An 'always accessible' berth warranty in a voyage charter; what does that mean for a charterer?

In the recent ‘Aconcagua Bay’ case [2018], the Commercial Court had to consider the meaning and scope of an ‘always accessible’ berth warranty in a voyage charterparty.  The relevant provision of the amended GENCON 1994 charter provided:

“Loading port or place … 1 good safe berth always afloat always accessible … “

Always accessible warranties are often included in charterparties by owners to transfer to the charterers the risk of a delay in berthing.  In this case, the Court had to consider if the ‘always accessible’ warranty also protected the owner from the risk of delay leaving the berth after completion of cargo operations.

On the facts of the case, after the end of cargo loading operations the vessel was delayed at the berth for 14 days and the Owner claimed damages for detention from the charterers based upon the ‘always accessible’ warranty.  At arbitration the Tribunal decided that the warranty did not extend to berth access/departure after the completion of loading and that the charterers had not, by the clause, guaranteed that the vessel would be able to leave the berth without delay.

The matter was appealed to the Commercial Court where the Judge decided that the Tribunal was wrong.  An ‘always accessible’ warranty requires the vessel to be able to both enter and depart the berth at any time.

This is an important decision of the English Court because it establishes a clear distinction between a berth being ‘always accessible’ and ‘reachable upon arrival’.  Both expressions are commonly used and often parties to charterparties are not necessarily aware of their differing consequences.  Now, a charterer will not be liable for detention if a vessel cannot leave a berth where the charter contains only a ‘reachable upon arrival’ clause, but will be liable if the charter contains a ‘always accessible’ warranty.   

If you would like more information on this legal development or on any aspect of shipping law, please contact Andrew Iyer on: +44 207 1007714, or by email to: andrew@iylegal.com.

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