In the shipping industry, the warranty given by charterer that a berth will be 'reachable on arrival' or 'always accessible' are commonly used in voyage charters to allocate to charterers the risk of delay of entering into a berth. Such terms have been around for over 30 years and during this time there has been continued debate about whether the phrase 'always accessible' also allocates to charterers the risk of delay in leaving the berth (after completion of cargo operations).
This point of dispute arose when Hakan Agro Group, a Dubai based company hired the vessel “Aconcagua Bay” from Seatrade Group NV, a shipping company based in Belgium, for a voyage from the US Gulf to the Republic of Congo and Angola. The vessel reached the loading berth but was unable to leave on completion of loading because a lock had broken. As a result the vessel was delayed for 14 days. Seatrade Group submitted a claim for their loss as a result of the delay, arguing that Hakan Agro Group had breached the “always accessible” warranty.
The two appointed arbitrators could not agree, so the matter went to an umpire. The umpire found in favour of Hakan Agro Group, sharing their view that 'always accessible' did not mean that the vessel must be able to leave the berth.
Specialist shipping and international trade lawyers at Birketts LLP, a member of Essex Chambers of Commerce, represented Seatrade Group NV on appeal to the High Court. The judge accepted Seatrade’s interpretation of the words "always accessible" as meaning "always leavable" and, therefore, held that there was a breach of contract.
This judgment provided the judicial authority needed by the market. In allowing owners’ appeal on this point, it has confirmed that for a berth to be 'always accessible', the vessel must be able to enter and leave the berth. The High Court Judge considered that the word 'accessible' could mean 'usable' and that the word 'always' was also important.
This means that 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 distinction is also important bearing in mind that, even if a berth or port is described as 'safe', charterers are not normally considered responsible for delays (or even lengthy delays) in leaving, unless the delays are so long as to frustrate the charter. If the parties have agreed to add the words 'always accessible' however, the risk of delays is likely to transfer to charterers.