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

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

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

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

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

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

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

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

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:

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

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

Presumably 24 running hours constitute a running day.

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:

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

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

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

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

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

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

2.37 Lord Devlin said:³⁸

and summing up his speech:39

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

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

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

and towards the end of his judgment, he added:

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:

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

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

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:

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

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:

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

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

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