The Conoco Weather Clause
What is meant by “due to weather conditions”?
An earlier Club article on the Conoco Weather Clause (CWC) discussed the difficulties that can arise if weather is not the only cause of delay: The Conoco Weather Clause - When is Bad Weather an Exception (steamshipmutual.com). However for the CWC to bite, does the weather need to be direct or only the proximate cause of the delay?
The CWC provides:
“Delays in berthing for loading or discharging and any delays after berthing which are due to weather conditions shall count as one half laytime or as time on demurrage at one half demurrage rate”
Imagine a situation whereby bad weather causes a previous vessel in the port line-up to collide with the berth where the subject vessel is due to load. The collision then results in damage to the berth. The damage then causes the local authorities to shut down the berth for a certain period of time. This closure then causes the subject vessel to be delayed getting into berth and a claim for demurrage to arise.
Is the delay “due to weather conditions” for the purposes of the CWC, such that demurrage applies at the half rather than full rate?
In this scenario, the weather is the indirect but proximate cause of the delay. However, is that enough or does the CWC only apply during the period when the bad weather itself causes the delay, and stops having effect when the bad weather ceases such that after that point in time, if the vessel is delayed, then something else is the cause?
On the one hand, it is certainly arguable that the weather need only be the proximate and not the direct cause of the delay. This argument has stood up before in a slightly different context, namely strikes (although other examples no doubt exist), where the English High Court, and subsequently the English Court of Appeal, held that a delay in discharging due to congestion which was caused by the after effects of a strike, was sufficient to interrupt laytime under the relevant charterparty exception clause which provided “In case of strikes…which prevent or delay the discharging, such time is not to count”: Carboex SA v Louis Dreyfus Commodities Suisse SA  EWCA Civ 838. In that case, the strike had ended before the vessel berthed and did not directly affect discharging, but the Court of Appeal nevertheless found that time was interrupted because the effective cause of the delay was the strike.
On the other hand, the risk with the more liberal interpretation outlined above is that is creates contract uncertainty. Under English law, contracts are to be interpreted with the aim of ascertaining and giving effect to the intention of the parties as objectively derived from the ordinary and natural meaning of the words chosen by the parties to express their contract in context and read as a whole. Arguably if the parties had intended the words “due to weather conditions” to be engaged not only when weather is the direct cause but also where it is the indirect or effective or proximate cause, then this should be made clear in the charterparty wording itself so as to avoid ambiguity and ultimately disputes over the wording. If it has not been made clear, then the most likely interpretation would be that the parties intended that the weather must be the direct cause only.
Further, if a more liberal interpretation is adopted and indirect/proximate causes are to count, how far back would the parties be permitted to look? With reference to the above hypothetical scenario, where there are several ‘links’ in the chain of events, is it correct to say that the weather ‘caused’ the delay, as opposed to just merely lead to it? Of course, if there are intervening factors which break the chain of causation, then on any view the weather cannot have ‘caused’ the delay.
In summary, there are competing arguments on whether weather should be the direct or merely the proximate cause of the delay for the purposes of the CWC. The stricter interpretation is certainly more attractive if contract certainty and the avoidance of disputes are to be achieved. On the other hand, it could be argued that the stricter interpretation is too strict and does not reflect the commercial realities or circumstances facing the parties and further that it runs contrary to the legal authorities in connection with other events which interrupt the running of laytime, for example strikes (though it should be borne in mind that each case will turn on the specific facts and specific charterparty wording). These competing arguments highlight the ambiguity that can arise even in relation to standard wordings and the importance of ensuring prior to entering into a charterparty that the wording expressly caters for the specific circumstances which the parties intend it to cover.
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