||All England Reporter
|| All ER (D) 22 (Aug)
|| EWHC 1875 (Comm)
||Queen's Bench Division, Commercial Court
||David Bailey QC (instructed by Jackson Parton) for the owners.
||Stewart Buckingham (instructed by Clyde & Co) for the charterers.
||1 August 2008
Shipping - Charterparty - Safe port - Vessel chartered by owners to charterers for carriage of cargo of cement - No express warrant by owners that loading port or berth would be safe - Vessel sustaining damage as result of contact with underwater projection at loading berth - Whether implied term in charterparty that absolute duty on charterers to nominate safe berth.
Shipping Charterparty. In dismissing the appeal of owners of a ship damaged at a port specifically named in a voyage charterparty, the court ruled that in the absence of an express warranty of the safety of either the port as a whole or any berth nominated by the charterers within it, the burden lay on the owners to demonstrate that one had to be implied because it was 'necessary' or to give the charterparty business efficacy. That meant that the owners had to demonstrate that although they accepted that they had taken the risk of dangers which affected the port as a whole or all the berths within it, nonetheless it was necessary to imply a term in the charterparty that the charterers promised that any berth which they nominated would be 'prospectively safe' with regard to dangers which were unique to that berth. In the instant case, on the express wording of the charterparty, which was crucial to the question of whether there was an implied warranty of safety at the berths at the port, there was no such warranty.The only obligation upon the charterers was not to nominate an impossible berth.
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