In the first, The Kanchenjunga,1 a ship was chartered on consecutive voyage charterparty to load at one or two safe ports Arabian Gulf, with certain exclusions. The charterers nominated Kharg Island, which was not an excluded port but was at the time of nomination prospectively unsafe by reason of hostilities;2 and the owners, who had loaded and were loading other ships there, were aware of the situation. The ship nevertheless proceeded to Kharg Island and gave notice of readiness; but subsequent air raids caused the master to move the ship away to a place of safety. The owners called for another nomination; the charterers refused; and the contract was terminated.

For the charterers, it was argued that, although the owners could have rejected the nomination, they had accepted it just as a buyer accepts goods.3 The owners by proceeding to Kharg Island did not forfeit their right to damages for loss caused by compliance with the order; but they had not elected to call for a fresh nomination, rather to perform the voyage, and having so elected they could not change their minds. By subsequently calling for a fresh nomination they therefore put themselves