Port Safety Systems

A port may have natural hazards which would make it inherently unsafe. These could be rocks or wrecks or strong tides or winds. These difficulties or deficiencies may be overcome by the actions of the port authorities. A system may be put in place which will overcome these hazards and turn the port from one which may be considered unsafe to an entirely safe place for ships to approach, use and leave. As a result the charterers’ orders to proceed to such a port will not be in breach of their safe port obligationsThe difficulty with port systems which make a port safe is that they must work at all times. In “The Houston City’ [1956]” (an appeal from the Australian courts to the Privy Council) the vessel was ordered to a port which could be dangerous because of northerly winds but adequate precautions were in place to ensure that vessels using the port in these conditions would not be put in danger. However, when the vessel arrived one of the mooring buoys had been temporarily removed for repair and there was damage to a fender. As a consequence of these two factors the ship was damaged in a northerly gale. The Privy Council held that the port was unsafe because of the deficiencies in the system for protecting vessels. Mere negligence on the part of a port employee which results in damage to a ship may not make the port unsafe if it can be shown that the system in place was adequate. What constitutes an adequate system, particularly in relation to warnings about weather conditions, has been considered in a number of cases. In one of these cases, “The Khian Sea’ [1979]” adequate warning was given of bad weather but because of the configuration of the port the relevant vessel was unable to leave in time and suffered damage as a result. Giving judgment in the Court of Appeal Lord Denning M.R. said: “the following requirements must be satisfied when a vessel has to leave her berth. First, there must be an adequate weather forecasting systemSecondly, there must be adequate availability of pilots and tugs. Thirdly, there must be adequate searoom to manoeuvre. And, fourthly, there must be an adequate system for ensuring that the sea room and the room for manoeuvre is always available.” Those requirements were lacking and the port was found to be unsafe because of an inadequate safety system. The recent introduction of the International Ship and Port Facility Security Code also raises some interesting issues about port safety in relation to charter parties. Whilst a ship may herself be fully compliant and certificated, she must also show that she has been trading to ISPS compliant ports during her previous 10 calls. If a port is not compliant or is operating at a high level of security risk when the vessel calls, there may well be problems at the next port of call with inspections and delays in clearance, all of which could involve the owners in additional costs. Can these costs be reclaimed on the basis that the previous port was unsafe? Despite the high risk it may be the case that the port in question has an adequate system which does not render it unsafe and the charterers will be able to rely on that as a defence to any claim. It will be a matter of evidence as to what constitutes an adequate system in such cases and there could be the potential for a very costly dispute. It will therefore be sensible for both owners and charterers to address such issues when the fixture is made by including a properly drafted clause dealing with the potential problems that may arise in relation to ISPS.