Safe port – vessel damaged due to insufficient draft in Mississippi river – charterers liable
The vessel was voyage chartered to load grain at New Orleans, situated 100 miles upstream on the Mississippi river: “proceed to one or two safe berths one safe port US Gulf…”.
The vessel was duly loaded and bunkered to a draft under the recommended maximum.
The vessel was damaged by grounding in the South West Pass in the Mississippi delta due to an unforeseen level of siltation.
The owners claimed damages based on the breach of the safe port warranty.
The two arbitrators appointed by the parties, J L Potter and J P Besman, found in favour of the owners and a stated case was brought before the Commercial Court.
Mustill J upheld the arbitrators’ award, applying the safe port test formulated by Sellers LJ in the Eastern City requiring the vessel to be able to reach, use and return from the port safely.
In the course of a judgment in which the authorities are exhaustively dealt with, Mustill J considered the timing of the damage and the nature of the hazard.
While it had been said that the breach was to occur at the moment when the orders were given to proceed to an unsafe port, he concluded that recent authorities suggested that such a breach could occur at any time up to the time when damage actually occurred.
The temporary nature of the hazard was also not a factor precluding a finding of an unsafe port.
Mustill J considered the geographical limits of the warranty and held that a peril encountered a substantial distance away from the port could also render the port unsafe if there was no alternative route.
The facts of this case may be contrasted with those of the Hermine also involving the Mississippi but where siltation caused delay and not actual damage to the vessel.
The owners were represented by Hobhouse QC and the charterers by Bernard Rix.
It was not necessary to find that danger could ensue after the issue of orders. When these orders were issued siltation was an endemic hazard of Mississippi ports and therefore breach occurred on trite principles.
Mustill J appeared to be unaware that the Mary Lou was the same vessel which caused the delay in the Hermine.
The point is well made by him that in most cases the danger is unknown to charterers – this makes an enquiry into their state of knowledge at the time of orders artificial.
The ratio in this case that safety was a continuing warranty was overruled (questionably) by the House of Lords in the Evia 2.
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