The Ocean Victory went aground in a storm in Kashima port. The court was now asked (i) what, as a matter of law, was the correct test for an abnormal occurrence; (ii) in particular, was the judge correct to hold that the combination of two weather conditions on the casualty date (namely the phenomenon of swell from ‘long waves’, which might have forced the vessel to leave the berth, and a very severe northerly gale which meant that the vessel could not safely exit the port) was not to be characterised as an abnormal occurrence, notwithstanding that the coincidence of the two conditions was ‘rare’, because both conditions were physical characteristics or attributes of the port; and (iii) on the facts as found by, or undisputed before, the judge, did the weather conditions on the casualty date amount to an abnormal occurrence?
Held: The appeal succeeded.
A realistic approach should be adopted to the determination of the essentially factual question whether the event giving rise to the particular casualty is to be characterised as an ‘abnormal occurrence’ or as resulting from some ‘normal’ characteristic of the particular port at the particular time of year. The Court emphasised the word ‘normal’ in the term ‘normal characteristic’.
Judges:
Longmore, Gloster, Underhill LJJ
Citations:
[2015] EWCA Civ 16, [2015] CN 121
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Leeds Shipping Co Ltd v Societe Francaise Bunge (The Eastern City) CA 1958
Non-performance, in the context of the clause, would be the refusal or failure of the ship to enter upon the charterparty’s obligations at all or the refusal or failure of the charterers to take any step to fulfil the contract into which they had . .
Appeal from – Gard Marine and Energy Ltd v China National Chartering Co Ltd and Others ComC 30-Jul-2013
The vessel ‘Ocean Victory’ grounded in 2006 entering a port in a storm.
Held: In the first action, that the intermediate charterers were liable to the demise charterers for breach of the safe port warranty in the time charter, and likewise, in . .
Cited – The Saga Cob CA 1992
The fact that an event (in this case a guerrilla attack) was theoretically foreseeable did not make it an ‘normal characteristic’ of the port: ‘Be that as it may, there is no evidence whatever that the system introduced after the Omo Wonz had any . .
Cited – Transoceanic Petroleum Carriers v Cook Industries Inc (The Mary Lou) QBD 1981
Mustill J considered a charterparty which provided that the vessel was to ‘proceed to one or two safe berths one safe port US Gulf (excluding Brownsville) New Orleans/Ama/Reserve/Myrtle Grove/Destrehan counting as one port . . ‘ He said: ‘The . .
Binding – CMA CGM Sa v Classica Shipping Co Ltd ‘The CMA Djakarta’ CA 12-Feb-2004
The charterers were held liable to the shippers for the cost of repairing the vessel when containers containing bleach exploded. The charterers had established a compensation limitation fund in France.
Held: The liability of the charterers was . .
Cited by:
Appeal from – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.
Transport
Updated: 05 August 2022; Ref: scu.541711