The relevant terms of the charter were an amended Clause 22 of the BPVOY4 form and an additional Clause 11, which both provided for uplifted rates of demurrage in certain circumstances. Clause 11 provided:
The question was one of construction of these clauses.
The judge held that Clause 22 was concerned with the giving of revised voyage orders to divert the vessel to an alternative port notwithstanding the prior nomination of a load or discharge port, and therefore had no application on the facts of the present case. The parts of Clause 22 in the standard BPVOY 4 form which could have covered this scenario (i.e. an order to stop and await further orders) had been deleted.
Clause 11, however, gave a liberty to give a positive order to the vessel to stop and wait for orders and a period in excess of 5 days waiting time was to be considered as storage, with increased rates of demurrage payable. What was envisaged in Clause 11 is an order made before the vessel is in a position to give NOR. Once NOR is given, the ordinary laytime and demurrage regime applies.
Furthermore, no order to stop and wait was ever given. In Mr Justice Cooke's view:
This conclusion might be thought somewhat impractical given that charterers can choose whether or not to give a positive order or remain silent, and the effect of the two scenarios is the same. The judge considered, however, that the charter had instituted different laytime and demurrage regimes for different scenarios, and that the dividing lines drawn by the parties, no matter how arbitrary, should be respected. Given that NOR had been tendered, which was an act within the control of the owners, the applicable regime was the ordinary load and discharge port regime rather than the Clause 11 regime. This meant that demurrage was payable, but not at the enhanced rates set out in Clause 11.