165. G.W. Grace & Co v General Steam Navigation Company, Ltd (The “Sussex Oak”) (1949 – 50) 83 Ll. L Rep 297

Safe port – charterers’ warranty extending to both approach and return voyages

The facts

The vessel, let on the Baltime form, was ordered to Hamburg with a cargo of flour to return with a cargo of timber.

Due to the severity of the winter, ice was encountered both on the approach voyage to the port along the river Elbe and on the return voyage.

The vessel sustained damage both on the approach and return voyages.

The arbitrator, Sir Robert Aske KC, found in favour of the owners but stated his award in the form of a special case.

Findings

Devlin J found that the act of giving orders to an unsafe port constituted a breach on the part of the charterers.

Following Palace Shipping Company, he found that danger in the approach voyage constituted a port unsafe.

Following Limerick Steamship Company, he found that dangers encountered on the return voyage similarly render the port unsafe. Although this obligation could fairly be implied from the wording of most charterparties, the charterparty in Limerick expressly covered dangers encountered on the return voyage.

Commentary

The judgment contains a number of superfluous references to safe berth cases which, in addition to being conflicting, provide no assistance on these facts.

The question was left open whether breach lay in giving the specific order or whether the safe port clause itself constituted a continuing warranty.

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