Co., Ltd. (M/T Atlantic Monarch), SMA 939 at 9 (NY Arb. 1975).
Paragraphs 7 and 8 of Part II of the Charter are of primary importance in determining the meaning of the agreement. Paragraph 8 defines demurrage as "all time that loading and discharging and used laytime . . . exceeds allowed laytime . . . ." Since shifting involves neither loading nor discharging, it can only be included in demurrage if it is "used laytime." Paragraph 7 specifically provides that "time consumed by the vessel in moving from . . . discharge port anchorage to her . . . discharge berth . . . will not be counted as used laytime." The plain meaning of the two provisions suggests that shifting time was not intended to be included in demurrage. R/A Trajan (Hilmer Reksten Managers) (T/T Fabian), SMA 1492 at 7-8 (NY Arb. 1980).
In order to reach a contrary result, one would have to read the words "all time" as superceding the narrower definition of laytime as provided in paragraph 7. Nothing in the agreement suggests that the parties intended to adopt the unusual practice of having their general words control the specific ones. Accordingly, the standard rules of construction will be followed and the paragraphs, read together, will be interpreted to mean that shifting time was intended to be excluded from "used laytime" in calculating demurrage.
This conclusion is supported by reference to the Sun Lightering Clause incorporated in the charter. That clause expressly exempts shifting time from demurrage when it is necessary to lighter the vessel at anchorage before proceeding to the discharging berth. While the instant case did not involve a lightering operation, the circumstances are analogous, and the totality of circumstances suggests that the parties intended to exclude shifting time from demurrage in both situations.
In addition, since the rates are calculated on the basis of complete voyage from load port to discharge port, the plaintiff has been compensated for the time to move from anchorage to discharge berth unless the shifting operated to extend the total distance of the voyage. Neptunea Astro Oceanico S.A. (The Michael "C"), SMA 1658 (NY Arb. 1982) p. 300; Cove Venture (M/T Cove Leader, SMA 1653 at 230 (NY Arb. 1982); Mammoth Bulk Carrier (M/T Viborg), SMA 1062 at 5 (NY Arb. 1976). Since no allegation has been made that the voyage was extended, allowing the shifting time to be included in demurrage would result in double compensation for the owner.
Thus, we hold that the parties, by the specific language of their agreement, intended to exclude shifting time from demurrage.
AND NOW, this 19th day of August, 1983, the court has considered the cross motions for summary judgment. For the reasons set forth in the accompanying memorandum, IT IS ORDERED that defendant's motion for summary judgment is GRANTED and plaintiff's motion for summary judgment is DENIED.
AND NOW, this 19th day of August, 1983, judgment is entered in favor of defendant Sun Oil Company of Pennsylvania and against plaintiff Texaco Panama, Inc.