Case No. DMC/ST/01/01
Kawasaki Kisen Kaisha Ltd v. Whistler International Ltd. - The 'Hill Harmony'
 1 Lloyd's Rep. 147:
English House of Lords:
1 Where a ship is chartered on terms that require
the master to prosecute voyages with the utmost despatch and to follow the
orders of the charterers as to the employment of the ship, the ship is bound to
obey charterers’ orders regarding the route to be followed, unless owners can
show sound reasons – such as danger to the ship – for following a different
2 If the master does not follow orders validly
given by the charterers, the owners will not be able to rely on the exception of
‘error in navigation’ set out in Article IV Rule 2(a) of the Hague Rules.
Lessons to be learnt
Where time-charterers exercise their right to order
the ship to follow a given course, owners should require the master to obey that
order, unless they can discharge the burden of showing that a different course
should have been followed for reasons such as the safety of the ship.
DMC Rating: Confirmatory
FOR MORE DETAIL, READ ON:
Whistler International, the disponent owners of the
Kawasaki Kisen Kaisha (‘KKK’),
the time-charterers of the Hill Harmony
The Hill Harmony was a bulk carrier,
built in 1985
She was chartered on the New
York Produce Exchange form 1946 with amendments, for a period of 7/9
The relevant terms of the charterparty were the following:
- the master was to prosecute his voyages with the utmost despatch and was
to be under the orders of the charterers as regards employment (cl.8)
- the charterers were to furnish the master with all requisite instructions
and sailing directions (cl.11)
- the owners were to remain responsible for the navigation of the ship, as
when trading for their own account (cl.26)
- it incorporated the Hague Rules and, in particular, the provisions of
Article IV Rule 2(a), under which the owners were not liable for the act,
neglect or default of the master in the navigation of the ship
- it was subject to English law and arbitration in London.
Under the charterparty, the ship made two voyages from Vancouver to
Japan in January/February and April/May 1994, respectively.
Prior to the commencement of these voyages, the charterers had
instructed the master to sail by the Great Circle route, which was the most direct route.
Because the ship had, on a previous occasion, suffered structural damage from bad weather encountered on the Great Circle route, the master
sailed by a more southerly route.
The more southerly route was a longer route than the Great Circle
route. As a result, the voyages took more time and more bunkers were
consumed. The loss to the charterers was in the region of USD90,000.
The charterers claimed that:
- the master had failed to prosecute the voyages with the utmost
despatch, contrary to clause 8 of the charterparty
- the master had failed to comply with their instruction to sail by the
Great Circle route, contrary to clauses 8 and 11 of the charterparty
The owners replied that:
The Previous History of the Case
1. the charterers’ orders and choice of route did not relate to the ‘employment’
of the ship
but to its ‘navigation;
2. all matters of navigation were for the master to decide,
3. if the master were at fault, then owners’ liability was excluded
under Article IV Rule
2(a) of the Hague Rules incorporated in the
At the arbitration, a majority of the panel had found for the
charterers. They found that the master’s decision to sail by the southerly
route in preference to the Great Circle route was unjustifiable. Their
decision was based in part on uncontradicted evidence from Ocean Routes that
all ships advised by them during the period March to May 1994 crossing from
the Pacific north west to northern China, Korea or Japan had followed the
Great Circle route. The owners were in breach therefore of their obligation
to prosecute the voyages with the utmost despatch and to follow the
charterers’ orders regarding the employment of the ship. The defence of
‘error in navigation’ under Article IV Rule 2(a) of the Hague Rules was
not applicable, since the planning of the voyage – as opposed to the way
in which it was carried out – was not a matter of navigation.
- In the High Court, the judge held that the dispute related to the ship’s
navigation and not to her employment. The order to sail by the Great Circle
route was not one that the charterers were entitled to give and the decision
which route to follow was for the master alone. He found accordingly for the
- The Court of Appeal upheld this decision
and also found for the owners. The ocean route to be followed was a matter
of navigation for the master to determine. Provided that he acted in good
faith, it did not matter whether he acted reasonably, since the owners would
be protected by the exception of ‘error in navigation’ under Article IV
Rule 2(a) of the Hague Rules.
The decision of the House of Lords
The House of Lords found for the charterers and therefore overruled the
decisions in the High Court and the Court of Appeal and restored the decision of the
- The ‘utmost despatch’ clause is a merchant’s clause, the object of
which is to give effect to the mercantile policy of saving time. It requires the
ship to take the route which is the shortest and therefore quickest, unless
there is some other route which is usual or there is some other maritime reason
for not taking the shortest and quickest route. A voyage will not have been
prosecuted with the utmost despatch if the owners or master unnecessarily choose
a longer route, which delays the arrival of the ship at her destination. In this
case, there were no factors which justified the ship taking the longer route.
The Great Circle route was the shortest route and the usual route. The ship was
fit to follow it and should have done so.
- Although - on this reasoning - the question whether the charterers’orders
to take the Great Circle route related to the employment of the ship rather than
to her navigation becomes academic, the orders did in fact relate to her
employment. The choice of ocean route was, in the absence of some over-riding
factor, a matter of the employment of the ship.It related to her scheduling and
trading and therefore to the exploitation of her earning capacity.
- The exception under Article IV Rule 2(a) of the Hague Rules did not provide
a defence to owners. It did not excuse a breach of owners’ obligations under
the charterparty to prosecute voyages with the utmost despatch and to comply
with the charterers’ directions as to the employment of the ship. Any error
that the master may have made in this regard was not an error in the navigation
of the ship; it did not concern any matter of seamanship. The owners failed to
discharge the burden of proof which lay upon them to bring themselves within the
Regarding 1: Suzuki & Co. Ltd. v. J. Benyon & Co. Ltd (1926) 42
Regarding 2: Larrinaga SS Co. v. The King  AC 246; Suzuki v.
Benyon, above; The Renee Hyaffil 42 TLR 660; S.S Lord (Owners) v. Newsum
Sons & Co. Ltd  KB 846; The Erechthion  2 Lloyd’s Rep.
Regarding 3: Suzuki v. Benyon, above; Knutsford Steamship Co. v.
Tillmanns & Co.  AC 406