159. David Duncan and Others v Daniel Augustus Köster (The “Teutonia”) (1871 – 1873) IR 4 P.C. 171

Safe port – charterers’ obligation to substitute safe port upon conditions changing after initial orders given

The facts

A Prussian vessel was let under a voyage charterparty to discharge at one safe port in Great Britain or on the continent between Havre and Hamburg, both included.

The master received orders from the consignees to discharge a cargo of nitrate of soda, contraband of war, at Dunkirk, a French port.

Before arriving at Dunkirk, the master received information that war had broken out between Prussia and France. He deviated from course to obtain further information and then took the ship to Dover, being the nearest port.

The consignees insisted that the master to proceed to Dunkirk. When he refused, they attempted to obtain delivery of the cargo at Dover without conceding an obligation to pay freight.

Relying on section 6 of the Admiralty Court Act 1861, the consignees proceeded against the vessel, her freight and against her owner in the Admiralty Court.

Findings

Sir Robert Phillimore in the Admiralty Court found against the consignees.

The Privy Council (Sir James William Colville, Lord Justice Mellish, Sir Montague Edward Smith and Sir Robert Porrett Collier – speech by Lord Justice Mellish) dismissed the consignees’ appeal.

Relying on Pole v Cetcovitch, the court held that it was not unreasonable for the master to deviate upon receiving information regarding the outbreak of war in order to decide on the further course of the voyage.

Relying on Ogden v Graham, the court held that there was an obligation on the consignees to name a safe port once the port of Dunkirk had become unsafe due to the declaration of war.

Commentary

In the absence of a range of alternative ports, the court would have had to decide whether frustration of contract would have required the consignees to pay some form of quantum meruit or freight pro rata itineris.

There is a dictum on the last page of the judgment recognising the problem of presentiation and urging adherence to the principle of ut magis valeat quam pereat.

A feature of the case is that no damage was sustained. In issue was the master’s refusal to discharge at a port which became unsafe after the issue of the charterer’s orders.

Two alternatives were: (1) frustration of the contracts due to impossibility of performance; (2) an implied obligation on the charterers to substitute an alternative port.

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