Parties to commercial disputes have frequently attempted to invoke the principles of the land law. In the past these attempts have met with very little success2. Although there has been some moderation of judicial attitudes recently, the courts have remained very conscious of the uniqueness of land and the legal principles connected with it3.

The Berni Inns case concerned fire insurance covenants in leases but is of interest to maritime lawyers because it would seem that it is to be central to the attempts of charterers to avoid liability under safe port clauses. The question which has faced the courts is whether the charterer can say that the insurance provisions in the charterparty form a complete code so as to bring him within the “second limb” of the House of Lords’ decision in The Evia 4. This “second limb” held that charterers were exempt from liability for breach of the “safe port” clause by virtue of the insurance provisions in cl. 21 of the Baltime form. Charterers have not fared well with this argument since The Evia and the point of construction raised by the argument has been decided against them in disputes where the NYPE form has been considered and the second limb of The Evia has not been directly applicable5.

As pointed out in a recent article on “The politically unsafe port”, the Berni Inns decision was cited by counsel for charterers in obtaining leave to appeal against two arbitration awards6. Neither case now seems likely to reach the courts, but it can only be a matter of time before the issue is raised again and charterers attempt to rely on the insurance provisions of the charterparty to avoid liability for sending the vessel to an unsafe port. It is interesting to consider how much assistance can be obtained from the Berni Inns decision.

In Berni Inns the Court of Appeal had to decide whether a landlord’s fire insurers could bring a claim by subrogation against a tenant by whose negligence the insured building had been destroyed when the lease provided that: