May 11, 2017

Members may remember a case about, a capesize bulk carrier, OCEAN VICTORY, which was chartered on an amended NYPE form including the words “via safe berth(s), safe port(s)”. The ship was ordered by charterers to call at Kashima. When the weather deteriorated, the berth was exposed to Force 9 winds and ‘long waves’. While leaving the port, the ship ran aground and later broke apart. There was a claim against charterers for an alleged breach of the safe port warranty in the charterparties. At the first trial the judge found that the port of Kashima was unsafe as neither the long waves nor the severe gales were rare, but the Court of Appeal disagreed and found that the port was safe. This was because, although neither the long waves nor the severe northerly gales, which caused the incident, were uncommon in themselves, the combination of the two was extremely rare. The case went to appeal at the Supreme Court.

Yesterday the judgment of the Supreme Court was published, dismissing the appeal. The Supreme Court agreed with the Court of Appeal and found that Kashima was a safe port. The Supreme Court decided that it was unusual for both the gales and the long waves to occur together, which made the circumstances an abnormal occurrence and not a characteristic of the port. Therefore, the safe port warranty in the charterparties had not been breached.

The case was previously discussed in detail in Britannia News Issue 47 (page 25).