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Delay at port due to Fog: Does laytime run?

We consider when weather conditions such as fog, and low-lying cloud, may interrupt or be considered as an exception to laytime.

Interruptions to laytime being periods when laytime does not run because the periods in question are outside the definition of laytime as expressed in the charterparty clause. Exceptions to laytime being periods that are within the definition of laytime however may be excluded by an exceptions clause. Unlike interruptions the party seeking to rely on the exception must prove a direct causal connection between the purported exception to laytime and loss of time to cargo operations.

The presence of fog/ or the onset of poor visibility can impact port operations, necessitating the closure of ports and cessation of cargo related activities like cargo handling and barge operations. These incidents may result in delays to Charterers’ operations causing Charterers to look at the terms of their charterparty to determine whether laytime runs.

Adverse weather is one example of an interruption where the running of laytime is defined in terms of ‘weather working days’ because weather working days are the only periods that laytime may count. The English courts have held that fog can fall within the definition of “bad/ adverse weather”. The party seeking to rely on the interruption to laytime would have to ascertain whether the ship would have been able to perform the intended cargo operations during the relevant periods of fog/bad weather. If fog had prevented or interrupted the working of cargo or if cargo operations would have been prevented if the ship had been at berth, laytime may be interrupted.

In circumstances where fog may not have prevented or interrupted the working of cargo or cargo operations would not have been prevented if the ship had been at berth, delays within the port caused by fog may still be excluded from laytime provided the charterparty contained an express clause excluding laytime during periods of fog or adverse weather. An exceptions clause providing “laytime shall be excluded during periods of adverse weather ” may exclude laytime where fog might not have prevented  cargo operations, but where the port disallows cargo operations.

As to whether fog will interrupt or be considered as an exception to laytime, that is a question of fact viewed in conjunction with the provisions in the charter: did the weather lead to suspension of cargo operations and/ or affect navigation? Key to evidencing periods where laytime does not run due to fog will be accurate and detailed reporting in the SOF – differentiating between periods where navigation was suspended, but where cargo operations continued at berth, together with supporting documents from the port authority or harbourmaster.

The MECO Group