Safe Port in Ship Chartering

Definition of Safe Port as Per Sellers L.J. in The Eastern City

Sellers L.J. defined a Safe Port in The Eastern City as one where, during the relevant period, the specific ship can access, use, and depart from without encountering unavoidable dangers, despite good navigation and seamanship. If potential dangers can be effectively navigated away, the port does not qualify as unsafe.

Liability Determination for Shipowners

Shipowners must demonstrate that averting the danger causing the damage necessitated more than just standard seamanship skills. An illustrative case is The Polyglory [1977], where the Charterers were held liable as navigation required exceptional skills. The ship, docked at Port La Nouvelle to take on ballast, faced adverse weather prompting a departure. A local pilot was employed, yet maneuvering challenges arose partly due to inadequate ballasting, leading to anchor dragging and damage to an underwater pipeline. Despite the pilot’s negligence, Shipowners acknowledged liability for the pipeline damage, settling the claim for a substantial amount. They subsequently sought reimbursement from the charterers, asserting the port’s unsafety. The arbitration concluded the port was unsafe, holding the charterers accountable for indemnification, despite the pilot’s faults—a decision upheld by Parker J. on appeal.

In another instance, The Carnival [1992], negligent navigation by another nearby ship during berthing caused the chartered ship to collide with a damaged fender, puncturing its hull. Despite the direct cause being another ship, both the Admiralty Court and the Court of Appeal found the port unsafe, attributing liability to the charterers. The other ship also faced legal action, found responsible for its navigation, thus diminishing the charterers’ total liability.

These cases highlight the role of causation in disputes over unsafe ports, often implicating the ship’s master in the arguments.

Frequently, when a ship sustains damage and the Shipowners claim that the port was unsafe, charterers often counter by asserting that the actual cause of the damage was the master’s or crew’s negligence, not the port’s condition. If charterers can substantiate this, then the negligence interrupts the causal chain, providing them a solid defense against the claim.

At times, charterers might argue that the master’s actions contributed to the incident, suggesting a reduction in their liability. One of the most challenging decisions for a master is deciding whether to enter a port when potential dangers to his ship may exist. If the ship master declines to berth, charterers might accuse him of disobeying their lawful orders. Conversely, if he proceeds and damage occurs, they might claim he acted negligently by disregarding the apparent risks. In such scenarios, the ship master might be swayed by charterers’ local agents or representatives who assure him of the port’s safety.

An illustrative case is The Stork [1954] 2 Lloyd’s Rep 397 and [1955] 1 Lloyd’s Rep 349, where the ship was to load logs in a storm-prone, rocky inlet in Newfoundland. The restricted size of the loading area prevented the ship from laying sufficient anchor chain for protection against the weather. Despite being aware of these issues, the master, persuaded by a local pilot employed by the charterers, decided to berth and load. A storm ensued, and the ship sustained damage.

In the subsequent court case, the Ship Master was exonerated from blame, and the Charterers were found liable for breaching the safe port warranty. In the Court of Appeal, Sellers L.J., who later defined a safe port in The Eastern City, noted, “The Master is sometimes on the horns of a dilemma. The material question is, I believe, whether he acted reasonably. The learned judge was of the opinion that the master, in accepting the assurances given to him, acted reasonably, and I share his view.”

Negligent Pilot

It is important to note that in this case, the pilot was employed by the charterers; typically, it is the owners who employ pilots for navigating the ship. If the pilot is negligent and the owners hired him, this might break the causal chain, absolving the charterers of responsibility for any resulting damage.

Actions of the Ship Master and Crew

The actions of the Ship Master and crew, both in deciding what action to take and in executing the navigation and seamanship of the ship, are evaluated based on reasonableness and the competence expected of skilled seamen.

 

 

Charterers Order Ship to Unsafe Port

Orders from Charterers to Proceed to Unsafe Ports: Rights and Remedies of the Ship Master and Shipowners

When charterers order a ship to proceed to a port that may be unsafe, the Ship Master faces a critical decision: whether to comply with the order or refuse due to safety concerns. Generally, orders to proceed are deemed valid, and the Ship Master and Shipowners are expected to act without independently verifying the safety of the port. The Ship Master is required to act reasonably and must avoid placing the ship in peril if the danger is known and avoidable.

Occasionally, the true danger of a port may not become apparent until after the ship’s arrival and berthing. For instance, unexpected violent storms or a malfunctioning port security system resulting in ship damage typically make the Charterers liable for the Shipowners’ losses.

If it is evident from the outset that the port is unsafe, the Ship Master can justifiably refuse to proceed and request alternative directions. This right arises because an order to proceed to an unsafe port may be considered an Uncontractual Order or effectively No Order at all, possibly taking the ship beyond the scope of her legitimate employment.

The seminal case “The Kanchenjunga” [1990] addressed the Shipowners’ and Ship Master’s rights to refuse or accept orders to unsafe ports. In this case, the ship was chartered to load at Kharg Island during the Iran-Iraq war. Despite knowing the risks, the Shipowners agreed to proceed and issued a Notice of Readiness (NOR). Following an air raid, the ship left the port, and the Shipowners later requested a safe port order. When the Charterers insisted on returning to Kharg Island, the matter escalated to arbitration, where it was concluded that the port was prospectively unsafe when ordered by the Charterers.

The case advanced to the High Court where Justice Hobhouse found that by proceeding to the port and issuing an NOR, the Shipowners had waived their right to reject the port on safety grounds. Although this decision was upheld through the Court of Appeal to the House of Lords, it underscored the complex dynamics of navigating contractual obligations against practical maritime perils.

This decision highlights the delicate balance the Ship Master must maintain between adhering to charterers’ orders and ensuring the safety of the ship and crew. In situations where the Ship Master decides to proceed to an unsafe port, influenced perhaps by the charterers’ local agents, they might still be exonerated if their actions were reasonable under the circumstances, as demonstrated in the case of “The Stork” [1954], where the master was persuaded to berth in a risky inlet, resulting in damage during a storm.

In contrast, negligent actions by a pilot employed by the charterers, as seen in the same case, might not absolve the charterers from liability if the ship is damaged due to unsafe port conditions. This underscores the importance of the Ship Master’s and Crew’s actions in navigating and managing the ship, which must adhere to a standard of reasonable and competent seamanship.

 

Safely Approach Port

The ability of a vessel to safely approach the designated port is essential. A notable case that highlights the importance of this aspect is ‘The Sussex Oak’ (1950), where the following events unfolded: “In January 1947, the Sussex Oak was directed to head for Hamburg. The vessel was operating under the BALTIME Charter Party form, which included a clause guaranteeing safe ports. During the journey, the ship took on a pilot to navigate the ice-laden River Elbe en route to Hamburg. Despite the pilot’s assurances, the ship encountered a massive ice floe. Unable to turn, anchor, or reverse, the vessel was forced to push through the ice, resulting in damage. The Shipowners subsequently claimed the costs of repairs and other incurred losses.

The case was adjudicated in the English High Court by Devlin J, who later became Lord Devlin. He stated, “In my judgment, there is a breach of the safety warranty if the vessel is tasked with a voyage to a port she cannot safely reach. The location of the danger is legally irrelevant, although factually, the farther it is from the port, the less likely it is to compromise the voyage’s safety. The charterer does not assure that the most direct or any specific route to the port is safe, but the voyage ordered by the charterers must be achievable in safety by an ordinarily prudent and skillful Ship Master.”

This case underscores that while a port may generally be considered safe, certain conditions or specific phases of the voyage may render it unsafe. Similar considerations have applied in other cases, such as one involving the port of Manchester, where a vessel would have had to dismantle its mast to pass under a bridge during approach, leading to a determination of unsafety for that ship. Additionally, if a bar must be crossed upon entry to a port and a ship cannot do so without lightening, courts have deemed such situations unsafe. However, the danger must be significant.

For example, in ‘The Saga Cob’ case, despite previous guerrilla attacks near the port and one assault on a ship months earlier, the presence of a naval protection system and the sporadic nature of the attacks led to a ruling that the port was not unsafe.

Ship Safety in Port

The ship can enter the port without issue, but it may not be safe for the intended operations. Safety considerations apply to the specific time the ship uses the port. If any obstruction causing danger is cleared while the vessel is en route, then the port will be deemed safe upon her arrival and must remain so throughout her stay.

It is not required for the port to be continually safe for the entire duration of the ship’s presence, as long as there is a safe means of departure when danger emerges, and the ship can return once the danger has subsided.

In an historical case, ships were required to keep steam in the engines ready to depart quickly in case of foreseeable danger; this condition was judged to meet the criteria of a safe port. The rationale was that the necessity to leave was foreseeable, and the ships could undertake the necessary actions to depart promptly.

This context of potential danger informed the decision in ‘The Eastern City’ case. The ship was directed to the port of Mogador in Morocco during winter, where the anchorage was unreliable under certain conditions for a ship of its size, and departure from the port was perilous. Weather conditions that could swiftly become dangerous were unpredictable at this port.

These conditions posed a genuine threat to ships similar to ‘The Eastern City’, leading to the determination that the port was unsafe. The initial ruling by Pearson J. in the lower court emphasized, “A port is not safe for the ship unless there is reasonable assurance that the imminence of such weather conditions will be recognized in time and that the ship will be able to leave the port safely.”

 

Ship Safety in Port Departure

A vessel must not only arrive at and stay in a port safely but also be able to leave without encountering hazards. This highlights that a port can be deemed unsafe not only on arrival but also on departure, as demonstrated by the port of Manchester in the Inissboffin case. Here, after discharging cargo, the ship’s increased freeboard made it difficult to navigate under canal bridges while returning to the Mersey, posing a departure risk.

Similarly, in The Sussex Oak case, the vessel sustained damage from ice not only while entering Hamburg via the Elbe but also on its return journey. The charterers were liable for damages incurred both during the approach and the departure.

A critical legal question often arises about when a charterer’s responsibility for the ship’s safety ends, especially during long river exits from port. For instance, in The Hermine case concerning the Mississippi River, the court deliberated whether an obstruction 100 miles downstream from the berth should impact the safety of the port’s departure. Although the court presumed the departure was unsafe, it questioned if such a distant obstacle could render the port unsafe.

In a similar vein, The Mary Lou case also involved a long departure passage down the Mississippi. Here, the vessel grounded due to silting in the Southwest Pass, which was the only navigable route for ships of its size from New Orleans. Despite the incident occurring 100 miles from the port, arbitrators deemed the port unsafe, a decision upheld by Lord Mustill in the High Court. He noted that the distance of the hazard from the port should not diminish its impact on port safety, especially when no safe alternatives exist.

These cases illustrate that the definition of a port’s safety may extend to navigational hazards significantly distant from the port itself. They also raise considerations about alternative routes: if a safer but longer route is available, and the ship opts for a shorter, riskier path, liability for any resultant damage might depend on who directed the use of the riskier route. If it was the charterers, they would likely be held responsible for damages; however, if the shipowners chose the route, they might have to bear the consequences of their decision, given a safer option was available.

 

Charterers’ Obligation for Safe Port

The obligation to designate ports for the ship’s use falls to the charterers, who must ensure that any chosen ports are safe for the ship’s approach, use, and departure, barring any temporary hazards or abnormal occurrences.

This duty was scrutinized in the House of Lords in “The Evia No. 2” (1981) case, a pivotal reference in discussions of Unsafe Ports. In summary, the charterers directed the ship to Basrah to offload cargo from Cuba. The port was reached safely, and the discharge completed on 22 September 1980—the day Iraq declared war on Iran, which rendered the Shatt-al-Arab waterway impassable and trapped the ship.

The Shipowners initiated a lawsuit against the charterers for violating the safe port obligation. Lord Roskill clarified in his judgment that since Basrah was deemed safe at the time it was nominated, and the subsequent danger arose from sudden and abnormal circumstances after the ship’s arrival, the charterers did not breach Clause 2 (the safe port warranty) at that time.

Therefore, charterers have a primary duty to nominate a safe port when they issue orders to proceed. Should the conditions that jeopardize the port’s safety become apparent after the order is given but before or during the ship’s port call, and the ship is still capable of leaving, a secondary duty arises for the charterers to revoke the original order and direct the ship to a port that remains safe.

In “The Evia,” since it was too late to issue new orders because the conflict had already commenced, the secondary obligation was moot.

Charterers may also direct a ship to a port that is currently unsafe if they anticipate that the existing dangers will be resolved by the ship’s arrival. However, if the danger persists, they must redirect the ship to a safe port upon realizing the persisting risk; failure to do so breaches the safe port obligation and makes them liable for any resultant damages.

In “The Count” (2008), the ship was ordered to Beira, where navigational buoys were incorrectly placed, and there was no system to monitor an access channel prone to shifts. The court determined that these conditions posed a continuous risk at the time of the ship’s nomination, rendering the port unsafe. Delays occurred because another vessel grounded in the channel, leading to arbitrators awarding damages for detention, which the court upheld.

 

Charterers’ Orders to Safe Port

Some cases have arisen where the express term requiring charterers to direct the ship to a safe port was not included. This leads to a pertinent question: Will English courts imply a term into a Time Charter Party that any ports or places the ship is sent to upon charterers’ orders must be safe? Under English law, for a term to be implied into a contract, it must meet certain criteria.

The term must provide ‘business efficacy‘—essentially making the contract functional—or it must have been the obvious, albeit unexpressed, intention of the parties involved. How does this principle apply to the notion of safe ports? The matter was explored in an old case, ‘The Moorcock’, which dealt with berths’ safety.

A more direct precedent on ports and places is the case ‘The Evaggelos [1971]’, where a ship was fixed on a time charter to trade in the Red Sea during a ceasefire in the Middle-East war. The ship was directed to Suez, considered safe at the time of the order. Hostilities resumed while the ship was in port, leading to severe damage. The judge ruled that, as Suez was safe when nominated and expected to remain so, no breach occurred on charterers’ part under the implied safe port term. However, he noted that charterers could be liable under the employment and indemnity clause since their order led to the ship’s damage.

The ‘Evaggelos Th’ decision has been upheld in subsequent rulings, yet doubts remain about consistently implying such a term, particularly under voyage charters where specific ports are named. For example, in ‘The A P J Priti’ [1987], Bingham L.J. argued against implying a warranty of safety for a named port, suggesting the omission of an express warranty might be deliberate and such an implied term could conflict with the charter’s explicit terms.

This issue becomes especially relevant if a named port in a Time Charter Party, known to be unsafe, lacks an Express Safety Term, as seen in ‘The Houston City’ [1954]. Moreover, ‘The Mary Lou’ [1981] suggests even an express warranty may not cover a known unsafe port.

Recently, ‘The Livanita’ [2008] examined whether a named port in a Charter Party with a safe port warranty could be unsafe. Langley J. clarified that a safe port warranty does not inherently contradict a named loading port, as it merely limits the owners’ place of performance.

 

Safe Port Vs Safe Berth

 

Temporary Dangers at Safe Port

The question of temporary dangers impacting port safety has been scrutinized in London courts. The presence of a temporary danger causing delay, such as awaiting a tide to safely navigate a bar, does not inherently render a port unsafe. Devlin J emphasized in The Stork (1954) that a port need not be safe at the exact moment of a ship’s arrival; similar to encountering adverse weather en route, delays entering a port do not necessarily fall under the charterer’s responsibility. Furthermore, the charterer continues to incur costs during such delays, which generally do not concern the owner provided the ship remains undamaged.

Temporary dangers that lead to unsafety might include unmarked navigational hazards unknown to the Ship Master, causing ship damage, or inadequate storm warnings resulting in damage to ships at berth or anchor. Such conditions could legally classify a port as unsafe.

Discussion persists on whether extended delays due to temporary dangers could constitute unsafety. However, for such a delay to be considered legally significant, it would need to frustrate the Charter Party extensively. In The Hermine Case, a delay of 30 days was not seen as excessive by the Court of Appeal given the overall charter duration, indicating merely a postponement rather than a cessation of the charter obligations.

Conversely, in The Sussex Oak case, the presence of ice was viewed not just as a temporary but a significant hazard given the voyage’s brevity and the charter’s duration, suggesting that the determination of what constitutes a frustrating delay is complex and dependent on the specific circumstances of the charter.

Safe Port Warranties under Time Charter and Voyage Charter

1- Absolute and Qualified Safe Port Warranties

It is imperative to ascertain whether the guarantee regarding the safety of a port in a charterparty is expressed as an absolute or conditional commitment. The NYPE 46 form succinctly states that the ship shall be utilized “between secure port and/or ports” (line 27). If the charterparty includes this type of provision, the principles established in the Eastern City (aforementioned) are applicable. Nevertheless, if the safety warranty is qualified, additional considerations must be taken into account, diminishing the owners’ safeguard. The Shelltime 3 form encompasses a qualified warranty of a secure port, as follows:

“The charterers shall diligently ensure that the ship is solely engaged in activities between secure ports, locations, berths, docks, anchorages, and submarine lines where she can also rest assured afloat, yet notwithstanding anything contained within this or any other clause of this charter, the charterers shall not be deemed responsible for the safety of any port, location, berth, dock, anchorage, or submarine line, and shall bear no liability in respect thereof, except for loss or damage caused by their failure to exercise due diligence as aforementioned…”

Within the context of this provision, the “due diligence” obligation merely necessitates the charterers to demonstrate “reasonable care,” and this duty is discharged if “a reasonably cautious charterer would, based on the known facts, have concluded that the port was potentially secure” (as stated in the “Saga Cob” case).

2- The paramount obligation of the charterers to order a port that is prospectively safe in time and voyage charterparties

The crucial moment at which the port must be potentially secure is when the ship approaches, utilizes, and departs from it. In determining this, the specific characteristics (including length, width, and draft) of the respective ship must be taken into consideration.

2a- Approaching the Port

A port is deemed unsafe if the ship cannot enter the port due to its physical and/or climatic attributes when combined with the ship’s characteristics. Nevertheless, it is essential to acknowledge that a temporary obstacle that renders the approach to a port hazardous, while it persists, does not render the port unsafe unless the hazard:

1- cannot be evaded through skillful navigation and seamanship or
2- causes a delay of a duration sufficient to thwart the commercial objective of the charter.

In the Stork Case, Mr. Justice Devlin asserted, “The law does not demand that the port be safe at the precise moment of the ship’s arrival. Just as she may encounter adverse wind and weather conditions that delay her voyage to the loading port, she may encounter similar conditions that delay her entry into the port, and the charterer is no more responsible for one than the other.”

The guarantee of a secure port also extends to the means of accessing a port that the ship is compelled to utilize based on the geographical characteristics of the port and/or the ship’s attributes. For instance, in the case of an up-river port, the river and the route to the river must also be safely navigable by the ship (the “Mary Lou” case). Moreover, the risk of hostile attacks en route to a port may render it unsafe for political reasons (as demonstrated in the “Saga Cob” case).

2b- Use of the Port

A port must possess physical safety in terms of its location, size, layout, and its inherent and artificial features. It is not obligatory for the port to be secure for uninterrupted usage, provided that the ship can safely depart from it when temporary unsafety arises. In the Eastern City case (previously mentioned), Mr. Justice Pearson stated, “Suppose that a port can be considered secure for a ship even though the ship may

Suppose that a port can be considered secure for a ship even though the ship may have to leave it when certain weather conditions are imminent. Nevertheless, such a port cannot be deemed secure for the ship unless there is a reasonable assurance that the impending weather conditions will be timely recognized, and the ship will be able to depart from the port without jeopardizing its safety.

2c- Departing the Port

The same principles apply to the departing voyage as those applied to the approaching voyage.

2d- Good Navigation and Seamanship

The charterers will not be in breach of their secure port warranty if the direct and immediate cause of the loss is the negligence of the captain, owners, or their personnel.

2e- Extraordinary Events

The charterers will not be in breach of their secure port warranty if the loss is caused by an exceptional event. Thus, a port is not considered unsafe, for instance, if the ship sustains damage due to an extraordinarily severe storm or a negligently navigated ship. In the “Evia” (No. 2) case, Lord Denning explained the position as follows: “If the setup of the port is sound, but nonetheless the ship suffers damage due to an isolated, abnormal, or external event—unrelated to the port’s setup—then the charterer is not in breach of their warranty. This includes instances when a competent docking master makes a singular mistake or when the ship is collided with by another ship…”

3- Breach of the charterers’ primary obligation to designate a port that is prospectively safe in time and voyage charterparties

The shipowners are granted a reasonable period within which to evaluate whether the charterers have nominated a secure port. If the owners explicitly or implicitly accept an order to proceed to an unsafe port, they will be deemed to have waived their right to refuse compliance with the order. However, the owners will not be deemed to have waived their right to claim damages from the charterers if they suffer losses due to the port’s unsafety, unless they have expressly waived their right to claim such damages (the “Kanchenjunga” case).

3a- Safe Port Warranties under Time Charter

If the nominated port ceases to be prospectively secure between the nomination and the ship’s arrival, the time charterers then have a secondary obligation to re-nominate an alternative port that is prospectively secure at that time (as established in the “Evia” [No. 2] case, mentioned previously). This secondary obligation also arises if the port becomes unsafe while the ship is utilizing it and the danger can be avoided by sailing away.

No distinction appears to have been made between long-term time charters and one-time trip charters, where the charterers are obligated to elect a designated discharge port(s) and cannot retract their election. It is understandable why charterers under an ongoing long-term time charterparty should bear such a secondary obligation since they have a continuous right and obligation to issue orders regarding the ship’s utilization. However, it is more perplexing why time trip charterers, who have exhausted their right to elect an alternative discharge port(s), should also be obligated to designate another secure port, as they have no ongoing authority to direct the ship to discharge elsewhere. Nevertheless, it appears that this secondary obligation is applicable to all time charterers.

3b- Safe Port Warranties under Voyage Charter

Presently, it remains unclear whether voyage charterers have a similar secondary obligation to nominate an alternative secure port. It has been argued that this secondary obligation can only be imposed on time charterers, who possess a continuous right and/or obligation to issue orders regarding the ship’s utilization. However, this perspective overlooks the fact that a voyage charterparty is more akin to a time trip charterparty

 

 

Safe Berth Warranties under Time Charter and Voyage Charter

The principles delineated in the Eastern City (supra) pertain to secure berth assurances, with the caveat that the berth’s characteristics determine its safety. The judgment in the APJ Priti (supra) illustrates the primary disparities between a safe port and a safe berth warranty.

1- Approaching the Berth and Departing the Berth

In the APJ Priti case, the ship was contracted to transport cargo to “one/two secure berths in Bandar Abbas, one/two secure berths in Bandar Bushire, one/two secure berths in Bandar Khomeini at the charterers’ discretion.” While en route to Bandar Bushire, the ship incurred damage from an Iraqi missile. The owners contended that this constituted a violation of the secure berth warranty. The Court of Appeal determined that the only explicit undertaking within the charter terms was that the designated berth, at the time of ordering, would be prospectively secure. This pledge did not encompass the voyage leading to the port. In the words of Lord Justice Bingham:

“The charterers’ subsequent obligation was to designate a berth or berths within the stated port for the ship. It appears evident to me that, based on the explicit language of this charter, the charterers assured that the nominated berth or berths would be prospectively safe for the ship…. Since, according to my preferred interpretation, the charterers had not pledged the safety of the declared port, I disagree with the notion that the ship’s transit to and from a designated berth should be regarded as encompassing any segment of the journey to or from the port. It would solely encompass movement within the port, to and from a nominated berth.”

2- All the Berths within the Port

The Court of Appeal in the APJ Priti case also expounded on the notion that a secure berth warranty is confined to an assurance that the nominated berth will be prospectively safe from perils that do not impact the entire port or all berths therein. Consequently, there would be no breach of a secure berth warranty by the charterers if every berth or the entire port was prospectively unsafe in the same manner and to the same degree. The Court of Appeal elucidated the rationale behind this determination as follows:

“The charterers’ assurance, in my view, should be construed as limited to a guarantee that the nominated berth or berths would be prospectively secure from risks that do not affect the entire port or all berths therein. To interpret otherwise would undermine the intended and meaningful distinction between berths and ports. I cannot help but sense that the pledge primarily aims to ensure that the nominated berth or berths (including the passages to and from within the port) remain free from maritime hazards that are reasonably foreseeable and perilous to the ship…. Therefore, I am convinced that the charterers’ pledge must be understood to encompass physical and political unsafety, yet I concede to the charterers’ argument that the aforementioned unsafety must pertain specifically to the nominated berth or berths and not encompass the entire port or all berths within it. Even if a nominated berth is prospectively unsafe, the charterers will not be in breach if every berth or the entire port is prospectively unsafe in the same manner and to the same extent. When all berths or the entire port are prospectively unsafe, the owners should not have agreed to the discharging port initially….”

 

Safe Port under Bill of Lading (B/L) 

Whereas the proprietors assume the role of carriers responsible for transporting the cargo in accordance with the issued bills of lading, it becomes imperative for them to ascertain the extent of their entitlements as outlined within the contractual provisions. This necessity arises due to the potential breach of the bill of lading contract that the proprietors may inadvertently commit by invoking the charterparty’s safeguarding provisions pertaining to a secure port or berth. It is plausible that the bill of lading contract encompasses an inherent assurance of safety, either explicitly stated or through the successful incorporation of charterparty terms. However, if the bill of lading contract lacks such safety provisions, the proprietors must resort to a) any other applicable clauses that may assist their cause in the prevailing circumstances (such as a clause concerning wartime contingencies) or b) the overarching rights bestowed upon them by the governing law that regulates the bill of lading contract (such as the English legal doctrine of frustration).

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What is a 1/2 SP in Ship Chartering?

In ship chartering, a “SP: Safe Port” is a location where a ship can safely moor, unload or load cargo, and is free from threats such as piracy, political instability, and extreme weather conditions. The assurance of a safe port is often part of the contractual agreements in chartering.

1/2 SP in Ship Chartering indicates that the charterer has the right to send the ship to one or two safe ports.

 

What is a 1/2 SB in Ship Chartering?

In ship chartering, a “SB: Safe Berth” is a place where a ship can be securely moored without the risk of being damaged. It’s a spot that is safe from navigational and operational hazards, and where the ship can be safely reached, stayed at, and departed from.

1/2 SB in Ship Chartering indicates that the charterer has the right to send the ship to one or two safe berths.

 

What is NAABSA in Ship Chartering?

NAABSA stands for “Not Always Afloat But Safe Aground.” It is a term used in ship chartering and maritime logistics. NAABSA refers to a chartering condition or clause that allows a vessel to call at a port or terminal where it may not always remain afloat due to tidal variations or water depth.

When a vessel is chartered under NAABSA terms, it means that the vessel can safely rest on the seabed or remain aground during low tide without causing any damage or compromising its safety. This flexibility allows the vessel to access ports or terminals that have restrictions on water depth or tidal conditions.

NAABSA clauses are commonly used in the shipping industry when vessels need to access ports with shallow waters or tidal variations. It ensures that the vessel can still operate efficiently and safely, even in locations that may have limited water depths or where the vessel may need to temporarily rest on the seabed during certain periods.

Overall, NAABSA provides greater flexibility in ship chartering by allowing vessels to access a wider range of ports and terminals, expanding their operational capabilities in diverse marine environments.

 

BIMCO NAABSA Charter Party Wording

Note: This wording to be added to the existing berthing provisions in charter parties

Always subject to the Owners’ approval, which is not to be unreasonably withheld, the Vessel during loading and/or discharging may lie safely aground at any safe berth or safe place where it is customary for vessels of similar size, construction and type to lie, if so requested by the Charterers, provided always that the Charterers have confirmed in writing that vessels using the berth or place will lie on a soft bed and can do so without suffering damage.

The Charterers shall indemnify the Owners for any loss, damage, costs, expenses or loss of time, including any underwater inspection required by class, caused as a consequence of the Vessel lying aground at the Charterers’ request.

We kindly suggest that you visit the web page of BIMCO (Baltic and International Maritime Council) to learn more about NAABSA and to obtain the original Charter Party forms and documents. www.bimco.org

 

What is NAABSA Clause in Ship Chartering?

NAASBA term, duly recorded within the charter party, grants the charterer the privilege of utilizing certified ports of such denomination, where the vessel can periodically rest its hull against the seabed, free from any peril of harm.

“In the realm of navigation, there exists a practice in certain ports wherein the ship remains securely grounded during low tide rather than afloat at all times,” expounds Larry. “Thus, this term is employed to characterize ports where the ocean floor provides a suitable resting place for the vessel during low tide, without inflicting any damage upon its hull. However, this practice must be customary for both the pier in question and vessels of similar size, construction, and type,” he concludes.

Ports that receive authorized NAABSA vessels possess distinct attributes: typically, they boast soft beds composed of mud or sand, with minimal presence of stones.

“It constitutes an agreed-upon clause between the concerned parties, deviating from the standard protocol of ‘1SPB AAAA (1 Safe Port/Berth Always Afloat Always Accessible)’,” elucidates Johann, “wherein a customary UKC (Under Keel Clearance) of 0.50m or free space below the keel is typically required.”

The primary impetus behind the inception of NAABSA stemmed from the desire to optimize operations within ports characterized by substantial tidal fluctuations. By ensuring the safety of the berth, devoid of any potential harm to the vessel’s hull, a greater degree of flexibility arises under the most opportune circumstances for cargo loading at these terminals.

Johann presents two illustrations of historical ports embodying this resoluteness: one situated along the River Thames and another along the River Plate. “Its paramount objective revolves around the enhancement of ship loading/unloading, thwarting disruptions during low tide and enabling the vessel to maximize its cargo capacity within ports harboring draft restrictions (regarding water depth) and notable tidal variations.”

In instances where NAABSA cannot be implemented due to the bed’s inherent characteristics, the berthing/unberthing of laden ships may exclusively take place during high tide, and/or the ship may solely receive a limited volume that adheres to the UKC (Under Keel Clearance).

To put it differently, this provision was primarily formulated to permit vessels to accommodate a larger cargo load while affording the port an extended duration of operation within those locations boasting the ideal conditions for such undertakings.

 

When is a Port deemed to be Safe?

Regarding the two distinct types of charter parties, namely time and voyage, the safe port warranty holds significant importance as an essential component for both agreements. Its primary purpose is to shield shipowners against the possibility of being directed to an insecure port during a charter. By exercising this warranty, owners gain the authority to decline instructions that would lead them to an unsafe location. Moreover, they can seek compensation from charterers if any losses are incurred due to the charterers’ decision to proceed to an insecure port. Therefore, comprehending the safety clauses that protect their own interests is crucial for individuals working in the maritime and legal sectors, enabling them to operate with safety and efficiency. With that said, a pertinent question arises: “When can a port be considered safe?”

In any course on Maritime law, students are instructed that whenever a charterer has the privilege of designating a port as per an agreed charter party, it implicitly guarantees the safety of that port.

The traditional definition of a safe port, as provided in the case of “Eastern City” [1958] 2 Lloyds Rep 127, states:

“A port will only be deemed safe if, during the relevant time period, a specific vessel can reach it, utilize its facilities, and depart from it without being exposed to avoidable hazards, assuming normal navigation and seamanship practices.”

These principles are equally applicable when considering the safety of berths, as the underlying doctrine remains the same. The obligation of the charterers is to nominate a port or berth that, at the time of issuing the order, is projected to be safe. Consequently, it implies that the port or berth should be reasonably expected to be secure when the vessel arrives, except in cases of unforeseen abnormal circumstances.

 

Requirements for a Port to be considered Safe Port

The significance of safety has been subjected to numerous interpretations, each of which has been debated and adjudicated in arbitrations and courts. The physical composition of the port is the most conspicuous factor determining its safety or lack thereof. However, there are additional factors that contribute to a port being considered safe. The prerequisites for a port to be acknowledged as a “safe port” are as follows:

1. Unrestricted access to the port must be ensured.
2. Vessels must be able to securely float at all tide levels.
3. Sufficient facilities must be in place to facilitate trade.
4. Political stability is essential. Once a ship has arrived at the port (and unloaded its cargo), it should be able to depart safely without the need to lower or sever its masts in order to pass beneath a bridge.

Safe access to the port entails unimpeded entry that is free from permanent hindrances. Instances of permanent obstruction include inadequate water depth, periodic accumulation of sediment, presence of ice, uncharted reefs, an underwater buffer that damages a ship due to its design and construction, or an underwater obstruction within a dredged channel that forms the designated route to the port. Failure to identify and eliminate such obstacles before admitting vessels to the port could result in vessel damage, thereby compromising safety. However, temporary obstructions, such as neap tides, do not render a port unsafe.

To capitalize on commercial advantages, ports nowadays accommodate a greater volume of shipping and experience a higher number of vessel movements compared to a decade ago. This increased traffic, often in constrained environments, poses a heightened risk of ship-to-ship or ship-to-infrastructure collisions. Consequently, ports must have the capacity to accommodate such intensive vessel traffic while ensuring the absence of any obstructions within the port.