Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc; The Reborn [2009] EWCA Civ 531, [2009] All ER (D) 83 (Jun)
Court of Appeal, Civil Division, 10 Jun 2009, Lord Clarke MR, Rix and Carnwath LJJ 10 Jun 2009
It is not possible to conclude in general that a term as to safety will always be implied into voyage charters where there is an unspecified range of ports, although each case will turn on the wording of the particular charter.
David Bailey QC (instructed by Jackson Parton) for the owners. Simon Croall QC & Stewart Buckingham (instructed by Clyde & Co) for the charterers.
The proceedings concerned a voyage charterparty on an amended Gencon form. The voyage was from Chekka in the Lebanon to Algiers with a cargo of cement. The parties had amended the standard Gencon terms, crossing out the word “safely” in the following phrase in cl 1: the vessel “shall proceed to the loading port(s) or place(s)…or so near thereto as she may safely get and lie always afloat …” There was no express warranty by the charterers that either the port of Chekka or the loading berth there would be “safe”.
Clause 20
Clause 20 provided that the owners guaranteed and warranted that they had “satisfied themselves to their full satisfaction with and about the ports specifications and restrictions prior to entering into this charterparty.” In the event, damage was allegedly sustained by the vessel during loading at Chekka as a result of her hull being penetrated by a hidden underwater projection at the loading berth nominated by the charterers. In subsequent arbitration proceedings, it was agreed that Chekka was agreed as the load port. It was also agreed that it had been for the charterers to nominate the berth at which the vessel was to be loaded and that there was no express warranty of safety in respect of either the port or the berth. The arbitrators held on the hearing of a preliminary issue that it was not possible to imply into the charterparty a term that there was an absolute duty upon the charterers to nominate a safe berth. The judge dismissed the owners’ appeal, and they appealed to the Court of Appeal.
Lord Clarke MR:
His lordship held that the appeal would fail by reference to the particular terms of the charterparty.
Particular terms
Before considering those particular terms, it was important to note that the cases stressed the importance of the particular terms of each charterparty or other contract, for example The Evaggelos [1971] 2 Lloyd’s Rep 200 and The Aegean Sea [1998] All ER (D) 135.
The owners referred to Voyage Charters (3rd Edition, 2007). The authors described the principal ways used in practice for identifying the port or ports: by identifying a named port, such as “Rotterdam”, or by stipulating a number of named ports from which a choice of one or two is to be made, such as “Amsterdam/Rotterdam/Antwerp” or by stipulating a number of unnamed ports within a specified range, from which a choice was likewise to be made, such as “Bordeaux/Hamburg range”. In each of those cases, it was implied, if not expressed, that the charterers would also nominate a berth or place within the port.
It was common to specify a warranty of safety, such as “1/2 safe berth 1/2 safe ports Bordeaux/Hamburg range” and, even without such a clause the charters were both entitled and bound to designate a berth. His lordship agreed that that accurately described the general position.
As to safety, whether or not there was an implied warranty of safety would depend upon the normal contractual rules for the implication of terms. It followed that the test was one of necessity.
Whether such a warranty would be implied would be influenced greatly by the degree of liberty which the charterers enjoyed under the terms of the charter to choose the port or place where the ship was to load or discharge. The authors of Voyage Charters stated: “In principle, the more extensive that liberty, the greater the necessity to imply a warranty: conversely, the more specific the information given in the charter to the owner about the intended port or place, the more reasonable it is to conclude that he has satisfied himself as to its safety, or that he is prepared to take the risk that it is unsafe.”
General approach
His lordship accepted that as a correct general approach. He turned to the facts of the instant case and stated that the case of The APJ Priti [1987] 2 Lloyd’s Rep 37 was of some considerable importance. It did not follow from the mere fact that the charterers were under a duty to nominate the berth that they warranted that the berth was safe.
The suggested implied term was inconsistent with cl 20 of the charter. By cl 20, the owners had guaranteed and warranted that upon arrival at the loading port (Chekka), the vessel would comply with all restrictions of the port, including its berths and approaches, and that they had satisfied themselves to their full satisfaction with and about Chekka’s specifications and restrictions before entering into the charterparty. In all the circumstances, the owners were accepting that the charterers had a right to elect a berth of their choice. It was, accordingly, not necessary to imply the suggested term in order to make the contract work. The charterers had not agreed to accept the risk of unsafety at the berth from hidden dangers.
His lordship would therefore dismiss the appeal.
Rix and Carnwath LJ agreed.
