Lloyd's Maritime and Commercial Law Quarterly
RIGHTS TO ROUTES
The Hill Harmony
The recent Court of Appeal decision in The Hill Harmony
1 (upholding that of the High Court2) has considerable importance for time charterers of vessels, particularly since the law in relation to routing instructions, given to masters of vessels by charterers (a very common occurrence) is now heavily loaded in favour of the owners of vessels. Unless charterers get a special type-added clause into their time-charterparty contracts with owners, they will be at the mercy of masters and/or owners of vessels who do not follow charterers’ routing instructions.
The Hill Harmony concerned the much used dry cargo New York Produce Exchange time charterparty, which, in its standard form, includes the words (cl. 8):
That the Captain shall prosecute his voyages with the utmost despatch and shall render all customary assistance with ship’s crew and boats. The Captain (although appointed by the Owners) shall be under the orders and directions of the charterers as regards employment and agency.
The particular charterparty also incorporated the Hague Rules (as do the vast majority of New York Produce Exchange charterparties). The Rules include the important Art. IV, r. 2(a) exception:
Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from act, neglect, or default of the master in the navigation or in the management of the ship.
It was accepted in The Hill Harmony that the effect of the Art. IV, r. 2(a) exception was to protect the carrier if the master had not “prosecuted his voyages with the utmost despatch”.
The result of the decision in the case is that charterers have no recourse against owners in respect of negligent navigation by the master of a vessel absent a special type-added clause to redress the position.
In view of the above it is all important whether a routing instruction to the master from the charterers is an order as to employment (in which case the master is obliged to comply with it unless he can justify a contrary position on the grounds of, for example, safety) or an order as to navigation (in which case the master/owners can take their own course and are absolved from liability by way of the Hague Rules exception, if indeed they have been negligent in this respect). The Hill Harmony decided that a routing instruction was an order in respect of navigation and not employment, thus putting owners of vessels in a
1. Whistler International Ltd v. Kawasaki Kisen Kaisha Ltd (The Hill Harmony) [1999] The Times, 25 May.
2. [1999] Q.B. 72; [1998] 2 Lloyd’s Rep. 367.
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