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Shipping – Charterparty Voyage - Detention of ship with no fault from either side – Demurrage – Damages – Legal effect of charterparty contract – Effect of "as near thereto as she may safely get" words.

 

this page was last time updated on: 23-Oct-2012

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Cases referring to this case:


Dahl v Nelson (1881) 6 App Cas 38


The appellant, London timber merchant, had on the 21st of June, 1877, entered into a charterparty with the Respondents in respect of their steamship the Euxine, which was to proceed to Soderhamn, and there load a cargo of deal timber. The charterparty stipulated that the Euxine:

"being so loaded shall therewith proceed to London Surrey Commercial Docks, or so near thereunto as she may safely get, and lie always afloat, and deliver the same on being paid freight."

"The freight to be paid unloading and right delivery of the cargo. … "

As the docks, at the moment of ship’s arrival, were full, the ship could not be given a discharging berth, and the dock manager therefore refused it entrance into the docks. Both parties having named these docks in the charterparty, this refusal of the dock authorities was held not to be the fault of either party. The cause of the delay as to being admitted into the docks was immaterial, but the length of the delay was. The charterer would not name any other docks to which the ship might be taken. The ship’s master therefore took it to the Deptford Buoys (the nearest place to the Surrey Commercial Docks where it could lie in safety afloat) and there discharged the cargo by lighters, carrying the timber into the Surrey Commercial Docks, where it was afterwards sorted and put in order on the wharf.

An action was brought by the respondents on these claims for demurrage and charges upon the ground that the appellant, as charterer of the vessel, was bound to provide for the entry of the vessel into the docks, and was therefore liable for the delay which had occurred. The appellant denied his liability, and counter-claim for damages on account of the stop put on the delivery of the cargo, by the service on the dock company of the claim for lien for freight, charges, and demurrage; and also for alleged injury to timber by reason of the unfitness of the lighters employed. The Master of the Rolls (before whom the cas was tried, without a jury) decided that the alleged custom which bound the charterer to secure the admission of the vessel into the docks was not proved, and that the obligation to provide a berth lay equally on both parties, that the ship had "not gone inside the dock gates," the voyage had not been completed within the terms of charterparty. Action of the shipowners was therefore dismissed.

The respondents, contended that the default in not entering the docks was attributable to the appellant, who was bound by the general law, as the charterer, and by the custom of the timber trade in the port of London, to secure the admission of the vessel into the docks named, and if he could not obtain such admission there, he was bound to name some other docks where the vessel could be discharged, for that the shipowner was not bound to wait for an indefinite time in anticipation of the possibility of a berth in the Surrey Commercial Docks being procured for the discharge of the vessel.


In the House of Lords, before Lord Blackburn, Lord Watson 1880 Nov. 16, 17, 23, 24, and the Lord Chancellor (Lord Selborne) 1881 Jan. 13.

Lord Blackburn:

The legal effect of the contract, in my opinion, as far as regards the shipowner is, that he binds himself that his ship shall (unless prevented by some of the excepted perils) proceed to the discharging place agreed on in the charterparty. That is, in this case, the Surrey Commercial Docks (which must, I think, mean inside the docks), with an alternative, "or so near thereto as she may safely get and lie always afloat." The legal effect, as regards the obligation on the merchant, is, I think, that he binds himself, on the ship arriving at the place where it is to deliver, to take the cargo from alongside, and for that purpose to provide the proper appliances for taking delivery there. … Both parties agreed naming the Surrey Commercial Docks in the charterparty as the docks to which the steamer was to go. I can see nothing amounting to a contract either on the one side or the other to procure the ship admittance, nor has any authority been cited to the effect that such a contract is implied that charterparty had left it free to the merchant to select a dock… But where, as in this case, the dock is named from the beginning by both parties, I think that refusal of the dock authorities to let the ship inside the dock gates is the fault of neither party.

and at pp.47-48

It is perfectly plain to my mind that the ship did not fulfil the primary engagement in charterparty to proceed to the Surrey Commercial Docks by merely proceeding to the gate of that dock, but if, under the circumstances, the ship had on the 7th of August, fulfilled the alternative of proceeding "as near thereto as she may safely get," the merchant was, by his agreement, to take the cargo from alongside at his risk and expense, and there is no reason why he should not have to bear all the damage occasioned by his refusal to comply with the request contained in the letter of the 7th of August to send lighters alongside, which, on the assumption that she had got near thereto as she could safely get, was what he had undertaken to do.

finally at p.50:


Had the words in the charterparty been "as near thereto as she may get," it would have been open to a charterer to contend that the ship must get as far as it was possible, however dangerous it might be. I do not think it could have been successfully so contended, but those who originally framed this clause prevented the possibility of such a contention by inserting the word "safely." In the absence of authority, and construing the words in their ordinary sense, I think that is the only effect of the introduction of the word "safely." I think if the ship cannot get at all, it cannot get safely.

Lord Watson at p.58:

The controversy between the parties … to be narrowed to whether the obstacle which the Euxine encountered was of such permanency as to render it impossible, within the meaning of the charterparty, for her to get into the Surrey Commercial Docks.

at pp.59-60:

I have always understood that, when the parties to a mercantile contract such as that of affreightment have not expressed their intentions in a particular event, but have left these to implication, a Court of Law, in order to ascertain the implied meaning of the contract, must assume that the parties intended to stipulate for that which is fair and reasonable, having regard to their respective interests and to the main objects of the contract. In some cases that assumption is the only test by which the meaning of the contract can be ascertained. There may be many possibilities within the contemplation of the contract of charterparty which were not actually present to the minds of the parties at the time of making it, and, when one or other of these possibilities becomes a fact, the meaning of the contract must be taken to be, not what the parties did intend (for they neither have thought nor intention regarding it), but that which the parties, as fair and reasonable men, would presumably have agreed upon if, having such possibility in view, they had made express provision as to their several rights and liabilities in the event of its occurrence.

My Lords, I am of opinion that the question at issue in the present appeal must be solved in the way, and that the Euxine cannot be held to have completed her voyage on the 7th of August, unless it be established that the delay which would have taken place before she was admitted to the Surrey Docks would have been so great that the parties, had they anticipated and provided against its occurrence on the 21st of June, 1877, would not, as reasonable men of business arranged that the vessel should wait outside the dock at owner’s risk until a berth was ready for her. I adopt the view of Lord Justice Brett 12 Ch. D. at p. 593 that the shipowner must bring his ship to the primary destination named in the charterparty, "unless he is prevented from getting his ship to that destination by some obstruction or disability of such a character that it cannot be overcome by the shipowner by any reasonable means, except within such a time as, having regard to the adventure of the shipowner and the charterer, is, as a matter of business, wholly unreasonable."

at p.62-63:

… seeing that unreasonable delay in reaching the place of loading, when occasioned by no fault of either of the parties, is effect to discharge such a contract altogether; I conceive that, à fortiori, a similar delay in reaching the primary place of discharge ought to have the effect of enabling the vessel to complete her voyage by proceeding to the alternative destination.

…I think it may be taken as proved, that the occasioned by the great demand for steam-ship berthage in  August and  September, 1877 although that was rapidly becoming the normal condition of the Surrey Docks in the preceding months of June and July, was due not to ordinary but to exceptional causes. And seeing that, on the 4th of August, the authorities could not undertake, within a month, or any other given time, to admit the Euxine into the dock, and that even on the 23rd of August they were not in a position to give a  more definite or satisfactory undertaking, it appears to me to be safe to conclude that the length of time for which the Euxine must have waited in the port of London, in order to discharge in the Surrey Docks,would have been in excess of any delay which either the shipowner  or the charterer, at the time of entering into the charterparty, could reasonably contemplated. I am therefore of opinion that the judgment of the Court of Appeal ought to be affirmed.


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