A/S TANKEXPRESS v. COMPAGNIE FINANCIERE BELGE DES PETROLES S/A.
(1948) 82 Ll.L.Rep. 43
HOUSE OF LORDS.
Before Lord Porter, Lord Wright, Lord Uthwatt, Lord du Parcq and Lord Morton.
Charter-party-Cancellation-Withdrawal of ship from service of charterers-Nonpayment of hire - "Monthly, in advance" - Cesser of hire - Time charter for seven years (one month more or less at charterers' option), providing:
11. Payment of the said hire to be made as follows:-In cash, monthly, in advance, in London. In default of such payment the owners shall have the faculty of withdrawing the said vessel from the service of the charterers, without prejudice to any claim they (the owners) may otherwise have on the charterers in pursuance of this charter.
27. In the event of loss of time through . . . breach of orders or neglect of duty on the part of the captain causing delay, the payment of hire shall cease from the commencement of such loss of time until she be again in an efficient state to resume her service . . .
34. The Act of God, perils of the sea, fire, barratry of the master and crew . . . and other accidents of navigation always excepted, even when occasioned by negligence, default or error in judgment of the pilot, master, mariners, or other servants of the shipowners. . . Nothing in this clause shall, however,
limit the charterers' right to suspension of hire for any period the vessel may not be at charterers' disposal for a period exceeding 48 hours.
Outbreak of war during currency of charter-Dispute between parties as to permitted destination - Vessel then lying at port in Venezuela-Master instructed by shipowners not to commence loading until instructed by them- Dispute settled on Sept. 25, 1939-Hire due on 27th of each month-Instructions to master to load, sent by shipowners on Sept. 25, not received-Cheque for hire sent by charterers to shipowners' London bank on Sept. 25, immediately they were informed by shipowners that master had been instructed to commence loading - Shipowners notified that cheque was in post-Cheque not received until Oct. 3, owing to delay due to war -Notice of cancellation of charter given by shipowners on Sept. 30, as "hire not received," master being instructed to stop loading-Right of shipowners to cancel - Whether charterers in breach for non-payment of hire - Arbitration - Findings by arbitrator that steps taken by charterers were "in accordance with the procedure that had been previously adopted in remitting the hire"; that "the practice between the owners and charterers during the currency of the charter-party was for the charterers to pay the hire on the 27th of each month, deducting from the hire any amount for time off hire during the currency of the previous month"; that there was an "accepted method between the parties during the currency of the charter with regard to the payment of hire" and that "the payment of hire had been regularly and properly paid in this way during the currency of the charter and had always been paid on its due date until this payment of the hire due on the 27th day of September"-Award in
A/S Tankexpress v. Compagnie Financiere Belge des Petroles S/A.
H.L.
44
shipowners' favour - Case stated - Questions for opinion, of Court:
A. Whether the charterers were in default in not paying the hire having regard to the fact that the owners had instructed the captain not to proceed with the loading until authorized by them and that in fact the captain had not received instructions to load at the time the hire was tendered, viz., on Oct. 3, 1939.
B. Whether on the facts stated the owners had the right on Sept. 30, 1939 (at which date the captain was still without instructions to load and the vessel was not at the disposal of the charterers to load) to cancel the charter-party.
C. Whether on the facts stated, and on the assumption the hire became due on Sept. 27, 1939, notwithstanding the fact that the captain had not received the owners' instructions to load, the charterers were excused from paying the hire on Sept. 29 [?27] owing to the fact that the charterers' letter of Sept. 25 was delayed in the post.