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Weather Working Days

Legal news

The term ”weather working days” often forms part of the definition of laytime . Although the meaning should, at first glance, be straightforward, it continues to be a source for dispute: The intention is that where weather conditions make it impossible to load or discharge, then that day (or period of a day) should not count as laytime. This carries with it a fairly broad scope for disagreement on whether the weather in fact does make loading or discharging really impossible.

Weather working days have been be considered on several occasions: One of them was in London arbitration 10/04 (LMLN 0639) where the vessel was chartered under a C/P on the Gencon form. This particular vessel was loading not one but various and different cargoes (amongst others both timber and steel cargo). Loading was disturbed by the weather including snow and rain.

The particular problem was that some of these cargoes were more sensitive to the weather than other cargoes, the different cargoes were loaded by different shippers and whatever the weather, some cargoes could be loaded where others could not. The C/P provided only for a single laytime allowance which measured laytime in weather working days.

The arbitrators held that a weather working day (or part of a day) was a day where cargo could be loaded (or discharged) without interference from the weather. Laytime would run if any of the cargoes could be loaded even if others could not. This would change if there was only one type of cargo left which was in fact sensitive to the weather and if only this type of cargo was left and the weather was bad (affecting loading of this particular cargo), then laytime would not run.

This particular decision illustrates the difficulties which can arise (in this case where several types of cargoes of different sensitivity are involved), but also demonstrates the fact that safeguarding appropriate evidence during cargo operations can be crucial. The dispute might have to be resolved some time later and any discussion as to the influence of the weather, and on any particular type of cargo, would very much depend on what evidence is available.

The use of term “weather working day” can also be source for dispute where the vessel is not only disturbed in her cargo operation but simply has to leave her berth because of the weather (for safety reasons). It would perhaps be easy to assume that if the vessel has to leave her berth for safety reasons, then this cannot be a weather working day, but this is not necessarily the case.

In The MARIA G, the vessel had to leave her berth (she was ordered to do so by the harbour master) because a so-called “bore tide” was expected, and the harbour master wished to avoid damage not only to the vessel, but also to the jetty.

The court decided that the term “weather working day” could not be construed so widely so as to cover the circumstances of this particular situation. If the effect of weather was not to interfere with the cargo operations, but to make the berth unsafe, then the time which was lost was not what the parties contemplated when the referred to “weather working day” in the C/P. In other words, weather working days are aimed  specifically at cargo operation only and not necessarily the safety of the vessel. These two aspects, cargo operations and vessel safety, are distinct and separate.

If the weather affects (and stops) cargo operations and thereafter compels the vessel to leave her berth, then time will not count against laytime measured in weather working days from the time the weather stopped cargo operations and until the weather again allows cargo operations to be carried out. It is of no importance for the laytime running or not running whether the weather stops the vessel from returning to her berth. Instead, the correct way to approach the laytime aspect is simply to ask whether or not cargo operations would be possible if the vessel was back in her berth.

This was the subject of a fairly recent London Arbitration 11/10 ((2010) 802 LMLN 3(2)). Again, the vessel was chartered on a C/P on the Gencon form and again there was a dispute as to whether laytime was to count during a period whether the vessel left and waited off her discharging berth because of heavy swell in the port.

During the time the vessel was outside her discharging berth, the harbour master had also issued orders to suspend pilotage and related services and closed the only available berth in the port for all operations and ordered, for safety reasons,  vessels to leave this berth.

The arbitrators referred to the MARIA G (and a number of London arbitrations which, over the years, had adopted the same approach as The MARIA G).

The arbitrators then went on to consider the actual dispute which was whether the charterers could show, on the balance of probabilities, that discharging would have been prevented if the ship had been able to remain at the berth. The arbitrators inferred from the available information that the vessel would have been so prevented. They thought it was clear  that the conditions that prevailed at the time when the vessel left the berth were such that even if cranes at the berth could have “worked”, they could not have done so safely - and the vessel could not safely have remained alongside. The fact that the vessel could not remain alongside, the arbitrators mentioned as a fact which alone, on itself, would have prevented discharging from continuing.

In this particular case, there was no particular evidence to that effect, but this was not in itself surprising since the port was closed, and it was therefore impossible to know with any certainty what would have happened. The only option open to the arbitrators was to draw an inference from the information they had available to them to decide what would have happened , i.e. would cargo operations have been possible or not?

With the inference made by the arbitrators that cargo operations could not have continued (safely), it follows that this was not a weather working day (or days), and the owners’ claim for demurrage failed.

(There was a separate issue about shifting expenses - the harbour master (and not the charterers) ordered the ship to leave the berth, and presumably ordered the vessel to return to a different berth - such a loss should (where no breach of contract had occurred) lie where it fell, and that meant with the owners).

In this particular case it was necessary for the arbitrator to infer from whatever information was available, what had been (or could have been) the case. To some extent this would be necessary to do no matter what, but the case illustrates the need always to ensure that as much evidence as  possible is collected and safeguarded at the time - it may well become useful later.

 


The MARIA G [1958] 1 Lloyd’s Rep. 616
London Arbitration 10/04 LMLN 0639
London Arbitration 11/10 (2010) 802 LMLN 3(2)