Safe port and safe berth

Today I have faced with a question, which is simple on the one hand, but is rather difficult on the other hand. The question was "may the particular port and berth be considered as safe port and safe berth?"

THE New York Produce Exchange (NYPE) charter party (as revised in 1946) is a typical time charter. It imposes an obligation on the charterer to ensure that the vessel is employed "between safe port and/or ports". A similar duty is imposed in a voyage charter party. But, in many voyage charter parties, load and disports are identified by name, which gives rise to different considerations.

The question of whether a port is "safe" is mainly a matter of common sense. Safety must be decided by reference to the particular vessel in question. For example, the ship must be able to call at a loadport or disport without grounding. This is the case whether it is laden or not, and, if it is necessary to lighten the vessel so that it can enter the port, the port may be unsafe.

As might be expected, risks to the ship arising from a war or civil conflict are capable of making a port unsafe. The English courts will consider a port unsafe in this situation if a reasonable owner or master would have decided not to proceed there.

Safety must be decided by reference to the particular vessel in question

Temporary dangers, including weather conditions, which tend to expose ships in port to danger, can render a port unsafe. However, if sufficient warning of such danger can be given to ships in the port that allow them to depart for a safe refuge, the port may nonetheless be treated as safe.

Safety is an evolving concept and today includes the presence of navigational aids at the port. If the vessel needs tugs to manoeuvre in the port, their absence can render the port unsafe. In exceptional cases it is even possible that the pilot system operated in a port can lead to a finding that a port is unsafe.

The system in place at any port should be sufficient to cope with the dangers posed to a given vessel entering the port at a given time. The result is that such cases tend to involve the examination of detailed expert evidence relating to navigation, seamanship, weather and a variety of other factors, so that the answer to the question "is the port safe?" is often far from straightforward.

The majority of legal decisions as to whether or not a port is safe are made by arbitrators. Only rarely does the question come before the courts. The effect of this has been to allow arbitrators considerable flexibility in determining the question, and the definition of a "safe port" is not fixed but depends on the characteristics of the ship and other facts of the case. A port that is deemed unsafe for a particular vessel may well be held to be safe for a vessel with different characteristics entering the port at the same time.

English and US law concerning port safety are broadly similar.

It is not necessary for the vessel to be in physical danger for a port to be treated as unsafe. The risk that the trading of the vessel will be seriously disrupted can constitute unsafety. An "inordinate" delay caused by, for example, ice or perhaps serious congestion, is capable of making a port unsafe. The delay would have to be so long as to deprive the charter of its commercial purpose, which in the case of a short-trip time charter would clearly be a shorter period than in a period charter.

Political events can also make a port unsafe. The risk that a vessel may be seized by the authorities at the port is a danger which can lead to the port being treated as unsafe.

The charterer must nominate a port that is not merely safe to enter but safe for normal cargo operations as well. The ship must also be able to leave the port in safety.

The safety of a port can extend beyond the port limits and includes the approach. Where the approach to a port is lengthy, e.g., along a major river such as the Mississippi, it is arguable that the obligation to nominate a safe port includes a warranty that extends for the length of the river - even where the ship is detained or damaged more than a hundred miles from the port.

The English courts have tended to be more willing to recognise the application of a duty to nominate a safe port to the approach to the port than to the situation once the ship has departed the port, even where the vessel has no option but to retrace its route along the approach. There is, however, no logical reason for this, and there are cases in which a charterer has been found liable where the vessel could not safely return to the open sea after departure from the port.

Safety is a question of fact. The test is objective and does not depend on the state of knowledge of the charterer concerning conditions at the port, unless the obligation in the charter party to nominate a safe port is modified, e.g., by an express provision requiring the exercise of "due diligence" on the part of the charterer in nominating the port.

There is obviously a difference between the nomination by the charterer of a port and the identification of a port in the charter party. If a port is named in the charter it is doubtful whether charterers can meaningfully be said to be providing any warranty as to the safety of such a port. The position is less clear if a range of ports is identified from which a charterer must make a nomination.

If the vessel suffers damage as a result of the conditions at the port, including grounding, or ranging damage as a result of high winds or wash from passing vessels, or ice damage, or is damaged or seized as a result of belligerent actions at the port, the owner of the vessel can seek damages from the charterer, alleging a breach of charter party.

The charterer does not absolutely guarantee the safety of a port or berth nominated. The obligation to nominate a safe port or berth in a time charter is sometimes said to be an absolute warranty, but the master is nonetheless expected to use reasonably skilful navigation and to engage pilots where appropriate. If damage could have been avoided only by very high standards of seamanship, the port will however be unsafe. The charterer is also protected where damage results from an "abnormal occurrence".

An abnormal occurrence is an exceptional event that is not a characteristic of the port. It can include a collision caused by the negligent navigation of another vessel, and truly exceptional weather conditions. If it is a feature of the port that allows negligent navigation to cause damage, a successful claim by owners may still be possible. Unanticipated violent acts by combatants in a war that suddenly breaks out, or saboteurs in a port that was prospectively safe when nominated, may also qualify as "abnormal occurrences" exempting the charterer from responsibility.

It is possible that a charterer may give an order in good faith requiring the vessel to proceed to a port reasonably believed to be safe. The next day a civil war could break out and the port could be a war zone. The obligation on the charterer to guarantee the safety of the port is not strict. The duty is to nominate a port that is prospectively safe at the time the order is made to proceed to the port. The situation must be considered at the time the charterer gives the order. It is therefore possible for the port to be actually unsafe at the time the order is given but prospectively safe for the vessel's call, and the order given by the charterer will be lawful and the owner will be in breach if the vessel fails to comply.

If the prospectively safe port becomes unsafe after the charterer gives the order, the charterer should rescind the order and nominate another port. This applies even once the vessel has arrived at the port, provided it is in a position to leave.

Assume the charterer orders the vessel to a port believing mistakenly that it is prospectively safe but that the master fears that the port will be unsafe. If the port is prospectively unsafe, the order is a breach of contract and the master is not obliged to obey it. The owners may lose their right to an indemnity for loss if they proceed to the port regardless. This situation raises complicated issues.

The claims made normally concern damage to the ship. The owner will seek to recover the costs of repair. In addition, as the claim is one for breach of contract, economic loss is recoverable, provided it is foreseeable, and will include claims for loss of use. In addition, the owner may face liability to third parties where, for example, the vessel damages port facilities, pipelines or cables. In such a case the owner can look to the charterer for an indemnity for any liability incurred.

In many cases, a charter party calls for a charterer to nominate a safe berth. This usually has the same effect as an obligation to nominate a safe port. A warranty that a port is safe will include the berths in that port. However, where there is only an obligation to nominate a safe berth and no concomitant safe port warranty, if all the berths in the port are the victims of a common unsafety, then the charterer may not be in breach of charter.

References: www.maritimeadvocate.com.

"Safe port and safe berth" by James Williamsen