Dahl v Nelson
Comprehensive analysis of all previous case law related to ‘as near thereto’ clause was done in Dahl v Nelson, Donkin, and Others, (1881) 6 App. Cas. 38. The House of the Lords held that inclusion in contract of carriage ‘as near thereto as she might safely get’ has an effect of enabling the vessel to complete her voyage by proceeding to the alternative destination in cases when unreasonable delay in reaching the place of loading or discharging caused by an obstacle of permanent character would give to the parties a right to discharge such a contract altogether.
Lord Blackburn in his leading judgment cast a doubt on correctness of the ‘ambit test’ pronounced by Lord Cambell CJ in Schilizzi v Derry (1855) 4 E & B 873 – in absence of any clear definition the limits of ‘ambit of the port’ is very difficult to ascertain. His Lordship admitted that on the one hand it quite immaterial whether the incapacity to get into the dock was produced by a matter threatening the safety of the ship, or some other matter, but on the other hand the shipowner is bound to go into the dock if he could do so by waiting a reasonable time only. Commercial soundness would render as absurd an assumption that vessel chartered to go to a place, or as near thereto as she may safely get, should wait outside unreasonably long time.
Lord Watson said at p.57 and 58:
I think it may be taken as settled law, that when, by the terms of a charterparty, a loaded ship is destined to a particular dock, or as near thereto as s may safely get, the first of these alternatives constitutes a primary obligation; and, in order to complete her voyage, the vessel must proceed to and into the dock named, unless it has become in some sense "impossible" to do so.
…In providing alternative destinations, the charterparty does not express the condition upon which the second alternative becomes substituted for the first. It does not in terms express an distinction between the alternatives, and that the first is to be regarded as the primary destination to which the chartered vessel must, if possible, proceed, is, I apprehend, an inference based upon what is known to be the ordinary course of shipping business, and, on the presumption that parties would, from considerations of mutual interest, have agreed to that effect if they had made it matter of express contract.
Awakened by Dahl v Nelson decision, the owners recognised that if amended, a commonly used construction may drastically shift distribution of liabilities between the parties to the contract. Although temporarily lack of water was held to be a characteristic of a tidal harbour and therefore within risks borne by the owner, nevertheless certain wording, when carefully inserted in the contract, is able to relieve the shipowner from a burden which the law would have otherwise thrown upon him.
In Horsley v Price (1883) 11 QBD 244, 5 Asp MLC 106 the owner was held to be discharged from liability for delays due to the tide because usual provision ‘so near thereto as she may safely get’ was amended by ‘at all times of tide and always afloat’. In that case the vessel arrived at King’s Roads, which although located eighteen miles away from her destination – Sharpness, was, nevertheless, the nearest place to Sharpness that the vessel could reach with her full cargo on board in the then state of the tides. Notwithstanding the fact that upon a short and reasonable delay the shipowner would have be able to carry his whole cargo to destination, the judge found that charterparty was expressly designed to relieve the owner at the charterer’s expenses from a chance of loss due to any delay related to lack of water at discharging port.
In my opinion the words "at all times of the tide" were put in on purpose to make the contract different from what it would have been if they had not been inserted; in other words, to relieve the shipowner from a burden which the law would have thrown upon him in the absence of these words, viz., the risk of delay upon arrival from the state of the tides in the river to which the charterer’s convenience required the ship to go.
Per North J in Horsley v Price (1883) 11 QBD 244, 5 Asp MLC 106 at p.249
What is notable, that it was for the charterer now to allege that construction which enables the owner end his voyage earlier is ‘a hard and unreasonable one’. Naturally, it was suggested by the learned judge in Horsley v Price that certain amendments, if inserted into the charterparty, would dramatically change position of the parties when ‘so near thereto as she may safely get’ has to be invoked.
Similar wording ‘so near thereto as she can safely get, always afloat’ let Sankey J in Hall Bros Steamship Co, Ltd v R and W Paul, Ltd [1914-15] All ER Rep 234 at p.236 expand meaning of a ‘safe port’ to ‘a port to which a vessel can get laden as she is and at which she can lay and discharge, always afloat’. This notable change embraced not only the passage to and out of port but also safety of cargo operation within it.
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