Some charterparties stipulate that the Nominated Berth should be:
- Reachable on arrival
- Always accessible
- Always available
This places an obligation on the charterer to ensure that the vessel can proceed to the berth without delay. This means that, for example, if the berth is congested, or there are no tugs available causing a delay to berthing, the risk is the charterers.
In the Jasmine B case (1992) Judge Diamond summarised as follows: in the absence of any special provision in the charterparty the effect of the nomination of a loading or discharging port by the charterer is that the charterparty must thereafter be treated as if the nominated port had been originally written into the charterparty and the charterer has neither the right nor the obligation to change that nomination. The port or berth should be safe physically.
When considering whether a port is safe it is necessary to take into account the port’s location, size, layout and its features, which include the channels and areas which must be navigated to reach and leave the port. Access must be safe – the decision as to whether a port is safe or unsafe is a question of fact.
Physical safety does not have to mean that the port has to be safe for uninterrupted use but that, when danger arises, the port may be vacated safely. For example, when a ship is alongside an exposed berth which sometimes suffers from the effects of swell then she must be able to leave the berth/port safely, that is to say, the danger can be avoided by good navigation and seamanship.
With respect to the duration of the requirement of safety, although a port must be safe to reach, use and leave, temporary dangers or obstacles do not make the port unsafe. For example, the formation of ice may hinder but does not prevent navigation.
The port or berth must be safe politically. Presuming a port is physically safe there is also a requirement that it be politically safe, for example it must be a place where a vessel will not be at risk of being arrested or confiscated.
In Ogden v Graham (1861) a vessel was ordered to the Chilean port of Carrisale Bago, which, as the result of rebellion, had been declared closed by the Chilean government. The vessel required a permit to proceed there failing which it would be confiscated. Physically there was no reason that the vessel could not sail into it, ‘yet by reason of political or other causes she cannot enter without being confiscated by the government of the place, that is not a safe place within the meaning of the charterparty’.
Safety refers to a particular vessel at the time of her call to the port, so that what was safe on the last call may not be safe today. The time in question, the port’s location, size, layout, natural and artificial features all need to be taken into account.
When does the charterers’ obligation with respect to safety arise? One need to consider that, at the time of nomination, the port will, in the absence of some abnormal and unexpected future event, be safe for the vessel at the time when she is reasonably expected to approach the port, be at the port or be leaving it.
Abnormal occurrences: The vessel Evia arrived at Basrah to discharge cement during which time the Iran/Iraq war broke out so that the vessel could not transit the waterway to exit the port. The House of Lords did not agree with the owners that the port was unsafe because the outbreak of hostilities was abnormal; at the time Basrah was nominated it was prospectively safe, the danger arose after Evia’s arrival and was due to an unexpected and abnormal event; there was no breach at the time of nomination.
There may still be a question mark over the situation where an event is abnormal but not unexpected. For example an earthquake may be abnormal but, in certain areas of the world, say California, they are not unexpected.
The negligence of the master can influence a decision as to whether a port is unsafe. Dangers that are avoidable by ordinary good navigation and seamanship do not render a port unsafe. However if more than ordinary skill is required to avoid danger the port may be unsafe. English law has been very strict in its interpretation of safe to an extent that some major charterers in the oil trades, for example Shell, have for a number of years not agreed to the word safe being included in the description of ports in their fixtures.