Ship Charter Safe Port

It is for the charterers to give orders for the employment of the vessel including which ports she will call at. Subject to temporary dangers and abnormal occurrences, the ports to which the vessel is ordered must be prospectively safe for the approach to them, the use of them and the departure from them at the time the charterers give those orders. This obligation on the charterers was considered in detail by the House of Lords in “The Evia’ (No. 2) [1981]” a case that is essential reading in the context of unsafe ports. Put briefly, the facts were as follows. The charterers ordered the vessel to Basrah to discharge a cargo which had been loaded in Cuba. The port and berth were reached in complete safety and the cargo was discharged. That discharge was completed on 22 September 1980, the day that Iraq declared war on Iran and fighting started. In order to leave the port the vessel had to navigate the Shatt-al-Arab waterway but this was impossible. The ship was trapped and lost. The owners sued the charterers on the basis that the latter had breached the safe port obligation. Lord Roskill stated, in giving judgment, the following: Since Basrah was prospectively safe at the time of nomination, and since the unsafely arose after her arrival and was due to an unexpected and abnormal event, there was at the former time no breach of Clause 2 (the safe port warranty) by the charterers. The charterers are therefore under a primary obligation to nominate a safe port at the time when they give the orders to proceed there. The event which causes the unsafely of the port may only become known after the order has been given by the charterers but before the vessel arrives at or while she is at the port and may be able to leave. If that is the case then “The Evia'” decides that a secondary obligation on the part of the charterers arises. This new obligation is to cancel the original order and give a new one which is to a port that is prospectively safe all the time is given. If, as in the case of “The Evia” it is loo late lo give new orders because the danger has arisen and can not be avoided then the secondary obligation does not arise. Charterers can also give an order lo a port which is unsafe all the time the order is given if it is likely that the danger will have been removed by the time that the vessel arrives. If, in fact, the danger is not removed then, because the secondary obligation exists throughout the voyage, the charterers will have to give orders lo a safe port as soon as they know that it will not be possible to avoid the danger. If they do not they will be in breach of the safe port obligation and liable for any damage to the vessel that may occur. In “The Count” [2008]” a ship was ordered to Beira where the navigation buoys were out of position and there was no system to monitor the access channel which suffered from changes in configuration. The judge found that the characteristics of the port all the lime of nomination were such as to create a continuous risk of danger and, as a result the order was and continued lo be one lo an unsafe port. The owners suffered losses as a result of delay because another vessel grounded in the access channel and slopped operations. The arbitrators awarded damages for the detention which were upheld by the court.