Mutually Excepted Perils
![handle is hein.journals/tulr49 and id is 941 raw text is: MUTUALLY EXCEPTED PERILS
GEORGE B. FRmHLL*
The Act of God, enemies, fire, restraint of Princes, Rulers
and People, and all dangers and accidents of the Seas, Rivers,
Machinery, Boilers and Steam Navigation and errors of Navi-
gation throughout this Charter Party, always mutually ex-
cepted.1
INTRODUCTION
The focal point of this article is the effect that mutual exceptions
have upon a vessel owner vis-A-vis a charterer. All of the exceptions
in the above-quoted Mutual Exceptions clause also appear in the
Carriage of Goods by Sea Act (COGSA).2
Prior to defining the exceptions themselves, the expression
mutually excepted must be defined and its ultimate effect ana-
lyzed. The law is clear, and the textwriters all agree, that mu-
tually means that the particular exceptions listed protect one party
from liability to the other-but only when the protected party's
performance of any covenant is blocked or delayed by one of the
specific exceptions listed in the Mutual Exceptions clause under
consideration. In plain and simple language, it means that neither
party shall be liable to the other for the consequences of any of
the enumerated exceptions. Obviously, the clause protects the char-
terer as well as the owner. Thus, the charterer can rely on any of
the exceptions and has the benefit of the clause coequally with the
owner-although more often than not it works to the latter's benefit.
The basic charter party, and exclusions contained therein, is, in
effect, a contract. Under both American and English law, when a
party contracts to do a thing, or to maintain a certain standard of
* LL.B. 1960, Fordham University. Member of the Bar, New York.
1 New York Produce Exchange form of time charter, cl. 16. See Tanker
Voyage Charter Party, cl. 19, General Exceptions Clause, the last sentence
of which states:
And neither the Vessel nor Master or Owner, nor the Charterer, shall,
unless otherwise in this Charter expressly provided, be responsible for
any loss or damage or delay or failure in performing hereunder, arising
or resulting from:-Act of God; act of war; perils of the seas; acts
of public enemies, pirates or assailing thieves; arrest or restraint of
princes, rulers or people; or seizure under legal process provided bond
is promptly furnished to release the Vessel or cargo; strike or lockout
or stoppage or restraint of labor from whatever cause, either partial
or general; or riot or civil commotion.
See also Norgrain form, cl. 35, Exceptions, (North American Grain Charter
Party 1973).
2 46 U.S.C. § 1304(2) (1970).
8 See, e.g., W. Poor, Charter Parties and Ocean Bills of Lading § 14, at 41
(5th ed. 1968) [hereinafter cited as.Poor].](ViewImageLocal?handle=hein.journals/tulr49&div=53&collection=&method=preview&ext=.png&size=3)
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Mutually Excepted Perils
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