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Cosco Bulk Carrier v Team-Up Owning

3 bytes removed, 21:29, 8 September 2010
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DMC/SandT/10/20
Secondly and immediately, the history of the clause had to be considered. In the wartime case of Royal Greek Government v Minister of Transport (1949) 82 Ll. L. Rep. 196 , charterers ordered the vessel to sail but her crew refused to do so, except in convoy. A dispute arose as to whether, Charterers’ order to sail having been disobeyed, the vessel was off-hire. Upholding the decision of Sellers J, as he then was, the Court of Appeal held that charterers could not bring themselves within the off-hire clause, which contained (so far as relevant) only the printed words “deficiency of men”. That wording meant “numerical insufficiency” and resulted in the vessel being off-hire when an adequate complement of officers and crew for working the ship was not available. However, the vessel had a full complement of crew, so that the wording did not assist charterers. “Deficiency of men” did not extend to cover a wilful refusal to work. As the tribunal observed:
“In consequence of this decision, the printed clause has for many years frequently been amended, as here, by the addition of ‘default and/or’. The insertion of that phrase with the additional words ‘…including strike of Officers and/or crew…’ showed, at least, that the parties unmistakeably intended that a refusal to perform duties would be an off-hire cause.”
Thirdly, cl. 15 in the case in question contained the additional wording “…including strike of Officers and/or crew”. This additional wording might be seen as suggesting that the clause was focussed on a refusal to perform duties, whether or not amounting to a full-scale strike. The Judge thought this additional wording was of limited weight – and certainly not decisive in itself – but was a pointer towards a narrow construction of “default of men”, consistent with the history of the clause and the mischief at which it was aimed.
The Judge was unable to accept these submissions. He thought that seizure by pirates was a “classic example” of a totally extraneous cause. All in all and whether regard was had to piracy, the effects of piracy or both, to the Judge’s mind, the incident remained a totally extraneous cause, falling outside the scope of the sweep up wording. The tribunal put the matter well:
“We cannot accept any of these permutations [i.e., those contained in Charterers’ argument.] They all seemed to us to be attempts to avoid the well known consequences of the wording in the form agreed by the parties. This act of piracy was not eiusdem generis. It did not arise out of the condition or efficiency of the vessel, or the crew, or the cargo, or the trading history, or any reasonable perception of such matters by outside bodies. Unlike a trading history which gave rise to typhus or a well-grounded suspicion of typhus, it was a truly extraneous cause. The effect of the bargain contained within clause 15, construed in its general context, was that Owners did not take the risk of the full working of the vessel being prevented by an extraneous cause such as piracy. The Charterers…did assume that risk.”
The Judge agreed.
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