Time Charters
19
Employment Clause
Employment Clause
Obedience to the charterers’ orders
19.1 It is not up to the master to question unduly the orders of the charterers as to the employment of the ship. It was said by Roche, J., in Portsmouth Steamship v. Liverpool & Glasgow Salvage Association (1929) 34 Ll.L.Rep. 459, that “it was for the captain, within the limits of obviously grave danger, to follow [the charterers’] instructions without undue question”. One situation in which the master is not only entitled but may also be obliged to refuse the orders of the charterers is where these endanger the safety of his ship or her cargo. As Lord Hobhouse said in The Hill Harmony , at page 160: “The master remains responsible for the safety of the vessel, her crew and cargo. If an order is given compliance with which exposes the vessel to a risk which the owners have not agreed to bear, the master is entitled to refuse to obey it: indeed, as the safe port cases show, in extreme cases the master is under an obligation not to obey the order.” It should also be noted that not every order is an order “as regards employment” – see the comments below. 19.2 Although the master is obliged to employ his ship in accordance with the orders of the charterers, he is not always obliged to obey their orders immediately. The circumstances in which an order is received, or the nature of it, may make it unreasonable for the master to comply without further consideration or enquiry. The right of the owners or the master to delay for a reasonable time before complying with an order is not confined to specific categories of cases and the question to be determined in each case is how a person of reasonable prudence would have acted in the circumstances: see the judgments of the Court of Appeal in The Houda , below. Delay may, for instance, be justified in the face of orders which could expose the ship or the cargo to potential peril. And in a war situation there may be circumstances where there is both a right and a duty to delay in order to seek further information about the source and validity of orders received, even though there may be no immediate physical threat to the cargo or to the ship: see The Houda, below.The Anastasia was time chartered for a trip on the New York Produce form. She was ordered to load jute at Chalna and the master was told by the charterers’ agents there that, although this cargo was for Europe, he should tell the local authority that he was carrying it to Singapore, to which port the bills of lading would be made out. Shortly after the ship sailed from Chalna, the charterers cabled the master with orders to return to Chalna to load more jute. The master exchanged cables with the charterers for some time and eventually obeyed their order only after establishing (a) that despite the fact that he had now entered in his log the true destination of the ship, the charterers still wished him to return to Chalna and (b) that there would be sufficient water over the bar. Donaldson, J., held that the master was justified in delaying his obedience to the charterers’ orders. Having described the responsibility of the master’s job, he said: “It seems to me that against that background it must be the duty of the master to act reasonably upon receipt of orders. Some orders are of their nature such that they would, if the master were to act reasonably, require immediate compliance. Others would require a great deal of thought and consideration before a reasonable master would comply with them.”