave a berth

The words 'reachable on arrival' and 'always accessible' are commonly used in charterparty warranties to transfer to charterers the risk of delay in entering a berth. However, until now, there has been some debate about whether the phrase 'always accessible' also transfers to charterers the risk of delay (after completion of cargo operations) in leaving the berth.  In London Arbitration 11/97, the Tribunal decided that the warranty did not extend to 'leaving' the berth.  However, this decision has been treated with some caution by the leading textbooks, and the BIMCO Laytime Definitions (2013) and the Baltic Code (2014) considered that the words 'always accessible' mean a vessel must be able to both enter and depart from a berth.  
The dispute arose when the mv Aconcagua Bay was trapped on her berth after loading her cargo for 14 days due to a broken lock. The claimant vessel owners claimed detention from the charterers, relying on the 'always accessible' warranty in the charterparty. The two appointed arbitrators could not agree, so the matter went to an umpire. The umpire found in favour of the charterers, sharing their view that 'always accessible' did not infer that the vessel must be able to leave the berth.
This judgment by Mr Justice Knowles has now provided the judicial authority needed by the market. In allowing owners’ appeal on this point, he has confirmed that for a berth to be 'always accessible', the vessel must be able to enter and leave the berth. He considered that the word 'accessible' could mean 'usable' and that the word 'always' was also important.  
This means there is now a distinct difference between a warranty by charterers that a berth will be 'reachable on arrival' (which only refers to arrival) and a warranty that the berth will be 'always accessible' (which refers to arrival and departure).
This clarity is also important bearing in mind that, even if a berth or port is described as 'safe', charterers are not normally responsible for delays (or even lengthy delays) in leaving, unless the delays are so long as to frustrate the charter (see, for example, The Hermine).  If the parties have agreed to add the words 'always accessible', however, the risk of delays is likely to transfer to charterers.
Alex Davey and Tom Hodges of Birketts LLP acted for owners and instructed Nevil Phillips and Ben Gardner, both of Quadrant Chambers.