Unsafe Port in Ship Chartering
Court of Appeal Judge Sellers L.J. defined it as Safe Port: “a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship”.
Since that time there has not been any attempt by the courts to lay down a better general definition.
In fact, in 1979 another Court of Appeal judge said that he thought it unnecessary to look back to earlier decisions since the law was so clearly stated by Court of Appeal Judge Sellers L.J. There has been some doubt cast on this proposition in a later case where it was said that there might be issues not covered by the general principles.
In such circumstances, judges and arbitrators could still look at the older cases if they assisted. The individual elements of the test for what constitutes an Unsafe Port can be broken down as follows:
- The ship must be exposed to danger.
- The ship means the particular ship which has been chartered.
- The danger may be in the approach, use of or return from the port.
- The danger will not be the result of an abnormal occurrence.
- The master and crew must exercise good navigation and seamanship.
- The danger must be present during the relevant period.
All these elements are essentially matters of fact but the tests used to determine whether a Port is Safe or Unsafe are Matters of Law. Therefore judges and arbitrators must be able to apply the principles of law to evidence given of the facts and expert opinion in order to determine liability in Unsafe Port cases.
There is a fundamental question that has to be asked, namely, how does the obligation on the part of the charterer to send the ship only to Safe Ports arise.
A charterparty is, under English law, a contract. The parties to the contract take on obligations and are given rights by mutual agreement and for a price.
One of these obligations on the part of the charterer under a Time Charterparty will be that not to send the ship to Unsafe Ports. However, for the obligation to arise it should be expressly set out in the Charterparty (possible implied rights, that is, unwritten).
Most printed Time Charterparty forms contain an express Safe Port provision. For example: Vessel to be employed … between good and safe ports or places where she can safely lie always afloat as the charterers may direct Baltime Form (Vessel … to be employed) … between safe port and/or ports … as the charterers or their agents shall direct New York Produce Exchange Form 1946 which was amended in the 1993 revision to: Vessel shall be employed … between good and safe ports and safe places … as the charterer shall direct ….
The wording is clear and direct. As with any English law contract the parties are essentially free to agree what they want and, as a result, there have been variations of the Safe Port wording.
In particular some Tanker Time Charterparties have been amended to reduce the burden on the charterers to an obligation of exercising due diligence in nominating Safe Ports. Generally, in Tanker Time Charterparties, the oil majors are the charterers and have the commercial muscle to be able to reduce their potential liabilities. One example is in the Shelltime form which is as follows: “Charterers shall exercise due diligence to ensure that the vessel is only employed between and at safe ports … and shall be under no liability in respect thereof except for loss or damage caused by their failure to exercise due diligence ….”
This clause was considered by the English Commercial Court in a case called (The Chemical Venture 1993). A brief note of the case is as follows: During the Iran/Iraq war the tanker Chemical Venture was ordered to a port in a third country to load cargo. Just before that order Iran had started attacking ships at the potential load port despite the fact that she was in a neutral or non-combatant country. After first refusing to go there the crew then agreed to do so, on the payment of bonuses. In fact, the ship was hit by a missile and damaged. At least three other vessels had been attacked in the same way in the previous eleven days. The charterers defended a claim by the owners that was an Unsafe Port.
Because the Time Charterparty was on the Shelltime form they said that they only had to exercise due diligence which they had done by ordering the ship to the port at a time when attacks were sporadic.
The judge found that the port was unsafe and that because the charterers knew the facts they had not exercised due diligence when they gave the orders. However, because the Shipowners had allowed the ship to go to the port after agreeing crew bonuses the judge also held that they had agreed the port despite the unsafety.
As a result they could not recover their losses. The test of what constitutes due diligence in these circumstances seems to be one by which diligent enquiries must be made and a reasonable conclusion reached
Physically Unsafe Port
The most obvious type of danger is that of physical damage to the ship. Such damage may be caused by the characteristics of the port such as mud banks on which the ship may ground, tidal flows that may cause the ship to hit other vessels or the berth and rock outcrops that are not properly marked.
In addition a port may be physically unsafe because of weather and sea conditions; ice can be a major cause of unsafety as may high winds or large swells. Quite apart from these physical attributes a port may also be dangerous because of political reasons or hostilities. Such conditions or events may have the effect of making what would otherwise be a safe port into one which is unsafe.
There have been many examples of cases involving political unsafety, particularly more recent cases relating to the Israeli/Arab and Iran/Iraq wars, but one of the leading cases dates back to 1861. In Ogden v Graham (1861) a ship was ordered to a port in Chile which had been declared closed by the Chilean government on account of a rebellion there. The essential danger was that if the ship arrived there was every likelihood of her being confiscated. The judge found that although the port was physically safe it was unsafe within the meaning of the charter because of the risk of confiscation.
However, not every possible danger of this nature will have the effect of making the Port Unsafe; a good example of this is the case of The Saga Cob (1992). The brief facts and finding in this case are as follows: Whilst on a time charter on the Shelltime form the Saga Cob completed a number of voyages to the then Ethiopian port of Massawa. At the time there was guerrilla activity in the area by the Eritrean People’s Liberation Front (EPLF) and there had been occasional attacks on the town of Massawa. In August 1988 the charterers gave orders for the vessel to sail for Massawa and she arrived in early September. The EPLF had attacked a vessel about three months earlier some 65 miles south of Massawa but that had been the only incident of this nature. Unfortunately, the Saga Cob was attacked by the EPLF while at Massawa in September and damaged. There were no further attacks until January 1990. The Shipowners claimed that the port was unsafe and sued the charterers for their breach of the obligation to use due diligence to send the vessel only to safe ports.
When the case was first heard the judge decided that, while the risk was not high, it was more than negligible. As a result, the Port was Unsafe when the charterers ordered the ship there in August 1988 and they were accordingly liable for the losses suffered by the owners.
This decision was appealed and the Court of Appeal overturned the original judgment. The Court of Appeal judges found that the Port was Safe, on the basis that there had been few incidents and a system of naval escorts had been put in place. The slightly odd aspect of the Court of Appeal’s finding in the The Saga Cob (1992) was that the judges took into account events after the order had been given by the charterers. In a later case this issue was taken up and some doubt was cast on the proposition that the exercise of due diligence could be tested by later events.
Safe Port for Loaded Ship
A port may be perfectly safe for the ships that generally use it but unsafe for others. This may be the case both in respect of Physical Risks and Political Risks.
An example of the risks is where a ship is ordered to a port where there is a draught restriction which the ship will exceed when loaded.
In the case of political risk a charterer cannot order a ship to a port where she may be detained because of her national flag.
The leading case on this topic is an old one which concerned the largest ship to sail to the port of London; as a result of the size of the ship tugs had to be ordered from Scotland. It was held that the port was unsafe for this particular ship and the costs of the tugs were recoverable from the charterers.
In giving judgment, Roche J. said that it mattered not that 99 out of 100 ships using the port were safe if that particular ship was not. The port must also be safe when the ship is in the condition which it will be when she uses the port. If a ship can use a port only when she is without cargo and not when she is loaded, then the port will be considered Unsafe Port if the ship is ordered to it in a loaded condition.
The same port would not be considered unsafe if that ship was ordered to go there to bunker whilst in ballast.
Unsafe Port in Ship Chartering
In the realm of ship chartering, the term “unsafe port” refers to a port where, during the relevant period of time, a particular ship might be exposed to danger, harm, or damage that cannot be avoided by good navigation or ship management. The definition of an “unsafe port” is dynamic and changes based on the conditions of the port at a specific point in time.
The safety of a port can be influenced by many factors, including but not limited to:
- Physical and Navigational Factors: These can include things like water depth, tides, strong currents, hidden reefs, or other obstructions that may pose a hazard to a vessel.
- Weather Conditions: Extreme weather conditions such as hurricanes, typhoons, or heavy ice conditions can render a port unsafe.
- Political Instability: If a port is located in a region that is currently experiencing war, civil unrest, or other significant political instability, it may be deemed unsafe due to the potential for violence, piracy, or seizure.
- Poor Infrastructure: Ports with inadequate facilities, machinery, or manpower, or which lack proper maintenance and security, can be considered unsafe.
- Health Risks: If a port is located in a region where there is an outbreak of a contagious disease, it may be considered unsafe.
The concept of an “unsafe port” is significant in ship chartering because, in general, charter parties include warranties that the charterer will only send the ship to safe ports. Breaching this warranty may render the charterer liable for any damages that result from the ship being sent to an unsafe port.
In case of doubt, ship owners or charterers will often turn to port risk intelligence services or maritime lawyers to get information about the safety of specific ports. In this way, they can make informed decisions about where to direct their vessels.
What is Safe Port in Ship Chartering?
In the context of ship chartering, a “Safe Port” is a port that the charterer promises will not expose the chartered vessel to any unnecessary dangers or risks. This implies that the port has adequate depth, suitable facilities, is free from violent unrest or conflict, and does not present any risks from weather or natural disasters that would not be foreseeable or manageable by a prudent shipmaster.
The charterer’s obligation to only send the vessel to a safe port is a standard provision in time and voyage charter parties. If a charterer sends a vessel to an unsafe port and the vessel suffers damage as a result, the charterer may be held liable for the resulting loss or damage.
The determination of what constitutes a ‘safe’ port can often be a complex legal question. Generally, a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship. This means the port must be safe at the time of nomination and also remain safe while the ship is there.
The safety of a port can change due to various factors such as political unrest, strikes, adverse weather conditions, or even changes in the physical characteristics of the port itself. Therefore, the charterer must be prudent in its selection of ports and keep abreast of any changes that might affect the safety of the vessel.
If a dispute arises as to whether a port is safe or not, it’s generally settled by the courts, and the outcome can depend on a wide range of factors. These factors may include the physical characteristics of the vessel, the nature of the goods being transported, the specific actions of the vessel’s master, and even the availability and reliability of weather forecasting for the port.
The obligation to ensure a safe port extends not just to the actual physical safety of the vessel, but also to the safety of the crew. This means that a port may be deemed unsafe due to factors such as political unrest, the risk of piracy, or a significant prevalence of infectious diseases.
Furthermore, the ship must be able to safely reach the port, stay at the port while cargo operations are carried out, and depart from the port. All these stages must be safe for the vessel and crew, taking into consideration the ship’s characteristics and any foreseeable conditions such as the prevailing weather, tides, and other navigational considerations.
If a charterer breaches the safe port warranty, it could be liable for considerable damages, particularly if the ship is lost or suffers significant damage. The charterer could also be responsible for consequential losses, such as loss of hire or loss of profits for the period when the ship is out of service.
On the other hand, the shipowner has a duty to exercise due diligence. If the shipowner or the master of the vessel has better or more recent information than the charterer about the safety of a port, or if the danger is apparent to a competent master, and they proceed regardless, they may not be able to claim damages from the charterer.
The requirement of a safe port in ship chartering is a significant element that requires careful consideration by all parties involved. The choice of a port can have significant legal and financial implications, so it’s vital to stay informed about potential risks and to make prudent decisions based on the best available information.
What Safe Port means in maritime law?
A safe port is a port where a ship can safely arrive, dock, and depart without posing a risk to the vessel’s safety. This includes considerations like the port’s physical characteristics, weather conditions, political stability, and other factors.
If a charterer directs a ship to an unsafe port and the ship is damaged as a result, the charterer can be held liable for the damages. This principle is a crucial part of maritime law and is often included in charterparty agreements.
Please note that the definition and interpretation of “safe port” can vary depending on the jurisdiction and the specifics of the case. For the most accurate information, you would need to refer to the specific legal opinion or decision given by Judge Sellers L.J. or any other authoritative source in the relevant jurisdiction.