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 |
Page 871
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).“Inaccessible”
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.