5. Miguel De Larrinaga Steamship Co. Ltd v D L Flack & Son (1924] 20 Ll.l Rep 268;

Chamber of Shipping Welsh Coal Charter 1896 – definition of “stoppage” for the purposes of the cancellation

The facts

The vessel was ordered to load a cargo of coal at the Port Richmond Pier on the Delaware River within the port of Philadelphia.

Although this was a dock charter, there were no docks in the Port of Philadelphia.

A strike of workers resulted in a total stoppage of loading for three days and thereafter a retarded the rate of loading.

The cancellation clause in this charterparty entitled the charterers to treat the charter-party as null and void should a stoppage occur for six consecutive days.

The charterers purported to cancel upon the above facts. The cancellation was treated as repudiation by the shipowners and the vessel re-chartered at a lower freight.

The owners claimed damages for the repudiation.

Findings

The Umpire found in favour of the owners and his finding was confirmed by Roche, J.

The Court of Appeal, (Sir Ernest Pollock, MR, Atkin and Sargeant, LLJ) agreed.

Commentary

This decision was decided at about the same time as United States Shipping Board v Frank C Strick.

Roche, J remarked, obiter, that a subsidiary finding by the umpire, that laytime commenced only when the vessel came on turn was correct. The majority in the House of Lords in Strick used this in support of their finding.

The House of Lords in Strick commented only of the judgment of Roche, J and not the Court of Appeal judgment which endorsed his obiter dictum.

The laytime/loading clause (clause 3) is given differently by Sir Ernest Pollock and Atkin, LJ. Sir Ernest Pollock places the word “loading” before the crucial word “commencing” whereas Atkin, LJ has “running time” as the subject of the sentence as per the preferred view of Lord Sumner in Strick.

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