162. The “Pass of Leny” (1936) 54 Ll. L Rep 288

Safe port – charterers not liable for damage caused to ship by grounding during loading operations

The facts

The vessel, an oil tanker, was chartered to “proceed to Boston or as near thereunto as she can safely get (safely aground) and there load…“.

A further clause provided that “it is agreed that the steamer will load at a place or at a dock or alongside lighters reachable on her arrival, which shall be indicated by charterers, and where she can always lie afloat or safely aground.”

The berth at which the vessel loaded sloped away from the jetty. As loading progressed, the vessel slipped away from the jetty causing damage to the bottom.

The owners sought to hold the port authorities as well as the charterers liable for such damage.

Findings

Bucknill J sitting with two assessors in the Admiralty Court found that the berth was unsafe but that neither the port authorities nor the charterers were liable.

The court considered the relationship between the parties and the fact that the owners had previously sent a vessel to the same port and had an opportunity to assess its safety. In these circumstances he found that it could not be implied in the charterparty contract that the charterers warranted the safety of any particular loading berth.

Commentary

The enquiry of the court appears to confuse the questions of negligence and the test for an implied term.

This case is indistinguishable from Lensen where the opposite conclusion was reached.

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