Q.B. (Corn. Ct.

)] LLOYD'S LAW REPORTS 81

PART 1 The "IsabeIIe" [1982] VOL. 2

Smjeli in causing or allowing the fuse wire to QUEEN'S BENCH DIVISION

part and in failing to seek shelter towards North (COMMERCIAL COURT)
Foreland and instead attempting to hold the
tow in the Dover Strait. For these acts of Feb. 6, 17, 22 and 23, 1982
negligence the defendants have admitted
liability in damages limited to the sum of
£23,602.
Accordingly, I give judgment for the plaintiffs COSMAR COMPANIA NAVIERA S.A.
for the sum of £85,680 and interest thereon. v.
TOTAL TRANSPORT CORPORATION

(THE "ISABELLE")

Before Mr. Justice ROBERT GOFF

Charter-party (Voyage) - Lay time - Shifting

expenses - Whether laytimc counted during period
vessel waiting for berth - Whether charterers liable
for expense of hiring tugboats to keep vessel in place
at berth - Whether charterers liable for shifting
expenses.
By a charter-party dated Dec. 8, 1980, the
owners let their vessel Isabelle to the charterers for
a voyage from one safe port Algeria to one or two
safe ports in certain specified ranges in the United
States. The charter was in the Shellvoy 3 form
and provided inter alia:
4. ... the vessel shall with the utmost
despatch proceed to a berth ... as ordered by
Charterers in one safe port Algeria . . . and
there load ...
8. The cargo shall be loaded into the vessel at
the expense of the Charterers, and at their risk
only up to the vessel's permanent hose
connections . . . Owners shall . . . supply all
hands equipment and facilities required on
board for mooring and unmooring and
connecting and disconnecting hoses for loading
and discharging . . .
11. Charterers shall have the right of requiring
the vessel to shift at ports of loading ... from
a loading ... berth or place and back to the
same or to another such berth or place . . . on
payment of all additional expenses incurred.
14.... laytime shall at each loading and
discharging port commence when the vessel is
in all respects ready to load or discharge and
written notice thereof has been received from
the Master ... by the Charterers ... and the
vessel is securely moored at the berth or other
loading or discharging spot. Whether or not
the specified berth or other loading or
discharging spot is available and accessible if
the vessel is nevertheless ordered by Charterers
to wait before proceeding thereto lay time shall
commence six hours after written notice of
readiness has been received and the vessel is
securely moored at the customary anchorage.
The charterers ordered the vessel to load at the
Algerian port of Bejaia, the cargo being supplied
by the Algerian National Oil Co. (Sonatrach).
82 LLOYD'S LAW REPORTS [Q.B. (Corn. Ct.)
[1982] VOL. 2] The "Isabelle"

However, Bejaia was subject to a phenomenon to the vessel to wait was an order made by them
known as the Ressac. When the Mistral and on behalf of the charterers; it was inevitable that
Tamentane winds blew from the coasts of France where, as here, there was only one loading jetty
a heavy swell occurred in Bejaia and vessels which for tankers and congestion in the port, the port
remained in the port were liable to damage and authority, in the exercise of its own administrative
there was a risk of ruptured hoses. In such an function, would have ordered the vessels to wait
event, the harbour master would close the port if outside the harbour while other vessels loaded at
he thought it necessary to do so. If there was a the jetty and it could not be inferred that such
vessel at berth he would decide whether she orders were the orders of the charterers (see p. 86,
should complete loading (possibly by being held col. 1);
steady by tugs during the beginning of the Ressac)
or whether she should leave her berth and wait at (4) the telexes that emanated from the various
the anchorage before re-entering the port to parties were loading instructions and reports of
complete her loading. the vessel's berthing prospects before she berthed
and could not be regarded as orders to wait (see
On Dec. 11, the charterers gave the loading p. 86, col. 1);
instructions and the vessel arrived at Bejaia and
anchored near the breakwater on Dec. 19. Notice (5) the submissions by the owners that the port
of readiness was given to the charterers but due to authority acted as the charterers' agents, that the
congestion at the port which was aggravated by charterers impliedly ordered the vessel to wait
interruptions to loading caused by the Ressac, the during a period when no berth was available to the
vessel remained at the anchorage until Jan. 1. vessel because of a combination of congestion and
weather conditions and that the charterers had
On Jan. 1, the vessel entered the harbour and waived their rights or were estopped from denying
made fast at a berth and commenced loading. On that they had given orders for the vessel to wait
Jan. 2, the Ressac was seriously affecting the port. would all be rejected and the owners' claim that
Very early in the morning, the vessel started lay time counted during the period the vessel was
surging heavily and two tugboats were ordered to at the anchorage from Dec. 19 to Jan. 1 failed
keep the vessel in place at the berth. However, in (see p. 87, col. 1);
spite of the assistance of the tugboats the vessel
was still surging heavily and she was ordered to (6) the scheme of the charter-party including
leave the berth immediately. She proceeded to the cl. 8 contemplated that the owners would bring
anchorage and remained there until she returned their vessel to the berth and make available the
to her berth on Jan. 10 and completed loading. ship's facilities for mooring her there and to
receive the cargo; the charterers were to nominate
As a result of these events disputes arose the berth and load the cargo there so that loading
between the owners and the charterers and the was a joint operation under which obligations fell
questions for decision were (1) Whether laytime on both parties and any expense incurred in
counted during the period of 13 days from Dec. 19 employing tugboats to keep the vessel at the berth
to Jan. 1, while the vessel was waiting for a berth; for the purpose of loading fell on the owners' side
(2) whether the charterers were liable for the of the division of responsibility; it was for the
expense of hiring the tugboats which attempted to owners to bring the vessel to the berth for loading
keep the vessel in position on Jan. 2 and (3) whether and it was for them to keep the vessel at the berth
the charterers were liable for the shifting expenses for that purpose and the owners could not claim
in respect of the shifting of the vessel from her the cost tugboat assistance to maintain the vessel
berth on Jan. 2. at the loading berth simply as part of the expenses
of loading the vessel under cl. 8 (see p. 87, col. 1);
---Held, by Q.B. (Corn. et.) (RoBERT GOFF,
J.), that (1) as to laytime: it was plain from cl. 4 (7) as to shifting expenses, on the evidence, the
that this was a berth charter so that the vessel was order to shift was given by the port authority; that
not an arrived ship until she entered her loading authority was acting in pursuance of its function
berth and the owners prima facie bore the risk of as administrator of the port and not as the
delay by reason of the nominated berth being charterers' agent; cl. 11 contemplated some
unaccessible when the vessel arrived at the port positive order by the charterers; no such order was
(see p. 85, col. 1); given here and the charterers were not responsible
under cl. 11 of the charter for the expenses
(2) the clear impression given by the second incurred (see p. 87, col. 2); and the owners' claim
sentence of cl. 14 was that it was legislating for a failed (see p. 87, col. 2).
particular situation where the charterers had
ordered the vessel to wait before proceeding to her
nominated berth and it was not intended to have
the effect of imposing upon the charterers the risk
of waiting for a berth by reason of congestion (see This was an action by the owners, Cosmar
p. 85, col. 2); Compania Naviera claiming damages from the
charterers Total Transport Corporation,
(3) there was no evidence that Sonatrach, the relating to expenses incurred by the owners
charterers' agents for this purpose, had ordered
the vessel to wait, and although the charterers relating to demurrage, shifting expenses and
might have left it to the port authority to identify tugboat expenses in respect of their vessel
the berth where the vessel was to load, it did not Isabelle which had been voyage chartered to the
follow that any order made by the port authority charterers.
Q.B. (Corn. Ct.)] LLOYD'S LAW REPORTS 83
ROBERT GOFF, J.] The "Isabelle" [1982] VOL. 2

Mr. D. Henry, Q.C. and Mr. G. Kealey occurs, vessels remain in the port there can be a
(instructed by Messrs. Sinclair Roche & risk of rupturing hoses and possibly of damage
Temperley) for the owners; Mr. Stewart C. to the vessels. When the harbour master at
Boyd, Q.C. and Mr. Simon Crookenden Bejaia hears reports of high winds on the French
(instructed by Messrs. Holman, Fenwick & coast he knows that within 20 hours the "Ressac"
Will an) for the charterers. will reach Bejaia and that it will subside after
about a week. Accordingly, the harbour master
The further facts are stated in the judgment of will have plenty of warning of its approach and
Mr. Justice Robert Goff. he will close the port if he feels it necessary to
do so. If a vessel is at berth he will decide
JUDGMENT whether she should complete loading (possibly
by being held steady by tugs during the
Mr. Justice ROBERT GOFF: This action is beginning of the "Ressac"), or whether she
concerned with a dispute between the owners should leave her berth and wait at the anchorage
and the charterers of the motor tanker Isabelle. before re-entering the port to complete her
The dispute has arisen out of a voyage charter in loading.
the Shellvoy 3 form dated Dec. 8, 1980, under
which the plaintiffs, Cosmar Compania I turn to the facts of the present case. Loading
Naviera S.A. (whom I shall refer to as "the instructions were issued by Totalintra on
owners"), chartered Isabelle to the defendants, Dec. 11 through brokers. The relevant part
Total Transport Corporation (whom I shall reads as follows:
refer to as "the charterers") for a voyage from Vessel to load Bejaia maximum cargo
one safe port, Algeria, to one or two safe ports compatible with sailing draft Bejaia which is
in certain specified ranges in the United States. 42 feet salt water. Supplier Sonatrach stop.
The charterers are a Panamanian company. ETA on receipt then 72/48/24 hrs prior arrival
They are a subsidiary of Compagnie Francaise to Sonatrach Algiers to CNALNAV Bejaia to
de Petrole (CFP), and are one of the Total Sonatrach Bejaia and to Totalintra Geneva
Group's companies responsible for transport, stop Crude to be discharged St. James
with the particular function of chartering ships Capline Terminal Receivers Shell stop
for carriage of crude oil and petroleum products. Please advise Totalintra quantities you expect
They have an associated company in Geneva, to load stop
Total Trading International (which I shall refer
to as "TotaJintra"), which acts as the charterers' On arriving both ports please wire Totalintra
agents in relation to the chartering of ships and Geneva berthing prospects stop.
the management of ships under charter to the The message ended by naming agents at loading
charterers. AM. Levenir has been chartering port and at discharging port - the former being
manager of Totalintra since 1976; he gave Compagnie Nationale Algerienne de Navigation
evidence in this case on behalf of the charterers. (CNAN or CNALNAV) - to whom ETA was
The ship in this case was ordered to load at to be given at loading port. CNAN are basically
the Algerian port of Bejaia. The cargo was being the manager of the Algerian Fleet; but they are
supplied by the Algerian National Oil Company also shipping agents and are responsible for the
(Sonatrach). It appears that there was a stevedores and dockers in the port of Bejaia.
background of sale contracts involving a sale by Pursuant to these loading instructions (which
Sonatrach to Compagnie Francaise de Petrole must have been passed on to the vessel,
(Algeria), another company within the Total probably by the owners' managing agents in
Group, and some further contract or contracts New York, Celestial Maritime Corporation),
of sale leading to an ultimate purchaser in the the vessel proceeded to Bejaia. She anchored
United States of America; but none of these near the breakwater on Dec. 19, and at 1526
contracts was before the Court. hours on the same day the master sent the
following radio telegram to CNAN:
The dispute between the owners and the
charterers relates to demurrage and to shifting Anchored Bejaia road December 19 1220
and other expenses at Bejaia. At that port there hours stop
is a jetty for the loading of oil on large tankers, Vessel ready to load please tender notice of
such as Isabelle. The jetty is within the outer readiness on my behalf. Master.
harbour: there is a loading berth on each side of
the jetty. However, Bejaia is subject to a The telegram was sent to a radio station in
phenomenon known as the "Res sac" . When the Switzerland, which in the ordinary course would
Mistral and Tamentane winds blow from the have passed it on by telex to CNAN in Bejaia.
Provencale and Languedoc coasts of France a (This means of communication was used by
heavy swell occurs in Bejaia; if, when that swell the master, because of anticipated delays on
84 LLOYD'S LAW REPORTS [Q.B. (Com. Ct.)
[1982] VOL. 2] The "Isabelle" [RoBERT GOFF, J.

Algerian radio.) There is no evidence of the time connections. The cargo shall be discharged
at which the telex message reached CNAN. from the vessel at the expense of Owners and
Doing the best I can, I infer that it must have at their risk only up to the vessel's permanent
reached CNAN by the commencement of hose connections. Owners shall unless other-
office hours on the next day, say 0800 hours on wise notified by Charterers or their agents
Dec. 20, and must very shortly thereafter have supply all hands, equipment and facilities
been communicated by CNAN to Sonatrach. required on board for mooring and unmooring
and connecting and disconnecting hoses for
The vessel remained at the anchorage in loading and discharging. If shore regulations
Bejaiaroads until Jan. 1, 1981, due to congestion do not permit fire on board and steam is
in the port which was aggravated by interrup- necessary for discharging purposes Charterers
tions in loading caused by the Ressac. On shall provide such steam at their expense.
Dec. 29 she was warned to stand by for entering
the port, but that proved to be a false alarm. On 11. Charterers shall have the right of
Jan. 1 there was a free berth at the jetty and she requiring the vessel to shift at ports of loading
entered the harbour and made fast at the berth or discharging from a loading or discharging
at 1045 hours that day. She commenced berth or place and back to the same or to
loading that day but on the following day, another such berth or place once or more
Jan. 2, the Ressac was seriously affecting the often on payment of all additional expenses
port. Very early in the morning the vessel incurred.
started surging heavily and two tug boats were 14. Subject to the provisions of clause 15
ordered to keep the vessel in place at the berth. hereof laytime shall at each loading and
However, by 0440 hours, in spite of the discharging port commence when the vessel is
assistance of the tugboats, the vessel was still in all respects ready to load or discharge and
surging heavily. She was ordered to leave the written notice thereof has been received from
berth immediately. The cargo hoses were the master or Owners' agents by Charterers
disconnected, the pilot came on board, and she or their agents and the vessel is securely
proceeded to the anchorage where she anchored moored at the berth or other loading or
at 07 40 hours. There the vessel remained until discharging spot. Whether or not the
she returned to the berth on Jan. 10. She specified berth or other loading or discharging
completed loading at 1822 hours on that day. spot is available and accessible, if the vessel
As a result of this course of events, disputes is nevertheless ordered by Charterers to wait
have developed between owners and charterers before proceeding thereto, laytime shall
relating to three matters. First, whether laytime commence six hours after written notice of
counted during the period of 13 days, from readiness has been received and the vessel is
Dec. 19, 1980, to Jan. 1, 1981, while the vessel securely moored at the customary anchorage.
was waiting for berth; second, whether the 20. The vessel shall be addressed to agents
charterers are liable for the expense of hiring the nominated by Charterers at ports of loading
tugboats which attempted to keep the vessel in and discharging.
position on Jan. 2, 1981; and third, whether the
charterers are liable for the shifting expenses in There was also an ETA clause, which provided
respect of the shifting of the vessel from her (inter alia) as follows:
berth on Jan. 2.
The Captain shall inform Charterers'
The solution to these problems depends very Agents by wireless message dispatch to
largely on the terms of the charter, to which I "TOTALINTRA GENEVA" the approxi-
will now turn. The relevant provisions of the mate date and hour of arrival at loading
charter are as follows: port. One of the provisions for giving such a
message was: 72 and 48 hours prior to arrival
4. Subject to the provisions of clauses 5, at loading port, Master is to send a wireless
10, 22 and 23 hereof the vessel shall, with message to Charterers Agents address:
utmost despatch, proceed to a berth, dock, "TOTALINTRA GENEVA" and also to
anchorage, submarine line, alongside a vessel Agents at loading port, advising vessel's
or vessels or a lighter or lighters or any other approximate date and hour of arrival failing
place whatsoever as ordered by Charterers in which Charterers shall be allowed an
one safe port Algeria or so near thereunto as additional 24 hours under Clause 14.
she may safely get, and there load ... [and a
part cargo is then specified]. Such are the relevant provisions of the charter.
With regard to the first item in dispute, viz,
8. The cargo shall be loaded into the vessel whether laytime ran during the 13 day waiting
at the expense of Charterers, and at their risk period, the charterers' claim was based on the
only up to the vessel's permanent hose second sentence of cl. 14, which I shall consider
Q.B. (Com. Ct.)] LLOYD'S LAW REPORTS 85
ROBERT GOFF, J.] The "IsabeJJe" [1982] VOL. 2

in a moment. Their claim in respect of tugboat which have the effect that, although the charter-
assistance (or "poussage") was advanced under party is prima facie a berth charter, nevertheless
cl. 8, and their claim in respect of shifting the risk of waiting to enter a nominated berth or
expenses under cl. 11. other loading or discharging place is placed on
the charterers, for example, by such words as
I shall consider first the question whether "time lost in waiting for berth to count as
laytime ran during the period when the vessel loading time" or "as discharging time", as the
was waiting for a berth. Now it is plain from case may be; by inserting the words "reachable
cl. 4 of the charter, which provided that the on arrival" after the word "berth"; or by making
vessel should with utmost dispatch proceed to a laytime commence to run "whether in berth or
berth, etc., as ordered by charterers, that this not". The second sentence of cl. 14 is not one of
was (subject to the second sentence of cl. 14) a those familiar clauses. Moreover, it follows a
berth charter, so that the ship was not an sentence which expressly provides that lay time
arrived ship until she entered her loading berth, is to commence when notice of readiness has
and the shipowner prima facie bore the risk of been received and the vessel is securely moored
delay by reason of the nominated berth being at the berth or other loading or discharging
inaccessible when the vessel arrived at the port. spot, and its effect is contingent upo~ orders. by
For this reason, it was accepted by the owners in the charterers to wait. The clear ImpreSSIOn
the present case that, if they were to succeed on given by the second sentence, in the context of
this point, they had to rely on the second cl. 14 and of the charter-party as a whole, is that
sentence of cl. 14. To bring themselves within it is legislating for a particular situation where
that provision they had to show that the vessel the charterers have ordered the vessel to wait
was ordered by the charterers to wait before before proceeding to her nominated berth. It is
proceeding to her berth. In their pleading they true that the sentence begins, at first sight rather
put their case in a number of different ways: surprisingly, with the words-
(1) They alleged that the port authorities
and/or Sonatrach were to be regarded as the Whether or not the specified berth or other
charterers' agents for the purpose of giving loading or discharging spot is available and
indications as to berthing and thus as to waiting, accessible ...
and that from 1220 hours on Dec. 19, 1980, to
08 30 hours on Jan. 1, 1981, the vessel was It is easy to understand the applicability of the
required by the port authorities and/or provision in circumstances where the nominated
Sonatrach to wait at the anchorage rather than berth is available and accessible, and charterers
to proceed to a berth. nevertheless order the vessel to wait; in such a
case, in the context of a bert~ charter, it makes
(2) They alleged that, by their loading very good sense that the laytIme should never-
instructions (as later amended) and by certain theless commence to run if the other specified
telexes from CNAN to the owners' managing criteria had been fulfilled. It is not so easy to
agents, the charterers expressly and/or impliedly understand how the second sentence would
ordered the vessel to wait at the anchorage. apply in circumstances where the nominated
berth was not available and accessible. In such
(3) They alleged that orders were given to the circumstances there would at first sight appear
master by the Bejaia Port Control to anchor and to be little incentive to charterers to give orders
await further orders shortly before the vessel's to the vessel to wait - the charter is a berth
arrival at Bejaia. charter, and the vessel would, under cl. 4,
simply have to wait at the shipowners' risk for
(4) They alleged that the charterers, by failing the berth to become free. It is possible, however,
to give express orders as to the berthing of the that the second sentence was drafted so as to
vessel either prior to the vessel's arrival at allow for the possibility of charterers giving
Bejaia or between the time of the vessel's arrival orders to wait while the berth was still occupied,
and the time of her berthing impliedly ordered to prevent the vessel from entering as soon as it
the vessel to wait before proceeding to her became free. At all events, I have no doubt that
loading berth. the second sentence of cl. 14 was not intended
(5) They alleged that the charterers, by to have the effect of imposing upon the charterers
failing to give such orders, waived any require- the risk of waiting for berth by reason of
ment in cl. 14 of the charter for orders to be congestion. The operation of the sentence is
given to the vessel. contingent in every case on orders by the
charterers to the vessel to wait; at the loading
Before I consider each way in which the port this will probably be due to some difficulty
owners put their case, it is necessary for me to over the availability of cargo or possibly due to
consider the second sentence of cl. 14. Now the desire of the charterers to load first some
there are familiar clauses in charter-parties other ship in their service; at the discharging
 86 LLOYD'S LAW REPORTS [Q.B. (Corn. Ct.)
[1982] VOL. 2] The "Isabelle" [ROBERT GOFF, J.

port it will probably be due to comparable Even if the messages from CNAN could be
reasons, such as lack of space in the relevant construed as orders to wait, I am satisfied on the
shore tanks, or again a desire to give priority to evidence that CNAN were not, in any relevant
another ship. respect, agents of the charterers. It is true that
for the purpose of the present proceedings only
It is against this background that I turn to the charterers formally admitted that the
consider the owners' submissions. Their first telegraphic notice of readiness constituted when
argument was that the vessel was required to received by CNAN a valid notice of readiness
wait by the port authorities and/or Sonatrach, for the purposes of cl. 14 of the charter-party. I
who were for this purpose the agents of the do not, therefore, have to decide whether CNAN
charterers. Now the evidence before the Court were the agents of the charterers for this
indicated that there was at the time only one purpose. There was some evidence that in
berth (i.e., one side of the jetty) at which the practice notices of readiness given at Bejaia
Isabelle could have loaded. I will, however, were treated by these charterers as having been
assume that, in fact, the charterers simply left it received, although not received by Totalintra in
to the port authority to nominate a loading Geneva (who undoubtedly were agents of the
berth - i.e., to identify the berth where the charterers), and it may be that Sonatrach, as
vessel was to load. But it does not follow from shippers, were agents of the charterers for the
this delegation that any order by the port purposes of receiving notices of readiness in that
authority to the vessel to wait was an order port. But I do not have to decide that point; and
made by them on behalf of the charterers. In in any event the general position of CNAN in
point of fact, the port authority must have this port in relation to this charter was that they
ordered the vessel to wait. There is no evidence were appointed ships' agents on the nomination
that Sonatrach did so. But every port authority of the charterers pursuant to cl. 20 of the
exercises control over the ships in the area of the charter. Clause 20 provides:
port and where, as here, there is only one
loading jetty for tankers and congestion in the The vessel shall be addressed to agents
port, it is inevitable that the port authority, in nominated by Charterers at ports of loading
the exercise of its own administrative function, and discharging.
will order vessels to wait outside the harbour
while other vessels load at the jetty. There is no The clause is perhaps lacking in clarity, but I am
evidence at all in the present case that the port satisfied that on its true construction it means
authority was fulfilling any other function than simply that the agents to which the vessel was
this. Certainly they were not acting on any to be addressed at the relevant port, that is to
instructions from the charterers, who had no say which were to act as ship's agents at that
control over the port authority in this respect; port, were to be such agents as were nominated
and it is quite impossible to infer that the orders for that purpose by the charterers. That
of the port authority to wait were the orders of conclusion is derived from the words used in the
the charterers. This submission of the owners is clause, but I am fortified in reaching that
simply an attempt to read the second sentence conclusion by information that in a number of
of cl. 14 as though it read "Time lost in waiting arbitrations the same conclusion has been
for berth to count as loading time" (or "as reached by maritime arbitrators, and it is
interesting to note that in the next edition of the
I
discharging time", as the case may be). It
cannot be read in that way, and the submission
fails.
Shellvoy form the point is put beyond doubt.
Furthermore, on the evidence before the Court
CNAN acted throughout in the ordinary
The owners' second submission rests on manner as ships' agents, furnishing information
certain communications emanating from to the owners' managing agents, dealing with
Totalintra and CNAN. The communications the supply of bunkers, water and cash for
emanating from Totalintra were the loading master, and billing the owners for their
instructions (which I have already quoted) and disbursements on the ship's behalf at Bejaia and
a subsequent amendment to those instructions for brokerage fees. Putting on one side the point
limiting the amount to be loaded, having regard on notice of readiness, there is no evidence that
to the available depth of water at the discharging CNAN acted in any way as agents for the
port. Neither message can possibly be construed charterers, there being little function for a
as an order to wait; the first was an order to voyage charterers' agent (as opposed to a time
proceed, not to wait, and the second was simply charterers' agent) at a loading port; indeed,
concerned with the amount of cargo to be even the master's telegraphic notice of readiness
loaded. The three telexes from CNAN were appears on its face to have been sent not to
simply reports to the owners' managing agents CNAN as charterers' agents but submitted to
of the vessel's berthing prospects before she them as ship's agents for onward transmission.
berthed. They certainly are not orders to wait. In these circumstances I am satisfied that, even
Q.B. (Corn. Ct.)] LLOYD'S LAW REPORTS 87
ROBERT GOFF, J.] The "Isabelle" [1982] VOL. 2

if CNAN had given the vessel orders to wait, not repeat it. The obligation of the charterers
they were never authorized agents of the to pay shifting expenses under the clause
charterers for this purpose. presupposes that the charterers have required
the vessel to shift. The owners' pleaded case
The last three grounds on which the charterers was that the instructions to shift were given
put their case I can deal with very briefly. The by the port authority and/or Sonatrach. I am
third ground presupposes that the port authority satisfied on the evidence before me that the
in giving orders to the vessel acted as the order to shift was in fact given by the port
charterers' agents. For the reasons I have already authority. This was the effect of the master's
given they did not do so. The fourth ground evidence; and it is, moreover, obviously in
presupposes that the charterers impliedly accordance with the common sense of the
ordered the vessel to wait during a period when situation. No doubt Sonatrach may have been
no berth was available to the vessel, because of a concerned about their own equipment, for
combination of congestion and weather example, the hoses used for loading; but the
conditions. I can see no basis for any suggestion decision to move the vessel for reasons of safety
that implied orders were given by the charterers must have been the decision of the port
under cl. 14. As to the last ground, there simply authority. Here again, as in the case of the
is no basis in fact or in law for any waiver or owners' claim in respect of laytime, I have no
estoppel, there having been no relevant doubt that the port authority was acting in
representation by the charterers or their agents pursuance of its function as administrator of the
or any action or inaction on the part of the port, and was not acting as the charterers' agent.
owners on the faith of any such representation. I am satisfied that cl. 11 contemplates some
It follows that the owners' claim on the first positive order by the charterers or their agents,
point fails, and I turn to that claim in respect of probably connected with some such reason as
tug assistance or "Poussage", the agreed availability of cargo (or, at the discharging port,
quantum of which is D.S. $14,406. This claim is space in the relevant shore tanks). No such
advanced under cl. 8 of the charter, on the order was given in the present case. All that
ground that the cost of the tugboat assistance happened was that the port authority in the
formed part of the expense of loading the cargo exercise of its own administrative functions,
on the vessel which under that clause falls on the ordered the vessel to shift for reasons of safety,
charterers. I am unable to accept this submission. and for such expenses the charterers are not
The scheme of the charter-party, including cl. 8, responsible under cl. 11 of the charter.
contemplates that the owners shall bring their
vessel to the berth and make available the ship's
It follows that the owners' claims under all I
three heads fail.
facilities for mooring her there, and receive the
cargo. The charterers shall nominate the berth
and load the cargo there. In terms of loading a
tanker, this means that after the ship has
berthed at the nominated berth the cargo will be
made available by the charterers at the ship's
manifold. Loading is, therefore, a joint
operation, under which obligations fall on both
parties. I am satisfied that any expense incurred
in employing tugboats to keep the vessel at the
berth for the purpose of loading falls on the
owners' side of the division of responsibility. It
is for the owners to bring the vessel to the berth
for loading and it must be for them to keep the
vessel at the berth for that purpose. Of course, if
any expense is incurred by reason of any failure
by the charterers to fulfil their obligations under
cl. 5 of the charter as to the safety of the port,
then the charterers will be responsible under that
clause. But the owners cannot, in my judgment,

I
claim the cost of tugboat assistance to maintain
the vessel at the loading berth simply as part of
the expenses of loading the vessel under cl. 8.
I turn finally to the shifting expenses which are
claimed by the owners under cl. 11. The quantum
of this claim is agreed at D.S. $11,542.64. I have
already set out the terms of that clause~and.J need