Lloyd's Maritime and Commercial Law Quarterly
THE OFF-HIRE CLAUSE IN THE NEW YORK PRODUCE EXCHANGE TIME CHARTERPARTY
Martin Davies *
Introduction
Clause 15 of the New York Produce Exchange time charterparty provides:
That in the event of loss of time from deficiency and/or default of men or deficiency of stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, dry-docking for the purpose of examination or painting, or by any other cause whatsoever preventing the full working of the vessel, the payment of hire and overtime shall cease for the time thereby lost.
There are two competing views of the meaning of this clause and, in particular, of the phrase “or by any other cause whatsoever”. According to one view, a chartered ship goes off-hire under this clause if, for any reason, it is prevented from being fully efficient and capable of performing the services required of it.1 According to the other view, a ship goes off-hire under this clause only when the cause which prevents its full working is related in some way to the qualities, charateristics, history or ownership of the ship.2 In C.A. Venezolana de Navegacion v. Bank Line Ltd. (The Roachbank),3 the Court of Appeal expressly declined to resolve this conflict of opinion. Thus, the law on this point remains unclear.
In this short article, I shall describe how the two views of the meaning of the phrase “or by any other cause whatsoever” evolved. Having done so, I shall attempt to show that it makes no difference which of these views is accepted, as cl. 15 has the same effect whether or not the word “whatsoever” is included. As the inclusion of the word “whatsoever” in the clause has not achieved the result which it was apparently intended to achieve, I shall suggest an amendment to cl. 15 which has the desired effect.
The meaning of “whatsoever”
In the past, cl. 15 of the New York Produce Exchange form did not contain the word “whatsoever” after the words “or by any other cause”. In a series of cases,4 it
* Senior Lecturer in Law, Monash University.
1. C.A. Venezonlana de Navegacion v. Bank Line Ltd. (The Roachbank)
[1987] 2 Lloyd’s Rep. 498.
2. Belcore Maritime Corp. v. F. Lli. Moretti Cereali S.p.A. (The Mastro Giorgis)
[1983] 2 Lloyd’s Rep. 66.
4. Court Line v. Dant & Russell Inc. (1939) 64 LI.L.Rep. 212; Mareva Navigation Co. Ltd. v. Canaria Armadora S.A. (The Mareva A.S.)
[1977] 1 Lloyd’s Rep. 368; Harmony Shipping Co. S.A. v. Saudi-Europe Line Ltd. (The Good Helmsman)
[1981] 1 Lloyd’s Rep. 377; Actis Co. Ltd. v. Sanko Steamship Co. Ltd. (The Aquacharm)
[1982] 1 Lloyd’s Rep. 7. See also Barker v. Moore & McCormack Inc. (1930) 40 F. 2d 410, a decision of the Court of Appeal of the U.S. Second Circuit to the same effect, and Sanko Steamship Co. Ltd. v. Fearnly and Egar A/S (The Manhattan Prince)
[1985] 1 Lloyd’s Rep. 140, a similar decision on an equivalent provision in the Shelltime 3 form.
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