Lloyd's Maritime and Commercial Law Quarterly
LAST VOYAGES: ANOTHER VIEW
The Peonia
It is surprising to read in a previous issue of this Quarterly
1 favourable comment on the decision of the Court of Appeal in The Peonia.2 The case goes against what has hitherto been the accepted explanation of The London Explorer
3 and the views expressed in the leading books (views which must have been acted on for some time). It may therefore be worth considering whether the interpretation put by Bingham, L.J., on the earlier cases really is justifiable.
To do that, one needs to go back yet again to the two leading authorities relevant to the “legitimate last voyage” test, The London Explorer itself and The Dione
4. In The Peonia,5 Bingham, L.J., summarizes the relevant part of the leading speech of Lord Morris of Borth-y-Gest in the first case as holding that:
(a) the charter period would terminate only after a reasonable extension additional to the express tolerance of “15 days more or less”;
(b) if the charterer failed to redeliver within the period of such
6 reasonable extension, he might
6 be in breach of contract;
(c) on the facts of the case, there was no finding of breach against the charterers and no finding that the date of redelivery was in the circumstances not a reasonable one; the last voyage was one on which the vessel was reasonably sent.
These propositions were described by Bingham, L.J., as “alternative ratio”, and it was upon proposition (b) that he relied to decide The Peonia.
As against such an approach the following points may be made:
(1) It may not be right to disregard propositions (a) and (c) when all three of the propositions thus separated out actually appear in Lord Morris’s speech as undifferentiated and interdependent.
(2) Bingham, L.J., said that proposition (a) had not been generally treated as authoritative since. But, since he viewed Lord Morris’s statements as “alternative ratio” rather than obiter dicta
7, should he not also, at least in passing, have affirmed the validity of (a)? It seems, with the greatest respect, doubtful to reject one part of the alternative ratio because it had not been treated as authoritative since, while accepting another which also had not been so treated.
(3) Even if Bingham, L.J., was correct in considering as relevant only (b), Lord Morris’s words are correctly represented by the use, in Bingham, L.J.’s summary, of the word “might”. The passage summarized8 is indeed expressed in tentative ter
1. Reynolds [1991] LMCLQ 173.
3. [1972] A.C.1.
5. At p. 111.
6. Emphasis supplied.
7. Contrary, at least in part, to the view of Lord Denning, M.R., in The Dione, supra, fn. 4, at p. 115 (“by the way and quite unnecessary for the decision of the case”).
8. Supra, fn. 3, at p. 20D-F.
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