A strike exception to laytime running applies even after a strike has ended. This was the outcome of a case decided by the English Commercial Court in May 2011.
Laytime and demurrage continues to be a more or less constant source of disagreement. Both owners and charterers are constantly probing for advantages under laytime and demurrage clauses which have been used for a long time but where events may provide a possibility for a possible advantage under these clauses. The Amwelsh form has been widely used for a long time. The standard form includes a WIBON provision in the laytime clause (clause 9).
The Amwelsh was the basis of a COA between Louis Dreyfus as charterers and Carboex as owners involving four vessels carrying cargo to Spain. The vessels arrived at the time just after the nationwide haulage strike in Spain in 2008 - at the time of arrival, the strike had in fact ended but the after effects could still be felt and there was still congestion at the Spanish discharge port.
The COA was a berth C/P but with the WIBON provision the vessels were, despite the congestion, able to tender NOR so that laytime could commence. There was a delay in getting to berth due to the after effects of the strike.
It is usually thought that when interpreting the effect of strike exceptions, these are also excusing delay caused by congestion in the aftermath of a strike.
Nevertheless, in this particular instance, the combination of clauses in the COA and the particular situation in Spain caused disagreement when the owners presented their claim for demurrage. When the newest version of the Amwelsh form was drafted (in 1993), it was intended to be a modern strike clause which in clear and unequivocal terms could allocate the risks between the parties in a fair and reasonable manner which would assist in reducing the scope of disputes.
The C/P included the standard wording of the Amwelsh clause 9:
“In case of strikes, lockouts, civil commotions.... beyond the control of the charterers which prevent or delay the discharging, such time is not to count unless the vessel is already on demurrage.”
The COA also included an additional rider clause saying that if a berth was not available at the port of discharge when the vessel tendered notice of readiness (but provided vessel and owners were not at fault in relation thereto) then laytime could commence running 12 hours after first permissible tide, notice of readiness received and accepted, whether in berth or not, whether in free practique or not... This was the WIBON provision included within the rider clause.
The charterers argued that the delay caused by the strike should be excluded from laytime.
The owners argued that the fact of the WIBON provision in the additional rider clause in this context had the effect that the risk of delay due to congestion was to be allocated to charterers.
This was not accepted by the court and the WIBON provision was a free standing provision which simply enabled the laytime clock to start ticking and the WIBON provision had no other effect and especially it did not affect the construction of the demurrage exception and therefore could not have any bearing in shifting liability to charterers for the strike.
In this particular case, the strike clause saying that in case of strikes beyond the control of charterers time should not count, this particular wording also covered a delay in discharging caused by congestion due to the after effects of a strike that had already ended when the vessels arrived.
(2011) 822 LMLN 1
[2011] EWHC 1165 Comm