Safe port issues

Abstract

The Ocean Victory In 2013 in The Ocean Victory , 1 Teare J held that time charterers were in breach of the safe port clause, and that the breach had caused the total loss of the vessel. They had ordered Ocean Victory to Kashima in Japan, and the casualty had occurred as a result of a combination of “long waves” and very high northerly winds, not perhaps so rare in isolation, but certainly very rare in combination. The peril of long waves had persuaded the master to leave the port, in the course of which very strong headwinds, in the fairway, had led to Ocean Victory foundering against a breakwater. There was also a damages issue. The time charter was a sub-charterparty, and the principal action was by the (demise) head charterers against the defendant sub-charterers. 2 The sub-charterers argued that the head charterers had suffered no loss, because a clause in the head charter requiring charterers to insure the hull was to be taken as a complete code, 3 to the exclusion of other liability for damage to the ship. The argument was that, because the order to Kashima therefore occasioned the claimants no liability under the safe port clause in the head charter, there were no damages to be awarded, even if there was a breach of the sub-charter. Teare J rejected the sub-charterers’ argument. Commenting on this case in 2014, 4 I observed that “Teare J [had] systematically demolished the charterers’ arguments at every stage. The judgment has the impression of being very pro-owner”. His decision has now been reversed in the Court of Appeal, both on the issue of breach, and on the complete code argument. 5 Because there was no breach, the appellate court did not need to decide, and did not decide, whether Teare J had been correct on the causation issue. 6 1. Gard Marine & Energy Ltd v China National Chartering Co Ltd (The Ocean Victory) [2013] EWHC 2199 (Comm); [2014] 1 Lloyd’s Rep 14 . 2. See further infra , fn.21. 3. Clause 12: “Insurance and Repairs”, providing (as is common in demise charters) for the charterers to insure the hull. 4. [2014] LMCLQ 1 . 5. [2015] EWCA Civ 16; [2015] 1 Lloyd’s Rep 381 . 6. Ibid , [65]. 266

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