"Weather Routing Should be More Science Than Art"
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"Weather Routing Should be More Science Than Art" |
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Whistler International Ltd v Kawasaki Kaisha Ltd. (The Hill Harmony) |
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The following text is from an article by Finbarr Leahy MNI originally published in newsletter No.30 (March 2001) of the International Federation of Shipmasters' Associations (IFSMA). |
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Routeing Instructions and the “Hill Harmony”
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The discretion of the master with regard to routeing the vessel between ports by an alternative route has recently been considered by the House of Lords in the case of Whistler International Ltd. V Kawasaki Kaisha Ltd. (The Hill Harmony). |
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Facts of the Case |
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Hill Harmony was on time charter on an amended NYPE form from COSCO to Whistler as disponent owners who sub-chartered, also on NYPE terms to Kawasaki. The sub-charter period was for a minimum of seven, maximum nine months. She was delivered on 27 October 1993 and redelivered on 25 July 1994. The vessel was ordered to perform two trans- Pacific voyages. For one of these voyages Kawasaki sub-sub-chartered the vessel to Tokai for a Time Charter trip from Vancouver to Shiogama. The charterers had obtained weather routeing advice from Ocean Routes and had ordered the vessel to take great circle routes from Vancouver to Yokkaichi and Shiogama during the respective voyages. The master however, having experienced serious heavy weather damage the previous October whilst following a great circle route, declined to follow the charterers’ orders and instead took a rhumb line route. Both voyages took considerably longer following the rhumb line route; 7.7 days and about 1300 miles longer in one case and 4.6 days and 860 miles in the other. The charterers deducted hire and the costs of bunkers in respect of these periods and the owners sought to recover these in arbitration proceedings. The terms of both charter parties provided, as usual: “8. That the captain shall prosecute his voyages with the utmost despatch, and shall render all customary assistance with ship’s crew and equipment. The captain (although appointed by the owners) shall be under the orders and directions of the charterers as regards employment … 16. … errors of navigation throughout this charter-party always mutually excepted. 26. .. The owners remain responsible for the navigation of the vessel, insurance, crew and all other matters same as when trading for own account.” Article IV of the Hague Rules and of the Hague-Visby Rules (incorporated into the charter-parties) provides: “2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from – (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of he ship … 4. Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.” The Progress of the Dispute There was no oral hearing before the arbitrators. There were two arbitrations (since the dispute involved two separate charterparties) heard by the same tribunal. The majority found in favour of the charterers. The owners appealed to the High Court where they were successful and an appeal by the charterers to the Court of Appeal failed. The charterers then appealed to the House of Lords, where they were successful. It is important to bear in mind that evidence about why the master failed to follow the charterers’ instructions was rather sparse. The master had made a brief statement in general terms and there was also available a telex from him in which he explained his reason for choosing the more southerly route as being his previous bad experience with the more northerly route. This, in effect, was the reason found by the Arbitrators for the master failing to comply with the charterers’ instructions. On the other hand, there was also evidence to show that the northerly (great circle) route was the most usual route, and that it had been followed by 360 vessels over a three month period. The charterers argued that, because the master had refused to follow their instructions, the owners were in breach of their obligation to prosecute the voyage with the utmost despatch and of their obligation under Clause 8 to follow charterers’ orders and directions as to employment. The owners argued that the route to be followed was a matter concerned with the navigation of the vessel and was therefore within the sole providence of the master. The arbitrators found that the master was in breach of the obligation to prosecute the voyage with the utmost despatch and that the owners were therefore unable to recover in respect of the amounts withheld. The High Court and Court of Appeal In the High Court, the focus was whether routeing instructions were orders as to employment, which the charterers were entitled to give and which the master was bound to follow, subject to his overriding responsibility for the safety of the ship or orders as to navigation which was the repsonsibility of the Master. The Arbitrators had decided that the Charterers gave the Master Routeing Instructions or Orders which were orders as to employment and that the master was bound to follow them unless he could justify his refusal to do so. In the High Court Clarke J held that the route to be followed was a matter of navigation. He said that: “in my judgment an order as to where the vessel was to go, as for example to port A or B to load or discharge or to port A or port B via port C to bunker would be an order as to employment which the master would be bound to follow, subject of course (as all parties agreed) to his overriding responsibility for the safety of his ship. An order as to how to get from where the ship was to port A, B or C would not, however, be an order as to employment but an order as to navigation. So, for example, to take an illustration discussed in argument, a direction to a master proceeding to a port of discharge to pass, say, on one side or another of a light vessel or an island or to proceed by way of one channel rather than another would be a direction as to navigation not employment. There can I think be no real doubt that a decision by a master as to which channel to take, what course to set or which side of an island or light vessel to go, would be a decision as to navigation and not as to employment. The same must be true of an order or direction to the master in any of those respects. … these considerations lead to the conclusion that a decision whether to proceed across the Pacific by taking the great circle route or the rhumb line route or course would also be a decision in and about navigation of the vessel and not in and about her employment.” Since the orders related to matters of navigation and not employment they were not ones which the charterers were entitled to give, and the decision of which route to follow was one for the master alone. Clarke J did not need to consider in any detail the question of whether the master was in breach of the obligation to proceed with the utmost despatch since he considered that even if the arbitrators had held that the charterers’ orders were orders as to navigation and that there was nevertheless a breach of the obligation to prosecute the voyage with utmost despatch, that breach arose as a result of an act, neglect or default of the master in the navigation of the vessel (i.e. choosing the longer route) and the owners had a defence under Article IV rule 2(a) of the Hague-Visby Rules. In the Court of Appeal, Potter LJ, who gave the
leading judgment, upheld the decision of the High Court. Decisions
concerning the route to be followed were matters of navigation and were
therefore ones which the master was entitled to make. Since the master
took the decision to set and follow the course which he did on the
grounds that he would avoid the danger of bad weather and possible
damage to the ship, it was a decision as to navigation. As long as the
master acted in good faith, even if the decision was not reasonable, the
owner was protected because of Article IV rule 2(a) of the Hague-Visby
Rules, as mentioned above. The Charterers argued that whether charterers’ orders as to the route to be followed were orders as to “employment” or “navigation” was a question of fact and degree. Lord Justice Potter agreed with the general thrust of this argument. Potter LJ said that there is a difference in kind or category between an order to proceed via a generally recognised sea route to a particular place (such as via the Suez Canal rather than via the Cape of Good Hope) and aninstruction prescribing the specific course by which to reach that place or position, and such difference could not be bridged or eroded simply by asserting that the direction given was in the commercial interests of the charterer. House of Lords The House of Lords reinstated the arbitrators’ award. Lord Bingham considered that the starting point is the master’s obligation to prosecute his voyage with the utmost despatch. He cited an earlier House of Lords decision, Reardon Smith Line Ltd. v. Black Sea & Baltic General Insurance Co. Ltd. [1939] AC 562 at 584 as follows: “The law upon the matter is, I think, reasonably plain, though its application may from time to time give rise to difficulties. It is the duty of a ship, at any rate when sailing upon the ocean voyage from one port to another, to take the usual route between those two ports. If no evidence be given, that route is presumed to be the direct geographical route, but it may be modified in many cases for navigational or other reasons, and evidence may always be given to show what the usual route is, unless a specific route be prescribed in the charter party or bill of lading.” (underlining added) When dealing with the question of employment versus navigation, Lord Bingham said: “It is much less easy to formulate any test which clearly distinguishes between the two. The charterers’ right to use the vessel must be given full and fair effect; but it cannot encroach on matters falling within the specialised professional maritime expertise of the master, particularly where the safety or security of the vessel, her crew and her cargo are involved. He is the person, on the vessel, immediately responsible. Technical questions concerning the operation of the vessel are for him. Thus a decision when, in the prevailing conditions of wind, tide and weather, to sail from a given port is plainly a navigational matter… By contrast a decision without good reason to remain in port instead of continuing with a voyage… or to economise on bunkers for no good maritime reason… were properly regarded as falling outside the navigational area reserved for the master’s professional judgement.” (underlining added). Lord Bingham went on to consider that the question of which route to follow falls within the second type of decision; namely it is a matter of employment for the vessel and so is within the charterers’ area of responsibility. Lord Hobhouse also gave a detailed judgment in the case. Again, his Lordship considered that the owners were in breach of their obligation that the master should prosecute the voyage with utmost despatch. He said that as a matter of mercantile policy, and indeed as a matter of the use of English, a voyage will not have been prosecuted with the utmost despatch if the owners or master unnecessarily choose a longer route which will cause the vessel’s arrival at her destination to be delayed. A further difficulty which he pointed out with the owners’ argument is the fact that the owners had agreed in the C/P that the vessel could sail within the Institute Warranty Limits. Barring unforeseen circumstances, the owners could not then say the vessel was not fit to sail from Vancouver to Japan within IWL limits. It was not a good reason that the master preferred to sail through calm waters or that he wanted to avoid heavy weather. Vessel are designed and built to be able to sail safely in heavy weather. This aspect of his Lordship’s reasoning is something which could put masters in some difficulty and is arguably open to abuse by unscrupulous charterers. However, readers should bear in mind that his Lordship was not asserting that masters should take their vessels into any weather come what may. Matters may arise on a particular voyage which make the use of, for example, a great circle route (which is ordinarily safe) unsafe in the particular circumstances. The master is then at liberty to take whatever steps he deems necessary to safeguard the vessel, crew and cargo. Whilst the judgment does appear on its face to circumscribe the power of the master, Lord Hobhouse emphasised that the master remains responsible for the safety of the vessel, her crew and cargo, and if an order is given, compliance with which exposes the vessel to a risk, the master is entitled to refuse to obey it and, indeed, in an extreme situation he is obliged not to obey the order. In discussing matters of employment and navigation, Lord Hobhouse agreed with Lord Bingham that the “employment” of a vessel would encompass the general route to be followed. Employment effectively deals with the economic aspect of the vessel’s operation and earning potential, whereas “navigation” embraces matters of seamanship. Lord Hobhouse pointed to a distinction made by Mr. Donald Davies, an arbitrator, who suggests in an article about the case ([1999] LMCLQ 461) that the words “strategy” and “tactics” give a useful indication of the division of responsibilities. Lord Hobhouse also discussed the Hague- Visby defence and decided that
it did not protect the owners because it did not apply to breaches of
their obligations to prosecute the voyage with utmost despatch and to
comply with the charterer’s orders and directions as regards employment.
It should be borne in mind that the facts of this particular case were rather extreme. Between 1 March and 31 May 1994, some 360 vessels had used the northern route from Canada to Japan without apparent difficulty. In addition, it was commented on by various judges and arbitrators that the evidence of the master was not satisfactory. Indeed, whilst the master had previously experienced heavy weather, this had been in October, whereas the second voyage had been in late April 1994, when weather conditions could have been expected to be significantly better. I would suggest that if a master is faced with a situation where he believes routeing instructions are dubious, he should bear in mind the following points: 1. What is the usual route for this passage? In the Hill Harmony the question of deviation was not considered in any detail by the Courts. The arbitrators had not been asked to consider whether following the rhumb line course would amount to a deviation and Clarke J refused to allow the point to be argued in the High Court. The parties did not press the point in the Court of Appeal. It is always possible that a charterer might successfully argue that following a route which is longer than absolutely necessary might amount to a deviation. A further
matter which is not considered in detail was the effect of a routeing
clause requiring the master to follow the advice of an ocean routeing
service. Generally these clauses are framed to the effect that the
master should provide position and navigational information to the
routeing service and is to follow the prescribed route so long as the
vessel’s safety is not compromised. Whatever way the clause is worded,
the master is still the person on the spot, and is still entitled to
disregard such instructions where the safety of the vessel is concerned. If masters are faced with the situation where a charterer requires them to follow a particular route, and they wish to follow another route, then the primary consideration must always be the safety of the crew and the vessel. If faced with such a situation, if time permits, the master should examine the relevant clauses in the charterparty to determine whether or not there is a routeing clause. In any event, he should try to obtain advice from his owners, or P&I Club. It is crucial that proper records are kept. The master should set out his position in a Letter of Protest to charterers. When seeking advice from owners or from P&I Club, the basis for the master’s decision should be explained. For example, copies of weather forecasts, routeing recommendations in Admiralty Sailing Directions and Ocean Passages for the World should be copied and forwarded. When dealing with charterers, consider other alternatives. For example, one which springs to mind in the present case is that the master could perhaps have followed a composite great circle route. This would have been a shorter route than the one actually followed, saving some time and bunkers and lessening the owner’s exposure for loss of hire. This in turn may have made it easier for the parties to settle the matter without going to court. Finally, where a master is faced with
such a situation, the Courts have said in the past that it is reasonable
for him to pause in order to seek further information about the source
of and validity of any orders which might be received, even if there is
no immediate physical threat to the vessel or cargo. See The “Houda” |
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