“Always Accessible” – what does it mean?
Assureds will no doubt be familiar with the terms “always accessible” and “reachable on arrival” used in some voyage charterparties, particularly in the tanker trade. While it is accepted the latter term applies only to the arrival of the vessel at the loading/discharging berth, it is questionable whether the former applies to both arrival and departure or to arrival only.
There are a number of English legal authorities and arbitration awards dealing with the term “always accessible”. However, they mostly focus on the vessel’s arrival with little commentary available addressing the position on departure.
In the case “The Aconcagua Bay”, the English High Court was asked to consider whether the warranty “always accessible” means that the Charterers guarantee to the Owners that the vessel must not only be always able to enter but also leave the berth in the context of a voyage charterparty.
The vessel “Aconcagua Bay” was chartered on an amended GENCON 94 form for a voyage US Gulf to Republic of Congo and Angola. The charter party provided: “Loading port or place: 1 good safe berth always afloat always accessible”.
The vessel reached the loading berth uneventfully but was held for 14 days after loading as a result of a bridge and a lock within the port channel being damaged. Owners claimed damages for detention from the Charterers for the delays arguing they had breached the “always accessible” warranty.
The case was initially referred to arbitration where the Umpire ruled in favour of the Charterers in the sense that a warranty on the above terms referred only to entry to the berth and not to departure.
The High Court Judgement
On appeal by the Owners, the judge ruled that the Umpire had erred in law and held that the term “always accessible” was to extend to leaving the berth. In arriving at this finding, the judge observed that where commercial parties have addressed the question of accessibility of a berth through certain terms, there is no reason to conclude that said terms would only address entry alone and exclude departure. The judge preferred Owners’ interpretation that a reasonable commercial party looking at the subject of berthing would contemplate all aspects of its use and not confine itself to getting into berth. He also shared Owners’ view that the word “always” in the term “always accessible” conveyed a sense of continuity so that, unless the parties expressly intended to omit departure of the berth, it should encompass both, entry and exit.
Charterers made a strong argument based on risk allocation. Charterers pleaded that the term “always accessible” is used in a warranty that concerns compliance with Owners’ requirements as to where the vessel should come and what it should do. From that moment the risk of delay shifts to the Owners so that it should not be assumed that once the vessel has entered the berth its departure on the carrying voyage stage (which calls for acts of performance by the Owners alone), alters the risk allocation.
The position in our view is finely balanced either way so it remains to be seen if Charterers file an appeal.
Meanwhile, the above case suggests that Assureds chartering out a ship on voyage basis which contain the words “always accessible” should incorporate additional language if they wish to limit their warranty to the vessel’s arrival only and therefore exclude delays that may be experienced by the vessel on departure of the berth. Using this case as an example, they may use “1 good safe berth always afloat always accessible in relation to vessel’s arrival only”
Conversely, Assureds chartering out as disponent owners would be advised to make no changes or to add the words “in relation to vessel’s both arrival and departure”. This additional wording will protect them in the event this decision is reversed by the Court of Appeal in the future.
Click here to read the full judgment