9. Kokusai Kisen Kabushiki Kaisha V Flack & Son [1922] 10 Ll.L Rep 83; [1922] 10 Ll.L Rep 635

Arrived ship – dock charter – vessel sent to port without docks – charter treated as port charter

The facts

The vessel was chartered to load coal in Delagoa Bay (Maputo, previously Lorenco Marques)  in terms of the Chamber of Shipping, Welsh Coal Charter, 1896.

Clause 1 provided that the vessel would sail to Delagoa Bay “and there load in regular turn always afloat in the customary manner from the charterers in such dock as may be ordered by them on or before arrival a full and complete cargo of nominated coal not exceeding 7 700 tons”.

Clause 3 of the charter party provided, “cargo to be loaded in accordance with port regulations in regular turn at the rate of 1000 tons per day”, the days to commence “when written notice is given of steamer being completely discharged of inward cargo and ballast in all her holds and ready to load …”.

There was no dock at Delagoa Bay and therefore the provision in clause 1 of the charter party could not be literally applied.

The charterers argued that the word “wharves” should be substituted for “docks” thereby making sense of the charter party. This was significant because the vessel was unable to go alongside due to congestion giving rise to a potential claim for demurrage on the part of the ship owners.

The ship owners argued that the vessel was an arrived ship as soon as it lay at the customary place waiting for a wharf to become available for loading.

Findings

The case was decided piecemeal and the arbitrator referred three questions to the court, the most significant of which was whether the vessel was an arrived ship while waiting in the roads for a wharf to become available.

McCardie J held that as the clause referring to “docks” could not be applied, the ship was to be considered an arrived ship when she lay in the roads. His finding was confirmed by the Court of Appeal (Bankes, Scrutton and Atkin LJJ).

In the analysis of Scrutton, LJ, the phrase referring to “docks” was to be struck out thereby rendering the contract a port charter party.

Commentary

The finding that the vessel was an arrived ship was made despite the words “and there load in regular turn always afloat in customary manner”. The interpretation in the Cordelia was therefore not applied and this decision was prayed in aid by Lord Sumner in his dissenting speech in United States Shipping Board v Frank C Strick.

This content is restricted to site members. If you are an existing user, please login. New users may register below.

Existing Users Log In
   
New User Registration
* Please indicate that you agree to the Terms of Service
*Required field