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Independent Petroleum Group Ltd v Seacarriers Count Pte Ltd (The “Count”) 安全港口保证纠纷

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Charterparty – Safe port warranty – Vessel delayed after channel closed because of groundings of other vessels – Whether port unsafe – Whether charterers in breach of safe port warranty
Independent Petroleum Group Ltd v Seacarriers Count Pte Ltd (The “Count”) – QBD (Com Ct)(Toulson J) – 12 December 2006

(2007) 709 LMLN 2

By a charterparty on the Asbatankvoy form the defendant owners chartered their vessel Count to the claimant charterers for the carriage of a cargo of petroleum products from Sitra to “1, 2 or 3 safe ports East Africa Mombasa/Beira range”. In the event the charterers nominated Beira.

The vessel arrived at Beira and tendered NOR on 29 June 2004. On the day of her arrival another inbound vessel, British Enterprise , went aground in the channel which linked the port with the sea. After being re-floated, the British Enterprise grounded a second time in the channel on 1 July. The Count proceeded to the discharge berth on 4 July after the British Enterprise had completed discharge operations.

The Count completed the discharge of her cargo early on 9 July, but she was unable to sail from the port because on 5 July an inbound container ship, the Pongola , had grounded in the approach channel at almost the same spot as the British Enterprise had first grounded. As the Pongola was blocking the channel, the port authorities closed the channel, and the Count was not able to sail from Beira until 13 July.

The owners claimed from the charterers damages for detention in respect of the delay to the Count caused by the blockage of the channel by the Pongola on the ground that this loss resulted from breach by the charterers of the safe port provisions. The dispute was referred to arbitration.

The arbitrators upheld the owners’ claim and made an award in their favour of $63,241.58.

The charterers appealed to the High Court under section 69 of the Arbitration Act 1996, arguing that the tribunal was wrong to find that the port was unsafe in the abstract by reference to the fact that two other vessels had grounded there. It should have asked itself, following Sellers LJ in The Eastern City [1958] 2 Lloyd’s Rep 127, whether the port was safe for the Count itself. Had it done so, it would have found that the port was safe for the Count which entered and left the port without running aground. Since the Pongola had not grounded at the date of the nomination, the port was not prospectively unsafe. Moreover, following The Hermine [1979] 1 Lloyd’s Rep 212, since the delay was temporary, and not one which frustrated the adventure, the port was not unsafe.

Held , that the arbitrators had found that at the time of the nomination the characteristics of the port of Beira were such as to make it prospectively unsafe because the buoys were out of position and there was no procedure in effect to monitor satisfactorily any changes in the configuration of the access channel. It was implicit that for those reasons they judged the port to be an unsafe port to nominate for the Count at the time of the nomination.

The charterers’ submission that an owner was not entitled to damages under a safe port clause for loss caused by delay, unless the delay was such as to frustrate the commercial venture would be rejected. The proposition was based on The Hermine , but that was not a correct analysis of the effect of that decision, and the proposition was inconsistent with previous authority (see Ogden v Graham (1861) 1 B&S 773, Reardon Smith Line Ltd v Australian Wheat Board [1954] 2 Lloyd’s Rep 148 per Dixon CJ at 154, and Lord Somervell at [1956] 1 Lloyd’s Rep 1 and The Evia (No 2) [1982] 2 Lloyd’s Rep 307 per Lord Roskill at 320 col 2).

The Hermine was not authority for any wider proposition than that a port would not lack the characteristics of a safe port merely because some delay, insufficient to frustrate the adventure, might be caused to the vessel in her attempt to reach, use and leave the port, by some temporary evident obstruction or hazard. However, in the present case the arbitrators’ finding that the port was unsafe was not based on the fact that there might be a merely temporary hazard. It was based on characteristics which were not merely a temporary hazard, namely that the buoys were out of position as a result of shifting sands and that there was no adequate system for monitoring the channel. The reasoning in The Hermine did not bar a finding by the arbitrators that those characteristics, existing at the time of the nomination, were such as to create a continuing risk of danger to vessels, including the Count , when approaching and leaving the port, and it was therefore an unsafe port to nominate.

The arbitrators’ award would be upheld.

Michael Nolan (Davies Johnson & Co) for the charterers; Edmund Broadbent (MFB) for the owners.

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来源:LIoyd’s MARITIME LAW Newsletter January