Weather permitting. (w.p.)(Wp) Sometimes cargo operations cannot be carried out because of inclement weather, especially when foodstuffs, such as grain, are being handled.
Therefore a clause, prescribing the rate of loading and discharging and defining laytime and the periods excepted from laytime, may state that the cargo handling time is to be counted only when weather permits work to be carried out.
It should be remembered that it is only the effect of the weather on actual cargo-handling operation on board the vessel that is relevant, not the transport of cargo to or from the berth.
Therefore, the words are more descriptive of the effect of the weather on the cargo handling than an exception to the counting of laytime.
This interruption of the counting of laytime against a charterer is now practically similar to another weather description, “weather working day”. Originally there may have been a difference in the effect on laytime. Owners were protected by the “weather permitting” provision whereas charterers were somewhat more protected under the “weather working days” provision. Now, in either case, charterers can suspend the counting of laytime during bad weather affecting or likely to affect cargo handling even if the vessel is only waiting for a berth.
Owing to the apparent reduction of protection of shipowners under the “weather permitting” provision, BIMCO advises its owner members to incorporate suitable clauses in the charterparty clearly establishing how the “weather permitting” provision should be applied. An example of such clauses can be found in the standard form voyage charterparties, GRAINVOY and NORGRAIN. This states:
“All laytime to be based on working days of 24 consecutive hours, weather permitting. In the event that the vessel is waiting for loading or discharging berth, no laytime is to be deducted during such period for reasons of weather unless the vessel occupying the loading or discharging berth in question is actually prevented from working grain due to weather conditions in which case time so lost is not to count.”
This may avoid the effect of bad weather on the counting of laytime when no cargo operations are being carried out because the weather alone does not actually affect the loading or discharging.
In Tile Vorras, 1983,it was decided that “weather permitting” are “words of description” rather than “words of exception”. In the case it was said that “ . . . any clause defining laytime is descriptive, and any clause providing that time shall not count against laytime so defined … is exceptive”. A descriptive phrase is part of the laytime definition itself. If “weather permitting” is used in relation to laytime, owners may argue that the agreed daytime is to count unless the weather actually prevents the vessel from being loaded or discharged. This would apply only if cargo operations are taking place. In The Vorras it was said that the owner’s argument would be correct if “permitting” meant the opposite of “preventing”. However, the word with an opposite meaning was “prohibiting”. Therefore, the word’ would cause laytime to be counted as agreed unless the weather prohibited loading. The judge said:
“The words are `72 hours weather permitting’. The essence of the Owners’ argument is that this phrase means `72 hours, unless the weather prevents the vessel from loading’. There would be something said for this if the antonym for `permitting’ was `preventing’. [`Antonym’ is a word of opposite meaning.] But it is not. It is `prohibiting’. If the phrase is to be inverted, it reads `72 hours unless the weather prohibits loading’. In my judgment the weather prohibited any vessel of this general type from loading and it is nothing to the point that owing to the presence of another vessel in the berth, the prohibition was not the operative cause which prevented the vessel from loading. I would construe `72 hours, weather permitting’ as meaning `72 hours when the weather was of such a nature as to permit loading’.” (Words in brackets added.)
If laytime is being counted and an exception occurs, such as a Sunday, laytime does not count from the time the exception commences until it ends. The exception acts as a temporary stop to the “laytime clock”. If a descriptive word is used such as “weather permitting” then this refers to the general nature of the period which is considered to count as “laytime”. Laytime will not be counted if weather does not permit actual cargo operations. Laytime would also not be counted if weather had prohibited cargo operations if these were being carried out. This is now similar in effect to the use of the phrase “weather working day”.