Whether in berth or not (WIBON). This expression refers to the time when a notice of readiness can be tendered by the master.
It converts a “berth charter” into a “port charter”, whereby a ship becomes an “arrived ship” and can tender notice of readiness, thus triggering off laytime, if the berth is unavailable and the charterparty expressly states that notice can be given whether the vessel has arrived in the berth or not.
Whether in berth or not (WIBON). The phrase “whether in berth or not” has over a very long period been treated as shorthand for what, if set out in longhand, would be “whether in berth (a berth being available) yr not in berth (a berth not being available)”. (The Kyzikos, 1989.)
The phrase is relevant in “berth charters” to indicate that a Notice of Readiness can be given if the port is congested and the berth is unavailable because of this congestion. The notice can be given before the vessel reaches its contractual destination. Therefore a valid Notice of Readiness can be given as soon as the vessel arrives in port, provided the other conditions of a valid Notice of Readiness are satisfied, such as being cleared by Customs, granted free pratique, and so on. The effect of the phrase is to convert a “berth charter” into a “port charter”. The phrase applies “only to cases where a berth is not available and not also to cases where a berth is available but is unreachable by reasons of bad weather”. (The Kyzikos.)
The phrase may be found in charters that are originally ‘`port charters’ but may have little relevance because a valid Notice of Readiness may be given, in any case, when the vessel becomes an “arrived ship”, that is, if it cannot proceed immediately to a berth, it must have reached a position within the port where it is at the immediate and effective disposition of the charterer. (This is the so-called “Reid” test for “arrived ship” laid down in The Johanna Oldendorff, 1973, by Lord Reid in the English House of Lords.) In addition, in a “port charter” the phrase cannot be assumed to allow the master to give a valid Notice of Readiness before the vessel arrives at or off the port.. In the English Court of Appeal decision in The Kyzikos it was said: “Nobody suggests that Notice of Readiness can be given while the vessel is still at sea . . .”
Therefore, if a valid Notice of Readiness can be given before the vessel reaches its berth, in a “berth charter”, laytime can commence after the period specified in the charterparty. However, shipowners cannot count laytime from the vessel’s arrival at a usual waiting place outside the port commercial limits.