167. Compania Naviera Maropan S.A. v Bowater’s Lloyd Pulp and Paper Mills, Ltd (The “Stork”) [1954] 2 Lloyd’s Rep 397; [1955] 1 Lloyd’s Rep 349

Safe port – loading place found unsafe on the facts – charterers liable

The facts

The vessel was instructed by the voyage charterers to load a cargo of logs in Newfoundland in winter. The loading place was unsheltered. The charterers were obliged to load at safe berths or loading places.

The vessel dragged her anchors in a heavy wind and the master took the decision to sail the vessel out of danger. He was unsuccessful and the vessel was driven onto a shoal of rocks.

Findings

Devlin J sitting with an assessor found on the facts that a loading place where a vessel could be blown off her moorings was unsafe. In consultation with the assessor, he found that the master’s decision was not unreasonable and did therefore not constitute a novus actus interveniens.

The Court of Appeal (Singleton, Hodson and Morris LJJ) affirmed the decision.

Commentary

At the time of this decision, the Houston City had not reached the Privy Council and Devlin J and the members of the Court of Appeal were required to deal with the split decision in the Australian High Court.

In this case, evidence was led that the master was dubious about the safety of the loading place but that he had been reassured by the pilot who was familiar with local conditions.

Devlin J’s remark that a victim of a breach does not lose his right to claim damages by continuing with the contract, was quoted with approval by Lord Somerville in the Houston City when it eventually reached the Privy Council.

Devlin J remarked that there was no magic in the expression “warranty” and that all terms of a contract are in effect “warranties”.

The crisp point decided in this case is that, on a proper construction of the contract, the charterers promised to send the vessel to a safe port. No distinction was made here between “port”, “berth” or “loading place” as all had to be safe.

The master though in charge of the ship must obey the charterers. Unless the danger is so obvious no question of volenti non fit iniuria arises.

Lord Morris: “The corollary of being in a position to give an order is being in a position to command obedience…

A place will not be safe unless in the relevant period of time the particular ship can reach it, remain in it, and return from it, without, in the absence of some abnormal occurrence, being exposed to danger. It is a question of fact, having regard to the circumstances of each particular case.”

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