Carboex SA v Louis Dreyfus Commodities Suisse SA

This appeal concerns liability for delay to four vessels waiting to discharge cargoes of coal at Ferrol, North-west Spain in June and July 2008.

On 6^th March 2008 the appellant, Louis Dreyfus Commodities Suisse S.A. (“Dreyfus”), as owner entered into a contract of affreightment with the respondent, Carboex S.A., as charterer for the carriage of ten cargoes of coal from Indonesia to Ferrol or Carboneras in charterer’s option between 1^st April and 15^th August 2008. The contract was made on the American Welsh Coal Charter form (1979 amendment), clauses 4 and 9 of which contained provisions governing the calculation of laytime at the loading and discharging ports and the payment of demurrage or despatch money, as the case may be.

Clause 4, which related to laytime at the loading port, contained the following provision:

“Any time lost through riots, strikes, lockouts, or any dispute between masters and men, occasioning a stoppage of pitmen, trimmers or other hands connected with the working or delivery of the coal for which the vessel is stemmed, or by reason of accidents to mines or machinery, obstructions, embargo or delay on the rail way or in the dock; or by reason of fire, floods, frosts, fogs, storms or any cause whatsoever beyond the control of the Charterer affecting mining, transportation, delivery and/or loading of the coal, not to be computed as part of the loading time (unless any cargo be actually loaded during such time).”

Clause 9, which governed laytime at the discharging port, contained the following provision:

9.

. . . In Case of strikes, lockouts, civil commotions or any other causes included but not limited to breakdown of shore equipment or accidents beyond the control of the Charterersconsignee which prevent or delay the discharging, such time is not to count unless the vessel is already on demurrage.

The words underlined were inserted in type into the printed form.

As is commonly the case, the parties agreed a number of additional clauses, only one of which, clause 40, need be referred to in detail. It provided as follows:

“At port of discharge, time to commence twelve (12) hours after the vessel’s arrival at berth, vessel is ready to unload and Notice of Readiness received and accepted, unless sooner commenced in which case time actually used to count. If the berth is not available when vessel tenders Notice of Readiness, but provided vessel/Owners not at fault in relation thereto, then laytime shall commence twelve (12) hours after first permissible tide, Notice of Readiness received and accepted, whether in berth or not, whether in free pratique or not, whether in customs clearance or not, unless no customs clearance or no free pratique due to vessel’s fault, unless sooner commenced in which case only time actually used to count. Notices to be tendered in writing Telex, Cable, Fax or Radio form from usual waiting place, any time day or night Sundays and Holidays included excepting Superholidays as below. ….”

This appeal relates to four vessels nominated by Dreyfus under the contract of affreightment, the ‘Co-op Phoenix’, the ‘Alpha Glory’, the ‘C Young’ and the ‘Royal Breeze’. The ‘Co-op Phoenix’ arrived at Ferrol and gave notice of readiness on 14^th June 2008. There were two vessels ahead of her and in the event she was unable to complete discharging until 2^nd July 2008. The ‘Alpha Glory’ arrived at Ferrol and gave notice of readiness on 15^th June 2008. There were three vessels ahead of her (one being the ‘Co-op Phoenix’) and she was unable to complete discharging until 7^th July 2008. The ‘C Young’ arrived and gave notice of readiness on 7^th July. At that time there were three vessels ahead of her; she completed discharging on 25^th July. The ‘Royal Breeze’ arrived and gave notice of readiness on 16^th July. At that time there were three vessels ahead of her; she did not complete discharging until 29^th July.

Between 9^th and 16^th June 2008 there was a nationwide haulage strike in Spain and during that period no coal was removed from the terminal. When the strike ended there was a large amount of coal stockpiled at the terminal, which no doubt took some time to clear. Carboex alleged (and for the purposes of the preliminary issues it was assumed) that an unofficial stoppage by some lorry drivers took place between 23^rd and 24^th June. No discharging took place on either day, but some cargo was removed from the stockpile on 25^th June. For the purposes of the preliminary issues it was assumed that the congestion at Ferrol was entirely due to the haulage strike and the interruption to discharging caused by the later unofficial stoppage. In those circumstances Carboex maintained that in accordance with clause 9 the time lost by each of the vessels as a result did not count against laytime. Dreyfus maintained, however, that on the true construction of clause 9, read in the context of the other terms of the charter, in particular clauses 4 and 40, the words “the discharging” referred to the working of cargo and that therefore time ceased to count only if the vessel was in berth and was ready to discharge cargo or had begun cargo handling operations.

The dispute was referred to arbitration and at the request of the parties the arbitrators agreed to determine a number of preliminary issues including the following:

“(i)

whether clause 9 of the COA applies in the case of a vessel which is delayed by the after-effects of a strike which has ended; and

(ii)

whether clause 9 of the COA applies in the case of a vessel which has arrived after the strike has ended.”

The first question was directed to the position of the ‘Co-op Phoenix’ and the ‘Alpha Glory’; the second to that of the ‘C Young’ and the ‘Royal Breeze’.

On 11^th June 2010 the arbitrators published a declaratory award in which they answered each of the questions in the negative. In reaching their decision they relied on the decision of the House of Lords in Central Argentine Railway v Marwood [1915] A.C. 981. In the light of their decision on those two questions they found it unnecessary to consider other preliminary issues which the parties had formulated.

Gloster J. gave permission to appeal against the award under section 69 of the Arbitration Act 1996. On the hearing of the appeal before Field J. the parties invited the court to add a third issue which it was said would decide the issues of construction that were common to those raised by the tribunal’s questions (i) and (ii), namely,

“Does the strike exception in clause 9 apply to a vessel which is unable to berth due to berth congestion caused by a strike?”

The judge held that the questions posed by both of the tribunal’s preliminary issues and that posed by the parties’ third issue should all be answered in the affirmative. He therefore set aside the award. This is the appeal of Dreyfus against the judge’s order.

On behalf of Dreyfus Miss SiobánHealy Q.C. drew particular attention to two features of the contract, clause 4 and clause 40. She pointed out that this charter form is worded as a berth charter, thus placing on the owner the risk of congestion preventing the vessel from reaching a berth and so becoming an arrived ship. In the present case, however, the parties had by clause 40 expressly provided that notice of readiness might be given from the usual waiting place, whether in berth or not, and that if a berth was not then available laytime was to commence 12 hours after first permissible tide. The effect of those provisions, she submitted, was to transfer to the charterer the risk of congestion at the port of discharge. Indeed, it has been held that that is the very purpose of incorporating the expression “whether in berth or not”: see Bulk Transport Group Shipping Co. Ltd v Seacrystal Shipping Ltd (The ‘Kyzikos’) [1989] 1 A.C. 1264. She submitted that clause 40 as a whole indicated a clear intention to place the risk of congestion on the charterer which was not to be qualified or undermined except by clear words. She relied on the language of clause 4 as showing how it is possible to transfer the risk of delay caused by events on shore, including events at some considerable remove from the loading berth, to the charterer. That is to be contrasted with the language of clause 9, which is much more restricted in its scope. All that pointed to the conclusion that the words “the discharging” are to be given a narrow meaning, as they were in Marwood. Miss Healy also submitted that Marwood was binding authority on the meaning and effect of clause 9, or at any rate of such strong persuasive authority that it would be wrong for this court not to follow it. Finally, as an alternative argument, Miss Healy submitted that clause 9 operated only during the continuation of the strike and did not extend to delay caused by congestion which was itself a consequence or after-effect of the strike.

It is convenient to begin by considering the language of the charter without regard to the decision in Marwood, although it will be necessary to examine the speeches in that case in some detail at a later stage. On behalf of Carboex Mr. Charles Kimmins Q.C. accepted that, by agreeing that the vessel could give notice of readiness “whether in berth or not”, the parties had consciously transferred the general risk of congestion at the discharging port from the owner to the charterer. He submitted, however, that it remained open to them to make exceptions to that general position by excluding certain periods of time from the running of laytime. Insofar as they had done so, they had transferred the risk back to the owner. The effect of giving notice of readiness is merely to start the laytime clock running, so the fact that the parties have agreed that the vessel can give notice of readiness before she has reached her berth tells one nothing about what periods, if any, are excluded from the running of laytime. He submitted that in this case the natural meaning of clause 9 was to exclude the time by which the discharging operation, viewed as a whole, had been delayed by the strike.

The question raised by this part of the argument concerns the significance to be attached to the expression “whether in berth or not”. It is quite true to say that the purpose of including those words in a berth charter is to transfer the general risk of congestion from the owner to the charterer, but it is equally true to say that its function is to start the laytime clock running. The two are opposite sides of the same coin: once time starts to run the charterer bears the risk of delay. I do not think, however, that one can read more into it than that. The establishment of a general regime of that kind does not give rise to a presumption that the parties did not intend to transfer the risk of delay from specific causes back to the owner. The incidence of the risk of congestion is essentially a matter to be determined by reference to commercial considerations, including demurrage rates, and the parties are free to decide for themselves how to allocate that risk under different circumstances. In my view clause 40 does not point to a narrower construction of clause 9 than it would naturally bear.

Clause 9 is clearly intended to transfer the risk of some delay caused by strikes from the charterer to the owner and I can see nothing in the language of the clause itself to indicate that its operation is restricted to time lost while the vessel is alongside the berth. The expression “the discharging” is capable of being given a wider or narrower construction, although I think it is naturally to be read as referring to the discharging operation as a whole. However, even if it is to be understood as referring to the physical operations involved in handling cargo, these can be delayed just as much by a strike which prevents the vessel getting into berth as by one which interrupts the handling of cargo. What clause 9 lacks is any language which indicates an intention to restrict its operation to the period during which the vessel is alongside the quay ready to work. Contrary to Miss Healy’s submission, I do not think that one obtains any help from the earlier part of clause 9, which is concerned with the calculation of laytime. Laytime at the discharging port is the time allowed to the charterer for discharging the vessel once she has reached her destination, whether that be the port or the berth. It starts running after notice of readiness has been given and may have to include time spent waiting for a berth to become free and time moving from the anchorage to the berth. It is not concerned only with time spent in the physical operation of discharging cargo. Any event which prevents the vessel entering a berth on arrival can properly be said to prevent or delay her discharging. The question is whether the parties intended that the charterer should be protected from the effects of strikes that prevented or delayed the vessel entering berth in order to discharge or only from strikes that directly interfered with cargo handling operations. In my view the general language of clause 9 suggests the former rather than the latter. Had the parties intended to confine the charterer’s protection more narrowly, I think they would have used clearer language.

Apart from that, however, the construction advanced by Miss Healy is capable of producing some surprising results. For example, if a vessel were prevented by a strike of pilots or tugs from getting into an available berth to begin discharging, the charterer would not be protected, whereas if she were already in berth but could not begin discharging because of a strike of crane drivers she would be. Similarly, the charterer of a vessel which happened to arrive when there was a berth free that she could enter immediately would be protected in respect of time lost through a strike of stevedores, while the charterer of the following vessel whose discharge was delayed to the same extent by the same strike would not be. The language of clause 9 does not suggest that the parties intended that such different consequences should obtain depending on whether the vessel had or had not been able to enter berth.

In The Leonis Steamship Co. Ltd v Joseph Rank Ltd (No. 2) (1908) 13 Com. Cas. 295 the clause in question provided that

“If the cargo cannot be loaded by reason of riots or any dispute between masters and men, occasioning a strike of … railway employés or other labour connected with the working, loading , or delivery of the cargo proved to be intended for the steamer … the time lost not to be counted as part of the lay days.”

A strike on the railways had led to congestion in the harbour and had delayed the arrival at the port of the cargo intended for the vessel. As a result the vessel was unable to enter berth and start loading immediately on her arrival at the port. The trial judge, Bigham J., found that the immediate cause of the delay was the crowded state of the harbour and that the effective cause was the earlier military revolt and the strike. The Court of Appeal held that the question for decision was one of fact, namely, whether by reason of the strike the cargo proved to be intended for the vessel could not be loaded within the lay days. It upheld the judge’s decision that the strike was the effective cause of the delay and that the charterers were protected.

Although the clause in that case was worded differently from clause 9, the case provides some assistance, both because the court rejected the argument that the strike clause protected the charterer only if loading operations were directly affected and because it saw nothing incongruous about an agreement which relieved the charterer from the risk of delay in getting into berth in order to start loading. The decision was followed and applied in Reardon Smith Line Ltd v Ministry of Agriculture Fisheries and Food [1960 1 Q.B. 439, [1959] 2 Lloyd’s List L. R. 229 (McNair J.) and [1962] 1 Q.B. 42 (C.A.) in relation to a clause which provided that laytime should not count during any time when the loading of the cargo was delayed by strikes. McNair J. had approached the matter from a business and common sense point of view, applying Leonis v Rank (No. 2). Approving that decision, Willmer L.J. noted that, as far as he was aware, it had never been suggested that Leonis v Rank (No. 2) had been wrongly decided. As far as I know, that remains the position.

Miss Healy placed a good deal of reliance on the differences between clause 4 and clause 9, which she suggested provided a strong indication that clause 9 was to be construed as not extending beyond strikes directly affecting cargo handling operations at the berth. In my view, however, that seeks to place more weight on clause 4 than it will bear. As Mr. Kimmins observed, the charterer is under a duty to have a cargo ready for the vessel on her arrival and cannot escape liability for failing to do so by relying on circumstances such as strikes, accidents and so on which prevent cargo being brought to the berth, unless the charter so provides. The duty to have a cargo ready for loading is one which is regarded as being of such importance that the charterer will not be relieved of liability for failing to comply with it unless the charter contains clear words to that effect. A good illustration of that principle may be found in Grant & Co v Coverdale, Todd & Co. (1884) 9 App. Cas. 470, in which a clause excluding “frosts …preventing the loading” was held not to extend to the freezing over of the canal by which the charterer intended to bring the cargo to the dock. Lord Selborne observed that the charter was silent about the source of the cargo and noted that there were many steps to be taken to ensure that a cargo was ready for the vessel. In that context he did not think that the word “loading” could reasonably be construed to extend to anything beyond cargo handling. In my view the language of clause 4 reflects the fact that a wide variety of different events well beyond the confines of the port may affect the charterer’s ability to have cargo ready for loading and that if the charterer wishes to be protected against them it is necessary to make express provision for that. These principles were reaffirmed in Triton Navigation Ltd v Vitol S.A. (The ‘Nikmary’) [2003] EWCA Civ 1715, [2004] 1 Lloyd’s Rep. 55.

Miss Healy submitted that a construction which makes it necessary to decide in any given case whether an excepted event was the effective cause of a loss of time to the vessel produces uncertainty and should be rejected on that ground. I accept that in many cases it may be difficult to establish the necessary causal link between, say, a strike and the delay and that certainty is important in commercial affairs. However, for the reasons I have given I do not think that the language of clause 9 naturally admits of the construction for which she argues.

Nor am I able to accept Miss Healy’s alternative argument. The natural meaning of the language of clause 9 shows that it is concerned only with the consequences of the excepted causes, not with their duration. It may be contrasted with other strike clauses whose operation is limited to the period during which the strike is continuing, notably the Centrocon strike clause, which provides that “the time for loading or discharging, as the case may be, shall not count during the continuation of such causes”. There is nothing in clause 9 to support the conclusion that its operation is limited to interruptions and delays occurring during the period of the excepted causes. Indeed, it is difficult to see how that could have been intended when one of the excepted causes is accidents beyond the control of the charterers. In the very nature of things these are likely to be rapid in their occurrence but prolonged in their consequences.

This conclusion is borne out by the decision in London and Northern Steamship Co. v Central Argentine Railway Ltd (1913) 108 L.T. 527, in which the vessel ‘Holgate’ was chartered to carry a cargo of coal to Villa Constitucion on the Welsh coal form of charter which contained a laytime exceptions clause in substantially the same terms as clause 9 of the present charter. The vessel arrived at Villa Constitucion and gave notice of readiness on 2^nd January 1912. On 6^th January 1912 a strike broke out which lasted until 15^th February, and prevented cargo from being discharged from any vessels until 27^th January when there was a partial resumption of work. The vessel remained at the anchorage until she berthed on 9^th February, having been delayed in part by a dispute between the owners and the charterers over the effect of the exceptions clause. In calculating the amount of demurrage due to the owners Scrutton J. took into account the delay caused to the vessel by the strike, both while it continued and after its conclusion. He interpreted the clause as extending to all the delay actually caused by the strike, a decision which the House of Lords in Marwood considered to be correct.

If the matter were entirely free from authority, therefore, I would hold that in the present case clause 9 operates to protect the charterer in respect of any time lost to the vessel by reason both of the strike and of the unofficial stoppage.

However, the matter is not entirely free from authority because in Marwood the House of Lords considered the effect of a clause in identical terms to clause 9. It is necessary, therefore, to consider what that case decided and, insofar as the expressions of opinion which it contains are obiter dicta, whether they should be followed and applied. The case concerned a claim for demurrage on the vessel ‘Goathland’ which had been chartered to carry a cargo of coal from Barry to Villa Constitucion. Clause 8 of the charter provided that

“In case of strikes, lock-outs, civil commotions or any other causes or accidents beyond the control of the consignees which prevents or delays the discharging, such time is not to count, unless the steamer is already on demurrage.”

On 6^th January 1912 the strike of engine drivers and stokers which also affected the ‘Holgate’ broke out at Villa Constitucion. It continued until officially terminated on 15^th February 1912, although there was a partial resumption of work between 27^th January and 15^th February. No discharging took place at the port between 6^th January and 27^th January, but between 27^th January and 15^th February the equivalent of 6¼ days’ work was done.

The ‘Goathland’ arrived on 12^th January 1912 and gave notice of readiness to discharge. All the berths were occupied and she was unable to get into berth until 1^st March 1912. The dispute between the parties concerned only the treatment of the period between 27^th January and 15^th February 1912. The owners conceded that time between the vessel’s arrival and 27^th January did not count, but they argued that in respect of the period between 27^th January and 15^th February 6¼ days should count against laytime because to that extent discharging had not been prevented or delayed.

The House of Lords accepted the owners’ construction and held they were entitled to count 6¼ days against laytime. All their Lordships were of the view that the words “such time” meant the time for which the discharging was actually prevented or delayed by the strike, but some of the speeches seem to go farther than that in support of what is now Dreyfus’ case. The high water mark is to be found in the following passage from the speech of Viscount Sumner at page 989:

“Be this as it may, I do not think the charterers can succeed. It is to be remembered that when notice of readiness has been given, the ship being then ready to unload, the shipowner's part is done and the risk of delay, including the risk of want of a berth, falls on the charterer, subject to his right to bring himself within the strike clause in question if he can. The words are express, "whether in berth or not." I think the words "which prevents or delays the discharging" mean strikes which in themselves prevent or delay the discharging of the chartered ship herself, and do not extend to the case of strikes which only prevent the chartered ship from getting into a berth because they prevent some other ship from getting out of that berth.”

However, passages can be found in the other speeches which may be said to support a similar view. Thus Lord Parmoor said at page 991:

“One of the effects of the strike was that the Goathland could not be berthed because the four berths at Villa Constitucion were occupied by other steamers which had arrived before the Goathland. These steamers had been delayed in discharging and remained occupying the four berths by reason of the strike. In my opinion the occupation of the four berths makes no difference. There was an obligation upon the appellants to discharge, whether or not there were vacant berths, so soon as the Goathland was ready to unload and written notice had been given.”

Lord Wrenbury said at page 991:

“My Lords, I learn from the agreed statement of facts that during the period from January 27 to February 15 the Goathland could not be berthed or discharged, because the four berths were occupied by other steamers, and that those steamers remained occupying the berths by reason of the strike. These statements may be compressed into the single statement that the Goathlandfailed to get a berth by reason of the strike. But under the charter time is to commence when steamer ready to unload and notice given whether in berth or not. The charterer took the risk of being unable to get a berth. The Goathland was prevented from discharging, not by the strike, but by a consequence of the strike, namely, that the berths were occupied by other vessels longer than they otherwise would have been.”

Miss Healy submitted that from these passages one can derive the ratio decidendi of this case as being that under the terms of this clause a strike does not prevent the running of laytime unless the vessel is already alongside the quay and able to handle cargo. If that is correct, however, it raises the question why the owners should have conceded that laytime did not run during the period between the vessel’s arrival and the partial resumption of work, or why it did not run continuously thereafter. Nor is it easy to understand why no reference was made to the decision in Leonis v Rank (No. 2), a relatively recent case in which the Court of Appeal had considered the effects of congestion caused by strikes, albeit in the context of a differently worded clause. Moreover, if their Lordships were inclined to decide the appeal on a basis other than that on which it had been argued, one might have expected some reference to have been made to that fact.

In my view the various expressions of opinion in Marwood must be read and understood in the context of the arguments addressed to the House. They are reported briefly at pages 984 and 985 of the report and are reflected in the speeches of Lord Parker (page 987), Viscount Sumner (page 989) and Lord Parmoor (page 991). The owners’ case was that only time during which the discharging of the vessel was prevented or delayed was excluded from the counting of laytime and that the 6¼ days therefore counted because they brought the vessel nearer to the completion of discharge. The charterers’ case was that the clause excluded any period during which a strike prevented the vessel from getting into berth to discharge and since the vessel had been unable to berth throughout the period during which there had been a partial resumption of working, the whole of that period was to be excluded. In other words, the question was whether the whole of the time during which the vessel was prevented from getting into berth because of the effects of the strike was excluded, or only the time during which her discharging was actually delayed. It was for that reason that the meaning of the expression “such time” was central to the decision.

Their Lordships agreed that “such time” referred to time wasted or time lost (in the case of Lord Wrenbury, the time for which the strike prevented or delayed the discharging). That meant that the charterers had to show that the strike had caused a certain loss of time to the vessel, which in turn required them to establish a direct causal link between the strike and the loss of time. Viscount Sumner, Lord Parmoor and Lord Wrenbury were all conscious that the risk of delay by reason of congestion lay on the charterers because of the inclusion of the expression “whether in berth or not” and that it was not therefore sufficient for the charterers to show that the strike had caused congestion. During the partial resumption of working, however, the equivalent of 6¼ days were spent discharging and to that extent the vessel had not been delayed.

Marwood has received mixed treatment in subsequent cases. In Westoll v Lindsay (1916) S.C. 782 the vessel ‘Gladys Royle’ was chartered to carry a cargo of grain from Novorossisk to Leith. When she arrived at Leith she was unable to berth as a result of congestion caused by a strike which had ended before she arrived. The charter provided that

“If the cargo cannot be loaded or discharged by reason of a strike or lock-out of any class of workmen essential to the loading or discharge of the cargo, the days shall not count during the continuance of such strike or lock-out.”

Although the strike was not continuing when the vessel arrived, the charterer argued that laytime did not run because the congestion had been caused by the strike. The Court of Session rejected that argument. The case is of interest because Lord Johnston referred to Marwood, which he understood to have decided that an inability to obtain a berth as a result of congestion caused by a strike did not amount to delay in discharging caused by the strike because the consequences were too remote. He was of the view that Marwood had overruled Leonis v Rank (No. 2), despite the fact that none of their Lordships had referred to what must have been a very well known decision.

In The ‘Ida Blumenthal’ (1927) 29 Lloyd’s List L. R. 84 the vessel had been chartered to carry a cargo of brown coal briquettes from Stettin to Dublin. The charterparty included a clause in the same terms as clause 9 of the present charter. When the vessel arrived in Dublin her cargo was on fire and discharging was delayed as a result. The charterers argued that the fire fell within the words “any other cause beyond the control of the consignees” and that the period of delay did not count against laytime. Hanna J. referred to Grant v Coverdale and Marwood among a number of cases which were said to support the conclusion that the word “discharge” when used in charterparties was to be given a narrow technical meaning. However, although the judge cited extensively from the speeches in Marwood, he did not discuss in any detail the principle to be derived from them.

However, Marwood did receive careful consideration in Reardon Smith Line Ltd v Ministry of Agriculture Fisheries and Food. McNair J. said that in his view the case turned almost wholly on the proper appreciation of the facts and that no general principle could be deduced from it except that the mere existence of a strike is not sufficient; it must have some causative effect upon the operations of the particular ship concerned. In the Court of Appeal Sellers L.J. was inclined to think that the case had been decided on the basis that the vessel would have been delayed in discharging by the vessels in priority ahead of her, strike or no strike. He agreed with McNair J.’s understanding of the decision, namely that the strike must have some causative effect, which he considered to be substantially, if not entirely, a question of fact.

Having earlier referred to Leonis v Rank (No. 2), Willmer L.J. described Marwood as “this rather unusual and difficult case”. He thought that the real ratio of the case could be found in the fact that Lord Parker, Viscount Sumner and Lord Wrenbury were of the view that there was nothing in the statement of facts to show that the vessel would not have been delayed just as long by the presence of the other vessels ahead of her, even if there had been no strike. He considered the passage in Viscount Sumner’s speech on which Miss Healy primarily relied to be unnecessary for the decision and therefore, presumably, obiter.

Donovan L.J. considered that Marwood was properly to be regarded as a case in which it had not been proved that delay would have been avoided for the 6¼ days in dispute if there had been no strike.

In my view Marwood is authority for two related propositions: (i) that “such time” in clause 9 means time lost to the vessel in completing discharging by reason of one of the excepted causes; and (ii) that in order to obtain the protection of clause 9 the charterer must establish that the event on which he relies falls within the clause and was the effective cause of delay to the vessel. The clause therefore excludes time actually lost to the vessel by reason of strikes, not merely time during which the vessel is prevented from entering berth by reason of strikes, although, if the evidence is clear enough (as the owners, but possibly not their Lordships, must have thought it was in relation to the period between the vessel’s arrival and the partial resumption of working), the two may come to the same thing. One can detect in Marwood a reluctance to accept that the strike rather than congestion was the effective cause of the delay to the vessel, partly because the charterparty placed the risk of congestion squarely on the charterer and partly because, as Viscount Sumner observed, at some ports it can be very difficult to identify the true causes of congestion. That, however, as Sellers L.J. noted in Reardon Smith, is largely a question of fact. I do not think that Marwood is authority for the proposition that clause 9 protects the charterer only once the vessel has reached her discharge berth. The owners in that case did not argue for such a narrow construction and it would be surprising if their Lordships had intended to decide such an important question without inviting argument and without making it clear in their speeches that they intended to do so.

For these reasons I do not think that the decision in Marwood prevents this court from giving clause 9 the meaning which it naturally bears. Nor do I think that, properly understood, the various dicta support the construction for which Miss Healy argued. Accordingly, if and to the extent that Carboex can establish that the strike at Ferrol was the effective cause of delay to the discharge of any of the vessels, the time lost as a result will not count against laytime. Whether the strike was the effective cause of delay is a question of fact. The closer the vessel was to the head of the queue when the strike broke out, the easier it is likely to be to establish the causal link, but each case will turn on its own facts. Nonetheless, one cannot exclude in principle the possibility that the necessary causal connection may be established, even in relation to vessels arriving after the strike has ended. That, after all, was the situation which occurred in Leonis v Rank (No. 2).

For these reasons, which are in substance the same as those of the learned judge, I would dismiss the appeal. I would answer each of the questions raised by the preliminary issues as follows: ‘Yes, provided the strike is the effective cause of the delay’.

I agree.

I also agree.