“So near as she may safely get” proviso held to apply where inaccessibility due to congestion.
The facts
The vessel was ordered to load a full cargo at a named port and from there to proceed to the London Surrey Commercial Docks to discharge the cargo.
The charterparty provided for ten days on demurrage over and above an unspecified number of lay days. (The space on the contract at which the number of days was required to be filled in had been left blank).
Although there was room in the dock for the ship to lie afloat, the dock company would not allow the vessel to enter until there was a prospect of being able to provide a discharging berth within a reasonable time.
Three weeks after arrival, the owners notified the charterers that in the absence of any immediate prospect of obtaining a discharging berth, the charterers would be required to perform the discharge by way of lighters. The charterers refused, stating that the vessel should continue to lie where she was.
The owners responded by discharging at Deptford Buoys (the nearest place to the Surrey Commercial Docks where it could safely lie afloat) by lighters and carrying the cargo into the Surrey Commercial Docks.
The owners claimed payment for freight, demurrage and delivery charges.
Findings
Sir George Jessel MR found for the charterers. His decision was overturned by the Court of Appeal (James, Brett and Cotton LJJ). The Court of Appeal’s decision was affirmed by the House of Lords (Lord Selborne LC and Lords Blackburn and Watson).
The reasoning of the Lords was that the proviso “as near thereto as she may safely get” applied to the situation in this case, namely, that the dock nominated for discharge was inaccessible for an unreasonable period of time and the voyage was completed on arrival.
Commentary
The Court of Appeal and the House of Lords held that it was unreasonable to expect the shipowners to wait outside the dock for an indefinite period of time.
The uncertainty brought about by standard of reasonableness was a factor which Lord Blackburn considered inevitable in the circumstances.
With regard to the problem of presentiation, the following quotation from Lord Watson is particularly important:
There may be many possibilities within the contemplation of the contract of charterparty which were not actually present to the minds of the parties at the time of making it; and when one or other of these possibilities becomes a fact, the meaning of the contract must be taken to be, not what the parties did intend, for they had neither thought nor intention regarding it, but that which the parties, as far as fair and reasonable men, would presumably would have agreed upon if, having such possibility in view, they had made express provision as to their several rights and liabilities in the event of its occurrence.
The “as near as she may safely get” clause was crucial in the outcome of this decision, a fact often overlooked in later judgments applying the doctrine an “arrived ship”:
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