Almost 50 years ago 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. Before considering each of these elements there is a fundamental question that has to be asked, namely, how does the obligation on the part of the charterer to send the vessel only to safe ports and places arise.