Time Charters
8
State of the Ship on Delivery
State of the Ship on Delivery
| “21. | … Vessel on her delivery to be |
| 22. | ready to receive cargo with clean-swept holds and tight, staunch, strong and in every way fitted for the service, having water ballast, winches and |
| 23. | donkey boiler with sufficient steam power, or if not equipped with donkey boiler, then other power sufficient to run all the winches at one and the same |
| 24. | time (and with full complement of officers, seamen, engineers and firemen for a vessel of her tonnage), … ” |
General
8.1 A time charter almost always includes terms requiring the ship to be in a particular condition at the time of delivery. In the New York Produce form, Lines 21 to 24 of the preamble contain a series of requirements as to the condition and quality of the ship’s cargo spaces, hull, machinery and crew. In the Baltime form, Clause 1 stipulates more shortly that the ship is to be delivered “in every way fitted for ordinary cargo service”. The NYPE 93 form adopts the words of the Baltime form: see Lines 34 and 35. 8.2 These requirements have two functions. 8.3 First, fulfilment of these requirements is usually a condition precedent to the owner’s right to deliver the ship into the charter service. So, if the owners tender the ship for delivery, but she is not in the required condition, the charterers have the right to reject her and the charter period will not start. If this happens, and if the owners are not able to rectify the condition of the ship before the cancelling date, the charterers may become entitled to cancel the charter: see . 8.4 Second, where the charterers accept the delivery of the ship, these terms constitute the owners’ undertaking that the ship was in the required condition at the time of delivery. So, if the ship was not in that condition, the owners may be liable in damages. In an extreme case, where the owners’ failure to deliver the ship in a proper condition has deprived the charterers of effectively the whole benefit of the contract, the charterers may be entitled to terminate the charter. (It should be remembered, however, that the specific obligations in Lines 21 to 24 are often modified by the Hague or Hague-Visby Rules, see et seq., below.) 8.5 The undertakings contained in Lines 21 to 24 of the New York Produce form, and in Clause 1 of the Baltime form, apply only to the condition of the ship at delivery. After delivery, the owners come under separate obligations with respect to the ship’s maintenance: see . 8.6 This chapter is divided into two parts. The first part deals with several general questions relating to the condition of the ship at delivery; the second part deals with requirements applying to particular parts of the ship.The general condition of the ship
8.7 At the time of delivery, the ship must usually comply with three general requirements, which overlap: she must be fit; she must be seaworthy; and she must be ready. These three requirements are discussed below.“Fitted” for the charter service
8.8 The New York Produce form and the Baltime form both require that the ship be “fitted’ for the service: see , above. In these contexts, the phrase “fitted for” should be understood to mean “fit for” or “suitable for…”, and not merely “possessing fittings appropriate for…”: see, for example, the comments of Sellers, L.J., in The Hongkong Fir , at page 486 (a case concerning the Baltime form), or of Greer, J., in New York and Cuba Mail v. Eriksen and Cristensen (1922) 27 Com. Cas. 330, at page 336 (a voyage charter case). Indeed, some modern charterparty forms use the word “fit” in place of “fitted”: see, for example, Clause 1(c) of the Shelltime 4 form. 8.9 On the other hand, in order to be fit for the service a ship must also have fittings appropriate for the service: see Rederi Unda v. Burdon (1937) 57 Ll.L.Rep. 95, per Lord Wright M.R., at page 99. See further the discussion at , below.Fitness implies seaworthiness
8.10 The requirement that the ship be fit for, or “fitted for”, the charter service imposes on the owners an obligation to ensure that the ship is seaworthy on delivery. In The Madeleine , summarised below, a case concerned with a charter on the Baltime form, Roskill, J., held, at pages 240 to 241, that the words “in every way fitted for ordinary cargo service” constituted “an express warranty of seaworthiness”. This, he said, had clearly been assumed by the Court of Appeal in The Hongkong Fir . Likewise, in The Derby (C.A.), Kerr, L.J., held, at page 331, that the phrase used in the New York Produce form, “in every way fitted for the service”, imposes the same requirement.The Madeleine was time chartered for three months on the Baltime form which required her, upon delivery at Calcutta, to be “in every way fitted for ordinary cargo service”. Roskill, J., held that the lack of a deratisation certificate prevented a good delivery being made at Calcutta as, without that document, the ship could not sail to a port outside India. Thus the charterers were entitled to exercise their right under the cancelling clause in the charter.