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 entered.
Sellers LJ described a safe port: ‘If it were said that a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship, it would probably meet all circumstances as a broad statement of the law.’
‘The charterers would have been surprised if the Eastern City, having been fully loaded with their barley, had been run on to the rocks and their cargo lost by the negligence of the master and this clause had been invoked by the shipowners to limit their liability to the freight. If the words ‘non-performance’ were to be given so wide a meaning as to cover every breach of contract and the clause to be so construed as to cover every claim, however large and however arising, then it would appear to infringe a reasonable agreement as to amount and take on elements of a penalty clause which the Courts have found repugnant and consistently refused to enforce.’
Judges:
Sellers LJ
Citations:
[1958] 2 Lloyd’s Rep 127
Jurisdiction:
England and Wales
Citing:
Cited – Compania Naviera Maropan S/A v Bowater’s Pulp and Paper Mills Limited (The Stork) CA 1954
Where, in breach of charterparty, charterers order a vessel to proceed to an unsafe port, the conduct of the vessel’s master in obeying the order (placed as he well may be, on the horns of a dilemma) will be judged sympathetically, in context and . .
Cited by:
Cited – Gard Marine and Energy Ltd v China National Chartering Co Ltd CA 22-Jan-2015
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 . .
Cited – 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.641386