Geographical meaning of ‘as near thereto as she can safely get’ was first defined in Schilizzi v Derry (1855) 4 E & B 873, where sailing brig chartered for a voyage from London to Galatz was not able to cross the bar in the mouth of Danube river for more than one month, from 5th of November until 11th of December due to lack of water. Having lost in stormy weather both of her anchors, the vessel was forced for the sake of safety to sail back to Odessa. In Odessa the master, being in disagreement with the Charterers’ representative about alternative employment, found another, more profitable service and sailed under another contract back to England. Charterers claimed damages for loss of profit. Lord Cambell CJ said:
… the meaning of the charterparty must be that the vessel is to get within the ambit of the port, though she may not reach the actual harbour. Now could it be said that the vessel, if she was obstructed in entering the Dardanelles [340 miles from Galatz], had completed her voyage to Galatz.
The ‘ambit test’ was applied in Metcalfe v Britannia Ironworks (1876) 1 QBD 613 and confirmed in the Court of Appeal (1877) 2 QBD 423, in case where the steamer was chartered to ship a cargo to Taganrog, a port in the Sea of Azov, or as near thereto as she could safely get. The vessel arrived at Kerch, another port which is at the entrance of the Sea of Azov, at the distance from Taganrog of about 300 miles by sea. Although it was admitted that the captain was right in stopping at Kerch because the buoys had been taken up, and the navigation of the Sea of Azov was closed for the winter, but both the High Court and the Court of Appeal held that the master was wrong to consider the carrying voyage completed and was not entitled to discharge the cargo at Kerch and the owner therefore did not earn any freight. Lord Coleridge C.J. formulated his conclusion in such words:
It is not necessary to say more than that the obstruction was only temporary, and is such as must be incident to every contract for a voyage to a frozen sea…
The court obviously took a view that a shipowner should have been aware of conditions in the Sea of Azov at that time of year and by signing the charter undertook it to bear. Likewise delays suffered from any other known temporarily obstructions occidental to the ordinary course of navigation such as tides, shallow waters, etc. fall outside of protection of ‘as near as she can safely get’ clause.
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