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Whether Nominated Berth Safe: the nominated berth was not prospectively safe at the time of nomination because the damage to the berth at that time was such that the dangers presented were not ones that could have been avoided by good/ordinary navigation and seamanship. Owners were consequently entitled to recover detention for the vessel at the loadport at the demurrage rate.
Case note by Jim Leighton, LLM (Maritime Law), LLB (Hons), BSc (Hons), Solicitor of England & Wales, Foreign Qualified Lawyer (Practising Foreign Law) in Singapore, Associate at Hill Dickinson LLP and International Contributor to DMC’s Case Notes:[http://www.jimleightojimleighton.co]
Owners argued that the charterparty placed on Charterers the duty to load the cargo and to do so within the laydays. The berth was operated by CPBS and not by Charterers. Charterers therefore had to delegate the performance of their duty to CPBS. That was the only way in which they could discharge their duty to load. Thus, as between Owners and Charterers, CPBS was under the control of Charterers. In consequence, Charterers had to take responsibility for CPBS’s decision to effect the repairs to the berth at the time they did.
However, the judge held that the duty which Charterers had delegated to CPBS was the duty to load a cargo of iron ore on “Vine” when she issued her NOR on 8 January 2008. He accepted that if, during the course of such loading CPBS delayed in completing loading, Charterers would not be permitted to say that the delay was beyond their control. But it did not follow that an earlier failure to repair D3 by November 2007 had to be attributed to Charterers. When failing to repair D3 by that date, CPBS was not performing a duty, or failing to perform, a duty delegated to them by Charterers.
'''Comment'''
In relation to the safe port warranty, the judge considered this to be a “somewhat unusual use of the safe berth warranty, which applied the warranty to events concerning a vessel other than that in respect of which the warranty was given”. While counsel for Charterers argued that use of the safe berth warranty had been challenged in closing submissions, the judge pointed out that the objection had not been developed, so considered that this argument was not challenged as a matter of law. As a result, this point may be open to challenge on a full hearing of substantive argument if/when in contention in future. On the other hand, the use of a safe port/berth warranty where the cause of delay is another vessel and there is no physical damage to the delayed vessel is not unprecedented: see The “Count” (fn.5).
Footnote 1: [2007] EWHC 2769 (Comm), [2008] 1 Lloyd’s Rep 511, [56]-[115] – as to which see DMC’s CaseNotes @ http://archive.onlinedmc.co.uk/OceanPride%20v%20QingdaoOcean.htm.
