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(3) The tribunal were, however, correct in holding Disponent Owners’ re-routing of the vessel via the Cape of Good Hope not to be a deviation, on the basis that sub-clause 8 of the CONWARTIME 1993/2004 clause provided that anything done or not done in accordance with that clause would not be a deviation. On the assumption that Charterers were not entitled to order the vessel via Suez and the Gulf, they had nevertheless ordered the vessel to China. Pursuant to Disponent Owners' duty to prosecute the voyage with due despatch, the vessel had proceeded to the destination ordered, albeit via a different route.
'''Note'''
An additional first instance judgment has been provided in this case,reported at [2012] EWHC 70 (Comm. That judgment briefly deals with two points.
First, the factual dispute regarding whether or not the vessel, her complement and cargo were at risk of exposure to acts of piracy (concerning the distinction between a "bare possibility" and a "real likelihood") was to be remitted to the arbitrators to decide. This was because, on the limited evidence before the judge at the first hearing, the judge was unable to conclude that the result of remitting the case would be inevitable and, therefore, serve no useful purpose.
Second, in relation to an issue in dispute which was not apparent to the judge at the first hearing, the judge decided that the phrase "exposure to War Risks" was to be resolved by reference to clause (2) in the CONWARTIME clause itself. The judge held that this phrase should properly be construed as referring to a situation which is "dangerous". The result was that the question to be addressed by an owner or master (when ordered to go to a place) is whether there is a real likelihood that the vessel will be exposed to acts of piracy in the sense that the place will be dangerous on account of acts of piracy.
Case note by Jim Leighton, BSc (Hons), LLB (Hons), LLM (Maritime Law), Solicitor of England & Wales, Foreign Qualified Lawyer (Practising Foreign Law) in Singapore, Associate at Hill Dickinson LLP and International Contributor to DMC’s CaseNotes [http://www.jimleighton.co]
