In Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc; The Reborn – Butterworths Law Direct 4.8.08 the vessel was chartered by the Claimant owners to the Defendant charterers under a Gencon form of voyage charterparty for the carriage of a cargo of cement from Chekka, Lebanon, to Algiers. The relevant terms of the charterparty stated that the said vessel 'shall proceed to the loading port(s) or place(s) ... or so near thereto as she may safely get and lie always afloat ... and being so loaded the vessel shall proceed to the discharging port(s) or place(s) ... or so near thereto as she may safely get and lie always afloat, and there deliver the cargo'. There was no express warranty by the owners that either the port of Chekka or the loading berth there would be 'safe'. In arbitration, the owners claimed compensation for damage allegedly suffered by the vessel's hull as a result of contact with an underwater projection at the loading berth at Chekka.
The issue for determination on the appeal from arbitration to the Commercial Court was whether, where a specific load port was named in a voyage charterparty and there were several possible berths within that port to which a vessel could be directed to load by the charterers and there was no express warranty in the charterparty of the 'safety' of either the port or the berth to which the vessel was to be directed by the charterers, the charterparty was subject to an implied term that the charterers had to nominate a 'safe' berth at that load port.
It was held that in the absence of an express warranty of the safety of either the port as a whole or any berth nominated by the charterers within it, the burden lay on the owners to demonstrate that one had to be implied because it was 'necessary' or to give the charterparty business efficacy. That meant that the owners had to demonstrate that although they accepted that they had taken the risk of dangers which affected the port as a whole or all the berths within it, nonetheless it was necessary to imply a term in the charterparty that the charterers promised that any berth which they nominated would be 'prospectively safe' with regard to dangers which were unique to that berth. In this case the express wording of the charterparty was crucial to the question of whether there was an implied warranty of safety of the berths at Chekka, and led to the conclusion that there was no such term, albeit there would be an implied warranty that the berth nominated had to be one which it was possible for the vessel to reach. Accordingly, the only obligation upon the charterers would be not to nominate an impossible berth, for example, one on which the vessel could not lie afloat on a 27 foot salt water draft.