Lloyd's Maritime and Commercial Law Quarterly
RHUMB LINE OR GREAT CIRCLE?—THAT IS A QUESTION OF NAVIGATION
The Hill Harmony
In The Hill Harmony
1 Clarke, J., decided what was, to him, a clear point of law. The vessel was time chartered by Whistler, was sub-time chartered by them to Kawasaki and (for a period) sub-sub-time chartered by Kawasaki to Tokai. The charters were in the NYPE form. In both cases the vessel, a bulk carrier of 24,683 tons, was ordered by charterers to perform a voyage from Vancouver to a Japanese port. In both cases the vessel was ordered to take the great circle (northerly) route: in both the master declined to accept the orders and took the rhumb line (southerly) route. As a result both voyages took considerably longer, the first by approximately 7.7 days and 1,200 miles and the second by four days and 900 miles. Tokai deducted from the hire it otherwise owed Kawasaki the extra hire and bunkers for its voyage and Kawasaki did the same from Whistler for both voyages. Whistler claimed the amount from Kawasaki and Kawasaki claimed against Tokai.
Both claims were referred to the same arbitrators and heard together. The same (sensible) course was taken before the judge who heard the cases stated. No evidence or oral submissions were heard at the arbitration, although the arbitrators did admit a somewhat sketchy statement from the master, who said he had taken the southerly route because the vessel had suffered some unspecified weather damage when on the great circle route some months earlier.
The arbitrators disagreed among themselves, the majority requiring more evidence why the vessel could not take the great circle route: “the only possible justification which the Master offered for refusing to comply with the Charterers’ orders (on both voyages) was not one we regarded as being of particular relevance—namely, his experience on the particular voyage some months before.” Accordingly they dismissed both claims. The question before Clarke, J., was whether the majority was correct. He held they were wrong and that both claims would be allowed.
Both charters contained promises “that the Captain would prosecute his voyages with the utmost despatch” and that he should “be under the orders and directions of the Charterers as regards employment and agency”. They also provided that “errors of Navigation throughout this Charter Party, always mutually excluded” and “the owners to remain responsible for the navigation of the vessel”. Both charters were subject to the Hague or the Hague-Visby Rules under which the carrier was not responsible for loss or damage arising or resulting from act, neglect or default of the master in the navigation or in management of the ship nor for any reasonable deviation.
Clarke, J., went through arguments based on most of the above clauses but his reasoning was short. While an order that the vessel was to go port A to load or discharge would be an order as to employment, an order as to how to get from where the vessel was to port A would not be an order as to employment but an order as to navigation. He then pointed out that an order to proceed one side of an island rather than the other would not be an order as to employment but as to navigation (thereby making a decision that might
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