172. Islander Shipping Enterprises S.A. v Empresa Maritima Del Estado S.A. (The “Khian Sea”) [1977] 2 Lloyd’s Rep 439; [1979] 1 Lloyd’s Rep 545

Safe berth – passage of escape from exposed berth during heavy weather blocked by other vessels – berth held unsafe

The facts

The vessel was let on the NYPE form. During the course of the charter, the vessel was ordered to Baron Wharf, a berth outside the shelter of the breakwater at Valparaiso.

Clause 6 read as follows:

“That the cargo or cargoes be laden and/or discharged in any dock or at any wharf or place that the charterers or their agents may direct, provided that the vessel can safely lie always afloat at any time of tide.”

During heavy swell, vessels were required to move out into the open sea.

Despite reacting in time to an early warning bad weather system, the vessel was unable to leave the wharf being obstructed by two other vessels belonging to the same time charterer.

During the ensuing delay, the vessel suffered damage by ranging against the pier.

Findings

The two arbitrators appointed by the parties, Donald Davies and Cedric Barclay were unable to agree. Umpire, Ralph Kingsley, found in favour of the owners.

The Commercial Court (Donaldson J), for whom a special case was stated, upheld the umpire’s award.

Following the guidelines in the Eastern City, he found that the absence of adequate safeguards to ensure a safe passage from the berth in emergencies, constituted the berth unsafe.

The Court of Appeal (Lord Denning MR and Stephenson and Shaw LJJ) affirmed the judgment of Donaldson J.

Commentary

Donaldson J held that the safe port question was a mixed question of fact and law.

This content is restricted to site members. If you are an existing user, please login. New users may register below.

Existing Users Log In
   
New User Registration
* Please indicate that you agree to the Terms of Service
*Required field