Ship Prevented Entering Port

Shipowner’s primary obligation on the preliminary or carrying voyage is to bring his ship to the port named in the charter or nominated by the charterer, this obligation is frequently qualified by the words ‘or so near thereto as she may safely get’. If this clause is successfully invoked, the contractual voyage is treated as being complete on arrival at the alternative port, with the result that the shipowner can then claim the full freight and the consignee must bear the cost of transporting the goods to the originally intended destination. Clauses of this type have accordingly been narrowly construed and considerable litigation has ensued concerning the circumstances in which they can be invoked and the appropriateness of any alternative port selected by the shipowner. The cases would suggest that the shipowner can only rely on such a clause when he is prevented from entering a port by a hazard or obstruction of a permanent nature or one which, from a commercial standpoint, would delay shipowner for an unreasonable length of time. Such temporary obstacles as high winds or unfavourable tides would clearly not qualify. In Metcalfe v Britannia Ironworks a vessel had been chartered to ship a cargo to Taganrog, a port in the Sea of Azov, or as near thereto as she could safely get. On arrival in mid-December, the Sea of Azov was found to be closed by ice and it was unlikely that a passage would be free before the following April. Nevertheless, the shipowner was not allowed to invoke the clause and unload the cargo at a port at the mouth of the Sea of Azov, since the obstruction was regarded by the court as being a merely temporary one. While this might appear to be an extreme case, it is partly explained by the fact that Taganrog was named in the charter and the court took the view that the shipowner should have been aware of conditions in the Sea of Azov at that time of year. On the other hand, in the more recent case of The Athamas, the pilotage authorities on the Mekong River refused to allow the vessel to proceed upstream to the port of Pnom Penh while strong river currents persisted. The Court of Appeal allowed the master to invoke the clause to justify unloading the cargo at Saigon, when it was established that the river passage would not have been ‘safe’ for a further five months. With regard to the choice of an alternative discharging port, there is likely to be a conflict of interest between consignee and shipowner. Consignee will be anxious to have the cargo discharged at a point as near as possible to the intended destination in order to minimize additional transport costs. On the other hand, shipowner will not be attracted by the
nearest safe port unless it has adequate facilities for discharging the cargo. In these circumstances the courts have imposed the so-called ‘ambit’ test, requiring the selected alternative port to be within an area or zone in close proximity to the original port. In the interests of the charterer, some restriction must clearly be applied to the general wording of the ‘so near thereto’ clause. Taken literally it might even be invoked to justify the shipowner discharging the cargo at the loading port should some obstruction of a permanent nature prevent him leaving that port. Even so, the ‘ambit’ test has been somewhat restrictively applied as in the case of Metcalfe v Britannia Ironworks where it was held that a port at the mouth of the frozen Sea of Azov was not within the ‘ambit’ of Taganrog, some 300 miles away. Recent cases have suggested, however, that a more flexible approach may be adopted towards the ‘ambit’ test and it has been recognized that distance is relative. Charterers and shipowners must be presumed to be endowed with normal commercial knowledge and experience and to realize that some parts of the world are more sparsely provided with ports than others. Consequently, while only a very restricted scope can be given to the ‘ambit test’ in respect of ports in northern Europe, a distance of 250 miles may be justified in the South China Sea where ports are few and far between. In interpreting the phrase ‘so near thereto as she may safely get’, the word ‘safely’ refers to the safety of the ship and not to the safety of the cargo. Safety of the ship covers not only hazards arising from physical obstructions and weather conditions, but extends to political dangers and even delay caused by congestion in the port. A number of variations may be added to the clause to provide extra protection for the shipowner. Addition of the words ‘always afloat’ protects shipowner from possible damage to the ship by grounding and entitles shipowner to unload at the nearest safe port if unreasonable delay would otherwise result. Alternative variation of ‘at all times of the tide always afloat’ removes the necessity for the shipowner to wait for a favourable tide.