In London Arbitration 26/07 – 733 LMLN 2, a vessel was fixed to carry a “sole cargo bulk harmless sulphur always loaded in accordance with the latest IMO Code of Safe Practice for Solid Bulk Cargoes …”. The Charter provided that the owners guaranteed the vessel as in all respects suitable for the carriage, that the owners were conversant with the carriage of bulk sulphur, and that the vessel was fully fitted for its carriage.
The Master received a certificate from the loading port agent that the cargo was sulphur falling within IMO Class 4.1, but not saying what type of sulphur it was. It therefore appeared to be a dangerous cargo which, in accordance with Class’s requirements, the vessel was unable to carry. This gave rise to a claim by owners for deadfreight. Charterers counterclaimed that it was in fact the owners who were in breach in failing to load the contracted cargo. The Tribunal found that the cargo tendered was granular sulphur and not in fact Class 4.1 sulphur. This gave rise to a question as to whether the Master should have been aware of that, it being suggested that no one familiar with bulk commodities could reasonably describe the sample as being powdered sulphur, the owners’ expert’s view being that the Master, not being an expert in each and every cargo, was entitled to rely on what he was told by the Class and flag state authorities, when he was given a certificate saying that the cargo was a Class 4.1 material. The Tribunal found on the facts that the Master and owner, although in a very difficult position ought to have enquired further as to the nature of the material tendered for loading, rather than simply relying on the certificate, and so the claim had to fail. The charterers’ counterclaim succeeded in the amount of cargo shut out.