No hire payable for tug assisted voyage – hire payable during period of efficient discharge.
The Facts
By an indefinite-period time charterparty, charterers hired owners’ steamship to be employed
“in carrying lawful and non-injurious merchandize between safe ports within the following limits, viz., Swansea and/or Rotterdam, or other ports in the United Kingdom or on the Continent, to such safe ports on the West Coast of Africa as charterers direct and back to Europe at the rate of 8s per gross register ton per calendar month, and at the same rate for any part of a month… hire to continue until her redelivery to the owners (unless lost) at a safe port in the United Kingdom or on the Continent (between Havre and Hamburg inclusive)”
The off-hire clause reads as follows:
“In the event of loss of time from deficiency of men or stores, breakdown of machinery, want of repairs, or damage, whereby the working of the vessel is stopped for more than 48 consecutive working hours, the payment of hire shall cease until she be again in an efficient state to resume her service”.
In the course of a voyage from the West Coast of Africa to Harburg on the Elbe, the vessel’s high-pressure engine broke down. The vessel put into Las Palmas and was towed from there to Harburg, the expense treated as general average over cargo, ship and freight.
Cargo was discharged, the ship’s steam winches and machinery being efficient for that purpose.
Findings
The Lord Ordinary (Lord Trayner) held that the owners were entitled to hire for the full period of the voyage from Las Palmas and the time taken to discharge, less the hire for 1½ days, the period by which the tug-assisted voyage exceeded the average duration of a voyage from Las Palmas to Harburg.
The Second Division of the Court of Session reversed the Lord Ordinary and found that no hire was payable during the voyage. They awarded 4 days’ hire for the period of discharge, being the period they considered reasonable.
The House of Lords (Lords Halsbury L C, Watson, Bramwell, Herschell and Morris) in a split decision found that no hire was payable for the voyage but that 10 days’ hire (the time it actually took) was payable for the period of discharge.
Lord Bramwell dissented on the question of the hire for voyage between Las Palmas and Harburg. He was of the view (as was Lord Trayner) that, despite being assisted by a tug, the vessel was doing what was required, i.e. carrying cargo.
Lord Morris, on the either hand, dissented on the 2nd period, i.e. discharge. He was of the view that the off-hire clause should be strictly construed against the owners and the fact that the engines were being repaired disqualified the entitlement to hire, despite the steam winches being in working order.
Commentary
The division in this strong bench is evidence of the inherent ambiguity in the off-hire clause.
It is ironic that Lord Bramwell considered the decision of little value as a precedent.
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