Custom of the port (COP). The word “custom” has a purely legal meaning and also a meaning connected with chartering practice and laytime. The meaning for lawyers is that it is a rule of conduct established by long usage over many years.
This meaning has no great importance to the meaning for chartering practice although a “particular custom” is the usage of a particular trade. This is the closest meaning to the terms used in chartering in that it is connected with laytime and the manner of loading or discharging depending on what is usually done in a particular port or place.
It is the charterer’s responsibility to load and discharge the cargo in a reasonable time if laytime is not specified in a charterparty or there is no formula given to calculate it. This reasonable time for cargo handling can depend on words such as “. . . according to the custom of the port . . .” .
The phrase is not very commonly used in charterparties nowadays to govern the time in which the charterer loads and/or discharges the ship. Considerable uncertainty can arise because of the charterer’s apparent advantage over time taken.
Generally speaking, in case of disputes, these practices are not construed in favour of shipowners. From the owners’ viewpoint it is not attractive if the time allowed for loading or discharge is governed by the custom of the port. The interpretation of local practices may be a contentious point.
If a charterparty provides fox loading or discharge “according to the custom of the port” or “as customary” or “with all despatch” or “as fast as steamer can load or discharge”, in which cases laytime is indeterminate, shipowners may be put in an almost impossible situation to prove that they are entitled to demurrage or damages for detention in case of serious delay. It should also be borne in mind that it is very important that in charterparties which provide for loading or discharge “according to custom of the part”, special attention is paid to the wording of the clause when laydays will begin to count. It has been held in courts that the phrase “according to custom of the port” relates only to matters, which arise after a vessel has become an arrived ship, when notice of readiness has been accepted, by charterers, shippers or consignees.
If charterparties are subject to “custom of the port” and vessels are consigned to the charterers’ agents, it is important that the master can apply to the owners’ agents, who are fully conversant with the local practices.
The phrase “custom of the port” can also refer to exceptions to laytime. For example the NORGRAIN 89 charterparty (“NORTH AMERICAN GRAIN – CHARTERPARTY 1973”, amended in May 1989) the present c1. 19(d) states:
“Notwithstanding any custom of the port to the contrary, Saturdays shall not count as laytime at loading and discharging port or ports where stevedoring labour and/or grain handling facilities are unavailable on Saturdays or available only at overtime and/or premium rates.”
Suppose the first limb of the sentence was omitted. Cargo work by the charterer would not count as laytime at high labour-cost places even if the charterer was prepared to pay overtime or penalty rates to get the ship loaded or discharged quickly and end his responsibilities. In some ports it may merely be customary for Saturdays to be non working days. This custom of the port would not, by itself, make Saturday excepted from laytime.
Mere payment of overtime or penalty rates does not prevent Saturdays from being ordinary “working” days and counting as laytime if it is the custom of the port to work on Saturdays at overtime or penalty rates. However, if the charterparty provides that in spite of custom of the port for working or not on Saturday, Saturdays do not count as laytime even if overtime is paid, the whole day is excluded. (If the owner wanted to count Saturdays as laytime, he would have to insert a clause in the charterparty stating that Saturdays are excepted “. . . unless used . . . “)