Islander Shipping Enterprises S.A. v Empresa Maritima del Estado S.A. (Khian Sea)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STEPHENSON,LORD JUSTICE SHAW |
| Judgment Date | 09 November 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J1109-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 1978 |
[1978] EWCA Civ J1109-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
On Appeal from the High Court of Justice
Commercial Court
(Mr. Justice Donaldson)
The Master of the Rolls
(Lord Denning)
Lord Justice Stephenson and
Lord Justice Shaw
MR. A. LONGMORE (instructed by Messrs. Clyde & Co., Solicitors, London) appeared on behalf of the Claimants (Respondents).
MR. G. POLLOCK (instructed by Messrs. Sinclair Roche & Temperley, Solicitors, London) appeared on behalf of the Respondents (Appellants).
On the 19th May, 1973 a Greek vessel (the "Khian Sea") was alongside the Baron Wharf at Valparaiso in Chile. Strong winds arose. There was a swell. The vessel suffered damage by knocking against the pier. The cost of repairing that damage amounted to $32,000. The owners of the vessel claimed that this was the fault of the time charterers. They say that the charterers had ordered her to a port or berth which was not safe. They claim that the charterers should pay for the damage.
The vessel was chartered on a time charter on the New York produce exchange form. It said that she was to be employed on conditions. These included Clause 6:
"That the cargo or cargoes be laden and/or discharged in any dock or at any wharf or Place that Charterers or their Agents may direct, provided the vessel can safely lie always afloat at any time of tide".
Now for the position during the night of 18th/19th May, 1973 at Valparaiso. The vessel came in on the evening of the 18th and was berthed alongside Baron Wharf. Valparaiso has a breakwater and protected wharfs. But Baron Wharf was not within the protected area. It was exposed - especially at this time of the year in May - to strong winds and swells when the weather got up. When the vessel went in that evening, all apparently was well. There was no warning of bad weather when she went alongside Baron Wharf. Later that evening two other vessels came in which belonged to the same time charterers - a Chilean shipping company. They came in before the weather got up. They were not at the berth. They were anchored a little way out from the place where the "Khian Sea" was lying at berth. That was the position during the first part of the night of the 18th/19th May.
Early next morning the weather got up. The bad weatherbegan at 0320 hours on the 19th May. At 0400 hours a red light was displayed to warn vessels that bad weather was coming. The master of the "Khian Sea" took prompt action. He went to the wharf and spoke on the telephone. He recalled the crew who were ashore. He summoned a stand-by pilot and a stand-by tug. He got everybody there by 0545 hours. The pilot said, "She must be moved out into the bay and anchored. She cannot stay at the berth where she might be smashed alongside". That is what the pilot advised.
Then came the trouble. The other two vessels (which had anchored the night before) were so close to the Wharf and to this vessel that she could not be moved. Everyone agrees that she could not be moved from the wharf until those other two vessels were first moved. The presence of those two vessels rendered it impossible for the "Khian Sea" to unmoor and leave the wharf. Someone had to get those two vessels moved. They were not moved until later on in the morning. And before they were moved, the damage occurred. Between 0830 hours and 0900 hours the "Khian Sea" suffered severe ranging damage by contact with the pier structure. That damage was done before the other two vessels had been moved. Soon afterwards the two vessels were moved. Then the "Khian Sea" could be moved and was moved. At 0955 hours that day she got away and anchored in the bay. The bad weather did not die down until the morning of the 20th May.
There it is. That is the way the damage was caused. The question in this case is whether the charterers ordered her to a safe berth or port, and whether the damage which was done was due to their fault in ordering her to an unsafe berth or port.
There was a good deal of evidence before the arbitrators and the umpire as to the conditions in the port at Valparaiso. They are far from satisfactory. Everything shuts down at nightthere. It shuts down even in the month of May when the weather is known to be bad. It is true that there are two pilots on stand-by as well as a tug. But they can only be summoned by telephone. You could not get them on the radio because the radio hours station was only open during the hours of 0800 to 1800. It was therefore necessary for someone to go on the wharf and telephone from there.
But those defects in the running of this port were not the cause of the damage. As I have already said, the master got to the telephone on the wharf: and the pilot and the tug arrived in good time. The real cause of the trouble was the presence of the two vessels which made it impossible to move the "Khian Sea". How far was that due to the port being unsafe.
The requirements as to a safe port have been considered by...
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