552. Monroe Borthers Ltd v Ryan (the “Wythburn”) [1935] KB 28 (CA)

Breach of loading date caused by owners own deliberate act – not entitled to rely on exceptions in voyage charter party

The Facts

By a voyage charter party on the “Merseycon” form, owners, on 2 August 1933, agreed as follows:

  1. That the said steamer being tight, staunch, strong, and every way fitted for the voyage, shall with all convenience proceed to Hamburg … and there load from the said charterers a full and complete cargo of 330 tons of sugar and 140 tons of salt … and being so laden shall proceed with all convenience and speed to merchants quay, Kilrush, and Bally Longford, or so near there too as she may safely get. ..On 31 August 1933, the owners entered into a second charter party pursuant to which the vessel was sent to Porthoustock to a load a cargo of stone for carriage to Felixstowe.Because of the delay, charterers incurred demurrage for loading barges and lighterage.
  2. Owners attempted to rely on the “unavoidable accidents or hindrance” exception.
  3. Bad weather at Porthoustock delayed loading which caused the vessel to arrive in Hamburg on 14 September 1933.
  4. 10.     Charterers or owners not to incur liability for loss arising from frosts, floods, strikes, lock-outs of seamen, work people or other persons necessary for the performance of this charter party, disputes between masters and men, and other unavoidable accidents or hindrances of what kind so ever, beyond charterers’ or owners’ control.

Findings

Atkinson J held against the owners and awarded damages.

He was upheld by Greer, Maugham and Roche LJJ.

Commentary

The result was dictated by a proper analysis of causation of the loss. Although bad weather was a factor, the actual cause of the delay was the owners’ decision to interpose the later charter party.

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