Temporary Dangers at Safe Port

The question of temporary dangers has been considered by the courts in London. The mere fact that a ship may be delayed by having to wait for a temporary danger to be cleared or weather to change does not mean that the port will be considered unsafe. One other example which is often given of a temporary danger which does not make a port unsafe is that a vessel may have to await a high tide in order to reach or depart from the port because of a bar; the mere fact that if the vessel attempted to clear the bar at the wrong state of the tide it would cause her damage does not render the port unsafe. In dealing with such matters Devlin J said in his judgment in “The Stork’ [1954]”. The law does not require the port to be safe at the very time of the vessel’s arrival. Just as she may encounter wind and weather conditions which delay her on her voyage to the loading port, so she may encounter similar conditions which delay her entry into the port, and the charterer is no more responsible for one than the other. Remember the charterer will continue to pay for the vessel whilst she is waiting and, unless the market has risen and the vessel is on her last voyage under a time charter, the owner is unlikely to be concerned that there is a delay in entering or leaving port as long as it protects the vessel from potential damage. However, there are temporary dangers which can make a port or berth unsafe. If, unknown to the master, a navigational aid is not in place for some reason and the vessel is damaged as a result, then it may well be that the port would be considered unsafe as a matter of law. Also if a storm blew up and damaged vessels at berth or anchor in the port because they were not given adequate or any notice then the port is again likely to be considered unsafe as there should be a system in place for giving such warnings. There has been discussion over whether dangers which merely delay a ship for a considerable time may constitute unsafely. The answer to this question is that they may, but the delay would have to be for such a length of time that it would legally frustrate the charterparty. In the case of The Hermine, above, the ship was delayed by 30 days but, in the context of the length of the charter, the judges of the Court of Appeal decided that that this was not an inordinate delay which frustrated the charter. In other words it was merely a temporary delay and the charter could continue after the vessel had been able to navigate the passage. In ‘The Sussex Oak’, also above, on the other hand, the court indicated that the ice was not a mere temporary danger in view of the length of the charter and the shortness of the voyage. It is therefore very difficult to predict exactly what will be delay that frustrates a charter but essentially it must make the continuation of it impossible.