To simplify the facts for the purposes of comment, the Kanchenjunga was under voyage charter to load oil at 1/2 safe ports Arabian Gulf excluding Iran and Iraq but including Kharg, Lavan and Sirri Islands. She was ordered to Kharg Island, which was not at the time of the nomination a prospectively safe port (under the requirements laid down in The Evia.4 The owners, however, accepted the nomination and the ship proceeded there. While she was waiting there, there was an air raid which caused the master to weigh anchor and proceed to a point of safety. The owners called for another nomination and the charterers refused. Were they in breach of contract in doing so, so as to entitle the owners to treat the contract as discharged for breach?

Before Hobhouse, J., it was argued that the ship’s very proceeding to Kharg Island constituted of itself a waiver, in the sense of a final acceptance of the order, just as acceptance of defective goods may constitute a waiver of the right to reject them. This was rejected on the grounds set out in The Stork,5 though it was necessary to make clear that the analogy with sale of goods used by Devlin, J., at first instance in that case was misleading, and that a shipowner was entitled, and indeed bound, in the absence of knowledge to the contrary, to assume that the charterer’s orders were legitimate and given in good faith, and did not have to send a reconnaissance party to the nominated port before accepting an order. Had the owners not known of the unsafety of the port, they could presumably have rejected the order and called for fresh instructions at a later stage. Hobhouse, J., also held, however, that the owners were in fact well aware of the unsafety of the port and so had waived their right to reject the nomination. But finally, by virtue of the terms of a war risks clause in the charter, the owners were entitled to call for another