Voyage Charters

Timothy Young KC; Michael Ashcroft; Julian Cooke; Andrew Taylor; John Kimball; LeRoy Lambert; David Martowski; Michael Sturley

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Chapter 26 War Risks (“Voywar 1950”)

16. War risks (“Voywar 1950”)	178
(1) In these clauses “War Risks” shall include any blockade or any	179
action which is announced as a blockade by any Government or by any	180
belligerent or by any organized body, sabotage, piracy, and any actual or	181
threatened war, hostilities, warlike operations, civil war, civil commo-	182
tion, or revolution.	183
(2) If at any time before the Vessel commences loading, it appears that	184
performance of the contract will subject the Vessel or her Master and crew	185
or her cargo to war risks at any stage of the adventure, the Owners shall be	186
entitled by letter or telegram despatched to the Charterers, to cancel this	187
Charter.	188
(3) The Master shall not be required to load cargo or to continue	189
loading or to proceed on or to sign Bill(s) of Lading for any adventure	190
on which or any port at which it appears that the Vessel, her Master	191
and crew or her cargo will be subjected to war risks. In the event of	192
the exercise by the Master of his right under this Clause after part or	193
full cargo has been loaded, the Master shall be at liberty either to	194
discharge such cargo at the loading port or to proceed therewith.	195
In the latter case the Vessel shall have liberty to carry other cargo	196
for Owners’ benefit and accordingly to proceed to and load or	197
discharge such other cargo at any other port or ports whatsoever,	198
backwards or forwards, although in a contrary direction to or out of or	199
beyond the ordinary route. In the event of the Master electing to	200
proceed with part cargo under this Clause freight shall in any case	201
be payable on the quantity delivered.	202
(4) If at the time the Master elects to proceed with part or full	203
cargo under Clause 3, or after the Vessel has left the loading port, or	204
the last of the loading ports, if more than one, it appears that further	205
performance of the contract will subject the Vessel, her Master and	206
crew or her cargo, to war risks, the cargo shall be discharged, or if	207
the discharge has been commenced shall be completed, at any safe	208
port in vicinity of the port of discharge as may be ordered by the	209
Charterers. If no such orders shall be received from the Charterers	210
within 48 hours after the Owners have despatched a request by	211
telegram to the Charterers for the nomination of a substitute discharg	212
ing port, the Owners shall be at liberty to discharge the Cargo at	213
any safe port which they may, in their discretion, decide on and	214
such discharge shall be deemed to be due fulfilment of the contract	215
of affreightment. In the event of cargo being discharged at any such	216
other port, the Owners shall be entitled to freight as if the discharge	217
had been effected at the port or ports named in the Bill(s) of Lading	218
or to which the Vessel may have been ordered pursuant thereto.	219
Page 843 (5)(a) The Vessel shall have liberty to comply with any directions	220
or recommendations as to loading, departure, arrival routes, ports	221
of call, stoppages, destination, zones, waters, discharge, delivery or	222
in any other wise whatsoever (including any direction or recommendation	223
not to go to the port of destination or to delay proceeding thereto or to proceed	224
to some other port) given by any Government or	225
by any belligerent or by any organized body engaged in civil war, hostilities	226
or warlike operations or by any person or body acting or purporting to act	227
as or with the authority of any Government or belligerent or of any such	228
organized body or by any committee or	229
person having under the terms of the war risks insurance on the	230
Vessel, the right to give any such directions or recommendations.	231
If by reason of or in compliance with any such direction or recommenda-	231
tion, anything is done or is not done, such shall not be deemed a deviation.	233
	234
(b) If, by reason of or in compliance with any such directions or rec-	235
ommendations, the Vessel does not proceed to the port or ports	236
named in the Bill(s) of Lading or to which she may have been	237
ordered pursuant thereto, the Vessel may proceed to any port as di-	238
rected or recommended or to any safe port which the Owners in	239
their discretion may decide on and there discharge the cargo. Such	240
discharge shall be deemed to be due fulfilment of the contract of	241
affreightment and the Owners shall be entitled to freight as if	242
discharge had been effected at the port or ports named in the Bill(s) of Lad-	243
ing or to which the Vessel may have been ordered pursuant thereto.	244
	245
(6) All extra expenses (including insurance costs) involved in discharg-	246
ing cargo at the loading port or in reaching or discharging the cargo	247
at any port as provided in Clauses 4 and 5(b) hereof shall be paid	248
by the Charterers and or cargo owners, and the Owners shall have	249
a lien on the cargo for all moneys due under these Clauses.	250

26.1 The essence of the clause is to give owners who find themselves affected by “War Risks” as defined in the clause1 various rights and liberties to discharge their obligations in ways different from those otherwise stipulated by the charter. The clause contains provisions which overlap the warranties of port safety, which may be express or implied, and those warranties must be construed in the light of the clause and the rights which it confers on owners to impose a veto on employment which would endanger their vessel.2

“War Risk”

26.2 Sub-clause (1) sets out numerous risks which are to fall within the meaning of “War Risks” for the purposes of the clause. The list does not purport to be exclusive, as is apparent

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from the words “shall include” but in practice it is not easy to think of a set of circumstances which could fairly be described as a “War Risk” which is not in the list. It may be thought that not all of the itemised matters could be properly described as a “War Risk” as a matter of normal English usage, but there is an obvious mirroring of the risks excluded by the F.C. & S. Clause and its successor the Institute War Clauses. This mirroring, together with the reference to war risk insurance in sub-clause (5)(a), demonstrates the origins of the clause and gives a pointer to the genus of risks intended to be referred to, namely those risks which are normally covered by war risk underwriters or mutual associations. This may well indicate that similar meanings should be given to the events in the clause as are given to those terms in the marine insurance context. On the other hand, it does not necessarily mean that, if a risk is not covered by war risk underwriters, it does not fall within the ambit of the clause; thus, for example, piracy is increasingly not so covered but it remains expressly encompassed by the clause.

Blockade or action announced as a blockade

26.3 A blockade in the strict legal sense requires the use of force to cut off access and egress of belligerent and neutral vessels alike from the place blockaded.3 As stated in The Helen,4 the blockade must be both “effectual and constantly enforced”. 26.4 It is submitted that, upon this definition, a port is not blockaded merely because there is a risk of attack to vessels entering or leaving the port, falling short of effectual and constant enforcement, although such a situation may very well fall under one or more of the other definitions of “War Risks” in the clause. On the other hand, it is also submitted that exceptions in respect of vessels carrying, for example, humanitarian cargoes would not prevent the existence of a blockade for present purposes, although vessels carrying such cargoes would not normally be affected by any such blockade. 26.5 A place may be blockaded in a variety of ways, a boom or mines may be put across a navigable entrance, but the same end may be achieved by the strategic positioning of ships, aircraft or missiles. Clearly where there is, by one or more of these means, a constantly and effectively enforced blockade, nothing more is required by way of announcement, although there will usually be an announcement. 26.6 Where there is an announcement of a blockade but accompanied only by some action falling short of constant and effectual enforcement, the effect of blockade may be created by the announcement itself as is contemplated by the words action announced as a blockade. Presumably, however, there must be both a reasonable possibility of some use of force (probably on the part of the announcer) and also a measure of publicity. A mere announcement without some accompanying “action” or without the means of applying force to compel observance could not be contemplated by the clause and, similarly, a mere internal resolution within a government or similar body would not be said to be an “announcement”.5 26.7 In The Helen, Dr Lushington said that a blockade “must be enforced against all nations alike, including the belligerent one”, but it is not easy to see why this should necessarily be so. As the real point of the clause is whether the particular chartered vessel will encounter the risks of being blockaded and not whether other vessels will be so affected, the sensible view would be to construe “blockade” as meaning a blockade which will or will be likely to subject the chartered vessel to detention, attack or seizure, and it matters not whether, for example,

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vessels flying a different flag or carrying a different cargo, would be allowed to pass. This would accord with the approach of Sellers J. in The Marilu,6 in which he held that the predecessor of the present clause had to be construed without going into the “niceties of international law or the niceties of diplomacy” and apparently that one ought to have regard to whether the event relied on “would in any way affect the risk of a vessel being accosted on her voyage”. 26.8 However, in Government of the Republic of Spain v. North of England Steamship Co. Ltd,7 Lewis J. held that blockade meant blockade in the strict legal sense. Two points should be made about that decision. The first is that it was found that the declaration of blockade did not in fact affect the risk to shipping8 and the second is that it was not referred to by Sellers J. in The Marilu nor by the Court of Appeal in The Nailsea Meadow,9 in which Sir Wilfrid Greene M.R. said that the word “war” in an earlier version of the present clause should be construed “having regard to the general tenor and purpose of the document in what may be called a common sense way” and not in the technical sense being there argued. This approach seems preferable to the approach of Lewis J. and has been more recently applied by Mustill J. in connection with the meaning of the term “Civil War” in a fire policy, which term he held was part of contemporary speech which should be given its ordinary meaning, with no reason for importing ancient doctrines of constructive treason or the like.10

Government, belligerent or organised body

26.9 A supreme national government recognised as such both in jure and de facto by, for example, the United Nations, clearly falls within this phrase, but there are many gradations of government other than that, whether local, only de facto or only in jure, or not recognised by any of the civilised governments. An earlier version of the present clause referred merely to governments without the addition of the words belligerent or organised body and it was held that a non-recognised de facto government was nonetheless a government for these purposes.11 The addition of these words puts the matter beyond doubt. 26.10 Essentially, what the clause in its present form seems to contemplate is whether any organised body has in fact the effective power to cause the vessel to be accosted on her voyage; it is looking to the reality, not the legality of the interference. Thus, in Société Belge des Betons v. London & Lancashire Insurance Co. Ltd,12 a vessel was seized by workmen, initially only for the recovery of unpaid wages, but subsequently acting in support of and with the support of the Popular Executive Committee, which was the authority controlling the locality. Whilst Porter J. thought the action of the workmen “not absolutely legal”, he looked to the practical effect of the seizure and held that there had been a loss by “seizure and restraint of peoples”. It would seem that the only things not covered are an individual person announcing a blockade, acting on his own or perhaps with a disorganised rabble.13 26.11 A blockade may be announced by a body which lacks the means to enforce it, such as a government in exile which is recognised as having lawful authority but which lacks the necessary military or naval support. If the government is recognised by the United Nations, the power of enforcement is potentially available through the intervention of U.N. forces.

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But in any event, if the body in question falls within the definition government, belligerent or organised body, and provided that the announcement is accompanied by some action, the situation appears to fall within the definition of war risks.14

Sabotage

26.12 Sabotage is not a term of art. It is submitted that in accordance with the approach of the Court of Appeal in The Nailsea Meadow,15 a meaning should be given to the term in accordance with common sense and that the risk of sabotage must have something of a warlike character such as the laying or fixing of mines, but economic sabotage, such as the “blacking” of particular vessels, would not suffice, nor would mere disorganised riotous behaviour.16 Given that barratry as a term of art with its own special requirements17 it is submitted that barratry would not, without more, fall within sabotage.

Piracy 18

26.13 Piracy, on the other hand, is a term of art. It has a different meaning in public international law from that which it has in municipal or contract law, but no completely satisfactory definition of the term has yet been formulated. Rule 8 of the Rules of Construction scheduled to the Marine Insurance Act 1906 merely defines pirates as including “passengers who mutiny and rioters who attack the ship from the shore”. Essentially, however, piracy is “robbery at sea” involving theft or attempted theft at sea, without the authority of any lawful state, accompanied by the use or threat of violence before or at the time of the theft or attempt.19 Piracy can (as indicated by the Marine Insurance Act 1906) take place near to shore and within the territorial waters of a state.

The Andreas Lemos was anchored in Chittagong roads within the territorial waters of Bangladesh when some thieves boarded her and furtively stole various pieces of her equipment. Although they were armed with knives, they did not use them nor even threaten their use at the time of the theft. As they were leaving the vessel, upon being approached by crewmen with firearms, they initially threatened violence but then fled.

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