The case involved a dispute under a time charter on NYPE form involving two laden voyages from Vancouver to Japan in January/February and April/May 1994. The charterers had ordered the master on both occasions to proceed by the shortest route, the “great circle” or more northerly route. However, the master disregarded these orders and took the more southerly route, justifying his conduct with reference to heavy weather he had encountered on the “great circle” route on a voyage the previous October under a previous charterparty. The charterers claimed almost $90,000 in respect of the increase in time taken and bunkers consumed on the two voyages in consequence of the master’s decision to take the longer southerly route. They alleged that the master’s conduct had put the shipowners in breach of two of their obligations under cl. 8 of the NYPE form; to prosecute voyages with the utmost despatch and to obey the charterer’s orders as to the employment of the vessel. In response, the shipowners argued that the master’s decision related to navigation rather than to employment. Not only did that mean that they were not in breach of their two obligations under cl. 8; it also meant that they had a defence in respect of the former obligation by virtue of Art. IV, r. (2)(a) of the Hague-Visby Rules, which were incorporated into the charterparty by a “clause paramount”.

The majority arbitrators found in favour of the charterers, finding as a matter of fact that the master had not established any satisfactory reason to justify his failure to proceed by the northerly route stipulated by the charterers. The shipowners obtained leave to take the award to the Commercial Court,3 where Clarke, J., reversed the decision of the arbitrators, finding that the master’s decision as to which route to take on the voyages was a matter of navigation, notwithstanding that it had been taken before setting out on the voyages.

177