19. Tharsis Sulphur and Copper Company Limited v Morel Brothers & Co and others [1891] 2 QB 647

Commencement of laytime – inter-relation between “or so near thereto as they may safely get” and “deliver at any safe berth”

The facts

The charterparty contained the following clause:

The steamers will load from the factory of the charterers … and being so loaded shall therewith proceed to the Mersey ( or so near thereunto as they may safely get), and deliver the same at any safe berth as ordered on arrival in the dock at Garston.

On arrival at Garston, a berth was not available due to congestion.

The owners argued that laytime commenced on arrival at Garston.

Findings

The court of first instance, (Charles J) held in favour of the charterers that laytime only commenced when the vessels berthed. His decision was affirmed by the Court of Appeal (Lord Esher MR, Bowen and Kay LJJ).

Commentary

Both judgments, by Lord Esher MR and Bowen LJ, seek to determine where the “voyage ends” a question- begging enquiry (perpetuated by Lord Diplock in the Johanna Oldendorff)

The result seems correct as the charterparty gave the charterers the option of nominating a berth.

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