Safe port – express safe port clause aided by ice clause
The charterparty, on the Baltic and White Sea Conference Uniform Time Charter, 1912, form, provided that the vessel should be employed between good and safe ports or places within the limits of one Baltic round, where she could always safely lie afloat. The vessel, was sent to the Baltic port, Abo on the coast of Finland, in winter.
The vessel encountered ice. On one or two occasions the master attempted to force a way through the ice without an ice breaker causing damage to the hull.
The owners brought an action against the charterers to recover these damages.
In addition, the owners claimed a smaller amount for damage sustained in having to cut the masts which cleared the bridges on entering the port of Manchester while laden but were too high on the return voyage once the cargo had been discharged.
Clause 16 of the time charterparty read as follows:
“That the steamer shall not be ordered to any port where fever or pestilence is prevalent…or any ice bound port…or where there is risk that in the ordinary course of things the steamer will not be able on account of ice to enter the port or to get out after having completed loading or discharging, nor shall the steamer be obliged to force ice. Should the steamer be detained by any of the above causes, such detention shall be for charterers’ account.”
Abo was a port kept artificially open throughout the year by means of ice breakers.
Bailhache J in the King’s Bench Division interpreted clause 16 to allow the charterers to send the vessel to a port such as Abo. In his opinion, the proviso that the vessel was not required to force ice meant that upon encountering ice the vessel would be entitled to call for an ice breaker and that any delay caused thereby would be for the charterers’ account.
Bailhache J held that the owners were entitled to recover the small amount of damages for the cutting of the masts but not for damage to the hull.
The Court of Appeal (Bankes, Scrutton and Atkin LJJ) dismissed an appeal against the decision.
Both Scrutton LJ and Bankes LJ favoured the interpretation adopted by Bailhache J. Atkin LJ indicated that, in his view, clause 16 did not protect the charterers from their obligation to ensure the safety of any port nominated but felt constrained by the weight of contrary opinion to demur.
The provision that the charterers were not to order the vessel to a port where there was a risk, in the ordinary course of things, of not being able to enter or leave is significant. Because ice-breakers were needed, Abo was not a port which the vessel could enter and leave in the ordinary course.
The express safe port provision should have been, but was not discussed. It was held in the Sussex Oak and later in the Livanita that clauses such as clause 16 do not diminish or qualify the charterers’ obligation to nominate a safe port.
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