496. Cheikh Boutros Selim El-Khoury v Ceylon Shipping Lines Ltd (the “Madeleine”) [1967] 2 Lloyds Rep 224

Time charter – vessel temporarily unseaworthy at time of cancelling date – charterers entitled to cancel

The Facts

The vessel was let on the Baltime 1939 form.

Clause 1 read:

The owners let, and the charterers hire the vessel for a period of three calendar months (15 days more or less in charterers’ option) from the time (not a Sunday or a legal holiday unless taken over)  the vessel is delivered and placed at the disposal of the charterers between 9am and 6pm or between 9am and 2pm if on a Sunday, at Calcutta in such available berth where she can safely lie always afloat, she being in every way fitted for ordinary cargo service” 

Clause 22 read:

Should the vessel not be delivered by the [10th] of May 1957 the charterers to have the option of cancelling.  If the vessel cannot be delivered by the cancelling date, the charterers, if required, to declare within 48 hours after receiving notice thereof whether they cancel or will take delivery of the vessel” 

On 6 May 1957, the vessel’s deratisation certificate expired.  Fumigation was carried out and a fresh certificate was issued after the cancelling date on 12 May 1957.

Without a certificate, the vessel could not leave Calcutta for any port outside India and was therefore unable to trade within world wide limits as provided for in the charterparty.

Because of the absence of a certificate, charterers purported to cancel at 8am and again at 8.38pm on 10 May 1957.  Owners tendered delivery at 2.30 on 10 May 1957.


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