184. Independent Petroleum Group Limited v Seacarriers Count PTE Limited (The “Count”) [2007] 1 ALL E.R. (Comm) 882

Safe port – vessel delayed by grounding of another vessel – port held unsafe

The facts

The vessel was voyage chartered to carry petroleum products from Sitra to one, two or three safe ports East Africa Mombasa/Beira range.

The charterers nominated Beira.

The vessel arrived at Beira and tendered her notice of readiness.

On the day of the vessel’s arrival another vessel went aground in the channel leading to the port from the sea.

After the delay of a number of days, the vessel was able to proceed to the discharge berth.

On completion of discharge, the vessel was further delayed by the grounding of another vessel in the same channel.

The owners claimed for the loss resulting from the delay alleging a breach of the safe port provisions of the charter.

Findings

The arbitrators appointed by the parties, Mr PB Buchan and Mr MJ Baker-Harber upheld the owners’ claim in a reasoned award. The arbitration was dealt with on written submissions.

On the charterers’ appeal to the Commercial Court, Toulson J, confirmed the arbitrators’ award.

The court found that the owners had proved that the cause of the grounding was the misalignment of the buoys marking out a safe course through the channel.

Toulson J distinguished the Hermine in which the Court of Appeal had held that non-frustrating delay did not constitute a danger for the purposes of the safe port warranty.

Commentary

Insofar as delay, when it occurs, is a consequence of an unsafe port, its extent should have no bearing on the question of unsafety. Despite the unsound logic, the ratio of the decision in the Hermine was that unsafety could only be constituted by frustrating delay as opposed to some shorter period.

Although the type of danger involved in the Hermine was different (a fluctuating natural phenomenon, siltation of the Mississippi) it is doubtful whether the facts were truly distinguishable.

Because the danger in the Hermine was fluctuating, it was irrelevant whether the danger actually existed at the time when the vessel was ordered to the port in question (Destrehan). The real issue was whether the port was prospectively unsafe bearing in mind the potential for the danger occur.

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