When the Supreme Court refused permission for the owners to appeal from the decision of the Court of Appeal in The Athena,1 it stated, using the customary formula, that the application did not raise an arguable point of law. However that may be, it is, from the commercial point of view, a most unfortunate outcome.

The case came to the Commercial Court on appeal by the head owner from an arbitration award, Walker J upholding the appeal.2 Then, at the costs hearing, the judge gave leave for the sub-charterer to take the matter further; and the appeal was upheld, the judgment of the court being given by Tomlinson LJ.

The facts are slightly confusing, and may not have been fully disclosed by the judgments.3 But by the time the matter reached the Court of Appeal the issue was sufficiently clear. Having originally loaded a cargo for discharge in Syria, the vessel had been diverted by its (sub-)time charterer to Benghazi. Instead of proceeding to the anchorage as ordered, the master stopped about 50 miles offshore on the instructions of the head owner, and remained there drifting for 11 days or so until the original (Syrian) bills of lading had been accounted for. The vessel then moved up to the anchorage, where it waited for a few days more before proceeding to the berth.

When the matter came before the court, the disponent owner dropped out of the proceedings, so that the issue was simply between the sub-charterer as “charterers” and the head owner as “owners”. The question was whether the vessel was off hire for the 11 days of the drifting period. Clause 15 of each charter, on the NYPE 1946 form, had been amended to include default of the master as a named cause; and the tribunal found that the delay in proceeding to the anchorage was so caused, and that this had resulted in an immediate loss of time. As they put it: “Whether the same time would have been lost for other reasons had she proceeded directly to Benghazi is irrelevant to a claim under the off-hire clause. The time was lost in relation to the service immediately required of her and that is sufficient.” This conclusion, that it was enough for the charterers to demonstrate an immediate loss of time, was identified by Walker J as “the crucial proposition”.4