House of Lords

In the The Aello the facts were unusual. The usual waiting place for vessels arriving at the port of Buenos Aires was close to the loading berth, but owing to temporary congestion the Port Authority decided that ships which arrived and had no cargo waiting for them must wait at a point which, though within the limits of the port, was some 22 miles from the loading area. Thus, the vessel had to wait there. It was held at first instance, and by the Court of Appeal and by the majority of the House of Lords, that the vessel was not an arrived ship. Lord Reid in the Johanna Oldendorff case was left with the problem of determining exactly what those principles were. In The Aello the Court of Appeal had defined a vessel’s arrival as being in the commercial area of the port. The commercial area being ‘within that part of the port where a ship can be loaded when a berth is available’. It was Lord Justice Parker, in the Court of Appeal, who formulated this test. Parker L.J. was of the opinion that a ship was an arrived ship once within the commercial area, i.e. where the ship could be loaded when a berth was available, albeit that she could not be loaded until a berth was actually available. The majority of the House of Lords accepted the interpretation in this case and therefore The Aello was regarded as having established the “Parker Test” as being the law. In the Johanna Oldendorff Lord Reid was of the opinion that it was not enough that the ship should be within the commercial area of a port in order to be considered an arrived ship; he found the expression “commercial area” far too imprecise . To be considered as an arrived ship the vessel, if she cannot immediately proceed to a berth, have reached a position within the port where she is at the immediate and effective disposition of the charterer. If she is at a place where waiting ships usually lie, she will, according to Lord Reid, be in this position unless there are extraordinary circumstances; proof of which would lie in the charterer. If the ship is waiting at some other place in the port then it will be for the owner to prove that she is as fully at the disposition of the charterer as she would have been if in the vicinity of the berth for loading or discharge. The majority in the House of Lords in the Johanna Oldendorff case were, therefore, of the opinion that the “Parker Test” should be over-ruled.