Physically Unsafe Port

The most obvious type of danger is that of physical damage to the ship. Such damage may be caused by the characteristics of the port such as mud banks on which the vessel may ground, tidal flows that may cause the ship to hit other vessels or the berth and rock outcrops that are not properly marked. In addition a port may be physically unsafe because of weather and sea conditions; ice can be a major cause of unsafety as may high winds or large swells. Quite apart from these physical attributes a port may also be dangerous because of political reasons or hostilities. Such conditions or events may have the effect of making what would otherwise be a safe port into one which is unsafe. There have been many examples of cases involving political unsafety, particularly more recent cases relating to the Israeli/Arab and Iran/Iraq wars, but one of the leading cases dates back to 1861. In Ogden v Graham (1861) a ship was ordered to a port in Chile which had been declared closed by the Chilean government on account of a rebellion there. The essential danger was that if the vessel arrived there was every likelihood of her being confiscated. The judge found that although the port was physically safe it was unsafe within the meaning of the charter because of the risk of confiscation. However, not every possible  danger  of this  nature  will  have the  effect  of making  the  port  unsafe;  a good example  of this is the case of “The Saga  Cob’  [1992]”. The  brief facts and finding  in this case  are as follows: Whilst on a time charter on the Shelltime form the Saga Cob completed a number of voyages to the then Ethiopian port of Massawa. At the time there was guerrilla activity in the area by the Eritrean People’s Liberation Front (EPLF) and there had been occasional attacks on the town of Massawa. In August 1988 the charterers gave orders for the vessel to sail for Massawa and she arrived in early September. The EPLF had attacked a vessel about three months earlier some 65 miles south of Massawa but that had been the only incident of this nature. Unfortunately, the Saga Cob was  attacked  by the  EPLF while at Massawa in September and damaged. There were no further attacks until January 1990. The owners claimed that the port was unsafe and sued the charterers for their breach of the obligation to use due diligence to send the vessel only to safe ports. When the case was first heard the judge  decided that, while the  risk was not high, it was  more than negligible. As a result, the port was unsafe when the charterers ordered the vessel there in August 1988 and they were accordingly liable for the losses suffered by the owners. This decision was appealed and the Court of Appeal overturned the original judgment. The Court of Appeal judges found that the port was safe, on the basis that there had been few incidents and a system of naval escorts had been put in place. The slightly odd aspect  of the Court  of Appeal’s  finding  in the ‘Saga  Cob’ was that the judges  took  into account  events  after the  order  had been  given  by the charterers.  In a later case this issue was taken up and some  doubt was cast on the proposition  that the exercise  of due diligence  could be tested  by later events.