Manmohan, J. (Oral)

1. Present petition has been filed under Section 34(2) read with Sections 13(5), 16(5), 28(1)(a) and 28(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "Act, 1996") challenging the majority arbitral Award dated 13th June, 2003 passed by an Arbitral Tribunal comprising Mr. H.M. Singh, Presiding Arbitrator, Mr. S. Venkiteswaran and Mr. R.S. Saran, Arbitrators.

2. Mr. Sanjay Jain, learned senior counsel for petitioner-objector impugns the arbitral Award on the sole ground that it counts part of a day, namely, 6th October, 1995, during which discharge was possible as a `weather working day' even though the Vishakhapatnam Port Trust had issued a certificate that it was a `non weather working day'. He submits that the Award is contrary to the Charter Party Agreement dated 6th June, 1995 executed between the parties. In this connection, Mr. Jain relies upon Clauses 29, 36 and 38 of the Charter Party Agreement.

3. Mr. Jain also submits that the said interpretation is contrary to law. In this connection, he places reliance upon a judgment of Queen's Bench Division in Compania Naviera Azuero S.A. v. British Oil & Cake Mills Ltd. and Ors., (1957) 2 Q.B. 293.

4. Mr. Jain lastly refers to the Statement of Facts which had been prepared jointly by the parties in which 6th October, 1995 has been excluded while calculating lay time.

5. On the other hand, Mr. Jayant Bhushan, learned senior counsel for respondent-claimant submits that all the aforesaid submissions have been rejected by majority of the Arbitral Tribunal by a speaking and reasoned Award. The reasoning given by the majority of the Arbitral Tribunal is reproduced hereinbelow:-

Clause 36 of the charterparty reads as under:-

"Charterers guarantee to discharge the cargo at the average rate of 5000 MT basis five or more hatches and pro rata for less number of hatches, per weather working day, Saturday afternoon, Sundays, charterparty holidays excepted even if used unless the vessel is already on demurrage". [Emphasis supplied].

It would be seen therefore, that under Clause 36, the obligation of the charterer is to discharge a certain quantity "per weather working day".

Our determination is called for on the point as to what is "weather working day" and whether part of a day, during which discharge is possible, could be counted as a "weather working day" even if the Port authority issues a certificate that it was a "non-weather working day".

In the case of Compania Naviera Azureo S.A. v. British Oil and Coke Mills Ltd., and others, 1957 LLR page-312, Pearson J, deals with this subject. "In my view, a correct definition of a "weather working day" is a day on which the weather permits the relevant work to be done, whether or not any person avails himself of that permission; in other words, so far as the weather is concerned, it is a working day."

The Statement of Facts is a contemporary document signed by both parties.

The perusal of the Statement of Facts and timesheets indicate that certain day was declared as "non-weather working day" by the Port. This is under the heading, "Pre-berthing rain delays". However, in the time-sheet, the rain delay shows only certain part of the day as excepted. One such day is 06-10-1995, which shows 1000-1800 hours as excepted due to rain and weather. In the case of the vessel M.V. "Nand Swasti", even if day may be declared by Port as "non-weather working day", what can be excepted is only 8 hours from one 1000-1800 hours, because rest of the time the rain or weather was not such as to prevent discharge, and the time sheet designed by the parties reflect 1000 to 1800 hrs as the time of rain delay.

The expression, "weather working day", is found in the contract entered into between the Claimants and the Respondents and it can and should only be construed and interpreted as commercial men would do. The English judgements that we have perused do not support the view that the interpretation should be with reference to what t