5â Common law obligations of the shipper

(e)â Redelivery of the vessel

The charterers are under an obligation to redeliver the ship in good order and condition, with the exception of everyday wear and tear. The charterer will be liable in damages if, as a result of any breach of his obligations under the charter, he redelivers the ship in a worse condition than when delivered. The ship-owner cannot refuse to accept the vessel in its damaged state.80

5â Common law obligations of the shipper

(a)â Obligation to nominate a safe port

The charterer is under an obligation to nominate a port of loading and discharge. It is essential that the nominated ports are deemed ‘safe’ ports. The shipowner has no obligation to proceed to a port known to be unsafe. The safety of the port covers a wide list of events that include ice, wars, sandbanks, high winds, wrecks, amongst many others. The courts will consider a range of factors in determining a port to be unsafe, however the risk must be a factual rather than a subjective one. In The Saga Cob,81 the Court of Appeal rejected the argument that the nominated port was unsafe simply because another ship had been attacked in that port at an earlier date. In the judgment of Parker LJ, the relevance of foreseeability by the charterer was not given much weight, rather it was stated:

If [the fact that it was foreseeable an attack could occur at the port or on the vessel’s approach to it] were enough it would seem to follow that, if there were a seaborne guerilla or terrorist attack in two small boats in the coastal waters of a country in which there had been sporadic guerilla or terrorist activity on land and which had many ports, it would become a normal characteristic of every port in that country that such an attack in the port or whilst proceeding to it or departing from it was sufficiently likely to render the port unsafe. This we cannot accept.82

When the charterer gives a warranty as to the safety of the port, the warranty takes immediate effect. It is envisaged that the port should remain safe until the vessel has completed its operations. However, the port, although safe when nominated, could have subsequently become unsafe.

In Kodros Shipping Corp. of Monrovia v. Empresa Cubanade Fletes (The Evia) (No. 2),83 the vessel was time-chartered on the terms that it was to be sent to safe ports. The charterers elected the port of Basrah, which, although safe at the time of nomination, became unsafe when hostilities broke out between Iran and Iraq, and as a result the vessel became trapped. In his judgment, Lord Roskill discussed the charterer’s obligation in such circumstances. He stated

80Wye Shipping Co. v Compagnie Paris-Orleans [1922] 1 KB 617.

81[1992] 2 Lloyd’s Rep. 545.

82Ibid. 551.â 83â [1983] 1 AC 736.

(b)â Dangerous goods

The shipper is under an obligation not to ship dangerous goods. Some goods are classified as being ‘dangerous’ by statute; for example, section 446 of the Merchant Shipping Act 1894 defined dangerous goods as:

aquafortis, vitriol, naphtha, benzine, gunpowder, lucifer matches, nitro-glycer- ine, petroleum, any explosives within the meaning of the Explosives Act 1875, and any other goods which are of a dangerous nature.85

The Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1997, SI 1997/2367, regulation 2(1) defines ‘dangerous goods’ as:

goods classified in the IMDG Code or in any other IMO publication referred to in these Regulations as dangerous for carriage by sea, and any other substance or article that the shipper has reasonable cause to believe might meet the criteria for such classification;

This expression also includes:

(i)residues in empty receptacles, empty tanks or cargo holds which have been used previously for the carriage of dangerous goods unless such receptacles, empty tanks or cargo holds have been cleaned and dried, purged, gas freed or ventilated as appropriate or, in the case of radioactive materials, have been both cleaned and adequately closed; and

(ii)goods labelled, marked or declared as dangerous goods.

84[1990] Lloyd’s Rep. 391, HL.

85This section was repealed by the Merchant Shipping (Registration) Act 1993.

The expression shall not include goods forming part of the equipment or stores of the ship in which they are carried.

However, it is not always straight-forward to determine what goods will be ‘dangerous’. In The Giannis NK, a cargo of groundnut pellets was shipped under a bill of lading incorporating the Hague Rules.86 Unknown to the ship-owner, the groundnuts were infested with Khapra beetles, and when the infestation was discovered the ship was not permitted to discharge the cargo at ports in the Dominican Republic or Puerto Rico. The ship-owners were forced to dispose of the cargo at sea at its original port of loading in Dakar. The House of

Lords considered the implied duty under the common law whereby the shipper is to notify the ship-owner of any dangerous cargo, and Lord Lloyd obiter supported the view that such a duty should be absolute regardless of the shipper’s knowledge.87

(c)â Obligation to provide cargo

The charterer has an obligation to provide a cargo for loading on board the vessel. In Grant v. Coverdale,88 the charterers tried to rely on an exception covering, ‘frost or floods’, as they were unable to obtain the goods from the wharf due to the canal being blocked by ice. It was held that the exception could only be relied upon in the actual loading of the goods, not in delivering the goods to the loading dock.

If the charterer fails to provide cargo, this will not entitle the ship-owner to withdraw the vessel; he must wait for laytime to expire. Even upon the expiration of laytime, the ship-owner cannot withdraw the vessel until it is evident that the charterer will not provide a cargo or the delay is to such an extent as to frustrate the contract.89

Q18 What is meant by ‘full and complete cargo’? Can an alternative cargo be provided?

(d)â Freight

Freight is the payment to the carrier for transporting the goods from the port of loading to the port of discharge. Freight is the type of payment used in voyage charters, as well as bill of lading contracts of affreightment. In most cases, the quantity of cargo will determine the amount of freight payable. The quantity can be measured by weight, number of packages or by cubic measurement.

If the goods are lost or destroyed for any reason, no freight will be payable to the carrier. The courts construe this rule quite narrowly, thus if the contract is