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ORIENT SHIPPING ROTTERDAM B.V. v. HUGO NEU & SONS

March 20, 1996

ORIENT SHIPPING ROTTERDAM B.V., Plaintiff, against HUGO NEU & SONS, INC., Defendant.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 Plaintiff Orient Shipping Rotterdam B.V., the disponent owner of the motor vessel Mastrogiorgis B, chartered her to defendant Hugo Neu & Sons, Inc. for a voyage from New York to Bombay, India, with a cargo of shredded scrap metal. The voyage having been completed, plaintiff sues for demurrage incurred at the discharging port. Defendant denies liability for demurrage and counterclaims for despatch.

 Unlike most modern charterparties, this one did not contain an arbitration clause. The action, which falls within the admiralty and maritime jurisdiction, was tried to the Court. The following opinion constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P.

 The charterparty between plaintiff and defendant, dated June 19, 1992, called for the Mastrogiorgis B to load a full cargo of shredded scrap at New York and then proceed to one safe berth in Bombay.

 The charterparty provided in clause 18:

 
Cargo is to be loaded, stowed, trimmed at the average rate of 10000 MT per weather working days of 24 consecutive hours, Saturdays after noon, Sundays and holidays excepted, even if used.
 
Cargo is to be discharged at the average rate of 1500 MT per weather working day of 24 consecutive hours, Saturdays, Sundays and holidays excepted, even if used.
 
Laytime is reversible.

 The vessel loaded 21,262.8 metric tons of cargo at New York. She departed that port on June 25, 1992. On August 9, 1992, the vessel arrived at the port of Bombay.

 The master tendered notice of readiness at 11:00 a.m. on August 9, which defendant's Bombay agent accepted on August 10. Upon arrival at the port, the Mastrogiorgis B anchored at the Bombay Floating Light. On August 21 the vessel shifted from the Bombay Floating Light to the anchorage. She was free of pratique on August 21. The vessel remained at the anchorage until August 25 when the port authorities ordered her to shift back to the Bombay floating light. The vessel did not berth until September 10, 1992, when discharging began.

 The delay the Mastrogiorgis B encountered in berthing at Bombay resulted from port congestion. During the months of July and August, 1992, a total of eleven vessels with scrap cargoes arrived at the port. Seven scrap vessels arrived between July 13 and August 15. When the Mastrogiorgis B arrived at Bombay on August 9, there were three scrap vessels in berth and three earlier arriving vessels awaiting berth.

 The Mastrogiorgis B was berthed in turn. Plaintiff does not contend otherwise.

 Shredded scrap is a "direct delivery cargo" at Bombay. Discharge of such cargo is made directly from vessels into trucks for transportation inland. Scrap is not placed and stored on the pier. The trucks are obtained by the cargo receivers. The defendant at bar was the charterer of the vessel. It was not the receiver of the vessel's cargo. That was a third party.

 The port authorities at Bombay control the use made of the various berths. Normally only two berths are allotted for the discharge of scrap vessels. Toward the end of July or early August, the port authorities allotted a third berth for the discharge of scrap. They were responding to appeals by cargo receivers to relieve the congestion and consequent waiting time incurred by scrap vessels at Bombay. But then shortages of trucks began to occur. On September 2, 1992, the port authorities reduced the allotted scrap discharging berths from three to two. *fn1"

 At midnight on June 30, 1992, an India-wide transporters' strike became effective. The strike ended on July 13. No trucks were available to receive scrap cargoes at Bombay during the strike and in point of fact, no scrap vessels discharged at the port during that time.

 The parties dispute the effect, if any, of the transporters' strike on the delay encountered by the Mastrogiorgis B in obtaining a berth. I draw the logical inference that the strike, which made trucks unavailable to receive scrap cargoes, contributed to the number of vessels waiting in line to discharge when the Mastrogiorgis B arrived at Bombay. However, in the view I take of the case, that finding is not necessary to the decision.

 II

 The cargo receivers completed discharging the Mastrogiorgis B's cargo on October 4, 1992. The delay the vessel encountered in obtaining a berth caused her to exceed the reversible laytime for loading and discharging. Thus plaintiff asserts a claim for demurrage.

 The liability of defendant charterer for demurrage turns upon the proper construction of clause 56 of the charterparty. That clause provides:

 
Should the delivery of cargo to the place of loading, or shipment or loading or discharging of cargo be prevented or interfered with by reason of war, blockade, revolutions, insurrections, mobilizations, strikes, lockouts of any class of workers, civil commotions, riots, acts of God, plague or other epidemics, the time by which loading/discharging shall be prevented or interfered with by any such cause or causes, or by other cause or causes whatsoever, whether or not of a nature or kind as enumerated above, which shall be beyond the Charterers/Receivers control, shall not count, and demurrage shall not accrue unless the vessel is already on demurrage.

 This exception clause is drafted in the broadest possible language. While "strikes" is one of the several identified exceptions, the phrase "or by other cause or causes whatsoever" takes the clause out of the doctrine of ejusdem generis. Accordingly the exception clause relieves defendant from liability for demurrage resulting from port congestion, so long as that congestion was "beyond the Charterers/Receiver's control," clearly the case here.

 I base these conclusions upon Steamship Rutherglen Co. Ltd. v. Howard Houlder & Partners, Inc., 203 F. 848 (2d Cir. 1913). The charterparty in Rutherglen allowed a specified period of time for loading the cargo, and then provided: "The cargo to be discharged with all possible speed, according to the custom of the port of discharge." When the vessel arrived at the discharging port, "all berths where she could lie afloat were occupied or congested with freight, and ...


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