TH E DU TY TO P RO VIDE CARG O
UNDER A VOYAGE CHARTER-PARTY.
Thesis for the master in International Law.
Stockholm Law School, Stockholm Universitet.
Head of research: Professor Hugo Tiberg.
Pierre-Jean Bordahandy.
Academic year 1998-1999.
The Duty to Provide Cargo under a Voyage Charter-party.
Acknowledgements:
Professor Hugo Tiberg.
Ape Heikki.
Bijaoui Laurent.
Cazeaux Nicolas.
Cecaldi Bruno.
Darrasse Francois.
Fedi Laurent.
Gracia-Aparicio Susanna.
Hultman Anders.
Pirone Armando.
Tifak Morad.
1
The Duty to Provide Cargo under a Voyage Charter-party.
Detailed Plan
Page:
Introduction:
3
I° The definition of the duty to have a cargo ready to load.
A Which duty?
1)
2)
8
8
9
13
The duty to have a cargo at disposal.
The duty to hold the cargo in readiness.
B Which legal regime: when and where is the duty supposed to be fulfilled?
1)
16
16
16
16
23
28
29
30
When is this duty supposed to be fulfilled?
Problem of a delayed cargo.
i)
The influence of the duty on the beginning of the lay-time and demurrage.
ii) The influence of the duty on the right to use the lay-time and demurrage.
b)
Problem of the absence of any cargo.
2)
Where is this duty supposed to be fulfilled?
a)
Conclusion I°:
II° The non-fulfilment of the “duty” to have a cargo ready to load.
A The charterer’s liability.
1)
a)
b)
2)
a)
b)
3)
a)
b)
31
Principles of the charterer’s liability for the duty to have a cargo ready under English Law.
Minor breaches leading to a sanction but not to the dissolution of the contract.
Major breaches leading to the dissolution of the contract.
i)
Frustration of the contract.
ii) Renunciation of the contract by the charterer.
iii) Rescission of the contract by the carrier.
Principles of the charterer’s liability for the duty to have a cargo ready under French Law.
Minor breaches leading to a sanction but not to the dissolution of the contract.
Major breaches leading to the dissolution of the contract.
i)
Renunciation to the contract by the charterer.
ii) Rescission of the contract by the carrier.
Principles of the charterer’s liability for the duty to have a cargo ready under Swedish Law.
Minor breaches leading to a sanction but not to the dissolution of the contract.
Major breaches leading to the dissolution of the contract.
i)
Renunciation to the contract by the charterer.
ii) Rescission of the contract by the carrier.
B Exceptions to the charterer’s liability.
1)
2)
3)
31
32
32
34
34
35
35
36
36
38
38
39
40
40
41
41
41
42
42
43
43
Hindrances due to the carrier.
Exception clauses.
Frustration of the voyage (force majeure).
Conclusion:
44
Bibliography:
46
Schema:
47
Annexes:
48
2
The Duty to Provide Cargo under a Voyage Charter-party.
INTRODUCTION:
Chartering and particularly voyage chartering is the oldest way of exploitation of commercial
ships. This was the only contract known to the French Commercial Code of 1807.1
A voyage charter is a contract involving two parties with mutual and reciprocal obligations.
One party promises to transport a certain quantity of cargo from point A to point B while the
other promises to deliver the cargo to the ship and to pay the freight. 2 As to avoid any
difficulties of terminology, I shall refer to the party providing the transport as “carrier” and to
the party providing the cargo to be transported and having to pay the freight as “Charterer”.
In the voyage charter-party, the charterer hires the ship for a certain voyage regardless of the
time that it is going to take; in other words, the time runs against the carrier3.
Another characteristic of this contract concerns the important role played by the cargo,
because the object of the transport is a detailed, well described and individualised cargo. This
consideration of the cargo is of specific importance in voyage chartering.
The last element characteristic of voyage chartering is the fact that this contract is based on
the idea of a celerity duty falling alternately on both parties.
Thus although the carrier undertakes a certain number of obligations (providing the ship
designated in the contract at the place and time agreed for the agreed voyage), voyage
chartering seems to involve much more to the charterer than we may assume at first approach.
Indeed the speed of fulfilment of the contract depends not only on one but on both parties.
The speed of the voyage is partially conditioned upon the way that the charterer is going to
behave. For instance, to be able to fulfil his duties correctly, the carrier must receive the cargo
as soon as possible from the charterer.
“The duty to provide cargo in the voyage charter-party.”
The above explains why we shall find in the voyage charter-party some mechanisms intended
to promote celerity on the part of the charterer. Those mechanisms are totally ignored by the
time charter and consist in the loading time, a lay-time, a demurrage payment and
occasionally a special liability for detention.
The main purpose of those mechanisms is to compel the charterer to devote his entire
endeavour to providing a cargo and loading it on board in a minimum of time when the ship is
ready to receive it.
Apparently we can say that voyage chartering has a complex structure due to the fact that it is
a contract placed between chartering and transportation, where each party has to fulfil a
certain number of operations in order to make the transaction possible.
For the correct understanding of the subject it is proper at this stage to pause and settle some
definitions as well as to pinpoint the problem that we face.
1
Antoine Vialard ; Droit maritime ; Presses Universitaires de France 1°édition 1997, page 331.
Thor Falkanger, Hans Jacob Bull, Lasse Brautaset ; Introduction to maritime Law ; Forfatterne og
Tano Aschehoug 1998 Page 363.
3
Antoine Vialard ; Droit maritime ; Presses Universitaires de France 1°édition 1997, page 353.
2
3
The Duty to Provide Cargo under a Voyage Charter-party.

Definition of the subject:
This work will focus on the situation where a ship is “arrived” or about to arrive and
where a cargo is not ready to be loaded at the agreed loading point and at the agreed
moment.
The duty of having a cargo ready is generally not specifically mentioned in charterparties and has caused little mention in the law. From this, should we assume that the
duty does not exist, or is it merely a necessary background to more specific obligation?
This leads us to precise about what duty are we talking.
1. First of all we have to clarify what duty we are talking about.
As certain authors have noted,4 behind the «duty to provide cargo» there arise in reality
three totally different elements:
 The duty to provide a cargo that complies with the terms of the charter.
 The duty to hold the cargo in readiness.
 The duty to load the cargo within the lay days.
2. Secondly what kind of duties are these?
 The duty to provide a cargo that complies with the terms of the charter.
There is no need here to detail the contents of this duty, which is easy to examine
because the nature, quantity and quality of the cargo are in most cases described in
the contract itself5. The parties can possibly go further and be even more precise on
the nature and quantity of the cargo carried by adding a specific clause to the charter
party 6.
Moreover this duty is subject to definition in certain laws. For instance, the French
law in its article 87 stipulates that the cargo has to correspond to what is stated in the
contract. Similarly the Swedish Maritime Code stipulates in its chapter 14 section 6
in relation to the freight the duty to provide the quantity of cargo described in the
agreement and in the same chapter section 22 the duty to reveal the nature of a
dangerous cargo.
However, my subject “the duty of the charterer to provide a cargo in the voyage charterparty” is rather large and needs to be defined with some precision. As the problem
concerns “a” and not “the” cargo, the duty of the charterer to provide the cargo such as
described in the contract does not belong to the subject. Consequently my study will not
take into consideration the aspect of the problem dealing with the non-conformity of the
cargo to the contractual statements.
J. Cooke, Voyage charterer, Lloyd’s of London Press 1993, page 120 / Scrutton, Scrutton on Charterparty, London Sweet and Maxwel 1996 page 155.
5
See annex number1 page for a copy of the Gencon (Part I clause 12), Synacomex (clause 2),
Beepeevoy (clause 3) in regard of the description of the cargo.
6
See annex number1 page for an example of precision by the parties of the nature and quantity of a
cargo in an additional stipulation to a Gencon charter-party (clause 29 of the addendum to the Gencon
charter-party).
7
Decree n°66-1078 of 31 December 1966, article 8 « L’affréteur doit mettre a bord la quantité de
marchandises énoncées par la charte partie. »
4
4
The Duty to Provide Cargo under a Voyage Charter-party.
 The duty to hold the cargo in readiness.
This duty implies for the charterer the obligation to have a cargo to deliver to the
carrier at the moment and at the place agreed in the contract. At the contractual level
none of the common voyage charter-party contracts - such as the Gencon, the
Synacomex, and the Beepeevoy - impose an explicit duty to hold the cargo ready to
load at a certain date8.
Legal support for such a duty is diverse and depends on the legal system considered.
The French law of 1966, which only devotes two short articles to the duties of the
charterer in voyage charter party9, does not provide any information about this
peculiar duty. An analysis of the English legal system requires examination of the
case law of the subject, which will be done later. Finally concerning the Swedish
legal system, it seems that the existence of such a duty can be deduced from the
Maritime Code. However, the legal regime of this duty has to be clarified in order to
determine its autonomy.
This duty will be the object of my work for reasons already mentioned, namely the
different approach to this duty of the different legal systems. The three elements
composing the general duty of the charterer to provide a cargo leads us to a delicate and
complex situation respecting the study of the duty to hold the cargo in readiness. Because
although the distinction between the three elements of the general duty seems simple, the
overlappings of those three sub-duties are numerous, which tends to complicate the analysis.
 The duty to load a cargo within the lay-days.
This implies for the charterer the obligation to load a cargo in a limited time
contractually agreed by the parties. This duty is also clearly identifiable whether in
the law or in the contract. The provisions concerning the lay-time and demurrage
maybe said to embody this duty for the charterer to proceed to the loading of the
cargo within the lay days. Legislative such provisions can be found in French law 10,
in the Swedish Maritime Code11 as well as in other codified systems.
Moreover this part of the contractual relationship is the subject to much attention by
the parties. Standard contracts usually provide a frame for lay days and demurrage
(Part II clause 6 and 7 of the Gencon C/P, clause 8 and 9 of the Synacomex C/P,
clauses 18 to 23 of the Beepeevoy3).12 This does not, of course, prevent the parties
from making a specific agreement.13
The existence and the regime of the duty to load within the lay-days is well known and
does not lead to any structural problem, as has been said formerly. Consequently my
intention is not to deal with the duty of the charterer to load within the lay-days.
However, I shall make numerous references to this duty because of its interconnection
with the duty to hold the cargo in readiness. Indeed it is often very difficult to distinguish
the two duties from to another, particularly in the legal systems where the duty to hold the
cargo in readiness is not clearly stated.
8
See annex.
See annex, the decree n°66-1078 of 1966, articles 8 and 9.
10
Décret n°66-1078 of 31 december 1966, article 9, 10, and 11.
11
Swedish Maritime Code, chapter 14, sections 10 to 15.
12
See annex.
13
See annex for an example of precision by the parties concerning the lay days and the demurrage
(clause 19 and 23 of the addendum to the Gencon charter-party).
9
5
The Duty to Provide Cargo under a Voyage Charter-party.

Why is it interesting to speak about the sole obligation to hold the cargo in readiness?
Despite appearing logical, not to say obvious, the need for the cargo to be ready is a condition
of the fulfilment of the contract that is generally absents of the aforesaid contract and often
not even mentioned in the Law. From then on, may one consider that this duty is not
necessary or conversely that this duty still exists and has an important role in background?
In fact there may be an imperative need for the cargo to be held ready for loading and
therefore for a corresponding duty. The main reason would be to put on the charterer shoulder
the charge of the delays he may provokes, and which delays would normally be at the carrier
charge according to the regular reading of voyage chartering. Thus, the first interest of this
subject is to determine to what extent there is a duty to hold the cargo in readiness for the
charterer.
In addition to this, the problem is intensified by the existence of another duty - the duty to
load within the lay-days -, which is very close to the duty to hold the cargo in readiness. It is
interesting to see to what extent those two duties are coexisting. This is the second and
probably the main interest of this subject, which leads us to discuss the autonomy of the duty
to hold the cargo in readiness.
Is there really a need for an autonomous duty of the charterer to have a cargo available, or is
the duty to load within the lay-days enough to cope with all situations?
This question may seem over-punctilious, but in fact the answer takes us directly to the
essence of the voyage charter-party and the balance between the parties’ duties.
There is a necessity to comprehend the duty to hold the cargo in readiness because any duty
belongs to a specific and proper regime, which will have an influence on the parties’ relations.
There is always an imperative need for a jurist to control and contemplate the contractual
relations.
As J. Cooke mentions in his book14, there is under English Law a deep interest in the
existence of such an autonomous obligation. But was it always the case and is it so under
every legal system?
In brief, the interest of this subject is to deal for different legal systems with the existence and
the regime of a duty that is not clearly fixed.
The interest of this subject is the interest that a jurist may have for a qualification of an
obligation. Indeed it is crucial in a legal approach to be able to qualify an obligation whether
by its name or by its regime. The duty to hold the cargo in readiness requires such a
qualification in order to present a homogeneous legal structure.
This analysis of the duty to hold the cargo in readiness presents a certain number of
difficulties that I shall overcome on the threshold to the subject. The first step in this direction
is to identify those difficulties and their sources.
14
J. Cooke, Voyage charterer, Lloyd’s of London press 1993, page 121.
6
The Duty to Provide Cargo under a Voyage Charter-party.

Difficulties of the subject:
The voyage charter-party has a particular nature because it is a contract that is half way
between a transport contract and a contract of ship hire15(bare boat charter). In a contract of
transport the important element is the moving of a cargo (nature, quantity, quality…), while
in a hiring contract it is the time for which you require the thing hired.
In voyage chartering, both elements (the time and the cargo) are essential. Indeed the
charterer has to act with celerity in his duty to provide a cargo to the carrier, and at the same
time he has to provide the cargo such as described in the contract 16. Now the analysis of the
duty to have a cargo ready for loading in consideration of these two elements is one of the
major sources of difficulty. However, I mentioned earlier that this work would not deal the
problem of conformity of the cargo because that it is outside of my subject. The cargo will
therefore be considered only with regard to the fulfilment of the duty to hold the cargo in
readiness.
The other difficulty that we face concerns the overlapping between the parties’ duties. Our
subject concerns the specific period of loading, where precisely each party has to assume
certain duties without which the other party will not be able to fulfil its. This overlap and
interdependence between the parties’ duties during the loading and unloading of the cargo
seems to crystallise the difficulties.
Finally, the comprehension of a duty requires an accurate analysis of the legal system under
which it arises in order to understand the function of the duty in its proper connection. In this
work three legal systems are being analysed simultaneously, and this comparative approach
makes my work more difficult. As a first approach I shall however speak of “the duty” to
have a cargo in readiness despite the difference of conception between the legal systems in
this regard.
To summarise the problem of this subject, I have to analyse the duty of the charterer to have a
cargo ready under three angles, which are the time, the cargo, and the duties of each party.
My aim is to demonstrate the existence of the charterer’s duty and its contents. In other
words, from when is it generally estimated that the charterer has to have a cargo ready for
loading, when is he in breach, and what are the sanctions and remedies for this kind of nonfulfilment? In order to have a global perspective of the problem, I shall try to present a
comparative approach of the solutions adopted in different legal systems (Swedish, French
and English).
To present the problem I have chosen to adopt a classical approach consisting in opposing the
definition of a duty to the case of its non-performance.
This will lead me to deal in a first part with the definition of the duty, namely its existence
and contents in the different legal systems.
Thus: I° The definition of the duty to have a cargo ready to load.
In a second part I will focus on the non-performance of the duty and its consequences.
Thus: II° The non fulfilment of the duty to have a cargo ready to load.
15
Rodière René and Du Pontavice Emmanuel, Précis de Droit maritime, 12° edition, collection Dalloz,
page 285, n°303 “the charterer does not rent a ship, he expects a service”.
16
Rodière and Du Pontavice, Op. Cit. page 285, n°303 “The difference with the time charter-party is
immediately clear, in the voyage charter-party the cargo accurately defined”.
7
The Duty to Provide Cargo under a Voyage Charter-party.
I° The definition of the duty to have a cargo ready to load.
As I mentioned in the introduction, we do not know at the outset if the charterer is bound to
have a cargo ready to load because of the imprecision of the law and of different standard
contract forms. Thus, our first task will be to determine to what extent we can speak about an
obligation of the charterer’s to have a cargo available to load.
To work out the existence of such duty I shall analyse the contents of the voyage charter-party
notably during the loading, which is the moment when the duty is suppose to materialise. I
must examine the mechanisms intended to regulate the fulfilment of the parties’ duties at this
moment in order to determine whether or not this duty integrates itself logically amongst the
others elements of the contract.
The question is whether, despite not being stated as a formal obligation of the charterer; the
need to hold the cargo in readiness can be described as a duty following normally from the
signature of a charter-party by the charterer.
This question will find an answer through two other questions going to the nature of the duty
to have a cargo available and its regime. The question of the nature of the duty to have a cargo
available will emerge from the research of the existence of a real duty in the legal sense.
This question of its regime leads me to determine how this duty functions. In other words
from when ought the charterer to fulfil this duty? The beginning and the length of this duty
are the “sine qua non” requisite to its existence. This is true particularly if we consider that
this possible duty will play at an essential period during which the responsibility and liability
of the charterer is based on the time element. This explains the importance to define
accurately the legal regime of this duty.
A What duty?
This part of the work will be dedicated to justifying legally the existence of the duty to have a
cargo available. With this in view I shall decompose the duty into its two elements, which are
the duty to have a cargo at disposal and the duty to have it in readiness. To explain this
distinction I must reason in terms of breach, thus those two duties sanction first a total lack of
cargo for the duty to have a cargo at disposal and a delayed cargo for the duty to hold the
cargo in readiness.
Why such a distinction between a delayed and a total lack of cargo?
This is because I feel that the delay to have a cargo in readiness is a breach which does not go
to the root of the contract and which can be solved keeping the transaction alive, while the
absence of a cargo undeniably brings the contractual relation to an end. The idea is that those
two duties are fundamentally different due the nature of the breach they are to sanction.
The goal is however to demonstrate the difference between those duties and the existence of
each of them separately with their own legal regime. However, in this A I must focus on the
task of proving the existence of those two duties. That is why in 1) I shall analyse the duty to
have a cargo at disposal and in 2) the duty to hold the cargo in readiness.
8
The Duty to Provide Cargo under a Voyage Charter-party.
1)
The duty to have a cargo at disposal.
The situation considered here is that where no cargo is provided by the charterer to the carrier.
If we consider the problem from the perspective of the carrier, the question is, can we speak
of the right of the carrier to require a cargo to exist?
The absence of any cargo is effectively going deprive the carrier of his legitimate expectation
to earn a profit generated by the contract. The interest of such approach is to emphasise the
position of the carrier who is expecting a profit. This will somehow justify that even if the
charterer does not provide the cargo initially planned and described in the contract, which is a
breach as we shall see later, the provision of a replacement cargo might still be perceived as a
fulfilment of the primary duty to provide a cargo.
What I intend to demonstrate here is that under the three systems considered the charterer has
at least the duty to provide a cargo in order to avoid the termination of the contract through
his fault. This demonstration is a first step in the analysis of the existence and the definition of
this supposed duty to have a cargo ready when the ship arrives.

Under French law, since 1966 the courts and tribunals have recognised that the
“obligation de mettre à bord” embodies a duty to have a cargo at disposal. Thus in its
decision number 79 the Maritime Arbitration Chamber of Paris condemns the charterer
for his inability to find any cargo for loading17. The charterer was then sentenced to
indemnify the carrier, in accordance with Article 1318 of the Act of 1966. What may be
the ground of such indemnity if it is not a sanction of the breach of a duty to have a
cargo at disposal? Thus it appears that under French Law the charterer has the duty to
provide a cargo to the carrier. This is also the view of the Professors Rodière and Du
Pontavice.19
However, under French law the judge can not create an obligation, he has to find a
support in a legal text. Such textual ground is found in Article 8 of the French Decree of
1966, which states that “L’affréteur doit mettre à bord la quantité de marchandises
énoncée par la charte partie. A défaut, il paie néanmoins le fret prévu pour cette
quantité”. This article embodies the charterer’s obligation to supply the ship with the
exact quantity of cargo described into the contract.20
I shall immediately precise that the expression “obligation de mettre à bord” is totally
clumsy and must not be interpreted literally as the “duty to put on board” or more
simply “duty to load”. This amounts to saying that charterer has the duty to have a cargo
at disposal, and thus article 8 of the Decree does not concern the operation of loading of
the ship but rather the provision of a cargo by the charterer.
Decision number 79 , 1972 March the 13th, in DMF 1972 page 640, « l’affréteur qui n’apporte pas la
preuve de l’impossibilité absolue d’apporter la marchandise à charger ne saurait donc être libéré de ses
obligations en raison d’un événement qui ne rend simplement l’exécution plus difficile ou plus
onéreuse. »
18
Article 13 of the French Law of 1966 « L’affréteur peut résilier le contrat avant tout commencement
de chargement. Il doit, en pareil cas, une indemnité correspondant au préjudice subit par le fréteur… »
19
Rodière and Du Pontavice, Op. Cit. page 286, n° 304: “L’affréteur s’oblige d’abord à amener la
marchandise en vue de son chargement…”
20
Lamy Transport tome II, Lamy S.A. edition 1998, n°679 page 445.
17
9
The Duty to Provide Cargo under a Voyage Charter-party.
Indeed the operation of loading and unloading are subject to another article of the
Decree of 196621. The term “obligation de fournir la marchandise” rather than
“obligation de mettre à bord” would have been a much more appropriate transcription of
its intention by the French legislator.
One could argue that according to Article 8, the charterer is not liable for nonperformance of the contract because he will have to pay what is commonly called the
“faux freight”, which has a particular nature.
In this argumentation, the existence of the institution of the “faux freight” prevents the
provision of a cargo to become a real duty in the sense that the charterer would not be
obliged to provide a cargo. This is because no matter whether the charterer provides the
cargo or not, in any case he will have to pay the freight, which may lead one to think
that the charterer is not bound to provide a cargo.
This seems wrong to me, because according to Article 13 of the Decree of 1966, the
compensation of the carrier in case of lack of cargo takes in consideration the loss he
suffered and consequently depends on the non-performance of the duty. But I shall
come back to this later on while treating the legal regime of the duty to have a cargo at
disposal (page 36).
In the Chamber’s decision number 948 (November, 7, 1996)22, the arbitrator blames the
charterer for “non-performance of the charter-party due to his exclusive fault” because
he failed to have a cargo at disposal at the date mentioned in the contract. The charterer
was then sentenced to compensate the carrier for the damages he suffered. Thus it
appears that the non-provision of any cargo to the carrier will activate an
indemnification duty on the basis of the actual damage he suffered.
This seems to confirm that under French Law there is an autonomous duty to have a
cargo at disposal for the charterer, which exists independently of the payment of the
freight.

Under English Law the same obligation exists since a long time ago, and a recent
illustration can be found in a decision of the Queen’s Bench in the case Seabridge
Shipping Ltd. v. ANTCO Shipping Ltd.23
In this decision Mr. Justice Kerr held that the charterer who had not provided any cargo
to a carrier and who could not prove an absolute prevention for an alternative cargo was
responsible for breach of contract. In this instance the prevention causing the charterer
inability to have a cargo was the crisis in the Persian golf with an embargo on all sales
from Arab countries to the United States.
This quite rigorous position of a United Kingdom court establishes an absolute duty for
the charterer to have a cargo and reciprocally a right of an alternative cargo for the
carrier.
Article 9 of the Decree of 1966 : « L’affréteur doit charger et décharger la marchandise. Il procède
dans les délais alloués par la charte partie. »
22
Decision number 948 , 1996 November the 7th, in DMF 1997.
23
Seabridge Shipping Ltd. v. ANTCO Shipping Ltd, in Lloyd’s Law reports (1977) vol. 2, page 367.
21
10
The Duty to Provide Cargo under a Voyage Charter-party.
The question of the right of the carrier to require an alternative cargo is rather common,
particularly if we consider the contract where the charterer is going to receive the cargo
from a particular supplier. After some hesitations24 it has been estimated that the carrier
is foreigner to the sale transaction and is not supposed to bear the consequences of the
charterer’s arrangements25.
The solution seems to be the same despite the presence in the contract of some
exception clauses in case of impossibility to obtain a cargo from a particular supplier 26.
However, I shall come back to this question of the exception to the charterer’s liability
later on in the second part of this work.
In a case where English law was applicable, the Paris Maritime Arbitration Chamber in
its decision 910 (April 17, 1995) sentenced the charterer to “compensate the carrier for
his loss due to the immobilisation of the ship”. Thus, it is actual loss incurred by the
carrier that has been taken into consideration.
As above I shall come back to the problem of the nature of the indemnification of the
carrier later on while studying the liability of the charterer and the legal regime of the
duty to have a cargo at disposal.

Under Swedish Law similar dispositions can be found in chapter 14 section 32 of the
Swedish Maritime Code.
“If the voyage charterer renounces the charter-party before loading has commenced or
if, after indicating such intention, he has not at the end of loading delivered all the goods
covered by the contract, the carrier shall be entitled to compensation for loss of freight
and other loss.”… “In determining the compensation, regard shall be paid to whether
the charterer failed without due cause to bring other cargo.”
The existence under Swedish law of the obligation for the charterer to provide an
alternative cargo leads us to think that impliedly the charterer has a duty to have a cargo
at disposal and to provide it to the carrier.
Besides, the specific liability of the charterer’s for non-provision of a cargo leads us to
think that the duty to have a cargo at disposal is totally autonomous, because it has to be
fulfilled separately from the duty to pay the freight. The charterer will be specifically
sentenced for the lack of cargo in consideration of the damages he inflicted on the
carrier.
From that, we may assume that this obligation of the charterer to have a cargo at
disposal is a real legal duty and not a precondition for the fulfilment of the contract by
the carrier.
In the case Jones Limited v. Green and Co. It has been considered that the carrier’s knowledge and
acceptance of the situation (peculiar colliery, custom of the port, loading in turn, no loading time
fixed) was of nature to excuse the charterer to find an alternative cargo. In Aspinall’s reports of
Maritime cases volume 1889 to 1904, page 600.
25
But in Gardiner v. Mac-Farlane (1893, 20 R. 414) the Lord Ordinary said” I am of the opinion that
difficulty in obtaining a cargo on account of the output of the colliery, which the charterer has
selected, being restricted is a matter with which the shipowner are not concerned…” This statement
has been re-affirmed in the case Ardan steamship Co v. Andrew Weir & Co (1905), in Aspinall’s
reports of Maritime cases volume 1905 to 1909, page 135.
26
Cooke Julian, Voyage Charters, Lloyd’s of London Press Ltd edition 1993, page 126.
24
11
The Duty to Provide Cargo under a Voyage Charter-party.
Conclusion:
I have tried to demonstrate in this part the existence of a duty to have a cargo at disposal
(obligation de «mettre à bord») under the three systems considered. This duty is well
identified in the law and in certain decisions considered. This encourages me to affirm that the
fact for the charterer to have a cargo is not a precondition for the performance of the contract,
but rather a real duty in the legal sense.
The consideration of the damages actually suffered by the carrier in order to indemnify him
because of the lack of a cargo demonstrates that to have a cargo at disposal is a duty.
This causes me to affirm that there is an autonomous duty to have a cargo at disposal in the
sense that it has its own legal regime.
However, the right for the carrier to receive a cargo for loading has to be considered as the
minimum of what he is entitled to. The question is now to see if the charterer is not bound to
do more than that. Namely, the question is to determine to what extent the charterer is bound
to have a cargo in readiness.
The voyage charter-party and particularly the loading period is a fight against the time, and I
can cite as a reminder the existence of the duty to load within the lay-days, obliging the
charterer to a certain celerity. Consequently it appears consistent that the charterer should be
bound to have a cargo in readiness since he will be bound to load it within a limited time.
However, the attaching of a requisite of time to the duty to have a cargo at disposal totally
changes the nature of the duty studied to create a new “duty”. The idea behind the “duty to
have a cargo in readiness” is to sanction delay of the charterer in his duty to provide a cargo.
But under voyage chartering the problems of delay of the charterer fall under the duty to load
within the waiting time.
This leads me to wonder to what extent there is room for a duty to have a cargo in readiness
that would not be confounded with the duty to load a cargo within the waiting time.
The question is thus whether we are facing a real autonomous obligation “to have a cargo in
readiness” in the legal sense or if the charterer is only bound to provide a cargo and its delay
will be sanctioned on the ground of another duty.
12
The Duty to Provide Cargo under a Voyage Charter-party.
2)
The duty to hold the cargo in readiness.
I shall consider here the possible existence of this duty, which requires answering to the
following question: in accordance with which text or principle can we condemn the lack of
diligence from the charterer to have a cargo in readiness?
If the charterer does not have a cargo ready to load, the immediate consequence is that the
carrier will not be able to fulfil his obligations. The threat of this hindrance should be
sufficient to create “ipso facto” a “duty to have a cargo ready to load”. A minimum of
contractual fairness imposes that the performance of the contract does not depend on only one
party, leaving the other to its mercy. Thus there is a real need to compel the charterer to have
a cargo ready to load.
However, it is hard to find any trace of this duty in the legal system in general and in
contracts. Thus, it is undeniable that we are not facing a real express obligation of the
charterer’s. This may be because this duty is so obvious that the parties do not feel it
necessary to mention it in their contracts. Or it could be that some other duty interferes in the
same field (notably the duty to load within the waiting time) and may cover the duty to hold
the cargo in readiness.
That is why I must solve the question of the existence of an autonomous duty to have a cargo
ready to load.
The goal here is to prove the existence of a generally admitted duty to have a cargo in
readiness for the charterer. I will analyse the position French, English and Swedish law
concerning the possible existence of such an express duty. However, I shall also try to see if
the gap existing in some laws and in contracts concerning this express duty can be filled up by
any basic legal principles applicable in the absence of any specific dispositions. More
precisely I shall investigate the possibility to “create impliedly” such a duty where no express
dispositions exist.

First let us consider the International Commercial Law, as expressed in the “Unidroit
principles”27 in its article 5.1, dealing with express and implied obligations, and 5.2
dealing exclusively with implied obligations.
Article 5.1 states that “the contractual obligations of the parties may be express or
implied”. This provision restates the widely accepted principle according to which the
obligation of contractual parties are not necessarily limited to that which has been
expressly stipulated in the contract28.
Article 5.2 states that “implied obligations stem from a) the nature and purpose of the
contract, b) practices established between the parties and usage, c) good faith and fair
dealing, and d) reasonableness.
Even though we have to notice that the UNIDROIT principles are not mandatory, a
judge often regards them as embodying an international position commonly adopted
concerning disputes raised in contracts.
27
28
See UNIDROIT principles of international commercial contracts, Rome 1994.
See UNIDROIT, Op. Cit. , page 101.
13
The Duty to Provide Cargo under a Voyage Charter-party.

Under English Law, as said Professor O. Lando, “despite the non-existence of a general
principle as such of good faith a similar result is reached by more specific rules”29.
An interesting illustration of the recognition and application of an implied duty may be
found in the case Interfoto Picture Library Ltd. v. Stiletto Visual Programmes Ltd.30. In
this case the Court of Appeal “regarded as decisive the fact that the plaintiffs had failed
to take reasonable steps to bring the term to the attention of the defendants.” although
the plaintiffs had not any legal or contractual duty of information of the defendant in
this respect31.
Concerning more precisely the unexpressed duty to have a cargo ready to load under the
voyage charter-party, the law is now fixed since the case Ardan Steamship Co v.
Andrew weir & Co32. Under English Law it is established that “in the absence of any
qualification to the contrary, the undertaking of the charterer to furnish a cargo is
absolute”33. Or differently stated by another author, “it is the obligation of the charterer
to make the cargo available for loading, an obligation that would be implied if not
expressly stated.” “This obligation is absolute, subject only to the exception set out
below”34. Thus, under English Law at least, there is the recognition and affirmation by
the case law of the duty to have a cargo available when the ship arrives. I shall see later
in what cases the parties have been considered to have agreed otherwise.

Under Swedish Law once again we have to refer to the Maritime Code. Chapter 14
section 17, dealing with the delivery for carriage, provides that “The goods shall be
delivered and loaded with due despatch”. Thus if the cargo has to be delivered with
“due despatch for carriage”, we can suppose that it means that the cargo has to be
available for delivery to the carrier. All depends of course what is behind this notion of
“due despatch” and the sanction applicable in case of non-performance, but on the face
of it the Swedish Maritime Code seems to recognise a duty to have a cargo in readiness.
A confirmation of the existence under Swedish law of this duty of the charterer’s to
have a cargo in readiness can be found in chapter 14 sections 35 and 36. Indeed those
sections deal with delay on the charterer’s side and consequently with the necessity for
the charterer to have a cargo in readiness. However, as those articles concern the
charterer’s liability regime, I shall proceed to their analysis later on in the corresponding
part.
It may also be important to notice that the Swedish Maritime Code’s rules on chartering
are more than auxiliary to the wills of the parties, and in fact some dispositions are
mandatory in certain traffic35. According to the Professor Tiberg,36 this tendency may
have increased in the last modification of the Maritime Code: “It is also said that these
well-considered rules (on chartering) should have more effect than declaratory rules in
general and should be applied whenever not expressly exempted”. This makes one
wonder to what extent the parties could remove this duty to have a cargo in readiness.
29
O. Lando, Each contracting party must act in accordance with good faith and fair dealing, Festskrift
till Jan Ramberg, Stockholm 1996,pp. 345-361.
30
Interfoto picture library ltd v. Stiletto Visual Programmes ltd ,1989, Q.B. 433 (C.A.).
31
O. Lando, op. cit. note 16, pp 353.
32
Ardan steamship Co v. Andrew weir & Co (1905), in Aspinall’s rep. vol. 1905 to 1909, page 135.
33
Schofield John, Laytime and Demurrage; Lloyd’s of London Press LTD edition 1990, page 56.
34
J. Cooke, Voyage charterer, Lloyd’s of London press 1993, page 120.
35
Swedish Maritime Code section 2 of the chapter 14, “for voyage chartering in domestic traffic in
Sweden and in any traffic between Sweden, Denmark, Finland and Norway, the provisions of section
27 may not be set aside by contract to the detriment of a shipper, voyage charterer or receiver”.
36
H. Tiberg, comments on the Nordic maritime code, in page 533.
14
The Duty to Provide Cargo under a Voyage Charter-party.

Under French law, contrary to the duty to have a cargo at disposal, in the Act of 1966
and in the corresponding Decree there is a total absence of dispositions concerning the
duty to hold the cargo in readiness.
Besides chartering is one of the areas where the freedom of the contract is particularly
vigorous. The Act and the Decree of 1966 on chartering are declaratory rules that are
totally auxiliary of the wills of the parties. This means that the contract is perceived as
reflecting the wills of the parties due to the principle of the “autonomie de la volonté”,
and the law can be only an auxiliary.
The idea of the legislator was that chartering is a contract where both parties have the
same economical strength, and the freedom of contracting should prevail. Thus the
parties could perfectly well state in the contract that the charterer is not bound to have a
cargo in readiness.
However, in case of difficulty confronting the execution of the contract, particularly
when there is a gap in the parties’ provisions, the Civil Code and the “droit commun des
obligations contractuelles” are applicable. Article 113537 (Civil Code) fills in the
absence of the mention by the parties of the duty to have a cargo available. This article
states that the parties have to submit not only to what the contract prescribes but also to
everything that normally follows from the contract or is imposed by morality.
Indeed the commitment of the charterer in a voyage charter-party brings tacitly (as a
normal consequence of this contract) the obligation to have a cargo ready to load.
Although not being expressly stated in the contract, it is doubtless that under French law
the charterer is bound to have a cargo ready to load so as not to prevent the carrier to
fulfil the contract.
I may assume that it is only tacitly that the French law recognises the “duty to have a
cargo available”. This does not mean the non-existence of this duty, it just means that
under French law that duty is not considered as autonomous. Owing to this difficulty to
identify any duty to have a cargo in readiness under French law, I shall later analyse the
corps of rules designated to regulate the situation where a cargo is delivered with delay
to the carrier for the performance of the charter-party.
Conclusion:
The “duty to have a cargo in readiness” is far from being recognised as such under the three
systems considered. Thus where the English and Swedish law seem to enact the existence of
such duty, the French law does not make any direct reference to it.
My goal here is to identify and to qualify a duty, where upon I can pass to the analysis of its
legal regime. Thus where a duty is well identified in a legal system, its legal regime is
attached and becomes easier to analyse. While where a duty is not recognised as such, it is
precisely the examination of the rules then applicable that will permit its identification. The
other interest to study the legal regime of an obligation is to determine its autonomy in respect
of other obligations. In other words does our duty has its own regime or the regime of another
duty under which the first one is included.
37
Article 1135 du code civil Français. « Les conventions obligent non seulement à ce qui y est
exprimé mais encore à toutes les suites que l’équité, l’usage ou la loi donnent à l’obligation d’après sa
nature ».
15
The Duty to Provide Cargo under a Voyage Charter-party.
B Which legal regime: when and where is the duty supposed to be fulfilled?
The establishment of the legal regime of the duty to hold the cargo in readiness is based on
the premise that we are facing a real legal obligation, which is not true under every legal
system as we saw. In that case, however, the analysis of the corps of rules applicable to the
corresponding situation will perhaps help us to reveal the possible existence of this “duty”.
1) When is this duty supposed to be fulfilled?
More precisely when can we consider that the charterer has to have the cargo available and
from when will he be considered in breach if he does not perform this duty?
In order to explain the problem I have to separate two kinds of breach by the charterer:
a delayed provision of the cargo and, a total absence of cargo or lack of it.
a) Problem of a delayed cargo.
Here the charterer does provide a cargo to the carrier but with some delay, and our interest is
then to determine who is going to bear the cost of this delay.
The charge of the delay depends first of all on the situation of the vessel; is it considered as
“arrived” (waiting time started, delay borne by the charterer) or not (delay borne by the
carrier)? But the charge of the delay depends also on the existence of a duty to have a cargo in
readiness. This immediately leads us to determine to what extent the charterer can use the
waiting time to fulfil his duty to have a cargo ready.
Thus the question of the beginning of the duty to have a cargo available receives a new twist
by the necessity to determine from when a vessel can be considered as “arrived” and whether
the lay-time may be used to fulfil this duty.
i)
The influence of the duty to have a cargo ready on the beginning of the lay-time and demurrage.
Position of the problem.
The principle that characterises voyage chartering with regard to the loading time is rather
clear: since the vessel is an “arrived ship” the charterer will primarily bear the cost of the time
running. This immediately evokes the following comment.
When the ship is an arrived ship, the lay-time is going to run and the charterer will be under
the obligation to load within the lay-days. Consequently in this situation the duty to have
cargo available merges with another duty: the obligation to load within the lay-days38.
It is generally said that a vessel is an “arrived ship” from the moment she gives a proper
“notice of readiness”. but this may vary depending on the type of charter-party considered
(port charter or berth charter), the law considered and the clauses in the contract.
Under a “port charter”(where the ship is destined to a port, not a smaller area) the notice of
readiness has to be given when the ship arrives at the port, and the ship will be considered
“arrived” from then despite any further prevention to reach a berth. Under a “berth charter”
(where the ship has to reach a berth) the notice of readiness has to be given once the ship is at
the berth mentioned in the contract, and the ship will be considered arrived only then.
For a similar observation including under English law sees J. Cooke, Voyage charterer, Lloyd’s of
London press 1993, page 121.
38
16
The Duty to Provide Cargo under a Voyage Charter-party.
Some contractual dispositions like the clause “WIBON” (whether in berth or not) or the
clause “time lost waiting for berth to count as…” have the effect to change a berth charterparty into a port charter-party. With the WIBON clause in a berth charter party the lay-time
will begin although the ship is only in the port.
Under a berth charter-party when the port authorities do not allow a ship without a
cargo into the berth, a particular question arises concerning the party who is going to
bear the cost of the running time.
As we shall see, the answer to this question is the core of our subject and differs upon the law
applicable to the situation and the difference of conception in the qualification of “arrived
ship”.
I shall try to present the interrelation between all these factors with a classification under the
law considered. However, while giving those explanations concerning the qualification of
“arrived ship”, it appears that the subject is at the crossroads between various other difficult
problems. In order to stick to our goal (the definition of the charterer’s duty to hold a cargo in
readiness) I shall focus only on those elements of other obligations that are relevant to our
problem.
 Under French Law.
Using the principles of contractual obligations contained in the Civil Code, the French law
like the Swedish law tends to include any delay from the charterer’s side in the lay-time. This
is the outcome of some decisions like decision number 896 of the Maritime Arbitral Chamber
of Paris39.
This decision says a lot about the French conception of voyage chartering. The facts of this
case have to be analysed as an analogy to our subject40, because the problem of delay was
raised during the unloading of a cargo. The arbitrator had to search the nature of the time lost
and had to qualify it whether it was detention or demurrage time.
In this research of “the nature of the delay occurred before the beginning of the operations of
unloading”, the arbitrators held that “detention was an exceptional situation and the
demurrage was the normal way of remuneration of the carrier for delay due to the charterer”.
Unfortunately it is not mentioned in the summary of the decision whether the ship was
considered arrived or not.
According to professor Rodière and du Pontavice in their joint book41 “the beginning of the
lay-time will be as soon as the ship is ready.” Thus under French law, it seems that the ship’s
arrival and notice thereof is not entirely determinant for the beginning of the lay-time, the
important criterion being the actual readiness of the ship.
39
Sentence N° 896 of October 25th 1994, in DMF 1995, page 392.
In this case the receiver had delayed the beginning of the operations of unloading, which is the exact
parallel of the situation where a shipper is late in providing the cargo.
41
Rodière René and Du Pontavice Emmanuel, Précis de Droit maritime, 12° edition, collection Dalloz,
page 287, n° 306.
40
17
The Duty to Provide Cargo under a Voyage Charter-party.
This interpretation seems to be the correct one particularly if we refer to the comments of the
two professors on the situation where the ship may be prevented to berth due to some
hindrance. According to them “to decide if the lay-time has begun it has to be researched if
the ship was ready to load or not”.
In this respect the decisions of the Maritime Arbitral Chamber of Paris provides us information
notably concerning the criteria of distinction between a ready and a non-ready ship.
On the one hand, if the ship is prevented from being an arrived ship because of a nautical
hindrance, the French law considers that the carrier has to bear the delay caused by this type
of hindrance42. This is true even if the ship could have been or was in fact an “arrived ship”
according to the charter-party and was prevented from reaching the berth or had to leave it for
nautical reasons43. A fault of the carrier in his duty to deliver a ship conforming to the
contract will also prevent the beginning of the lay-time44.
On the other hand, the outcome of a recent decision of the Maritime Arbitral Chamber of
Paris45 clearly shows that the commercial risk is borne by the charterer. In this decision, the
arbitrator refused to let the lay-time begin because the ship was not entirely ready to load (due
to the dirtiness of the hold while giving its notice of readiness).
Nevertheless, the carrier claimed that the condition of the holds was a pretext of the charterer,
who was in fact not able to provide the cargo earlier because of a lack of package.
The arbitrator refused to consider this argument because “the carrier did not prove that the
charterer could not provide the cargo”. Impliedly the arbitrator suggests that if the carrier had
been able to prove that the charterer’s inability to provide cargo was the real cause for the
delay, the lay-time would have started. This means that the arbitrators have looked into
the actual or the most determinant cause for the delay in the fulfilment of the contract.
This also means that under French law the non-readiness of a cargo does not prevent the
vessel from being an “arrived ship”. Thus, the charterer bears the commercial risk and cannot
invoke a commercial event (delay or lack of cargo) to prevent the beginning and the passing
of the lay-time.
In this conception the nautical risk resting on the carrier becomes relevant only if all the
charterer’s possible hindrances have been removed46. Thus, a delayed cargo is a hindrance to
the normal fulfilment of the contract that is undeniably in the charterer’s sphere, and which
has therefore to rest on its shoulders. This is true with the condition that this delayed cargo is
the actual cause of prevention from reaching the berth for the ship.
42
Editions du juris-classeur 1998, juris-classeur commercial, fascicule 1221 Exploitation du navire
affrètement au voyage, page 4.
43
Sentence N° 325 December the 20th of 1979, in DMF 1980 page 189, swell preventing the ship from
reaching the berth under a port charter party.
44
Sentence N° 968 June the 6th of 1997, in DMF 1998 page 389, for a decision showing that a NOR
will be cancel because of the non-conformity of the ship to the contractual description.
45
Sentence N° 993 October the 10th 1998, in Journal de la marine marchande (99/06/04) page 1204.
46
Sentence N° 873 November the 29th of 1993, in DMF 1994 page 478, “Le risque nautique
incombant à l’armateur d’acceder au poste désigné ne naît que quand le poste est disponible”. The
nautical risk borne by the carrier exist only when the berth is available. This means that if the berth is
not available (commercial event) the risk cannot be borne by the carrier.
18
The Duty to Provide Cargo under a Voyage Charter-party.
Conclusion:
To resume the French position on this matter I shall emphasise the following points.
 Where the carrier is prevented to reach the berth for nautical reasons, the carrier bears the
cost of the running time.
 Where the carrier is prevented to reach the berth for commercial reasons, the charterer
bears the cost of the running time.
 Where the carrier is prevented to reach the berth for both reasons (commercial and
nautical reasons) the actual or most determinant reason has to be found in order to
nominate who bears the cost of the running time.
However it seems that the nautical prevention to reach the berth can only be taken into
consideration where no commercial hindrances exist any longer.47
Under French Law, in a berth charter-party, the port authorities’ refusal to berth due to the
charterer’s lack of cargo does not prevent the ship from becoming an “arrived ship”.
The important criterion to determine if the ship is arrived seems to be the actual cause
hindrance provoking the delay of the vessel.
Consequently the charterer’s delay to provide the cargo to load will be included in the laytime and demurrage time (waiting time) whether the ship could reach a berth or not.
Firstly, this tends to reduce the interest under French law of a clear distinction between the
duty to have a cargo in readiness and the duty to load within the lay-days.
Secondly, this suggests that under French law, the duty to have a cargo is not autonomous
because it is included in another duty, which is going to impose its legal regime.
 Solution under English Law:
The distinction between different types of charter-parties (port/berth C/P) and the description of
the effect of the WIBON clauses on the duty of the charterer is also valid under English Law.
Position of the problem:
It is only when the lack of cargo prevents the ship from reaching the berth and whether there
is or not a fixed time for this operation that the question arises. Where a ship is under a port
charter-party, or where the charter-party provides that any time spent waiting for a berth shall
count as loading time, the duty to have a cargo available for loading is of little interest, since
lay-time and demurrage will start running despite the absence of cargo and the owner will be
compensated by demurrage if the absence of cargo causes a failure to load within the laydays.48
That is also the position of Professor Hugo Tiberg in his book “The Law of Demurrage”:
“When the charterer is absolutely responsible for the completion of the loading or discharge
within the lay-days, no specific duty of holding the cargo ready need be imposed upon him.”
Sentence N° 873 November the 29th of 1993, in DMF 1994 page 478, “Le risque nautique
incombant à l’armateur d’acceder au poste désigné ne naît que quand le poste est disponible”. The
nautical risk borne by the carrier exist only when the berth is available.
48
J. Cooke, Voyage charterer, Lloyd’s of London press 1993, page 121.
47
19
The Duty to Provide Cargo under a Voyage Charter-party.
However, there is a situation where the question of the obligation to have a cargo ready turns
to a central and autonomous question regarding the fulfilment of the contract by the parties.
This corresponds to the situation where a vessel is prevented from being an “arrived ship”,
because the ship is not admitted to berth to which it is consigned due to the lack or absence of
cargo waiting for it.
Contrary to the French Law, under English Law the vessel will then be not considered as an
“arrived ship”. Consequently the lay-time will not run and the carrier will bear the charge of
the time running despite his absence of fault in this situation.
One could argue that under English Law according to the principles established in the famous
case Sunbeam Shipping CO. Ltd. v. President of India49, the charterer has the duty to act to
enable a vessel to become an arrived ship. This would provide us the solution of punishing the
charterer for his lack of diligence in the fulfilment of his duties. But the duty involved in our
problem is one concerning the availability of the cargo and not one dealing with the
qualification of “arrived ship”.
I feel that where the state of a vessel as “arrived” depends exclusively on the availability of a
cargo, the charterer should be bound to fulfil his duty in this respect as soon as this constitute
the last condition to the qualification of “arrived ship”. This is also in substance the outcome of
the English case law as embodied by the decisions Ardan v. Weir50 (1905) and The Aello51 (1961).
According to J. Cooke52: “where the availability of the cargo for loading is necessary in order
to enable the vessel to become an arrived ship, the charterer must make the cargo available for
loading in a sufficient time to enable the ship to become “arrived” without delay caused by
unreadiness of the cargo for loading”.
Nevertheless the decision Ardan v. Weir, which lays down the general rule, should be seen
against the background of some previous decisions. For instance in the case Little v.
Stevenson53 (1896) the House of Lords held that there is no absolute and indefinite duty for
the charterer to have a cargo available.
This idea was reiterated in Ardan v. Weir when Lord Davey said that “What was laid down (in
Little v. Stevenson) has to be read with regard to the facts of that case, and all that was meant
was that the charterer’s obligation is only to have his cargo ready when the ship is ready to
receive it in ordinary course, and that he is not bound to be prepared for a contingency or
fortuitous circumstances not contemplated by either of the parties.
Sunbeam Shipping Co. v. President of India (The Atlantique Sunbeam) 1973 Lloyd’s Laws reports,
I° part, page 482.
50
Ardan Steamship Co v. Andrew Weir & Co (1905), in Aspinall’s Reports of Maritimes Cases
Volume 1905 to 1909, page 135.
51
The Aello, Sociedad Financiera de Bienes Raices v. Agrimpex (1961) Lloyd’s List Law reports, I°
part, page 623.
52
J. Cooke, op cit. .
53
Little v. Stevenson (1896), in Aspinall’s reports of maritimes cases, volume 1895 to 1899, page 162.
49
20
The Duty to Provide Cargo under a Voyage Charter-party.
Another moderation to the case Ardan v. Weir is found in the case Jones Ltd. v. Green & Co.
From this it follows that “where the cargo is to come from a definite source known to both
parties, and no time is fixed for loading, there is no absolute obligation on the charterer to
have a cargo ready to immediately on the ship’s arrival at the port of loading.”54
This makes the professor Hugo Tiberg say that “Under English Law the charterer is under
such obligation (to have a cargo in readiness) where the lay-time is fixed. Where the lay-time
is not fixed, on the other hand, the charterer’s duty is merely one of reasonable diligence”.55
The question is now to what extent there is an autonomous duty to have a cargo ready for the
charterer before the vessel can be considered as an “arrived ship”?
The answer to this question can easily be found in the case Ardan v. Weir where the Lord
Chancellor (Halsbury) held that “ordinary delay in loading is one thing, and the failure to
provide cargo to load is another and very different thing”56.
Contrary to the French Law, under English Law the question of the duty to have a cargo ready
appears in an autonomous way because this duty is not at all the same thing as the duty to load
within the lay-days.
We can conclude that under English Law when a vessel is prevented from becoming an
arrived ship because the charterer failed to have a cargo available, the latter will be liable for
delay.
This is true with the moderation brought by the two cases formerly mentioned.
First the charterer cannot be liable for delay if he could not have been in a position to
reasonably contemplate the event preventing him from having a cargo, as stated in the case
Little v. Stevenson.
Secondly the charterer can not be liable for delay if the carrier was aware of difficulties or
particularities concerning the loading susceptible to create some delay and if no time is fixed
for the loading.
Here the charterer’s liability is not based on the regime of the lay-time and demurrage but
rather on the regime of detention.
Indeed under English Law the liability of the charterer for the non-performance of the duty to
have a cargo available is autonomous and distinct from the regime of the duty to load within
the lay-time. I shall explain later the consequences of the distinction between those three
regimes.
Schofield John, M. A. Laytime and Demurrage, Lloyd’s of London Press LTD edition 1990, page
56.
55
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 335, n° 7 “charterer’s duty to
have a cargo ready”.
56
Ardan Steamship Co v. Andrew Weir & Co (1905), page 137, op cit. See also Schofield John,
Laytime and Demurrage; Lloyd’s of London Press LTD edition 1990, page 56, where the author states
“there is a considerable difference between a failure to provide a cargo and a delay in loading”.
54
21
The Duty to Provide Cargo under a Voyage Charter-party.
 Solution under Swedish Law:
The Swedish law seems to have adopted an intermediate position if we consider the French
and the English solutions.
As mentioned earlier, under Swedish law the existence of a duty to have a cargo in readiness
although not expressly stated may be deduced from the reading of the legal texts and notably
the Maritime Code. This tends to make the Swedish and the English system substantially
alike.
However, the equation between the English and Swedish systems should be limited to the
recognition of the existence of this duty to have a cargo in readiness, because under Swedish
law like under French law this duty does not have any influence on the beginning of the laytime and demurrage time.
Indeed under Swedish law there is no distinction concerning the failure to provide cargo and
the delay in loading when it comes to the regime of those duty.
This is the result of the interpretation of chapter 14 section 13 the Swedish Maritime Code,
which provides:
“If the vessel can not be berthed at the loading place on account of a hindrance on the voyage
charterer’s side, she may still be notified as ready to receive cargo with the effect that lay-time
commences to run. The same shall be true for congestion and also for other hindrances which
the carrier could not reasonably have contemplated when the contract was concluded.”
So we see that under Swedish law the lay-time will start in spite of “any hindrances which the
carrier could not reasonably have contemplated”. Consequently the failure of the charterer to
have a cargo available (notably if this is a requisite for the ship to become an arrived ship)
will fall under the regime of the general obligation stated in chapter 14 section 13, which
concerns hindrances on the charterer’s side to the beginning of the lay-time.
However, one may wonder to what extent the carrier should be entitled to lay-time if he
knows when signing a voyage charter-party that the loading will take place at a port with a
precise supplier who will normally make the cargo available with delay. Should it be
considered that it is a hindrance on the charterer’s side, according to the first sentence of
section 13, which allows the carrier the benefit of the lay-time? Or should we consider that the
carrier could easily contemplate this hindrance as preventing him from the benefit of the laytime?
Whatever the answer, we can say that the Swedish law, despite apparently recognising a duty
to have a cargo ready to load (like the English law), sanctions its non-performance by the
contractual provisions of lay-time and demurrage (like the French law).
Once having established the conditions upon which the duty to have a cargo available starts,
we have now to determine its relation to the duty to load within the lay-days, particularly
when these duties overlap. I shall come back later to the situation where those two duties are
distinct and where the specific regime of detention has to be applied to sanction the non
fulfilment to the autonomous duty to have a cargo in readiness.
22
The Duty to Provide Cargo under a Voyage Charter-party.
ii) The influence of the duty to have a cargo ready on the right to use the lay-time and
demurrage time.
The situation here has to be described accurately in order to avoid any further confusion. I am
dealing here with the situation where the ship is considered as arrived and where the regime
that is going to be applied is the regime of the lay-time and eventually the regime of
demurrage. On the face of it the cargo is simply delayed and the carrier is waiting for a cargo.
The question is then to what extent does the duty to have a cargo ready influence those
regimes?
Position of the problem.
On the face of it, the application of the regime of lay-time and demurrage should not differ
from when it is the duty to load within the lay days that has been set aside.
However, as the duty to load within the lay-days and the duty to have a cargo available are
distinct notably under English Law, we can fear that even during the lay-time there is a need
for a distinction between the two regimes. The analysis of this problem should yield more
information on the nature of this duty but above all will clarify to what extent one can talk
about an autonomous duty to have a cargo in readiness.
 How long must the ship remain in lay-time waiting for the cargo to be available to load?
 Under English Law:
Under English law the answer seems not to differ from the use of the lay-time for loading
according to Lord Denning M. R. 57, because he speaks more generally about the delay in
the lay-time whatever could be its cause (loading or waiting for a cargo).
“Where the charterer have been guilty of a breach causing delay, they are entitled to
apply their lay-time so as to diminish or extinguish any claim for delay, leaving the
shipowner to claim for demurrage at the agreed rate for any extra delay over and above
the lay-time. The reason is because they have bought their lay-time and paid for it in the
freight, and are entitle to use it the way which suits them best, and in particular to use it
as to wipe out or lessen any delay for which they would otherwise be responsible…”
According to an author,58 it is generally admitted that during the lay-time before the work
has ended, the charterers are entitled to use the whole time for loading or discharging. In
this situation according to him “Even if the ship is not worked, she must remain at the
loading port throughout the lay-time”. For this author if there is a discussion, it is of
knowing if after loading the charterer is entitled to continue to use the remaining lay-time
for the fulfilment of other duties than the duty to load the cargo.
See the case Shipping Developments corporation S.A. v. V/O Sojuzneftexport (1971), in Lloyd’s
reports I° part, page 509.
58
Summerskill; Laytime; 4°edition 1989; Stevens, introduction page 2, charterers’ right and duties 1-05
and more particularly 1-05. “Charterers who are in breach of this duty (to release the ship after loading
has ended) are liable not for demurrage at the charter-party rate but for damages for detention of the ship,
because demurrage is due only where the ship is detained on the purpose of working on her.”
57
23
The Duty to Provide Cargo under a Voyage Charter-party.
The fact that the ship will be considered out of the regime of lay-time once the loading is
completed has apparently no effect on our subject. This is because in this case the loading
cannot be achieved and consequently the ship will remain on demurrage.
However, the author’s question (is the lay-time considered as time only for loading?)
reveals the consistency of the English lay-time conception. Later on I should search if the
same principle is applicable to the demurrage time leading us to consider that under
English law the global waiting time (lay-time + demurrage time) is due only for the
purpose of working on the ship.59
 Under French Law:
Although the duty to have a cargo available is not easily identifiable, the right to use the
lay-time to get the cargo ready should be the same as under English law, because there is
not any difference in the legal conception of the lay-time between the two systems60.
Besides according to Dean Rodière “Unless proved to be misusing his right, which means
proof of his intention to harm, the charterer is free to employ the lay-time as he sees
fit”61. According to another French jurist, Dean Ripert, this use has no limits because “it
is a right contractually defined, and consequently not susceptible of abuse.”62
Thus under French law also, the charterer has the right to freely use the lay-time to fulfil
his duty of getting a cargo ready.
 Under Swedish Law:
The Swedish Maritime Code in section 10 chapter 1463 clearly states the duty of the
carrier to wait until the end of the lay-time and demurrage time before leaving. However,
some difficulties seem to appear like under English law in respect of loading and other
functions of the charterer64.
As professor Tiberg mentions it in his Demurrage book, there is effectively some
inconsistency concerning the choice of application of the regime of detention rather than
the one of lay-time (and demurrage).
However, this does not have any effect on the duty to have a cargo ready, because then
the regime of lay-time/demurrage is still applicable. Thus, where the ship is waiting for a
cargo to be ready to load, the charterer seems to have the full liberty of use of his lay-time
under Swedish law like under English law.
59
See infra page 23.
Contrary to demurrage which is extra-freight under the French conception and which is damages
under English Law.
61
R. Rodière, Traite général de droit maritime, tome I, affrètement et transports, Dalloz 1967, N° 216.
62
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 189, note number 27.
63
Section 10 chapter 14 of the SMC: “The carrier shall be oblige to let the vessel remain for loading
during a certain loading time, which shall comprise a lay-time and a time on demurrage.”
64
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 184-185, “after actual loading, the
ship may depart, even during the lay-time, and if this is prevented, the carrier is entitled to damages
unless the charterer can prove absence of fault on his part”.
60
24
The Duty to Provide Cargo under a Voyage Charter-party.
 The other question that our subject leads us to deal with concerns the length of time
during which the ship can remain on demurrage waiting for the cargo to be ready.
Here due to the existence of two different conceptions of the legal nature of demurrage under
French and English Law, the solutions to our problem can be quite different depending on
which law is applicable.
 Under English Law:
First if I consider the cause for which the demurrage might end, under English law the
stipulated demurrage rate ceases in principle to apply when the ship arrives at the end of
an agreed period of demurrage, and the charterer becomes liable for detention65.
Secondly if I consider the right of the carrier to leave, under English law it is understood
that the ship must remain until the end of demurrage even when it is the cargo that is not
ready. “The use of demurrage time for loading, whether conceived as a breach or not,
does not entitle the shipowner to rescind the contract, unless the detention extends
beyond the agreed demurrage period or the contract is somehow frustrated or
repudiated”66.
Where only a rate for demurrage is provided by the contract, the carrier has to wait for
the cargo a reasonable time, and where there is no provision at all for demurrage, the
solution depends on whether the lay-time has been fixed.
Finally coming back to the distinction between the loading function and other functions
to be completed by the charter, a key to this problem may be found also in the demurrage
regulation.
Thus according to the Professor Tiberg this distinction between loading and other
functions appears in the case Nolisement v. Bunge and Brorn67 and has an important
consequence. Indeed for the author68 “In English Law the demurrage regulation is taken
to include only the loading and unloading operations.”
On the face of it, whether here or in the lay-time the duty to hold the cargo in readiness is
not affected by this distinction because the loading not being performed the ship will
remain on demurrage.
But as I mentioned earlier while studying the regime of lay-time, there is a question
whether the lay-time can be considered only as a time for loading. If I add this to the fact
that the demurrage regulation is taken to include only the loading and unloading
operations, I should be able to say by extension that under English law the waiting time is
taken to include only the loading and unloading operations.
The question is, however, whether the duty to have a cargo available is a loading function
or another function of the charterer’s?
65
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 552.
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 528.
67
Nolisement v. Bunge and Born (1917) 1 K.B. 160.
68
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 557.
66
25
The Duty to Provide Cargo under a Voyage Charter-party.
This question reveals the crux of the problem of the English conception, because if the
duty to hold the cargo in readiness is considered as a loading operation, this duty is not
autonomous and has to follow the regime of the duty to load within the lay-days. Under
English law this is not the case, because when the vessel is not an “arrived ship” the duty
to have a cargo ready intervenes while the loading operation is far from beginning. Thus
before the beginning of lay-time, the charterer’s shall be liable for any hindrance he
causes on the ground of the autonomous duty to have a cargo in readiness.
In this case if the duty to hold the cargo in readiness is considered as being another
function of the charterer’s (distinct from his function to load within the waiting time) then
and only then I shall speak about a real entire autonomous duty. The duty to have a cargo
ready is indeed autonomous when the ship is prevented from becoming an arrived ship,
but this is it!
After that the duty to have a cargo ready is include in the duty to load within the lay-days
which follows the legal regime of demurrage.
Consequently in my view the duty to hold the cargo in readiness is under English Law an
autonomous duty only during such laps of time during which the ship is prevented from
being an arrived ship due to a fault of the charterer.
 Under Swedish Law:
First if I consider the cause for which the demurrage might end, the Swedish Maritime
Code in section 14 chapter 14 states: “Time on demurrage is the time after which the
vessel must remain in order to be loaded, unless the length of time of demurrage is fixed
by contract”.
Thus where no limit is fixed the demurrage is going to end with the achievement of the
loading. Consequently other functions of the charterer such as providing the necessary
shipping documents fall outside the demurrage. The Professor Hugo Tiberg in his article
on the new Nordic Maritime Code69 has mentioned this difficulty. However, we are not
confronted with this kind of problems, because in our situation the loading is not achieved.
Secondly if I consider the right of the carrier to leave during or at the end of the
demurrage period, I can say that in the Swedish system the ship is compelled to remain at
the charterer’s disposal as long as it is for waiting for a cargo or for loading. The absence
of a legal limit of the demurrage period has simply for effect to compel the carrier to
remain at the charterer’s disposal “until frustration unless he resorts to a novel system of
setting a deadline for payment of compensation or lodging of security.”70
However, the duty of the carrier to let the ship remains at the charterer disposal during the
demurrage time suffers some attenuation by the provision of the section 35 chapter 14 of
the code. This article defines the conditions under which the carrier is entitled to cancel
the contract and the condition under which the charterer can renounce to the same
contract. The delay to load a complete cargo is included in the conditions entitling the
carrier to cancel the contract.
69
Tiberg Hugo, The Nordic Maritime Code, in Lloyds Maritime and Commercial Law Quarterly, page 534-535.
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 530, referring to SMC chapter 14
section 32.
70
26
The Duty to Provide Cargo under a Voyage Charter-party.
 Under French Law:
First if I consider the cause for which the demurrage might end under French law,
demurrage ends when the ship is departing. This requires that the master is in possession
of the documents permitting departure. Therefore as long as all the formalities allowing
the ship’s departure have not been done, it is considered that the ship and the charterer is
still under demurrage. This position of the French law has been affirmed in a recent
decision of the Maritime Arbitration Chamber of Paris71. In this decision the charterer
having not given to the carrier the “statement of facts”, the ship was still considered on
demurrage.
Secondly I consider the right of the carrier to leave during or at the end of the demurrage
period. The situation is confusing, because according to dean Ripert “the court leave must
be obtained before the ship can sail.” On the other hand if we refer to the considerations
of Dean Rodière and Professor du Pontavice when they say in their book72 “How long
does the carrier have to wait before leaving? Neither the law nor usage give us any
answer.” “ The master will leave after a certain time, contemplating that no cargo is
provided.”
However, under French Law demurrage is conceived as a contractual additional freight,
which means that it has not the nature of damages73. According to this conception
demurrage belongs to the body of the contract and is included in the payment of the
freight. Thus as a contractual disposition, demurrage, like the lay-time, binds the parties
who are compelled to follow its contents. Consequently the carrier is bound to wait for a
cargo until the end of demurrage unless the charterer renounces the contract or is in a
situation where undeniably he will not be able to fulfil his commitment74.
When a limit of the demurrage has been contractually established, if beyond this limit the
charterer detains the ship, he does so out of any contractual disposition. The end of
demurrage signifies the right to sail for the carrier, however, if he is prevented from doing
so, the ship is considered in detention and a peculiar regime is going to apply75.
When the charter-party is silent on a maximum time that the ship is going to remain on
demurrage, under French Law it would be very extraordinary to switch from the regime
of demurrage to the regime of detention76. The charter has to be really frustrating for the
carrier to justify such change.
71
Sentence of March the 10th 1983, in DMF 1984 P 524.
Rodière and Du Pontavice, Précis de Droit maritime, ed. Dalloz (12°), page 289, n° 308.
73
Jurisclasseur commercial, Exploitation du Navire, Fascicule 1221, page 16 n° 74.
74
Lamy Transport tome II, Lamy S.A. edition 1998, page 450, n° 691 “Lorsque le temps de planche
est épuisé, l’affréteur dispose encore d’un délai supplémentaire fixé par la charte, pendant lequel
l’affréteur n’a pas le droit de lever l’ancre.”
75
Jurisclasseur commercial, Exploitation du Navire, Fascicule 1221, pages 14-15 n° 67. “En l’absence
habituelle de contre-surestaries dans la charte, l’immobilisation du navire au delà du temps alloué pour
les staries (+surestaries) sera indemnisé selon évaluation judiciaire ou arbitrale, dans les termes du
droit commun. C’est ce que l’on appelle d’une expression anglaise detention damages”.
76
Jurisclasseur commercial, Exploitation du Navire, Fascicule 1221, page 15 n° 67. “Les mêmes
« detention damages » seraient allouées dans les cas assez rares où aucun taux de surestaries ne serait
prévu dans la charte et si l’affréteur ne faisait pas preuve de la diligence raisonnable pour opérer le
navire.”
72
27
The Duty to Provide Cargo under a Voyage Charter-party.
The idea under French law is that the contract is almost autonomous, and the judge or the
arbitrator may not interfere with its contents. Therefore if the parties did not make any
provisions to limit the demurrage period it is because it was agreed so. No place is left for
the creation of an ending period by the judge or the arbitrator.
Besides, the charter will sometimes provide “by implication”77 an extra time for the
charterer to perform his obligation to load a cargo at an augmented rate of payment. This
is peculiar to the Latin systems and such institution is called “contre-surestaries” or
“sursurestaries.” This regime has exactly the same nature as demurrage and consequently
the ship will be bound to remain at the charterer’s disposal. The only difference is as just
stated that the rate of payment of the carrier is increased. This regime depends on the will
of the parties, who have to agree on it in the charter-party78.
Consequently under French law where at the end of demurrage period no cargo has been
provided to the carrier, the charterer can find himself in one of two possible situations. He
will have to pay either extra demurrage if there is no limit to the demurrage mentioned in
the contract, or damages if there is a contractual limit to the demurrage.
b) Problem of the absence of any cargo.
If the charterer is not in a situation to provide any cargo at all, this situation corresponds to the
non-performance of the duty to have a cargo at disposal. This has already been analysed in
paragraph 2) of A.
However, in order to stress an important point of the argumentation, I shall recapitulate what
has been said under the followings elements.
 The absence of cargo is a strong breach of contract by the charterer and brings an end to
the contract with the carrier.
 This kind of non-performance by the charterer is totally different to a delay, and the
different legal systems have a similar way to sanction this kind of breach.
 The carrier under such circumstances will be entitled to compensation of a nature to which
I shall return later on.
 The nature of this compensation has nothing to do with the regime of the lay-days and
demurrage and will be discussed below in the part dealing with the consequences of the
breach.
This ends the analysis of the question “when” or more exactly when the fulfilment of this duty
is due and from when this non-fulfilment can be considered as a breach of contract.
However, the duty to have a cargo ready can be affected by other elements concerning the
cargo itself or the place where this cargo should be available. As mentioned in the
introduction, the duty to have a cargo ready is somewhat complex, taking into account the
time the place and the cargo. After analysing the influence of the parameter time on the
definition of this duty, from now on I shall focus on the place where the cargo has to be in
readiness.
77
Tiberg Hugo, The Law of Demurrage, page 174 notes 48-49 and page 556 for an evolution on the
basis of this institution.
78
Lamy Transport tome II, Lamy S.A. edition 1998, page 450, n° 691 “lorsque les surestaries sont à
leur tour épuisées, le fréteur peut partir en faisant payer le fret total ou faire procéder au déchargement
d’office de la marchandise ou résilier le contrat. Toutefois, certaines chartes consentent aux affréteurs
un nouveau délai supplémentaire, extraordinaire : ce sont les contre-surestaries ou sursurestaries.”
28
The Duty to Provide Cargo under a Voyage Charter-party.
2)
Where is the duty to be fulfilled?
In other words where does a cargo have to be in order to be considered ready?
This question follows naturally from what have been said formerly, because there is no point
in having a ship ready to load if the cargo, despite existing, is not at the right place and
consequently not ready to be loaded.
According to professor Tiberg “it has been considered necessary to imply an absolute duty for
the charterer to have a cargo ready at the customary storage place, which is traditionally taken
to be alongside the ship, but which may well be elsewhere”79. The author immediately details
that “the duty to have a cargo ready at a customary place is misleading” and “such duty is no
longer in accordance with the general custom”. The author makes reference to the
development of the modern logistic with the concept of “steady flow” and to the fact that it is
increasingly more difficult to store goods in public ports.
However, as we saw in the part concerning the beginning of the lay-time under English Law,
it is sometimes very important that the entire cargo should be ready to load at the exact place
determined in the contract. This is where otherwise the vessel may not be admitted to the
berth and will not become an arrived ship80.
Thus under English Law where the customs of the harbour requires the cargo to be available
at the right place to enable the vessel to become an arrived ship, the charterer has this
additional geographical duty.
On the other hand “When the arrival of the ship is not affected by the non-availability of
cargo, the charterer must make and carry out arrangements for delivery of the cargo at the
ship’s side at the place of loading in time to load her within the agreed time after arrival, and
in ordinary circumstances nothing which prevents him from doing so will relieve him from
his express or implied obligation to load in a fixed or reasonable time, as the case may be.”81
It seems that the place where the cargo has to be ready is relevant only when the fact for the
cargo to be somewhere else has an effect on the fulfilment of the contract by the parties.
Indeed the question of the readiness of the cargo includes those two elements of time and
place. Consequently the development concerning the influence of the beginning of the laytime on the duty to have a cargo available applies also here. But I shall insist on the peculiar
importance of the readiness of a cargo (time and place), under English law, due to the
autonomous duty to have a cargo available. In comparison, under French and Swedish law, as
the beginning of the lay-time is not postponed either by a cargo not being available nor by its
not being at the right place, there is no need for such an autonomous duty.
This ends the part of the work on the definition and the regime of the “duty to have a cargo
ready”. I shall from now on to analyse the consequence of the non-fulfilment of this “duty” or
the corresponding situation where this duty is not concerned as such.
79
80
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 335.
Ardan Steamship Co v. Andrew Weir & Co (1905), page 137, op cit.
81
Scrutton, Scrutton on Charter-parties 20°edition 1996, London Sweet and Maxwell, page
157.
29
The Duty to Provide Cargo under a Voyage Charter-party.
Conclusion I°:
If I recapitulate the reasoning, primarily I showed the existence of an autonomous duty to
have a cargo at disposal and secondly I discovered that the duty to hold the cargo in readiness
differs totally from the first one because of the time factor. Moreover those two duties are
embodied in different articles and case law which convinced me that we are facing two
different and separate duties.
Besides under English law, at least, it seems that the fact to have a cargo in readiness,
although not being stated literally in the contract, has to be considered as an obligation in the
legal sense due to its fundamental importance to the balance of the contract.
Indeed in some circumstances (when the ship is not an arrived ship and will not be considered
so until the moment that the charterer has a cargo available) it seems that the existence of the
duty to have a cargo available is the only technique of handling the matter. This raises the
assumption that there may be a real need for this duty and gives cause to reflect to what extent
are we facing an autonomous duty with a particular legal regime.
Thus where the English case law recognises the existence of this duty, the Swedish law
suggests it but seems to merge it with another obligation (the duty to load within the lay-time
and over lay-time) and the French system seems to ignore totally any duty to have a cargo in
readiness.
Consequently the question of the existence of the duty to hold the cargo in readiness remains
for the two last legal systems analysed. This duty being not recognised as such equally in
every system, I shall now study the different legal systems involved in order to identify a legal
regime susceptible to correspond to the duty to hold the cargo in readiness. In other word
instead of finding an obligation and describing its legal regime, I am going to proceed the
other way round by trying to identify in the legal system a legal regime corresponding to this
duty.
The idea is to examine in the different legal systems to what extent there is:
 a specific group of rules,
 characteristic of the voyage charter-party,
 distinct and additional to the obligation to load within the lay-days,
 imposed upon the charterer with a view of obliging him to have a cargo ready to load.
This will also lead me to consider the question the autonomy of the obligation to have the
cargo available.
I have to point out that this duty is linked to the general problem of hindrances for the carrier
in his fulfilment owing to the charterer’s fault. But I shall leave aside other hindrances on the
charterer’s like the duty to name a safe port or berth, the duty to load within the lay-days, the
duty to have the cargo as described in the contract…
This being explained, I shall now try to determine from when exactly the cargo is due to be
available at the loading point and what is the regime of fulfilment of this duty. In other words,
I have to precise the influence of the time on the fulfilment of this duty, because depending on
how and when this duty starts, the absence of cargo can lead to different regimes: lay-time
and demurrage, detention or damages.
30
The Duty to Provide Cargo under a Voyage Charter-party.
II° The non-fulfilment of the “duty” to have a cargo ready to load.
The non-performance of the “duty to have a cargo available” will lead to a sanction of the
charterer who did not fulfil his commitment. The interest of this part of the work is to
describe the regime of the sanction in order to qualify the “duty”. Any sanction of the
charterer is however conditioned by two elements that influence the regime of liability. Those
two elements are the type of non-performance involved, and the substantive law applicable to
the contract.
Each system has its own approach of the duties of charterer, and if all over the definitions of a
breach are alike, there are still differences that lead to totally distinct results depending on the
law applicable. The discrepancies existing between the legal systems are particularly
important about the conceptions of the duty to hold the cargo in readiness.
Thus where an autonomous duty to have a cargo in readiness exists, the non-performance of
such a duty should result in an autonomous sanction. In other words this sanction should be
distinct from the sanction of other duties like the duty to load within the lay-days. On the
other hand, if the duty to hold the cargo in readiness is not perceived as an autonomous duty
the sanction should be the same as the one applied for non-performance of the duty to load
within the lay-days.
Like in every contractual relation there is some cause for non-responsibility and non-liability
of the charterer, which I shall try to describe succinctly as to its effect on the duty of the
charterer to have a cargo in readiness.
More than describing the discrepancy between the systems recognising an autonomous duty
to have a cargo in readiness and those which do not, my goal here is to demonstrate the quasi
absence of a proper regime for this duty.
In order to do so I shall describe the possible influence of this duty on the charterer’s liability.
This will lead me to analyse the situations of liability of the charterer’s as well as the
situations of exception to this possible liability for non performance of the duty to hold the
cargo in readiness.
A Charterer’s liability.
The qualification of the charterer’s duty to have a cargo in readiness can be established
through an analysis of the influence of this duty on his liability for delay. This raises some
problems because of the duty’s overlap with the regime of lay-time, demurrage, and
detention. However, I shall exclude the regime of lay-time from my analysis because it is a
contractual time given normally to the charterer to fulfil the loading, so it does not qualify as
being a regime of liability.
In the research of the characteristic effect of the duty to hold the cargo in readiness on the
charterer’ liability, I shall distinguish between the different legal systems in order to
emphasise the possible key role played by this duty in the systems where it is recognised as
autonomous.
Therefore my goal is to try to analyse the regime of detention and demurrage under the three
legal systems already considered in order to describe the possible position of the duty to hold
the cargo in readiness in each system and particularly in the one where it is autonomous.
31
The Duty to Provide Cargo under a Voyage Charter-party.
1) Principles of the charterer’s liability for the duty to have a cargo ready under English Law.
To present those principles, I have chosen to separate the breaches that go to the root of the
contract from the breaches that do not have this effect.
a) Minor breaches leading to a sanction but not to the dissolution of the contract.
Under English Law the duty to hold the cargo in readiness can lead to four different situations
that are covered by different types of regime. The distinction between those regimes is quite
specific; therefore I shall present those regimes briefly before starting to analyse the
consistency of the entire system with regard of the liability for non-provision of the cargo on
time.
 If the charterer does not provide any cargo at all to be loaded, the carrier will be granted
damages as in the case Seabridge Shipping Ltd. v. ANTCO Shipping Ltd..
 If the charterer prevents the vessel from becoming an arrived ship because of the nonfulfilment of the duty to hold the cargo in readiness, the ship will be considered as in
detention and the carrier will also be granted damages.
 If at the end of the lay-time the charterer has not completed the loading the ship will enter
in a demurrage period.
 If after the demurrage period the ship still has to remain in order to be loaded the ship will
enter into detention, and once again the carrier will be granted damages.
In a first approach the variety of those regimes may suggest a complex system of liability.
However, this is not entirely the case, because under English Law the liability of the charterer
in regard of the loading is essentially perceived in terms of damages. The fundamental
distinction concerns the “liquidated damages” and “damages at large”.
This is precisely what distinguishes the regime of demurrage (where we speak of “liquidated
damages”) from the regime of detention (where we speak of “damages at large”). In the
British conception, demurrage although having the nature of damages is a lump sum of
money, which means that the amount is fixed contractually82, or in other words that the sum
payable by the charterer for demurrage is unaffected by the extent of the loss actually suffered
by the ship. In this regard the difference from the regime of detention is still important
because there the damages are qualified as “unliquidated compensation for the shipowner’s
actual loss.”83
However, the solution is not as clear as one might expect, because some doubt subsist on the
nature of the “liquidated damages” and on the influence of the actual damage on the sum
payable to the carrier. Generally speaking under the Common Law systems the doubt remains
particularly important if one refers to the American case law of the subject expressed in the
case Giovanni d’Amico v. Proctor & Gamble,84 and repeated in the case Trans-Asiatic Oil
Ltd. v Apex Oil Company.85
82
Jurisclasseur commercial, Exploitation du Navire, Fascicules 1221,page 16.
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 551.
84
Giovanni d’Amico October the 12th 1974, in Lloyd’s Laws reports 1975, I° volume page 203 “The
question whether demurrage is payable by a party where he delays in loading but where, in fact, there
has been no actual damage suffered by the carrier is answered negatively”.
85
Trans-Asiatic Oil Ltd v Apex Oil Company 1987 AMC 1115,804 F.2d 773 (1st Cir. 1986)
83
32
The Duty to Provide Cargo under a Voyage Charter-party.
Under English Law the legal nature of demurrage in this respect is in my view not clearly
established. The case Transamerican S.S. Corp. v. Tradax86 in the view of professor Tiberg
has to be considered as resolving the question in favour of the interpretation of the demurrage
as a lump sum accorded the carrier regardless of his actual loss. The professor based his
interpretation on the words of Mr Justice Parker: “In my view, however, while demurrage
may for the most part be regarded as being in the nature of damages for detention, it is not to
be equated with such damages. It is very different. It is a simple contractual obligation by the
charterer to pay a certain sum if he fails to complete discharge within the stipulated lay-time,
the commencement and calculation of which is itself a matter of agreement.”
Although this is clearly stated in favour of the automatic application of demurrage when the
conditions are fulfilled, the legal point solved by the case cited was not the determination of
the nature of the demurrage. Besides, insofar as demurrage has the nature of damages, the
qualification of lump sum does not relieve the carrier from proving his losses before being
granted of demurrage.
The nature of demurrage under English Law is therefore ambiguous because although having
the nature of damages, which means that they should be fixed by the judge in consideration of
the actual losses suffered, those damages will in fact be measured in consideration of what has
been agreed by the parties in the contract. This has also generated some comments from the
professor Tiberg87 who noticed that: “In common law systems the mere use of demurrage is
regarded as a breach of contract, and the fact that the charterer is in breach of some primary
obligation does not itself make the agreed demurrage rate inapplicable to delays in loading
and discharge”.
Finally with regard to the right of the charterer to oblige the ship to remain at his disposal in
order to load the cargo, the distinction between the regime of demurrage and detention remains
important.
One may wonder why it is important to accurately distinguish the regime of demurrage from
the regime of detention with regard to the duty to hold the cargo in readiness.
I have tried to clarify this question particularly because I have the feeling that the duty to hold
the cargo in readiness has a direct effect on regime of liability of the charterer.
Thus under English Law the regime of demurrage is the sanction for the failure of the
charterer to fulfil the obligation to load within the lay-time, while detention corresponds to the
sanction of the charterer for any other delay. The interesting point here is that detention comes
to sanction the non-fulfilment of the duty to hold the cargo in readiness precisely when this
duty is autonomous because not included in the regime of lay-time/demurrage.
Although detention damages will sanction the non-performance of the duty to load within the
agreed time (lay-time + demurrage time), they are notably the sanction for non fulfilment of the
duty to hold the cargo in readiness when it prevents the vessel from becoming an “arrived
ship”. This late situation corresponds precisely to the autonomous duty to have a cargo in
readiness but is not covered by the duty to load within the lay-days.
According to an author “As with delay…, owners are not entitled to terminate the charter until
the delay goes to the root of the contract”.88 Therefore I should analyse now those kinds of
breaches that go to the roots of the contract.
Transamerican S.S. Corp. V. Tradax (the Oriental Envoy) 1982 Lloyd’s Rep. Page 266 to 272.
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 561.
88
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 337.
86
87
33
The Duty to Provide Cargo under a Voyage Charter-party.
b) Major breaches leading to the dissolution of the contract.
In this part I intend to deal with breaches going to the root of the charter-party. Therefore we
are no more in the system of demurrage where the charterer was simply delayed or in the
system of detention where the delay of the charterer is “outside of the contract”. The breaches
considered here are of such nature as to give the carrier the right to free himself from the
contract. Such breaches of the contract are considered to be anticipatory breaches of the charter
allowing the carrier to rescind the contract.
This situation is clearly highlight by professor Tiberg in his demurrage book89 “A special
problem may often arise in connection with the loading, where the failure of the charterer to
provide a cargo might be interpreted as an anticipatory breach, entitling the shipowner to
rescind”.
However, the author indicates that under English law the rescission of the contract by the
carrier requires some detailed conditions to be fulfilled.
Thus, “When the charter’s failure to load has continued, or is bound to continue, for a period
sufficient to frustrate the contract, or where the charterer renounces the contract by refusing to
carry out his obligations or commits some other breach which goes to the root of the contract,
the shipowner is entitled to rescind the contract.”90
Those conditions were fully considered in the case Universal Cargo Carriers Corporation v.
Pedro Citati, 91 where Mr Justice Devlin stated three possible grounds for rescission before the
end of a demurrage period agreed in the contract:
 frustration of the adventure,
 renunciation of the contract by the charterer,
 total incapacity of the charterer to fulfil his commitment before the contract becomes
frustrated or before the demurrage period is out.
i)
Frustration of the contract.
The frustration of the adventure is an anticipatory breach, which allows the carrier to rescind
the contract. According to Lord Radcliffe this doctrine of frustration “occurs whenever the law
recognises that without default of either party a contractual obligation has become incapable of
being performed…”92 The frustration theory as a justification of the non-performance of his
obligation by one party is close to the French principle of the “force majeure”.
There are three events susceptible to create a situation of frustration and which may therefore
prevent further performance of the contract:93
 destruction of the ship or cargo,
 inordinate delay by the ship, and
 illegality of the voyage.
89
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 191.
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 562.
91
Universal Cargo Carriers Corporation v. Pedro Citati (May 29, 1957). In the Lloyd’s List Law
Reports, (1957) Vol. I, page 174.
92
Davis Contractors Ltd v. Fareham Urban District Council (1956) A.C. 696, at p 729.
93
Schofield John, M. A., Laytime and Demurrage, Lloyd’s of London Press LTD edition 1990, page
380.
90
34
The Duty to Provide Cargo under a Voyage Charter-party.
To establish whether those events frustrates the contract or not, the judge or arbitrator has to
consider the situation where the parties came to know of the facts giving rise to the delay and
had to asses its likely duration before deciding what action to take.94
In the case of frustration, such events will excuse the charterer from being liable for the nonfulfilment of the duty to hold the cargo in readiness.
This will not be the case concerning other anticipatory breach allowing the carrier to rescind
the contract.
ii) Renunciation of the contract by the charterer.
In the case of renunciation of the contract by the charterer, “Where the charterer repudiates the
charter-party, owners are entitled to terminate forthwith, and in one case it appears to have been
held that owners ought to accept the repudiation and seek alternative employment no later than
the date when the lay-days began, any additional loss caused by their decision to wait until the
lay-days expired being irrecoverable on the ground of a failure to mitigate”.95 The charterer
should here be liable for damages on condition that the renunciation was unambiguous.
iii) Rescission of the contract by the carrier.
According to Professor Tiberg 96the shipowner is entitled to rescind the contract when
 the charterer’s failure to load has continued, or is bound to continue, for a period sufficient
to frustrate the contract,
 the charterer commits a breach that goes to the root of the contract.
In the case of incapacity of the charterer to fulfil his commitment before the contract becomes
frustrated, contrary to frustration, the charterer will still be liable for damages. Like for
frustration, the incapacity of the charterer to perform the contract has to be appreciated at the
time of the rescission in order to determine if the carrier could reasonably estimate that the
charterer was not in a position to perform the contract. This is the outcome of the case
Universal Cargo Carriers Corporation v. Pedro Citati, 97 where a carrier had rescind his
contract on the ground of an anticipatory breach of contract by the charterer due to his inability
to have a cargo in readiness.
In those cases the shipowner should be entitled to recover damages at large for the loss of his
anticipated earnings under the contract, less the sum he has been able to earn for substitute
employment of the ship.
In any case, the duty of the carrier to mitigate his loss (and thus the damages payable by the
charterer) does not exist until the breach of the charterer becomes real. On the same principle,
any demurrage earned by the vessel before the termination of the charter may, provided that
termination is not unreasonably delayed, be recovered in addition to the loss of profit. 98
94
Schofield John, M. A., Laytime and Demurrage, op. cit. page 383.
Cooke Julian, Voyage Charters, Lloyd’s of London Press Ltd. edition 1993, page 449.
96
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 562.
97
Universal Cargo Carriers Corporation v. Pedro Citati.(May 29, 1957) In the Lloyd’s List Law
Reports, (1957) Vol. I, page 174.
98
Cooke Julian, Voyage Charters, Lloyd’s of London Press Ltd. edition 1993, page 449.
95
35
The Duty to Provide Cargo under a Voyage Charter-party.
2) Principles of the charterer’s liability for the duty to have a cargo ready under French law.
Here again I will separate breaches going to the root of the contract from breaches that do not
have this effect.
a)
Minor breaches leading to a sanction but not to the dissolution of the contract.
Under French law, due to the absence of recognition of an autonomous duty to have a cargo in
readiness, the division of the charterer’s liability regimes is different from what I presented
formerly.
Thus if I take the same order of presentation as the one used for the English system, the result
is the following:
 For absence of any cargo the charterer will be liable according to articles 8 and 13 of the
Decree of 1966.99
 For general delay after the end of the lay-time the charterer will be liable for demurrage.
 For delay after the demurrage period obliging the ship to remain in order to be loaded the
ship will either remain on demurrage, or enter into “sur-surestaries”, or more rarely enter
into detention.
My aim in this part is not to present the period corresponding to each of these regimes, as this
has already been done in the first part of the work. I intend to explain the differences between
the regimes of liability in order to compare them to the English system where the duty to hold
the cargo in readiness is conceived as autonomous. The goal here is to reveal the influence of
the duty to hold the cargo in readiness on the discrepancy existing between the legal systems.
First under French law, the mere use of demurrage is not conceived as a breach of contract.
Demurrage reflects the wills of the parties to deal with possible difficulties in the performance
of the contract.
That is why demurrage has the nature of an additional freight that the charterer has to pay to
the carrier as agreed in the contract. Therefore under French law, demurrage has the nature of
freight and not of damages like in the British system. This principle, although discussed
before the Act of 1966, is now clearly established by article 11 of the Decree of 1966.100
Demurrage is a lump sum payment attributed to the carrier without consideration of his actual
damage. Consequently proof by the charterer that the carrier did not suffer any damage will
be worthless, and the charterer will still have to pay the agreed sum of money in respect of the
delay. Under French law, since demurrage is stipulated in the charter, it starts to run
automatically, without any requirement, as soon as the lay-time is exhausted.101
99
See infra b).
Article 11 du Décret n° 66-1078 du 31 décembre 1966 « En cas de dépassement des délais,
l’affréteur doit des surestaries qui sont considérées comme un supplément de fret. »
101
Jurisclasseur commercial, Exploitation du Navire, Fascicule 1221, page 15, n° 69.
100
36
The Duty to Provide Cargo under a Voyage Charter-party.
Demurrage being a “supplément de fret” and a lump sum, its application is automatic, and the
judge or arbitrator should not be able to modify its contents. Although this point has lead to
some discussion102, demurrage should be distinguished from a penal clause, revisable by the
judge. This impossibility to modify the freight and the demurrage correspond to the French
conception of the freedom of the contract, which applies with all vigour to chartering,
considering the parties’ agreement as untouchable.
The solution is however different, as we shall see later, when the contract cannot be
performed at all, because then the charterer will be liable for “dead freight”. An interesting
comparative approach of this demurrage issue may be found in an article by Johannes
Trappe,103 where the author emphasises the discrepancy of the conceptions and their
consequences.
Secondly the system of “sur-surestaries” or “contre surestaries” conceived as an accrued
demurrage rate, will be applicable only if the parties have agreed upon it. The “contre
surestaries” have the same nature as demurrage, which means that where the charter provides
“contre surestaries” the ship will be obliged to remain at the charterer’s disposal. Otherwise
the demurrage rate should still be applicable after the end of the demurrage.
This is because the free damage evaluation for detention principle is very rarely used under
French Law to sanction delay, and this would require exceptional circumstances, as explained
in many books and reaffirmed in some important cases104.
However, there is a pathological situation, which leads quasi constantly to the detention of
ships as explained by Mr Aboubacar Fall in his article105 on the extra-contractual detention of
the ship in voyage chartering.
This situation arises due to a usual practice in the trade of rice. A ship loaded with a cargo of
rice is often forced to wait for the sale of this cargo to get a destination harbour, which may be
out of the area initially planned in the contract. Mr. Fall speaks of an “extra-contractual
detention” of the ship because the ship will remain at the charterer’s disposal after the
demurrage and will finally go to a destination not originally mentioned into the contract.
Nevertheless, under French law, the detention damages remains a very rare sanction of the
charterer for delay in the fulfilment of his duties. More than the already given explanation of
the French conception of freedom of the contract, the immediate explanation of this situation
can be found in the absence of an autonomous duty for the charterer to have a cargo in
readiness.
102
In favor of the connection between demurrage and the penal clause, R Gouilloux in Droit maritime;
edition A Pedone 1993, n°495 “Il semble que la solution des difficultés suscitées par les surestaries
puisse s’inspirer du dispositif Français relatif aux clauses pénales (art. 1152, al.2, C; Civ.). Comme
elles, les surestaries relèvent des prévisions des contractants, comme elles, elles sont sujettes à l’excès
et le juge ou l’arbitre peut être appelé à les corriger.”
Against this equation P Bonnassies in Cours de droit maritime sur l’affrètement, DESS Droit maritime
1997-1998.
103
Trappe Johannes, Lay-time problems and comparison of Law, in Lloyds Maritime and Commercial
Law Quarterly, 1986 page 251.
104
See sentence arbitrale 896, october 25, 1994, in DMF 1995, page 392. « Les arbitres ont rappelé
que la détention s’appliquait à une situation exceptionnelle et que les surestaries étaient le mode
normal de rémunération des retards. »
105
La détention extra-contractuelle du navire dans l’affrètement au voyage, in DMF 1998, page 578.
37
The Duty to Provide Cargo under a Voyage Charter-party.
b) Major breaches leading to the dissolution of the contract.
Under French law, the inability of the charterer to have a cargo in readiness may lead him to
two extreme situations (renunciation by the charterer and rescission by the carrier). Thus, the
solutions here are substantially different from what have been said concerning the English
law.
i) Renunciation to the contract by the charterer.
This situation gives us another instance for the attachment of the French system to the
contractual sanction for the charterer’s non-fulfilment of his duties.
Under French law, the consequences of a total lack of cargo to load was initially only the
payment of freight, or “dead freight” according to the adopted expression, rather than
damages like under English Law.
The principle was that the charterer had still to pay freight despite not providing any cargo at
all to the carrier. Under the old French law the charterer enjoyed a special treatment to
indemnify the carrier for the absence of cargo with a lump sum of money corresponding to
half of the freight106. This old rule was inherited from the early code “Ordonnace de la
marine” and was incorporated into the Commercial Code (old Article 288), which stated that
the voluntary retraction of the charterer before loading made him indebted only for half of the
freight as “dead freight” or “faux fret”.
However, this rule suffered some adjustments, which brought the French law closer to the
English system in respect of the consequences of the charterer’s breaches that go to the root of
the contract. The Act of 1966 while maintaining this rule has wrought an important
modification of the law through its article 13.
In case of lack of cargo to load we must consider two articles of the Decree of 1966 (Decree
n°66-1078 December the 31st 1966). According to article 8 of the Decree: “L’affréteur doit
mettre a bord la quantité de marchandise énoncée par la charte-partie. À défaut, il paye
néanmoins le fret prévu pour cette quantité.”
This article puts on the shoulder of the charterer the duty to “mettre la marchandise à bord”, in
other words to have a cargo, and indicates that the non-fulfilment of this duty will oblige him
to pay the agreed freight to the carrier.
According to article 13 of the Decree of 1966: “L’affréteur peut résilier le contrat avant tout
commencement de chargement. Il doit en pareil cas, une indemnité correspondant au
préjudice subi par le fréteur et au plus égale au montant du fret.”
This article introduces a doubt concerning the charterer’s sanction for not providing cargo, in
that a reference is made to the damages suffered (préjudice subi) by the carrier due to the lack
of cargo.
Consequently under French Law the lack of cargo, which is a breach of a duty incorporated in
the Act of 1966, will lead to the payment by the charterer of a sum of money corresponding to
the damages suffered by the carrier with a limit equivalent to the entire freight107. Any
disagreement of the parties on this sum should be solved by a judicial or arbitral decision
because it is not any more a lump sum of money but an indemnity.108
106
Jurisclasseur commercial, Exploitation du Navire, Fascicules 1220, page 6.
Jurisclasseur commercial, Fasc. 1220, page 6, Op. Cit. n°19.
108
Juris. com., Fasc. 1220, page 6, Op. Cit «La suppression du caractère forfaitaire de l’indemnité obligera
les parties à soumettre son évaluation à décision judiciaire ou arbitrale si elles n’arrivent pas à s’entendre.»
107
38
The Duty to Provide Cargo under a Voyage Charter-party.
The nature of this sum of money is hard to determine because it seems that it is a part of the
freight though having the nature of damages (which have to be proved).
However, this is always subject to the will of the parties who can dispose otherwise
contractually and agree on a lump sum of money in case of non-performance of the duty to
have a cargo at disposal (mise à bord as previously defined, see page 9).
Despite a large number of decisions concerning the renunciation of the contract by the
charterer, the legal basis for such action is often forgotten or not totally perceived 109.
Fortunately the French Supreme Court has had the opportunity to clarify the principle of
renunciation of the contract as stated in the Act of 1966 in a decision from 1992110.
ii) Rescission of the contract by the carrier.
When the charterer fails to have a cargo in readiness at such a time that this non-performance
goes to the root of the contract, the carrier under French law is entitled to rescind the contract.
Once again it is not in any specific disposition of maritime law that we have to search this
possibility but rather in the “droit commun des contrats”, which is the regular contract law.
Indeed the French Civil Code in its article 1184 provides for the rescission of a contract at the
initiative of a party111.
However, according to the dean Rodière,112 when the delay of the charterer is such as to
create a breach of contract under French Law, this possibility for the carrier to resort to the
contractual law to justify the rescission of the contract is practically not applicable.
In this case according to the same author “The master will leave the port and claim
damages.113”
The rescission of the charter is based on the ground of an anticipatory breach of contract by
the charterer. Using this faculty the carrier will have to prove the inability of the charterer to
fulfil his commitment. The carrier has to act with the maximum of diligence in using this faculty.
109
Decision of the maritime arbitral chamber of Paris n°932 January 31st 1996 in DMF 1996 page 653.
Decision of the maritime arbitral chamber of Paris n°948 November 7th 1996 in DMF 1997.
110
Arrêt cour de Cassation, January 21st 1992, in DMF 92 page 316. « Aux termes de l’article 13 du
décret du 31 décembre 1966, l’affréteur peut résilier le contrat d’affrètement avant tout
commencement du chargement. Mais il doit alors au fréteur une indemnité correspondant au préjudice
subi et au plus égale au montant du fret. »
111
Article 1184 of the French Civil code « La condition résolutoire est toujours sous entendue dans un
contrat synallagmatique, pour le cas où l’une des deux parties ne satisferait point à son engagement.
Dans ce cas, le contrat n’est point résolu de plein droit. La partie envers laquelle l’engagement n’a
point été éxécuté, a le choix ou de forcer l’autre à l’éxécution de la convention lorsqu’elle est possible,
ou d’en demander résolution avec des dommages et intérêts. La résolution doit être demandée en
justice, et il peut être accordé au défendeur un délai selon les circonstances. »
112
Rodière René and Du Pontavice Emmanuel, Précis de Droit maritime, 12° edition, collection
Dalloz, page 289, n° 308 “régulièrement, il faudrait intenter l’action en résolution judiciare. C’est
impossible dans la ppratique maritime.”
113
Rodière René and Du Pontavice Emmanuel, Précis de Droit maritime, 12° edition, collection
Dalloz, page 289, n° 308
39
The Duty to Provide Cargo under a Voyage Charter-party.
3) Principles of the charterer’s liability for the duty to have a cargo ready under Swedish Law.
a) Minor breaches leading to a sanction but not to the dissolution of the contract.
Under Swedish law the duty to hold the cargo in readiness is recognised and embodied in
section 17 chapter 14 of the SMC. However, due to section 13 chapter 14 of the SMC the
sanction of non-performance of this duty under Swedish Law is closer to the French system,
with the following distinction concerning the charterer’s liability regime.
 For absence of any cargo the charterer will be liable according to sections 32, 33, 35, of
the SMC.114
 For general delay and at the end of the lay-time the charterer will be liable for demurrage.
The ship will remain under demurrage regime either until the end of the period (if there is
a limit for demurrage) or until the total completion of the loading (if no limit has been
fixed for demurrage).
 For delay during the demurrage time but after the loading or after the demurrage period,
the charterer will be liable for detention damages.
First under Swedish Law like under French Law, the charterer’s failure to have a cargo in
readiness causing a delay will be sanctioned by the regime of lay-time/demurrage. This is true
despite the affirmation in the Swedish Maritime Code of an autonomous duty to have a cargo
in readiness and even though due to this failure the carrier has had to wait for berth as initially
plan in the contract.
After the ship is considered arrived, under Swedish law like under the two legal systems
already considered, the existence or not of the duty to hold the cargo in readiness will not
have any effect on the charterer’s liability for delay. Such liability of the charterer’s will fall
under the regime of the duty to load within the lay-days.
Contrary to the English Law, under Swedish law the mere use of demurrage is not conceived
as a breach of contract,115 but here also demurrage is a lump sum of money due to the carrier
without consideration of his actual damage116.
The definition of demurrage provided by the section 14 chapter 14 of the SMC seems to let
little room for the system of detention damages in the situation that we are dealing with. Thus,
where no time has been fixed for demurrage this regime is intended to continue until either
the end of the loading, or the moment where the charter is frustrated, or when the charterer
renounces to the contract.
Consequently for the damage system to apply to the situation where the charterer did not have
a cargo in readiness, the demurrage period has to be determined, and the charterer has to fail
providing a cargo by the time it ends.
However, Professor Tiberg seems to consider that where the demurrage provided in the
contract cannot be applied, compensation in damages should prevail. 117
114
See infra b).
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 536 “Scandinavian and German
Law use of demurrage period not as a breach but as the charterer’s normal right”.
116
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 531.
117
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 552.
115
40
The Duty to Provide Cargo under a Voyage Charter-party.
b) Major breaches leading to the dissolution of the contract.
Here again I intend to deal with breaches that go to the root of the charter-party. The delay or
non-performance of the charterer’s duty to have a cargo in readiness is so strong as to bring
the contractual relation between the two parties to an end.
Under Swedish law the solution of this problem is found in the Maritime Code, notably in
chapter 14 section 35. Indeed section 35 defines in what conditions the carrier is entitled to
cancel the charter according to section 33 when the charterer is delayed in performance of his
duty to have a cargo in readiness. Section 35 also defines in what conditions the charterer’s
renunciation of the contract can intervene according to section 32118.
i)
Renunciation to the contract by the charterer.
According to professor Tiberg “renunciation is an express or implied declaration by the
charterer that he will not perform the contract, and it is partial if it involves refusal to load a
full cargo. Any material renunciation before commencement of loading dissolves the contract
and entitles the carrier to leave for other commitments; the charterer’s insolvency or
bankruptcy will presumably have the same effect.”119
Whether for total or partial renunciation of the contract by the charterer, the carrier will be
entitled according to section 32 of the SMC “to compensation for loss of freight and other
loss.” The comparison with the French system of dead freight comes naturally, although here
the freight conserves its nature and the damages will be attributed later if necessary in
consideration of the actual loss suffered by the carrier.
Concerning the right of rescission of the contract by the carrier the new Nordic Maritime
Code provides as follows.
ii) Rescission of the contract by the carrier.
Chapter 14, section 33 §2 of the SMC gives a right for the ship to declare the contract at en
end for short delivery “unless compensation for the carrier’s losses or security therefor is
given within an additional time limit set by the carrier”.
This disposition makes the Professor Tiberg wonder120 if the carrier can declare the contract
ended in the ordinary way without setting a limit for payment. He reaches the conclusion that
the owner has this right of cancellation of the contract without setting a limit for payment only
in the case where no demurrage period is provided (on the ground of section 35 §2). This
leads him to conclude with exclamation that “for unfixed waiting time the carrier has wider
cancellation right than for a fixed time!”
This may appear a bit astonishing, but in my view it can be explained by the consideration
that if the parties have agreed to a time that the ship has to remain at the charterer’s disposal,
only little space should be given to a right of cancellation of this agreement.
Section 32 is entitled “Renunciation before end of loading” and deals with the voyage charterer
renunciation to the contract.
118
119
Tiberg Hugo,The Law of demurrage, edition London 1995, page 192.
120
Tiberg Hugo, The Nordic Maritime Code, in Lloyds Maritime and Commercial Law Quarterly,
1995 page 527.
41
The Duty to Provide Cargo under a Voyage Charter-party.
B Exception to the charterer’s liability.
In this part I intend to have a look to the reasons for which the charterer will not be held liable
despite the non-fulfilment of the duty to hold the cargo in readiness. This means the situation
where normally the charterer should have been liable for non-fulfilment of the duty to hold
the cargo in readiness, but where for particular reasons he will not be so.
The goal of this part is to achieve the analysis of the regime of the sanction of the duty to hold
the cargo in readiness in order to demonstrate that in the majority of cases this duty does not
have a proper regime of sanction for non-performance.
Therefore I have to study the cases of the charterer’s non-liability, which are essentially of
three types:
 exception clauses,
 hindrances due to the carrier,
 frustration of the voyage (force majeure).
1)
Exception clauses.
“Stipulations and exceptions in a charter as to the obligation to load usually apply to the duty
of the charterer to put the cargo on board and not to the duty of the charterer to bring a cargo
to the port of loading.121 However, Sir Scrutton found a case where this duty has been subject
to an exception clause, and in this case it seems that the exception clause must be “clearly
worded”122.
The same idea can be found in Julian Cooke’s and others book123, where the author says that
“The general rule is that express exceptions in the charter-party such as “strikes”, “ice” or
“causes beyond the charterer control” apply only to the obligation to load within the lay-days,
unless it is clear from the express words that they are intended to apply also to the obligation
to have a cargo available.” Thus I may assume that the charterer is not excused where the
delay is in providing the cargo.
The Swedish law contains in SMC (chapter 14 section 32 §3) some legal excuses to the
charterer’s fulfilment of the contract. “There shall be no right to compensation if the means of
delivering, carrying or importing the cargo to the place of destination must be considered
precluded by causes which the voyage charterer ought not to have contemplated at the time of
concluding the contract, such as export or import prohibition or any other measure of
authorities, the destruction of all the goods of the kind contracted or similar occurrence. The
same shall apply if the contract was for specific goods which were accidentally destroyed.”
According to Professor Tiberg “The legal excuses in the Scandinavian Maritime Codes, like
those of the German Commercial Code, are all of such a kind that they can never excuse the
charterer for failure to provide a cargo or to keep it ready at the loading place.124
121
Scrutton, Scrutton on charter-party 20°edition 1996, London Sweet and Maxwell, page 157.
Arden SS. Co v. Mathwin, 1912 S.C. 211 ; Pinch & Simpson v. Harrison, Wingfield & Co. (1948)
81 L.l.L.R.. 268 (Provision of cargo).
123
Cooke Julian, Voyage Charters, Lloyd’s of London Press LTD edition 1993, page 124.
122
124
Tiberg Hugo, The Law of Demurrage, edition London 1995, page 337.
42
The Duty to Provide Cargo under a Voyage Charter-party.
Besides, according to the principle “once on demurrage, always on demurrage” it is generally
considered that the clauses that suspend the count of the lay-time cannot be extended to
demurrage. A decision concerning a strike clause may illustrate this under French law.125
2)
Hindrances due to the carrier.
The Swedish Maritime Code states in Chapter 14 Section 13 §2 and Chapter 14 Section 14 §2
that where the vessel’s non-berthing at the loading place is due to a hindrance on the side of
the carrier, the lay-time and demurrage will not run against the charterer.
Conversely under Swedish law, the charterer will be excused from being liable for delay
where such delay is on the account of a carrier hindrance.
Under French law where the fault of the carrier prevents the charterer from fulfilling his
obligations, the count of the lay-time will be suspended even if the contract comprises a
negligence clause applicable to the fault of his crew, unless this case is specifically worded in
the charter.126
The same applies where it is just a non-culpable act of the carrier that originated the
hindrance.127
However, due to the principle of “once on demurrage, always on demurrage”, this is true just
for the count of the lay-time. Thus, demurrage is not susceptible of being suspended by
culpable hindrances of the carrier.128
3)
Frustration of the voyage / “force majeure”.
It is difficult to lay down any general rule about the beginning of a frustration event during the
charging and discharging of the ship because of the differences between the legal conceptions.
Under English law, according to an author all must depend upon the circumstances of the
individual case.129 Lord Radcliff said in the case Davis Contractor Ltd. v. Fareham Urban
District Council130 “…frustration occurs whenever the law recognises that without default of
either party a contractual obligation has become incapable of being performed because the
circumstances in which performance is called for would render it a thing different from that
which was undertaken by the contract.”
Thus, where delay is caused by the actions or omissions of third parties or by a natural
phenomenon, then the shipowner will have no cause of action, and any loss will lie where it
falls, unless there is an express provision providing the contrary.131 This makes us believe that
under English law where the lay time is limited, no frustration can be accepted.
125
Tribunal de commerce de Rouen, December 18th 1957, In DMF 1958 page 285.
Lamy Transport tome II, Lamy S.A. edition 1998, page 449, n°686.
127
Tribunal de commerce de Seine, September 24th 1959, In DMF 1960, Som., page 755.
128
Lamy Transport tome II, Lamy S.A. edition 1998, page 450, n°691.
129
Cooke Julian, Voyage Charters, Lloyd’s of London Press LTD edition 1993, page 468.
130
Davis contractor Ltd v. Fareham Urban District Council 1956,AC 696, page 729.
131
Schofield John, M. A. Laytime and Demurrage, Lloyd’s of London Press LTD edition 1990, page 58.
126
43
The Duty to Provide Cargo under a Voyage Charter-party.
Delay in obtaining the cargo from the intended source will rarely frustrate the charter, for the
same reason that destruction of the intended cargo will not lead to frustration because of the
duty of the charterer to obtain an alternative cargo.132
The charterer will be liable, however, if he does not provide any cargo to the carrier unless the
carrier specifically agreed to wait for a particular type of cargo to be provided.133
Thus a supervening event for which full provision is made in the contract cannot give rise to
frustration, since the legal consequences of the event must be determined by applying the
contractual provisions rather than the general law.134
However, where all sources of permissible cargo within the loading range become
unavailable, the contract may be frustrated if the consequent delay is sufficiently
fundamental.135
The role of the “force majeure”, in the French conception of the contractual relations is rather
ambiguous. During the lay-time the occurrence of the “force majeure” affects the running of
time for a commercial as well as for a nautical event.136
During the demurrage time the application of the rule “once of demurrage always on
demurrage” should prevent the application of “force majeure”; however due to the rigor of
this solution the case law is reluctant, and some decisions have admitted “force majeure”137.
General conclusion:
This subject has been particularly difficult to understand due to the instability of the contents
of the problem, which depends on many interdependent factors such as: the parties, the type
of contract considered and the clauses inserted, the type of breach, the law applicable…
Indeed of the duty of the charterer to provide cargo is a very slippery subject, because this
obligation is not as such equally identifiable in all legal systems and because its regime is
sometimes borrowed from the regime of other obligations, which can lead to confusion.
Besides, the interest of this work is essentially theoretical. Indeed the differences I have
highlighted between the legal systems considered tend to reduce when it comes to practical
issues.
See the case Seabridge Shipping Ltd. v. ANTCO Shipping Ltd, Lloyd’s Law Reports 1977, Vol.2
page 367.
133
In the case Jones Limited v. Green and Co. It was considered that the carrier’s knowledge and
acceptation of the situation (peculiar colliery, custom of the port, loading in turn, no loading time
fixed) was of a nature to excuse the charterer from finding an alternative cargo. Aspinall’s Reports of
Maritimes Cases volume 1889 to 1904, page 600.
134
Cooke Julian, Voyage Charters, Lloyd’s of London Press LTD edition 1993, page 467.
135
Cooke Julian, Voyage Charters, Lloyd’s of London Press LTD edition 1993, page 473.
136
Sentence N° 814, 815, 816, 817 June the 12th 1991, in DMF 92 page 444, for the suspension of the
lay-time for force majeure in connexion with the commercial duties of the charterer. Arrêt de la cour
de cassation February the 6th 1979, in DMF 79 page 594, for the suspension of the lay-time for force
majeure due to a nautical event.
137
Rodière and Du Pontavice, Précis de Droit maritime, Op. Cit. page 290.
132
44
The Duty to Provide Cargo under a Voyage Charter-party.
Thus, for example under French law the mechanism of the dead freight has received some
attenuation in order to consider the actual loss of the carrier. Conversely, under English law
the indemnification of the carrier although being having the nature of damages will be granted
in consideration of the rate of demurrage.
In order to synthesise my analysis I should reiterate the following points as clearly as
possible.
On one hand in the three systems considered the duty to have a cargo at disposal is recognised
as autonomous. Consequently its non-performance by the charterer leads to a specific
sanction.
On the other hand the duty to hold the cargo in readiness exists in an autonomous way only
under English law and only during the laps of time when its non-performance prevents the
vessel from becoming an arrived ship. Indeed this is the sole moment where the duty is not
merged with the duty to load within the lay-time and where it has its own regime (damages
for detention).
Under French law, there is no such detailed duty to have a cargo ready, because there is no
need to distinguish it from the duty to load within the lay-days. Indeed according to the
French conception, the duty to hold the cargo in readiness is included in the duty to load
within the lay-days or the duty to have a cargo at disposal. The sanction of the charterer for
any delay in loading falls into the regime of demurrage. This is true, as we have seen, even if
the vessel was prevented from becoming an arrived ship according to the contract. The
sanction due to the lack of any cargo falls under the institution of “dead freight”.
Under Swedish law, although recognising a duty to have a cargo available, the solution
provided by the SMC is closer to the French system, because it applies the regime of laytime/demurrage where under English law the duty is autonomous and detention damages are
applied.
In my view the explanation for this position of the duty to hold the cargo in readiness comes
from the general conception of waiting time. Thus under English Law, the waiting time seems
to be considered as the time during which the ship has to remain at the charterer’s disposal for
the fulfilment only of the loading and unloading. This explains that other functions of the
charterer’s, such as providing documents or a cargo, fall outside the waiting time and have to
be sanctioned on other grounds.
This could also explain why the new Nordic Maritime Code is so badly perceived by some
commentators. Indeed whereas the Nordic systems seem to consider the waiting time as being
usable for any operations, the reference to the end of loading as a limit for demurrage (an
institution copied from the English Law) generates some difficulties.
However, I notice that in practice an accurate description by the parties of their duties reduce
the differences I have tried to highlight as a theoretical point of discussion between the legal
systems.
My final conclusion is limited to the reiteration of the well-known advice to consider
accurately the logic of a legal system before taking away some of its institutions.
45
The Duty to Provide Cargo under a Voyage Charter-party.
Bibliography:
 Cooke Julian, Voyage Charters, Lloyd’s of London Press Ltd. edition 1993.
 Etudes offertes à René Rodière.
 Falkanger Thor, Bull Hans Jacob, Brautaset Lasse, Introduction to Maritime Law;
Forfatterne og Tano Aschehoug 1998.
 Gorton Lars, Ihre Rolf, Sandevärn Arne, Shipbroking and Chartering Practice.
 Journal de la marine marchande.
 Jurisclasseur commercial, Exploitation du Navire, Fascicules 1216, 1220, 1221.
 Lamy Transport tome II, Lamy S.A. edition 1998.
 Lando O., Each party must act in accordance with good faith and fair dealing, Festskrift
till Jan Ramberg, Stockholm 1996,pp.345-361.
 Lloyd’s List Law Reports and Lloyd’s Law Reports.
 Ramberg Jan, International Commercial Transactions, ICC Kluwer Law International
Norstedts Juridik AB, 1997.
 Remond-gouilloud, Droit maritime; edition A Pedone 1993.
 R. Rodière, Traite général de droit maritime, tome I, affrètement et transports, Dalloz 1967.
 Rodière René and Du Pontavice Emmanuel, Précis de Droit maritime, 12° edition,
collection Dalloz.
 Schofield John, M. A., Laytime and Demurrage, Lloyd’s of London Press Ltd. edition 1990.
 Scrutton, Scrutton on charter-party 20°edition 1996, London sweet and maxwell.
 Summerskill, Laytime, 4°edition 1989, Stevens.
 Tiberg Hugo, The Law of Demurrage, edition London 1995.
 Tiberg Hugo, The Nordic Maritime Code, in Lloyds Maritime and Commercial Law
Quarterly, 1995 page 527.
 Trappe Johannes, Lay-time problems and comparison of Law, in Lloyds Maritime and
Commercial Law Quarterly, 1986 page 251.
 Unidroit, Principles of International Commercial Contracts, Rome 1994.
 Vialard Antoine, Droit maritime 1°edition 1997 Presses Universitaires de France.
46
The Duty to Provide Cargo under a Voyage Charter-party.
Synoptic chart on the comparative study of the charterer’ liability in the voyage charter-party.
47