6. United States Shipping Board v Frank C Strick & Co Limited (The “Hinckley”) [1924] 19 Ll.l Rep 412; [1925] 21 Ll.l Rep 173; [1926] 25 Ll.l Rep 73

Modified Chamber of Shipping Welsh Coal Charter, 1896 – significance of obligation to load “in turn”

The facts

The vessel was ordered to proceed to Delagoa Bay (later Lorenco Marques and now Maputo) and there load a cargo of coal.

The vessel reached Delagoa Bay but loading was delayed by congestion in the port.

Clause 3 of the charter-party read as follows:-

The cargo to be loaded subject to port regulations, in regular turn as customary at the rate of 1000 tons per day … commencing when written notice is given of steamer being completely discharged of inward cargo and ballast in all her holds and ready to load… any time lost … by reason of … obstructions on the railway or in the docks; or by reason of floods, frosts, fogs, storms, or any cause beyond the control of the charterers, not to be computed as part of the loading time (unless any cargo actually loaded during such time)… in the event of any stoppage arising from any of the above causes continuing for … six running days from the time the vessel being ready in turn to load this charter shall … become null and void.

There were no docks at Delagoa Bay, only a wharf, and when the vessel arrived within the commercial area of the port, she gave notice of readiness and then awaited her turn to load.

The vessel was only able to get alongside the wharf after a wait of 27 days.

The charterers contended that laytime only commenced once the vessel came alongside and was therefore “in turn”.

The second point raised by the charterers was that congestion qualified under the exemption
clause referring to an “obstruction in docks”.

Findings

Rowlatt, J found that the words “in turn” were neutral and that laytime would begin to run whether the ship was in turn or not provided the other requirements of clause 3 were met.

The argument on the exemption clause was rejected on two bases:

(1) that the actual clause referred to “docks” whereas none existed;
(2) that on the eiusdem generis rule, congestion was not included in the factors which the parties intended to constitute an obstruction.

The Court of Appeal, (Sir Ernest Pollock, MR, Warrington and Scrutton LJJ) overturned the decision of Rowlatt, J holding that laytime only commenced when the vessel’s turn had actually come to be loaded.

The House of Lords, in a split decision, affirmed the Court of the Appeal.

The majority (Viscount Cave, Lords Atkinson and Shaw), relying on cases such as the Cordelia and Miguel de Larrinaga interpreted the charterparty to make the commencement of laytime coincide with loading in turn.

Lord Sumner delivered a closely reasoned dissenting speech in which Viscount Haldane concurred. The position taken by Lord Sumner was that laytime commenced when the vessel became an arrived ship whether her turn to load had come or not.

Discussion

The speech of Lord Sumner is useful in its exposition of the ordinary dynamic of laytime provisions and his full treatment of existing authorities.

Lord Sumner uses “arrived ship” as a talisman concept to determine his conclusion at the expense of an enquiry into the objective meaning of the contract.

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