Port charterparty – vessel required to be within port to qualify as “arrived ship
The vessel was chartered to carry soya bean meal from Chicago to one port out of Amsterdam or Rotterdam or Antwerp or Ghent or one safe port German North Sea all in charterers’ option.
Ultimately, Brake was nominated as the discharging port.
Due to congestion the vessel was required to wait at the Weser lightship.
There was no waiting place in the port of Brake and those vessels for which a berth was unavailable were all required to wait at the Weser lightship situated in the estuary.
Shortly after arrival at the lightship, and in a futile attempt to become an arrived ship , the vessel travelled upstream. It turned in the vicinity of the berthing stations at Brake and returned immediately to the lightship on the same tide.
There was a delay of about 23 days before the vessel was allotted a berth.
The owners claimed demurrage for the 23 days.
Donaldson, J in the Commercial Court held in favour of the charterers, refusing the owners’ demurrage claim. His decision was overturned in the Court of Appeal (Lord Denning, MR, Stephenson, and Shaw, LLJ). The decision of Donaldson, J was restored in the House of Lords (Lords Diplock, Simon of Glaisdale, Edmund-Davies, Fraser of Tullybelton and Viscount Dilhorne).
The owners’ case developed as it went along. The point argued at first instance was that the vessel became an arrived ship when she turned in the vicinity of her berth at Brake shortly after arriving at the lightship.
In the Court of Appeal, and at the invitation of Lord Justice Stephenson, the owners amended their points of claim to contend that the vessel was already an arrived ship when she lay at the Weser lightship.
All three judgments in the Court of Appeal are convincing and argue for the principle emphasized by Lord Radcliffe in his dissenting speech in Aello that because port limits are variable and often hard to define, the important consideration is the accessibility of the vessel to the charterers. The precise physical location is incidental.
The House of Lords, in this case, chose precedent over principle.
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