MEDITERRANEAN SALVAGE & TOWAGE LTD V SEAMAR TRADING & COMMERCE INC

[2008] EWHC 1875 (Comm), Queen’s Bench Division, Commercial Court, Mr Justice Aikens, 1 August 2008

Shipping – Charterparty – Vessel allegedly damaged at unsafe berth – Whether charterers under implied duty to nominate safe berth

The claimants chartered their vessel to the defendants under a Gencon voyage charterparty, for the carriage of cement from Lebanon, to Algiers. The claimants claimed compensation for damage allegedly suffered by the vessel’s hull as a result of contact with an underwater projection at the loading berth at Chekka. The arbitrators issued a declaration to the effect that the charterparty did not contain an implied that there was an absolute duty on the defendants to nominate a safe berth in circumstances where the charterers had a choice of berths, because under the charterparty the owners had expressly agreed to bear the risk of the named port. Aikens J dismissed an appeal under section 69 of the Arbitration Act 1996, on the ground that the arbitrators had not erred in law. The charterparty was a berth rather than a port charterparty, so that the defendants had the right to nominate a berth and when they had done so that berth was to be treated as if it had been identified in the charterparty. The charterers’ only obligation was to nominate a berth which was possible for the vessel to reach, in that so that berth nominated had to be one which could accommodate the vessel to a salt water draft of 27 feet. The implication of any safe berth warranty was inconsistent with the terms of the charterparty and not necessary to give the charterparty business efficacy.