Voyage Charters

Timothy Young KC; Michael Ashcroft; Julian Cooke; Andrew Taylor; John Kimball; LeRoy Lambert; David Martowski; Michael Sturley

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Chapter 58 War Risks

[Clause 20(b) continued]

(vi) WAR RISKS.

(a) If any port of loading or of discharge named in this Charter Party or to which the Vessel may properly be ordered pursuant to the terms of the Bills of Lading be blockaded, or

(b) If owing to any war, hostilities, warlike operations, civil war, civil commotions, revolutions or the operation of international law (a) entry to any such port of loading or of discharge or the loading or discharge of cargo at any such port be considered by the Master or Owners in his or their discretion dangerous or prohibited or (b) it be considered by the Master or Owners in his or their discretion dangerous or impossible for the Vessel to reach any such port of loading or discharge – the Charterers shall have the right to order the cargo or such part of it as may be affected to be loaded or discharged at any other safe port of loading or of discharge within the range of loading or discharging ports respectively established under the provisions of the Charter Party (provided such other port is not blockaded or that entry thereto or loading or discharge of cargo thereat is not in the Master’s or Owner’s discretion dangerous or prohibited). If in respect of a port of discharge no orders be received from the Charterers within 48 hours after they or their agents have received from the Owners a request for the nomination of a substitute port, the Owners shall then be at liberty to discharge the cargo at any safe port which they or the Master may in their or his discretion decide on (whether within the range of discharging ports established under the provisions of the Charter Party or not) and such discharge shall be deemed to be due fulfillment of the contract or contracts of affreightment so far as cargo so discharged is concerned. In the event of the cargo being loaded or discharged at any such other port within the respective range of loading or discharging ports established under the provisions of the Charter Party, the Charter Party shall be read in respect of freight and all other conditions whatsoever as if the voyage performed were that originally designated. In the event, however, that the Vessel discharges the cargo at a port outside the range of discharging ports established under the provisions of the Charter Party, freight shall be paid as for the voyage originally designated and all extra expenses involved in reaching the actual port of discharge and or discharging the cargo thereat shall be paid by the Charterers or Cargo Owners. In the latter event the Owners shall have a lien on the cargo for all such extra expenses.

(c) The Vessel shall have liberty to comply with any directions or recommendations as to departure, arrival, routes, ports of call, stoppages, destinations, zones, waters, delivery or in any otherwise whatsoever given by the government of the nations under whose flag the Vessel sails or any other government or local authority including any de facto government or local authority or by any person or body acting or purporting to act as or with the authority of any such government or authority or by any committee or person having under the terms of the war risks insurance on the vessel the right to give any such directions or recommendations. If by reason of or in compliance with any such directions or recommendations, anything is done or is not done such shall not be deemed a deviation.

If by reason of or in compliance with any such direction or recommendation the Vessel does not proceed to the port or ports of discharge originally designated or to which she may have been ordered pursuant to the terms of the Bills of Lading, the Vessel may proceed to any safe port of discharge which the Master or Owners in his or their discretion may decide on and there discharge the cargo. Such discharge shall be deemed to be due fulfillment of the contract or contracts of affreightment

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and the Owners shall be entitled to freight as if discharge has been effected at the port or ports originally designated or to which the vessel may have been ordered pursuant to the terms of the Bills of Lading. All extra expense involved in reaching and discharging the cargo at any such other port of discharge shall be paid by the Charterers and or Cargo Owners and the Owners shall have a lien on the cargo for freight and all such expense.

[Clause 20(b) is continued in the next chapter]

58.1 Like the Voywar clauses in the Gencon charters,1 clause 20(b) deals with the situation where the contemplated voyage is affected by war risks. Inevitably there are a number of differences in the wording of the various clauses. For example, there are several kinds of war risk specified in the Voywar clauses which do not appear in clause 20(b), but apart from piracy and sabotage it is unlikely that anything specified as a war risk under the Voywar clauses will be outside the scope of clause 20(b). In some respects, clause 20(b) is wider, in that it includes within the relevant risks the operation of international law, and applies, in the case of port entry, to prohibition as well as danger. 58.2 The structure of the present clause is similar to the Voywar clauses, namely, to vest a broad protective discretion in the master or owner, together with a 48-hour renomination option in the charterer. Furthermore, many parts of the two clauses are significantly similar in their wording; for example, sub-paragraph (c) closely follows clauses (5) and (6) of Voywar 1950, and where there are differences in wording, such as belligerent or organised body (Voywar) and de facto government (Asbatankvoy), they are unlikely to be of practical significance. The same is true of the differences between sub-clause (b) of the Asbatankvoy clause, and the equivalent provisions of the Voywar clauses.2 Under the Asbatankvoy form the master or owner must consider that reaching, or entry into, the port of loading or discharge is dangerous or impossible, whereas under the Voywar clauses they must consider that the vessel, crew or cargo will be subjected or exposed to war risks. It seems unlikely in practice that a master or owner would arrive at a different conclusion according to the test to be applied.3 58.3 However, there are some significant differences in the clauses. The Asbatankvoy clause contains no provision equivalent to sub-clause (4) of Voywar 1993.4 There is no limit, under the Voywar clauses, as to the alternatively nominated port, whereas, under the Asbatankvoy form there is the limit imposed by the words within the range of loading or discharging ports established under the provisions of this Charter Party. That limit relates to the charterer’s right to renominate, but does not apply to the right of the owner to discharge at a port determined by him if the charterer does not avail himself of that right. It seems that the charterer is, therefore, limited in his choice to the range of ports agreed in Part I of the charter if there is one. If there is none, it seems he cannot make any renomination at all. 58.4 The location of the substitute port, whether within or without the original range, is significant for the purposes of freight. Where discharge is at a port within that range, freight is payable in accordance with the charter freight provisions, but, where discharge is at a port outside that range, freight is payable as for the originally designated port, but the extra costs of proceeding to and discharging at the substitute port must be paid in addition by the charterer. 58.5 Although the clause gives the owner no express right to refuse to go to or stay at a loading port if it is affected by war risks, a shipowner nonetheless has a defence to a

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claim brought by the charterer in the event that the master so refuses, and such a refusal is not repudiatory.

Just before the outbreak of the Iran–Iraq War, The Kanchenjunga was chartered on the Exxonvoy form for loading in safe ports in the Arabian Gulf, excluding Fao and Abadan. She was ordered to load at Kharg Island in Iran, where she arrived and gave notice of readiness. After she had waited for a week, the terminal was attacked by Iraqi bombers and the master promptly put out to sea for safety. Although the owners wanted the master to proceed to Kharg, he refused and so they called on the charterers to nominate a safe port, but the charterers insisted on maintaining their nomination of Kharg Island. The charterers claimed damages and the owners sought to rely on clause 20(b)(vi) of the charter which was similar to that in the Asbatankvoy form.

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