Mississippi

A port is unsafe if the delay in leaving it would be such as to frustrate the adventure. In The Hermine (1979) a vessel was prevented from leaving port in the Mississippi by a lowering of the draft in the river due to the accretion of silt. There was a risk of delay of uncertain duration and she was in fact delayed for 37 days. It was held the port was safe and the delay was not such as to frustrate the adventure. Where a ship is ordered to an unsafe port and the master acts negligently in entering and remaining in the port, the charterer will be free from liability but only if the negligence is sufficiently serious to sever the causal connection between the order and the damage to the vessel. The consequences of a breach or alleged breach of a safe port obligation are necessarily involved. The master may refuse a nomination of an unsafe port or the master may refuse to enter when he discovers the unsafety without liability. If the owners or master accept a nomination to an obviously unsafe port any entitlement that they may have had under the charter party is waived. If the nomination is accepted in good faith to a port which turns out to be unsafe, then the charterer will be liable for consequential loss or damage. This is a penalty payment at a fixed rate imposed (by agreement in the charter party) upon the charterer for failing to complete his duty of loading or discharging within the period agreed as laytime. Being a fixed rate it is known as liquidated damages because it is unalterable and is not capable of being specially assessed. Thus the description – penalty payment – seems more appropriate than damages. If, as so on rare occasions, there is no stipulation in the charter party as to a demurrage rate, then the owner would not be bereft of a remedy as compensation for the detention of his ship, he could formulate a claim for damages for detention which would be unliquidated and subject to assessment according to the ordinary rules of Breach of Contract under English Law.