Safe port – port unsafe on the facts – charterers liable
The facts
Pursuant to a voyage charterparty, the vessel was ordered to one or two safe ports in Morocco to load a full cargo of barley to be carried to one safe port in Japan.
Mogador was nominated as the first port in Morocco.
In winter months it was common practice for larger vessels, as this was, to wait in the open sea during bad weather.
The prevailing dangers in the port were the unsuitability of the seabed for holding a ship’s anchor, high winds and rocks.
Shortly after arriving in port and before commencement of loading, an already strong wind (force 6) rose slightly causing a slight drag of the anchor. The master took the decision to weigh anchor and to move to open sea. In the process the vessel was blown against the rocks and sustained damage.
Findings
Pearson J sitting with Captain St G Glasson and Captain RJ Galpin found that the port was unsafe and that the charterers were liable.
He found that the master was not negligent in the content, timing and execution of his decision to leave the port.
Lastly, he found that a clause limiting the charterers’ liability to freight applied only in those situations where the charterparty was not carried out at all and not to the imperfect execution of obligations under the contract.
The Court of Appeal (Hodson, Romer and Sellers LJJ – judgement by Sellers LJ – sitting with Commodore, TL Owen and Captain GE Barnard, nautical assessors) confirmed the findings of the court of first instance.
Commentary
Roskill QC and Brandon appeared for the charterers while Mocatta QC and Kerr appeared for the owners.
Leave to appeal to the House of Lords on the facts only was granted. Roskill QC stated in argument that the House was more amenable than the Privy Council to hear appeals on the facts only.
This content is restricted to site members. If you are an existing user, please login. New users may register below.