Voyage Charters

Page 870

Chapter 27

General Ice Clause

17 General Ice Clause 251
Port of loading 252
(a) In the event of the loading port being inaccessible by reason of 253
ice when vessel is ready to proceed from her last port or at any 254
time during the voyage or on vessel’s arrival or in case frost sets 255
in after vessel’s arrival, the Captain for fear of being frozen in is 256
at liberty to leave without cargo, and this Charter shall be null and 257
void. 258
(b) If during loading, the Captain, for fear of vessel being frozen in 259
deems it advisable to leave, he has liberty to do so with what cargo 260
he has on board and to proceed to any other port or ports with 261
option of completing cargo for Owners’ benefit for any port or ports 262
including port of discharge. Any part cargo thus loaded under this 263
Charter to be forwarded to destination at vessel’s expense but 264
against payment of freight, provided that no extra expenses be 265
thereby caused to the Receivers, freight being paid on quantity 266
delivered (in proportion if lumpsum), all other conditions as per 267
Charter. 268
(c) In case of more than one loading port, and if one or more of 269
the ports are closed by ice, the Captain or Owners to be at liberty 270
either to load the part cargo at the open port and fill up elsewhere 271
for their own account as under section (b) or to declare the Charter 272
null and void unless Charterers agree to load full cargo at the open 273
port. 274
(d) This Ice Clause not to apply in the Spring. 275
Port of discharge 276
(a) Should ice (except in the Spring) prevent vessel from reaching 277
port of discharge Receivers shall have the option of keeping vessel 278
waiting until the re-opening of navigation and paying demurrage, or 279
of ordering the vessel to a safe and immediately accessible port 280
where she can safely discharge without risk of detention by ice. 281
Such orders to be given within 48 hours after Captain or Owners 282
have given notice to Charterers of the impossibility of reaching port 283
of destination. 284
(b) If during discharging, the Captain, for fear of vessel being frozen 285
in, deems it advisable to leave, he has liberty to do so with what 286
cargo he has on board and to proceed to the nearest accessible 287
port where she can safely discharge. 288
(c) On delivery of the cargo at such port, all conditions of the 289
Bill of Lading shall apply and vessel shall receive the same freight 290
as if she had discharged at the original port of destination, except 291
that if the distance of the substituted port exceeds 100 nautical 292
miles, the freight on the cargo delivered at the substituted port to 293
be increased in proportion. 294

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27.1 The General Ice Clause appears designed to provide a code for dealing with the effects of ice on the contractual voyage. Unfortunately, the “code” does not cover all eventualities.1 Moreover, the eccentricity of its drafting raises a number of further problems.

Loading port sub-clause (a)

27.2 This sub-clause is intended to cover the effects of interference by ice before any cargo has been loaded. The phrases “her last port”, “at any time during the voyage” and “on vessel’s arrival” refer to the vessel’s previous discharge port, the ballast voyage and arrival at the first load port. This is the only construction which gives sense to the provision that if the captain leaves without cargo the charter shall be “null and void”. It would make no sense for the charter to be terminated if a part cargo had already been loaded. What should happen either if there is more than one loading port or if loading has already been commenced is addressed in part in sub-clauses (b) and (c).


27.3 It is well established, when considering the question of inaccessibility in the context of a safe port warranty, that the duration of the impediment is relevant; the warranty of safety is broken only if the delay is long enough to frustrate the commercial object of the charter.2 However, the meaning of “inaccessible” in the ice clause will obviously depend upon the construction of the clause as a whole. It is clearly not sufficient that the access to the port is obstructed for a brief period. The vessel must wait for a reasonable period of time to ascertain whether the obstruction will clear, unless it is obvious that this will not occur, but, it is submitted, it is not necessary for the delay to be such as to frustrate the commercial purpose of the adventure.

Goods were shipped under a bill of lading which provided for delivery at Vladivostok, or so near as the ship might safely get, “should a port be inaccessible on account of ice … it shall be competent to the master to discharge the goods … upon the ice or at some other safe port or place … and upon such discharge the ship’s responsibility shall cease”. On the morning of 12 February the vessel reached a point 40 miles from Vladivostok, but was unable to proceed further because of ice. Similar conditions prevailed on the next two days, and at 16.00 on the 14th the vessel sailed to Nagasaki, where the cargo was discharged. On 15 February conditions improved, and the vessel would have been able to enter on that day. Some vessels succeeded in entering the port on 12 to 14 February, although the carrying vessel could not have done so.

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