Laytime clauses – fixed and customary laytime

Fixed Laytime

2.1 If by the terms of the charterparty, the charterer has agreed to load or unload within a fixed period of time, that is “an absolute and unconditional engagement, for the nonperformance of which he is answerable, whatever may be the nature of the impediments which prevent him from performing it and which cause the ship to be detained in his service beyond the time stipulated”.1

2.2 As was said by Lord Hunter, the Lord Ordinary, in the Scottish case of William Alexander & Sons v Aktieselskabet Dampskabet Hansa and others:2

It is well settled that where a merchant has undertaken to discharge a ship within a fixed number of days he is liable in demurrage for any delay of the ship beyond that period unless such delay is attributable to the fault of the shipowner or those for whom he is responsible. The risk of delay from causes for which neither of the contracting parties is responsible is with the merchant.

2.3 It is of course open to the parties to agree that certain periods or causes of delay should be excepted, and this may be done either by incorporating the exclusion in the way the fixed laytime is defined – e.g. by reference to “weather working days”, thus excepting periods of adverse weather and holidays – or by an additional clause.3

2.4 The advantage to the shipowner of a charter providing for fixed laytime is that he can pre-determine the length of time that his vessel will be engaged in loading or discharging, if there are no exceptions; and if there are, then at least he will have some idea of the likelihood of delay because only certain causes of delay will be for his account. Any others not so specified will be for the charterer’s account.

2.5 Fixed laytime may be expressed in one or other units of time, which will form the subject of most of this chapter, or as a rate of working cargo, which, once the amount of cargo is known, will enable the amount of laytime to be calculated. Even if it is expressed as a rate of working cargo, there will still be a time element to which the following principles will apply, but there will also be specific rules for this form of laytime, which are dealt with towards the end of this chapter.4

Calendar days

2.6 When steamships became more common, in the second half of the nineteenth century, new principles also emerged relating to the counting of time during loading and discharging. The importance of time to the steamship owner was stressed by Mathew LJ in Yeoman v Rex, where he said:5

At 9 o’clock on Saturday morning the lay days were over, or rather the lay hours because in this charter, as is usual with reference to steamships, time is calculated by hours and not by days.

2.7 It was usual in the days of sail and the early days of steam for charters to provide for a specified number of lay days, but not to provide expressly when laytime was to commence after arrival. There was, however, no need for the charter to specify this, because it was customary for time to count from the day following the vessel’s arrival, unless the merchant chose to commence cargo operations earlier.6 The number of days allowed, which were calendar days from midnight to midnight, then ran consecutively, with part days counting as whole ones. It was not necessary for a pro-rata provision in the clause specifying the demurrage rate, since demurrage was bound to be a whole number of days.

2.8 Lord Devlin put it this way in Reardon Smith Line Ltd v Ministry of Agriculture:7

In the beginning, a day was a day – a Monday, a Tuesday or a Wednesday, as the case might be. Work began, one may suppose, sometime in the morning and ended in the evening, the number of hours that were worked varying from port to port and in different trades. But whatever the number was, at the end of the Monday one lay day had gone and at the end of the Tuesday another; and if the work went into Wednesday, that counted as a whole day because of the rule that a part of a day was to be treated as a day. For this reason the charterer was not obliged to use a “broken” day. If notice of readiness was given during the day he could, if he chose, wait until the following day so that he could start with a whole day.

2.9 The working of these rules may be illustrated by the facts of Commercial Steamship Co v Boulton,8 where, all lay days having been used up at the port of loading, a vessel arrived in dock at the port of discharge at 05 00 on a Tuesday. Discharge commenced at 08 00 on the Wednesday and finished at 08 00 on the Thursday. In these circumstances, it was held that charterers were liable for two whole days’ demurrage.

2.10 The same rules relating to broken periods apply to the calculation of lay-time, where the charter provides for a rate of cargo working. Thus, in Houlder v Weir,9 the charterers were entitled to 29 days and a portion of a day for the discharge of the cargo and it was held that, in the absence of anything to the contrary, the charterers were entitled to 30 days.

2.11 Whilst lay days are to count consecutively, their continuity can be interrupted by the exclusion of Sundays and holidays, if there is an express provision to this effect or local custom so provides.

2.12 Speaking of how lay days should be calculated, Lord Esher MR said in Nielsen v Wait:10

They must begin from the time, when the ship is at her berth in the usual place of delivery, where she can deliver. They must begin then, and they are to be counted, unless something appears to the contrary, consecutively. That is not because the phraseology says that they are consecutive, but because it is taken as a necessary implication of the meaning of both parties, that the moment the ship begins to unload they are to go on consecutively each day to unload her and they must not either of them at their option take a holiday without the leave of the other.

2.13 An example of how a local custom could affect the consecutive running of days is provided by Cochran v Retberg,11 where it was found that the word “days” in a bill of lading providing for the carriage of goods from the River Elbe to London meant, by usage of the port of London, working days and thus Sundays and Customs House holidays were excluded.

2.14 In the Laytime Definitions for Charter Parties 2013, a new definition of calendar day has been introduced:12

CALENDAR DAY shall mean a period of twenty-four (24) consecutive hours running from 0000 hours to 2400 hours. Any part of a Calendar Day shall be counted pro rata.

Conventional days

2.15 The alternative to counting days from midnight to midnight (the calendar day) is the conventional day where time runs in periods of 24 hours, starting from the time when the notice of readiness expired.

2.16 In the Laytime Definitions for Charter Parties 2013, a conventional day is defined thus:13

CONVENTIONAL DAY shall mean a period of twenty-four (24) consecutive hours running from any identified time. Any part of a Conventional Day shall be counted pro rata

If, therefore, the parties agree a stipulation about the commencement of laytime which causes laytime to start at a specified hour, then the general rules relating to broken days are displaced. At first instance, in a decision subsequently affirmed on appeal, Bingham J said:14

If the clause had stopped at the words “Cargo to be loaded at the rate of 200 tons per running day, Sundays and holidays excepted”, I should have said that it meant that the cargo must be loaded at the rate of 200 tons per calendar day – that is, a day counting from midnight to midnight. But the clause continues: – “Time for loading shall commence to count 12 hours after written notice has been given by the master… on working days between 9 a.m. and 6 p.m. to the charterers or their agents that the vessel is in readiness to receive cargo’’. That, in my opinion, alters the construction that would otherwise have been put on the clause, and it makes the loading time commence at an hour during the twenty-four to be reckoned with reference to the notice given by the captain.

2.17 If Sundays and holidays are excepted, then any periods that fall under these headings have to be excluded from the, at least two, conventional days in which they fall.15

2.18 The question also arises as to whether the rule that a part of a day counts as a whole day applies equally to conventional days as it does to calendar days. In Reardon Smith Line Ltd v Ministry of Agriculture, Lord Devlin, having posed the question, answered it thus:16

In Verren v Anglo-Dutch Brick (1927) Ltd (1929) 34 Ll L Rep 56, at p. 58, Mr Justice Roche held that it did not. In the Court of Appeal (1929) 34 Ll L Rep 210, at p. 213, Lord Justice Scrutton reserved the point. Nevertheless, it is now the general practice, so your Lordships were told, to treat a part of an artificial day as a fraction.

Running days

2.19 The term running days came into use towards the end of the last century as a means of distinguishing “days” from “working days”. The leading case on its evolution is Nielsen v Wait and in particular the judgment of Lord Esher MR, who said:17

“Days” include every day. If the word “days” is put into the charterparty – so many days for loading and unloading – and nothing more, that includes Sundays and it includes holidays. “Working days” are distinguished from “days”. But I suppose and take it, that there might be another dispute as to what “days” would mean. If “days” are put in, there is sure to come some discussion about what is the length of the day during which the charterer is to be obliged to be ready to take delivery or the shipowner to deliver, because the length of days may vary according to the custom of the port. In some countries, for anything that I know, the custom of the ports may be to work only four hours a day, and if “days” are put into the charterparty, there may be a dispute – although I do not say that it would be a valid contention according to English law – whether the day included more than four hours. And merchants and shipowners have invented this nautical term, about which there can be no dispute. They have invented the phrase “running days”. It can be seen what it means. What is the run of the ship? how many days does it take a ship to run from the West Indies to England? that is the running of the ship. The run of a ship is a phrase well known …

2.20 And later in the same judgment:

“Running days” therefore mean the whole of every day when a ship is running. What is that? That is every day, day and night. There it is as plain as possible. They are the days, during which, if the ship were at sea, she would be running. That means every day.

2.21 However, in the same case, Lord Esher did also go on to say18 that the sequence of days could be interrupted, either by an express provision or by proof of a custom excluding certain days at the particular port.

2.22 London Arbitration 6/1219 concerned a charter for the carriage of frozen chickens from Houston to Poti. Because of the possibility of delay at the discharge port, the charter also provided:

Charterers have the option to discharge 2 nd port Medit/Black Sea: if Charterers exercise this option, then time at 2 nd discharge port to count from APS [arrival at pilot station] to DOP [dropping outward pilot] and the extra costs calculated basis time at the demurrage rate plus extra fuel on the main engine, also the port costs at 2 nd discharge port to be for Charterers’ account.

The Charterers decided to exercise the option and agreed deviation costs. The issue in the arbitration was whether this provision provided for time measured in running days or weather working days of 24 consecutive hours based on the quantity of cargo discharged as provided for in the laytime clause. The tribunal held that the ordinary and natural meaning of the clause was that all time was to count between APS and DOP with payment being made for that period at the demur-rage rate i.e. time was to be measured in terms of running days.

2.23 The Laytime Definitions for Charter Parties 2013 provide:20

RUNNING DAYS” or “CONSECUTIVE DAYS” shall mean days which follow one immediately after the other.

This definition is unchanged from the 1993 version.

2.24 Some charters provide for “running hours”. In such a case, time runs continuously, by day and by night, both during and out of normal hours, except for those periods excluded expressly or by custom. The term “running hours” is used most commonly in the oil trade where it is used in conjunction with both exclusion clauses and warranties as to the vessel’s performance.21

2.25 An illustration of an express provision interrupting running days is given by Burnett Steamship Co Ltd v Joint Danube & Black Sea Shipping Agencies, where a laytime clause provided for a loading rate per running day, Sundays and non-working holidays excepted.22

Running hours, days and working days

2.26 The Laytime Definitions for Charter Parties 2013 introduced a number of new definitions:23

RUNNING HOURS or CONSECUTIVE HOURS shall mean hours which follow one immediately after the other.

Presumably 24 running hours constitute a running day.

DAY shall mean a period of twenty-four (24) consecutive hours. Any part of a Day shall be counted pro rata.

It is not clear what this adds to calendar, conventional and running days.

Working days

2.27 A working day is a day in the normal sense, in that it has 24 hours, and is used to describe those days at the port in question when work can normally be expected to take place.

2.28 Working day is defined in the Laytime Definitions for Charter Parties 2013 as follows:

WORKING DAY shall mean a Day when by local law or practice work is normally carried out.

It is much older in usage than its variant, the weather working day, which will be considered later.24

2.29 Originally, it may have been used specifically to exclude Sundays and holidays. In Cochran v Retberg, Lord Eldon held, with regard to what was then customary in the Port of London:25

… the fourteen days mentioned in the bill of lading means working days, that is a construction which excludes Sundays and holidays …

2.30 A more elaborate description of how working days may vary from country to country was given in Nielsen v Wait by Lord Esher MR, who said:26

2.31 In Nelson & Sons Ltd v Nelson Line (Liverpool) Ltd (No 3),27 Channell J commented that where the charterparty said “working days”, the mention of Sundays and holidays would be unnecessary as those days would not be working days. However, what “working days” does also exclude is the local equivalent of Sunday in non-Christian countries. Thus, in Reardon Smith Line Ltd v Ministry of Agriculture, Lord Devlin said:28

But there may, of course, be days in some ports, such as the Mohammedan Friday, which are not working days and yet cannot well be described as Sundays or holidays.

Lord Devlin then went on to approve what he described as a comprehensive definition by Hamilton J in British and Mexican Shipping Co Ltd v Lockett Brothers & Co Ltd, where the judge said:29

“working day” in this charterparty means something contradistinguished from days which are not working days, a day of work as distinguished from days for play or rest; and I think it is immaterial whether the days for play or rest are so for secular or religious reasons, and whether they are so by the ancient authority of the Church or by the present authority of the state …

In the Court of Appeal, where the decision was reversed on another point, counsel for the plaintiffs said, somewhat succinctly, in his argument that the judge below had held “that a working day included every day except days appointed for prayer or play”.30

2.32 There was, however, a stream of judicial thinking that went further than the definitions set out above. The argument thus put forward was that the term “working day” not only distinguished a working from a non-working day, but also had the effect of cutting down a day from 24 hours to whatever part of it was usually expended in work. This judicial rivulet reached its greatest force in Alvion Steamship Corporation Panama v Galban Lobo Trading Co SA of Havana (The Rubystone),31 a decision of the Court of Appeal where the leading judgment was given by Lord Goddard, then Lord Chief Justice, who put the argument this way:32

2.33 In The Rubystone, the charterparty provided for cargo to be loaded at a specified rate per weather working day and the normal working day was established as eight hours. The Court of Appeal went on to uphold McNair J’s finding that in construing the phrase “working day” regard should be paid, not to a calendar day of 24 hours, but to the normal working hours of a calendar day.33

2.34 Some support for this is to be found in the judgment of Lord Esher MR in Nielsen v Wait where he said:34

Now “working days” if that term is used in the charterparty, will vary in different ports; “working days” in the Port of London are not the same as working days in some other ports, even in England; …

2.35 The Scottish case of Mein v Ottman35 was also cited by Lord Goddard in support of his proposition, but commenting on this in Reardon Smith Line Ltd v Ministry of Agriculture, Lord Devlin said:36

In the Scottish case of Mein v Ottman, it was held that a working day was a day of 12 hours, but it does not appear how the figure was calculated. This is the only case cited before The Rubystone in which “working day”, unless qualified in some way in the charterparty, has been held to be a number of working hours. Mr Justice Hamilton, in his judgment… in British and Mexican Shipping Co Ltd v Lockett Brothers & Co Ltd… contrasts a working day “as a term of hours” and a working day “in its ordinary English sense”… But no authority before Mein v Ottman and The Rubystone has been cited for the proposition that the expression “working day” by itself means a number of working hours; Lord Goddard treats it as self-evident.

2.36 In Reardon Smith Line v Ministry of Agriculture, the House of Lords firmly rejected Lord Goddard’s views that a working day could relate only to that part of the day spent in working. Viscount Radcliffe put it this way:37

I regard the decision of the Court of Appeal in [The Rubystone] as misconceived in so far as it treats a working day as a period of hours less than a calendar day or relates the idea of working day to an individual employee’s hours of work at normal or basic rates of pay.

2.37 Lord Devlin said:38

The truth is that the rights and obligations of the charterer as to the hours in which he can load or discharge have nothing to do with the computation of the lay days …

and summing up his speech:39

First, I conclude with respect that it is contrary to all authority before 195540 to say that a working day is a calendar day cut down. “Working” does not define a part of a day but describes the character of a day as a whole. Secondly, I conclude that the character of a day as a working day cannot be determined by inquiring whether on that day or on a part of it work was done at standard rates. There is no established authority for that view which I think stems from the misconception that the “working day” of the laytime clause has something to do with the hours of the day during which the ship can be compelled to work …

2.38 Applying these principles, the House of Lords held that Saturday in Vancouver was a working day for the whole day.41 In so doing, they appear to have affirmed that the nature of a day will normally fall to be determined by how it is treated for the port as a whole, rather than for those involved in the particular vessel.42

2.39 Before leaving the meaning of working days, brief mention should be made of two variants:

  • Running working days
  • Colliery working days

2.40 “Running working days” was a phrase used in the Gencon charterparty until 1976. However, in their normally accepted meanings, running and working are inconsistent when used to describe lay days, since the former means every day, including Sundays and holidays, and the latter excludes these. Therefore, for the words to have a logical meaning, it was necessary to ignore the word “running” and simply calculate the laytime allowed in terms of working days.

2.41 After 1976, however, laytime in the Gencon form of charter was expressed in terms of “running hours”, removing the difficulty mentioned in the previous paragraph. The 1994 version of the charter, however, changed this to “running days/hours” with presumably the term “running” applying to both “days” and “hours”.

2.42 The term “colliery working day” and its associated phrase, the colliery guarantee, arose in coal charters in this country in the days prior to the nationalisation of the coalmines. Most of the reported cases arose in the last ten years of the nineteenth century, many from a general strike in the South Wales coalfield in 1898.

2.43 The usual practice was for a charterer to contract with a specific colliery on terms set out in a colliery guarantee for the colliery to supply coal to a named vessel. In Monsen v Macfarlane, McCrindell & Co, Smith LJ said of the colliery guarantee:43

It is a document which the charterer who takes coal from a colliery wherewith to load a ship is anxious to have incorporated into the charterparty so that as regards the time to be occupied in loading the ship he may be under no more obligation to the ship-owner than the colliery is under obligation to him …

2.44 The charterparty may, as in that case, be made earlier than the colliery guarantee but provide for its later incorporation. Most guarantees were given on fairly standard terms.

2.45 The colliery guarantee, and hence the charterparty, would provide for loading in a specified number of colliery working days. A colliery working day is a day that is an ordinary working day for the colliery in normal times and in normal circumstances. Sundays and holidays, including local ones, such as Mabon’s day in South Wales, are excluded. Days on which the colliery would normally work, but does not because of a strike, are included.44

Weather working days

2.46 A weather working day is a type of working day.45 It is a working day on which the weather46 allows the particular ship in question to load or discharge cargo of the type intended to be loaded or discharged, if she is then at a place or position where the parties intend her to so load or discharge.47 If she is not in such a position but is still awaiting her turn to berth, then it will count as a weather working day if the weather would allow that type of cargo to be worked at the berth where the parties intend the vessel to go.48 It is immaterial whether work is intended on the particular day.49

2.47 If there is or would have been a partial prevention of work due to weather then it is still a weather working day but part of the day must be excluded for the purpose of laytime calculations.50

2.48 It is possible for two ships to be at adjacent berths and for time to count as a weather working day in one case and not the other, depending on the type of cargo being worked.51

2.49 The Laytime Definitions for Charter Parties 2013 provides:52

WEATHER WORKING DAY shall mean a Working Day or part of a Working Day during which it is or, if the Vessel is still waiting for her turn, it would be possible to load/discharge the cargo without interruption due to the weather. If such interruption occurs (or would have occurred if work had been in progress), there shall be excluded from the Laytime a period calculated by reference to the ratio which the duration of the interruption bears to the time which would have or could have been worked but for the interruption.

This definition is similar to the corresponding definition in the Charterparty Laytime Definitions 1980, but differs significantly from that in the Voylayrules 93.

2.50 In English law, unlike American law on this point, there need be no causal connection between the weather and the failure to load or discharge the particular vessel. The reference to weather is therefore descriptive, rather than exceptive.53

2.51 Weather working days is a term that appears to have come into use in the last decade of the nineteenth century.54 In those days delay in a fixed laytime charter usually fell on the charterer. Thus, in Thiis v Byers,55 a charterer unsuccessfully tried to avoid liability for demurrage where there was a delay in discharge due to bad weather, by claiming that the master was not ready or able to deliver. The judgment of the court, consisting of Blackburn and Lush JJ, was given by Lush J, who said:56

We took time to look into the authorities, and are of the opinion that, where a given number of days is allowed to the charterer for unloading, a contract is implied on his part that, from the time when the ship is at the usual place of discharge, he will take the risk of any ordinary vicissitudes which may occur to prevent him releasing the ship at the expiration of the lay-days.

and towards the end of his judgment, he added:

The obvious convenience of such a rule in preventing disputes about the state of the weather on particular days, or particular fractions of days, and the time thereby lost to the charterer in the course of discharge, makes it highly expedient that this construction should be adhered to, whatever may be the form of words used in the particular charterparty.

2.52 Despite this judicial disdain for such disputes, some 20 years later the first reported case concerning weather working days came before the courts.57 In argument, it was stated that there had not to date been any judicial interpretation of the expression “weather working day”. Despite this invitation, Lord Russell of Killowen CJ, who heard the case, did not consider it necessary to fill this vacuum, in deciding the points then in issue.58 Indeed, 60 years later in Compania Naviera Azuero SA v British Oil & Cake Mills Ltd and others,59 Pearson J was still able to say:

As there is no decisive authority… I must consider and decide the question as best I can, and the question is: What is the proper meaning of the expression “weather working days”?

In Nelson & Sons Ltd v Nelson Line (Liverpool) Ltd (No 3), Channell J said:60

… the words used are “seven weather working days” which practically means seven fine days.

However, he then went on to suggest that it could be argued that seven weather working days might include a fine Sunday and that was why, in the particular case, a careful draftsman had expressly excepted Sundays and holidays. On the merits of such an argument, he made no comment and neither did the Court of Appeal and House of Lords when they in turn considered the case.61 However, Sunday is not normally a working day.

2.53 The question of whether a custom of the port could affect the meaning to be given to weather working days was considered in Bennetts & Co v J & A Brown,62 a decision of Walton J. The facts were that a charter provided for discharge at “one or two good safe ports between Valparaiso and Pisagua” at a specified rate of discharge per weather working day. The charterers chose Valparaiso for discharge, which took place from an anchorage into lighters, which were then either discharged into other vessels or on to the beach. Evidence was given that, by a custom of the port, the port captain could declare days on which it was dangerous to discharge on to the beach as surf days, which were deemed not to be weather working days. On the days so declared, discharge into the lighters continued, but those lighters that were due to then discharge on to the beach were unable to do so.

2.54 Walton J held in these circumstances that, as a custom of the port of Valparaiso gave a meaning to the words “weather working days” different from their plain and natural one, it was not competent for the charterers to adopt it under the terms of the charter. They could, however, rely on an exception relating to detention by surf to cover such delay.

2.55 In his judgment, Walton J said of the phrase “weather working days”:63

… I think it has a natural meaning – namely, a day on which the work, it may be of loading, but here it is of discharging, is not prevented by bad weather. Of course it might be a half a day. Half a day might not be a weather working day and the other half might be weather working, but I think that is the natural meaning of the words …64

2.56 However, on similar facts involving the port of Iquique, the Court of Appeal, in a ruling on a preliminary point of law, in British and Mexican Shipping Co v Lockett Brothers,65 refused to allow a submission by the plaintiffs that a defence to a claim for demurrage based on a similar custom could not in law be a valid defence. In that case the charter provided for discharge at a specified rate per working day (not weather working day) and was specifically for discharge at Iquique. At first instance,66 Hamilton J had followed the earlier decision of Walton J67 and held that the custom could not provide a defence. It is submitted however that the decision of the Court of Appeal does not really go any further than saying that, if the parties to a charter wish to agree a special meaning to a type of laytime term, then there is nothing in law to prevent them from so doing. All three judges stressed that their ruling was only on a preliminary point of law with regard to the specific question they were asked.

2.57 Another attempt to explain the meaning of weather working days was that of Lord Goddard CJ in Alvion Steamship Corporation Panama v Galban Lobo Trading Co SA of Havana. Although this case can no longer be considered authoritative on the question of how long a working day is and how interruptions due to weather should be calculated,68 the following passage in Lord Goddard’s judgment69 remains valid:

There does not seem to be any doubt between the parties as to what the word “weather” means. It means that from the working day, whatever it may be, is to be deducted the time during which the men are stood off, or the loading is suspended, by reason of rain or other weather conditions. For example, there might be a hurricane, or something of that sort, to prevent work being done; but, at any rate, it simply means that the working day is to be reduced by the time in which working is suspended by reason of the weather …

2.58 This was followed by Pearson J’s decision in Compania Naviera Azuero SA v British Oil & Cake Mills Ltd,70 where the earlier cases relating to the meaning of weather working days were reviewed in some detail. In the particular case with which Pearson J was dealing, there had been rain on several occasions during discharge, but this had not delayed discharge because work was not actively in progress at the time. Having considered the alternative arguments that were before him as to whether the reference to weather was exceptive, i.e. a causal connection was necessary between the bad weather and the delay, or descriptive, Pearson J then went on to give his own definition of the phrase:71

In my view, a correct definition of a “weather working day” is a day on which the weather permits the relevant work to be done, whether or not any person avails himself of that permission; in other words, so far as the weather is concerned, it is a working day.

In my view, also, the converse proposition must be on the same basis. A day is not a weather working day, it fails to be a weather working day, in so far as the weather on that day does not permit the relevant work to be done, and it is not material to inquire whether any person has intended or planned or prepared to do any relevant work on that day. The status of a day as being a weather working day, wholly or in part or not at all, is determined solely by its own weather, and not by extraneous factors, such as the actions, intentions and plans of any person.

The judgment continues by pointing out that such an interpretation avoids the obvious absurdity that a day on which the weather consists of continual storms of rain, snow and sleet, would be counted as a weather working day if nobody had planned to do relevant work on that day.

2.59 In the Reardon Smith case,72 Lord Devlin said:

It is well established that whether a day is a weather working day or not depends on the character of the day and not on whether work was actually interfered with. The authorities on this point have recently been reviewed by Mr Justice Pearson in Compania Naviera Azuero SA v British Oil & Cake Mills Ltd and others [1957] 2 QB 293; [1957] 1 Lloyd’s Rep 312, and neither side challenged the correctness of his decision.

2.60 It sometimes happens that weather may prevent a vessel getting into berth or when it is in berth may force it to leave. In the former case, provided the vessel has become an Arrived ship or is deemed to be so by an additional clause, then time will begin to run.73 Under general principles applicable to any fixed laytime provision, time will then run continuously in the absence of any provision to the contrary or default of the vessel.74 Where the laytime allowed is measured in weather working days, then during the period the vessel is waiting for a berth (whether the delay is due to weather or congestion) time will count except for any periods during which loading or discharging would not have been possible due to weather had the particular vessel been in berth.75

2.61 The effect on laytime measured in weather working days of a vessel having to leave her berth because bad weather was expected was the question considered in Compania Crystal de Vapores v Herman & Mohatta (India) Ltd (The Maria G).76 The ship concerned, the Maria G, was ordered to move off the berth to buoys by the harbourmaster because a “bore tide” was expected and the master feared possible damage to the jetty and the vessel.

2.62 In his judgment, Devlin J (as he then was) assumed, without deciding, that a “bore tide” was weather. He then went on to hold that the expression “weather working days” could not be construed so widely so as to cover the circumstances of this case, in that, if the effect of weather was not to interfere with the operation of loading but to render the berth unsafe, the time so lost was not what the parties contemplated when they referred to weather working days.

2.63 Where weather first stops loading and then forces a vessel to leave its berth, then time will not count against laytime measured in weather working days from the time weather stopped until the weather improved sufficiently so as to allow loading or discharging had the vessel been back in berth. It matters not that the weather does not actually allow the vessel to return to its berth – the question is simply would loading have been possible if the vessel was back in berth.77

Weather working days – suffixes

2.64 It is not uncommon for one or more of the following suffixes to be added, particularly by brokers in fixture recaps, to the description of laytime measured in weather working days (and less commonly to laytime measured in working days). The effect of such suffixes can range from having no effect at all to radically altering the definition.

SHEX – Sundays and holidays excluded

2.65 This is one of those suffixes that has no or little effect, because Sundays will normally be excluded anyway, at least where they are not a working day at the port in question, as will holidays for the same reason, namely they do not fall within the definition of working days.

2.66 A variation on SHEX is SSHEX, Saturdays, Sundays and Holidays excluded. This does have some effect because Saturdays are normally working days at most ports. A further variation is the replacement of the S by an F, thus Fridays and holidays excluded. This would be applicable at ports in Islamic countries, where Friday is the weekly holy day. Again however, in those ports, Friday would not normally be a working day.

SHINC – Sundays and holidays included

2.67 This is a suffix that does have a major effect, because in effect it changes working or weather working days into running days, so time counts continuously. The only part of the weather working day definition that remains is that part relating to weather interruptions. Similarly in relation to ports in Islamic countries, the S can be replaced by an F, so time continues to run during the weekly holy day in such countries as well as during holidays.

UU – unless used

2.68 This is a term that appears in all the laytime definition codes, including those set out in the Appendix and means that if loading or discharging, as the case may be, is carried out in periods outside laytime as defined, such time as is used shall count. Although there do not appear to be any decided cases on the point, the better view seems to be that it is the actual time used that is to count, not as in the case of weather working days, the proportion that that time bears to the length of the working day, as is the position in the case of weather interruptions.78

EIU – even if used

2.69 Although it could be said that adding this suffix does add something in that it makes the position clear, if it was to be omitted, the position would be the same, namely that working in excepted periods is not sufficient to make time count.79

2.70 One of the issues raised in London Arbitration 8/1480 was whether the addition of a SHINC term in a clause, specifying the allowed laytime, meant that SHINC also applied in a separate clause as to when NOR could be tendered and commenced and which also excluded weekends from noon on Saturdays. The tribunal held the clauses were separate and the SHINC term only applied to the laytime provision clause.

Calculation of weather interruptions in weather working days

2.71 The leading case on how these are to be calculated is Reardon Smith Line Ltd v Ministry of Agriculture.81 However, before considering this, it may be useful to see how the law has developed.

2.72 The distinction between calendar and conventional days has already been considered.82 However, even where the laytime was calculated in calendar days so that laytime ran from midnight to midnight, after 1897 the courts were nevertheless prepared to count weather interruptions in terms of half days. This was the result of a decision of Lord Russell of Killowen CJ in Brankelow Steamship Co Ltd v Lamport & Holt.83

2.73 The Highfield, the vessel concerned in this case, was fixed to load at two ports, the first being Rosario. Cargo was to be loaded at a rate of 175 tons per weather working day, giving a total time available for loading of 16.7 weather working days, which was as usual rounded up to 17 days. At Rosario rain interrupted loading on at least one day, although on the particular day the weather cleared up in the afternoon and a considerable quantity of cargo was loaded. The shipowners wanted to claim the day as a whole day but the charterers argued that only a portion should count. Supporting charterers’ contentions, Lord Russell said:84

Suppose the weather on a particular day is at first such that there is a reasonable expectation that a day’s work may be done, but after two or three hours’ work it changes so that it becomes unreasonable or impossible to work at all. Are the charterers then to be charged with that day as a whole day because they worked in good faith while the weather permitted? Such a thing would, to my mind, be inequitable:… There might be a succession of days upon which work was begun. If they were counted as whole days the charterer might not have the benefit of half the number of days actually allowed him under his charter. It would be inequitable to reject such days from the calculation altogether, because the ship gains something from despatch. A still more equitable view is this. Do not cut the days into fine fragments, but, if a half-day, or thereabouts, is used, calculate it as a half day; and if twelve hours are occupied calculate it as a whole day.

2.74 In Alvion Steamship Corporation Panama v Galban Lobo Trading Co SA of Havana (The Rubystone),85 Lord Goddard CJ objected to what he called this “rule of thumb” method of dealing with weather interruptions as being far too imprecise by limiting the fraction to be counted to half days. To this extent, the House of Lords in the Reardon Smith case86 agreed with Lord Goddard, although they disagreed with him on the method of calculation to be followed.

2.75 Although now discredited, the method adopted by Lord Goddard is worthy of some consideration still, since it highlights the alternative meanings that could be given to the phrase “weather working days”. Lord Goddard’s view is summed up in the following extract from his judgment:87

… I think a working day is a length of time consisting of a number of hours which, according to the custom of the port, are usually worked at the port of discharge or loading, as the case may be, and the presence of the word “weather” seems to qualify it so that from the number of hours which would be the ordinary hours of the port is to be deducted the length of time during which the weather interferes with the work.

2.76 What was meant by the “ordinary hours of the port” was the question that arose in NV Maatschappij Zeevart v Friesacher Soehne (The Leto)88

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