Time Charter Due Despatch

Further examples of failure to proceed with due despatch are seen from cases dealing with unjustified refusal by the Master to proceed to the port designated by charterers or refusal to leave port.  An example of the first type of failure was graphically described by Donaldson J., in THE FONTEVIVO [1975].  In that case, after the vessel arrived at Lattakia, there had been aircraft activity near the port and anti-aircraft gunfire. At midnight, on March 2/3, the Master, yielding to pressure due to the crew’s exaggerated fears of the likelihood of warlike operations, decided to leave the port and anchor in international waters. On March 5 the vessel returned to Lattakia. (The vessel was employed under a voyage charter, not a time charter, so the issue before the arbitrator and the court was whether laytime had continued to run, rather than whether owners were in breach of any duty of due despatch. It is clear from the judgment, however, that if these facts had occurred under a time charter, owners would have been in breach of their duty to use due despatch.). ‘The long and the short of it is that the crew of this Somali vessel had a severe attack of cold feet in a hot climate and the Master decided that the cure was to leave Lattakia. There is no finding that this was necessary for the safety of ship or cargo or that, had he left the ship at the discharging berth, she would not have been at the disposal of the charterers for the purpose of discharging.’ In Istros v Dahlstrom (1930)  the vessel was ordered on a voyage under a Baltime charter. The Master put into three ports of refuge en route without any justification. However, whilst this was held to be a failure to prosecute the voyage with utmost despatch, owners were entitled to rely on the exception of ‘delay during the currency of the Charter … caused by the neglect or default of their servants . . . Under the NYPE form charter, the exemption of Article IV, rule 2(a) of the Hague-Visby Rules, ‘act, neglect or default of the Master … in the navigation or management of the ship’ will generally apply to protect owners in cases where the Master fails to proceed with due despatch. Such a defence will not be available, however, if Owners or their managers are aware of the situation and approve the Master’s decision to delay proceeding for no valid reason.