Load port nominated by charterers outside contractual provision resulting in vessel missing laycan, charterers entitled to cancel
The Facts
The relevant clauses of a standard Fruit Charterparty were as follows:
“1. The steamer… shall… proceed as ordered by charterers or their agents to 1/2/3 usual loading places Barcelona / Malaga Range both inclusive … and there load … a full and complete cargo of fruit …
- The captain to telegraph apply for orders to ‘work – Valencia’ on arrival at port of outward discharge, stating when expected discharge and address for reply. The captain shall also telegraph his departure from port of outward discharge. Should orders not have been received when finished discharge, the steamer shall proceed immediately to Valencia roads for orders. Charterers have liberty to instruct captain to proceed to Valencia roads for orders …
- Lay-days not to commence before 3rd March 1958 or should the steamer not have arrived at first loading or other port on 13th March 1958 at 2pm charterers or their agents have the option of cancelling or confirming this charterparty.”
Although charterers were given details of the vessel’s arrival at Hamburg (the port of outward discharge), discharge and progress from there to Valencia, the captain failed to “apply” for orders as required by clause 3.
On the day preceding the cancelling day, charterers ordered the vessel to Tarragona which caused the vessel to miss the laycan by several hours.
Charterers cancelled and owners claimed damages for repudiation.
Findings
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