Safe Port

Safe Port

Definition of a safe port given by Sellers L.J. in The Eastern City the danger must be one which cannot be avoided by good navigation and seamanship. If the danger can be avoided in this manner it does not render the port unsafe.

What the Shipowners must show in order to establish liability is that the danger causing damage required more than ordinary skill in seamanship to avoid it. A case in which the charterers were found liable because more than ordinary skill was required in the navigation of the vessel was The Polyglory [1977] The vessel was berthed at Port La Nouvelle taking on ballast when the weather deteriorated and the decision was taken to move from the berth. A local pilot was taken but the vessel had difficulty in manoeuvring partly because of the weather but also because she was not fully ballasted. As a result of one of the anchors dragging because of the problems with control of the vessel, an underwater pipeline was damaged. There was also found to be negligence on the part of the pilot. The Shipowners eventually accepted liability for the damage to the pipeline and paid a substantial sum to settle the claim. The Shipowners then made a claim against the charterers to recover what they had paid on the basis that the port was unsafe. In an arbitration the port was found to be unsafe and, despite the pilot’s negligence, the charterers were liable to indemnify the owners for the pipeline claim.

The decision was appealed and Parker J. upheld the arbitrator’s award on the basis that the port was unsafe because the danger to the vessel could only be avoided by exceptional navigation skills and not the good and ordinary standard required in the test applied under The Eastern City principles.

Another interesting example of negligent navigation was in The Carnival [1992] but in this case it was not by the chartered vessel but another ship in the vicinity. The chartered vessel was berthing but, because of the negligent handling of the other vessel, she was pushed up against a damaged fender which put a hole in the hull. Whilst it may have been the case that, if the passing ship had not caused the incident, there would not have been a claim, both the Admiralty Court and the Court of Appeal decided that the port was unsafe and as a result the charterers were liable for the damage incurred.

However, the passing ship was also sued in the action and found to be liable for the results of her negligent navigation thereby reducing the charterers’ overall liability. There is another aspect of unsafe port cases which often involves the master. This is the argument about causation.

Unsafe Port

Frequently, if a vessel is damaged and a claim made by the Shipowners that the port was unsafe, the response from charterers is that the real cause of the loss was not the condition of the port but the negligent action of the master or crew. If the charterers can prove this to be the case then the chain of causation is broken by the negligence. As result they have a good defence to the claim.

On other occasions charterers may say that the actions of the master were partly to blame with the consequence that their liability should be reduced. The most difficult decision for the master is whether to proceed to enter the port if there appears to be a potential danger to his ship. If the ship master refuses to go to berth the charterers may claim that he is refusing to obey their lawful orders but, if the ship master does and the vessel is damaged, they may claim that he was negligent by ignoring the danger. In these type of circumstances the ship master may be persuaded by the charterers’ local agent or representative that it is safe to use the port.

A good example of this situation is shown in the case of The Stork [1954] 2 Lloyd’s Rep 397 and [1955] 1 Lloyd’s Rep 349. The vessel was to load logs in Newfoundland at a very rocky inlet which was subject to storms. Because of the restricted size of the loading place the ship was unable to lay anchor chain to protect her from the consequences of the weather. The master was well aware of the problems but was persuaded to berth and load by the local pilot sent by the charterers. The inevitable happened during a storm and the ship was damaged.

Safe Port Definition

In the subsequent court case the ship master was cleared of any blame and the charterers held liable for breach of the safe port warranty. In the Court of Appeal, Sellers L.J. (who was subsequently, of course, to give the classic definition of a safe port in The Eastern City said: “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

A point to look out for is that in this case the pilot was employed by the charterers; usually it is the owners who employ the pilots as a matter of navigation of the vessel. If the latter is the case and the pilot is negligent it may be that the chain of causation is broken by that negligence and, as a result, the charterers will not be responsible for any damage arising.

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 vessel, will be tested on the basis that they have to be reasonable and of a standard expected of competent seamen.