“ABNORMAL OCCURRENCE” clarified in the OCEAN VICTORY court of appeal decision 1 April 2015 Jean Koh, Partner Scott Pilkington, Senior Associate Holman Fenwick Willan LLP The surprising and somewhat controversial finding in the first instance judgment of the "OCEAN VICTORY" that Kashima Port, a modern and sophisticated port with a first-class safety record, was unsafe, was overturned in a judgment handed down by the Court of Appeal on 22 January 2015. Facts In October 2006, the "OCEAN VICTORY" berthed at the Raw Materials Quay, Kashima. She began discharging a cargo of iron ore, but had to stop due to strong winds and heavy rain. Shortly afterwards the berth was affected by (i) severe swell from long waves; and (ii) in the exit fairway, there were severe gale force winds up to Force 9 on the Beaufort Scale from the northerly/north-easterly direction. The Master left the berth for open water, but lost control of the vessel while leaving the port, and was driven back onto the breakwater wall. The vessel became a total loss. A claim in excess of US$135 million was brought against the time charterers (and was passed down the line to the sub-charterers) for breach of the safe port warranty contained in the respective charters. (The claim was in fact brought by the subrogated hull insurers of the vessel). At first instance The charterers raised 3 main defences:- They denied that the port was unsafe on the basis that the conditions experienced at the port on 24 October were an abnormal occurrence. The cause of the loss was the Master's negligent navigation and/or his navigational decision to leave the port, not the unsafety of the port. A clause in the demise charter provided for joint insurance, which they argued excluded any right of recovery by the owners against the demise charterers. Accordingly, demise charterers, being under no liability to owners, had no liability to pass down the chartering chain to charterers, as they had themselves not suffered any loss. At first