161. Lensen Shipping Lltd v Anglo-Soviet Shipping Company Ltd (1934) 50 Ll. L. Rep 62; (1935) 52 Ll. L. Rep 141

Safe port – vessel grounding in loading berth – charterers liable

The facts

The time charter party contained a clause reading as follows:

“Steamer to be employed in lawful trades for the conveyance of lawful merchandise between good and safe ports or places within the following limits… where she can lie safely always afloat or safe aground where steamers of similar size and draft are accustomed to lie aground in safety.”

The vessel was ordered to a loading berth in Leningrad.

During loading, the vessel developed a list and the master thereupon directed loading on the opposite side to counteract the list. The master’s actions served only to accentuate the list and it was then discovered that the vessel had grounded.

The vessel was towed out into deep water and once there righted itself violently, overshooting the deck cargo and damaging the bulwarks. The owners claimed damages.

The umpire appointed, Mr G. St, Clair Pilcher found in favour of the owners and stated a special case for the court.

Findings

Mackinnon J confirmed the award in favour of the owners and his judgement was affirmed by the Court of Appeal by a majority (Greer and Lesser LJJ – Maugham LJ dissenting).

Commentary

The reasoning of Maugham LJ was that the charterers could not be held liable for damage caused by loading at a berth chosen by the port authorities.

The important question was whether the safe port obligation extended to safe berths within the port which the majority found. This implication was based on the Moorcock and appears to be commercially sound.

This is one of those cases in a time charterparty where an unexpected physical danger causes damage. The weight of authority appears to be that the charterer bears the risk in these circumstances.

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