A major element in the agreement between the charterer and the shipowner is the promise of the charterer to employ the chartered vessel in safety. This presupposes that the above- mentioned has the obligation to transport the goods between safe ports. 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 expose to danger, which can not be avoided by good navigation and seamanship.
There is no distinction between voyage and time charter parties. The charterer in order to nominate a port must examine its safety viewing many options. In accordance to the above there are many types of safety ports such as meteorologically which is mentioned on weather conditions, physically about the nature of the port and politically about the events that taking place at the specific port.
Although the charterer has nominated a safe port, the shipowner has the right to investigate for each safety and reject the order of the charterer in case that he does not agree with it.
When a vessel is ordered to a port there are two obligations for the charterer. The primary obligation which is the main obligation of the charterer to nominate a safe port and the secondary which cancels the primary when certain circumstances become and the port is not safe any more.
Certain occasion is when the charterer is not well informed about the safety of the port. However, this does not protect him from his liabilities.
The obligation of the charterer does not be completed by the arrival of the vessel at a safe port but it continues until the departure of the vessel .
1.1 VOYAGE AND TIME CHARTER PARTIES
In general the criteria applicable in the case of voyage charters also to time charters. Thus, the Privy Council in Reardon Smoth Line v. Australian Wheat Board (The Houston City) (1956) 1 Lloyd's Rep. 1, said: "Where the time charter contains ....an undertaking by the charterer that the vessel is to be employed between good and safe ports, the liability of the charterer is at any rate in all ordinary circumstances the same as where under a voyage charter party the charterer undertakes to nominate a safe port.."
Many time and voyage charters contain an express warranty on the part of the charterer that the vessel will only be traded between safe ports. In the case of a time charter, such a term may, in most cases, be implied, even in the absence of express wording. The position in relation to a voyage charter which is silent on the port is, however more difficult. - Epaphus (1986)
2. TYPES OF SAFE PORTS
The general rule of safe port is that the vessel must be able to reach the port, use the port and return from the port without being exposed to danger.
*Meteorologically safe is the port ability to protect vessels from any climatic phenomenon. A relevant case is The Dagmar: Tage vs. Montoro S.S (1968) where the shipowner claimed that his vessel was damaged when wind and swell increased while the vessel was at the port nominated by the charterer. The port was physically safe for the vessel but the pier gave no protection against northerly winds. There were no means of communications to warn of approach of bad weather and therefor captain not warned of the impending change in the weather and so could not take evasive action. The Dagmar was unsafe unless the captain could be warned.
*Physically safe refers the safety of the vessel on entering and leaving port. Entering includes dangers en route to the port from ice other hidden dangers such as narrow channels shifting mud banks etc. If an obstruction at the entry of a port cause delay to the extend that the mercantile adventure is frustrated then the port is regarded as being unsafe. However if the delay is merely commercially unacceptable then the port is not to be regarded as unsafe. A relevant case is The Hermine (1979).The port must enable the vessel to remain afloat at all times and the vessel must be able to leave the port without requiring modifications to each structure. Another relevant case is The Limerick vs. Stott #1 (1921). Where the nominated port was an ice bound port. The ship's Master had to be cut off to allow the ship to enter a canal at Abo. It was held that the port was not safe for that vessel. Third relevant case is Leeds Shipping vs. Bunge: The Eastern City (1958). Under a voyage charter party it was held that Mogador, in Morocco was an unsafe port for loading on account of the lack of reliable holding ground in the anchorage area. The anchorage area is the section of the sea some distance from the port where the vessels anchor until it is time to enter the port. The holding area refers to an area of the anchorage where the anchor can take sufficient grip on the sea bed to prevent the ship being swept away by wind and currents. A rocky sea bed rather than the sandy sea bed is required to provide a good holding ground. The lack of shelter at Mogador and the liability of the area to the sudden onset of high wind which could not be predicted and which might quickly caused an anchor to drag endangered the ship because of the close proximity to rocks and shallows. 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 can not be avoided by good navigation and seamanship.
*The last type of safe port we are going to analyze is the politically safe port. Politically safe and threats of war an aggression. A case which refers is Palace S.S vs. Ganz S.S Lines (1916). The dangers on a voyage to a port must be taken into account. It is a question of degree as to whether or not a port is unsafe. The vessel was ordered to sail from Le Havre to Newcastle upon Tyne. The German Government declared that all merchant shipping hostile to Germany around UK
waters would be destroyed. This could be taken into account but in the event Newcastle was a safe port. There is a right not to be bombarded. The problem with the case is that the British Courts were prepared to find that UK ports where safe even though the UK was at war since from a public interest point of view, if UK ports were unsafe then no vessel would sail to the UK in time of war.
2.1. NOMINATION OF PORTS- ROTATION
The place for loading or discharging can be agreed in several ways, for instance:
A fixed berth, i.e., berth 2 at Lagos.
A fixed port, i.e., 1 safe berth Sydney.
A fixed area, i.e., 1 safe port / 1 safe berth Japan.
A port or an area for order, i.e. U.S Gulf for order.
Several ports, i.e., berth 2 at Lagos and 1 safe berth Casablanca.
If a port is to be nominated later, and thus is not fixed in the charter party, it is advisable to state the latest time at which the charterers can nominate the port. Such a clause may have the following wording:
" Loading ports to be nominated by charterers latest when the vessel is passing Gibraltar", or
" Discharging port to be nominated by charterers latest at commencement of loading".
Also, when a no such clause is inserted into the charter party the charterers should nominate the port or ports in such a good time in advance that no extra cost for waiting time and deviation is caused to the vessel. When the charter agreement contains several loading ports or discharging ports it is common that the owners try to introduce a clause saying that the ports shall be called " in geographical rotation". The intention is to avoid extra steaming time. Unless otherwise expressly agreed or customary the charterers are entitled and have a duty to appoint a berth for the vessel.
The charterers can not nominate any port or berth and the owners are not strictly obliged to follow the directions from the charterers. Most voyage charter parties state that ports and berths shall be safe. The voyage charter parties usually also contained an Ice clause and a Near clause.
2.2. SAFE PORT, SAFE BERTH, ALWAYS AFLOAT.
Most charter-parties state that the ports and berths nominated by the charterers shall be safe. The word "safe" in this context refers not only to factors such us high winds, heavy swell, insufficient or bad construction of quays, dolphins, etc., but also to other factors such as warlike operations and political disturbances.
A stipulation in the charter-party that charterers shall nominate safe ports and safe berths does not mean that the owners and the master can refrain from investigating the safety of the port and the berth. It is difficult to find the borderline between the respective parties liability obligation to investigate and it is in most questionable cases impossible to establish beforehand whether a certain port or berth is safe or not.
As a general rule, it can be said that the earlier the owners and the master are informed about intended ports and berths, the more liability rests on them as regards investigation of the safety. This means that when the owners, during the negotiations in the charter-party, have accepted a certain port or a certain berth they have little chance of getting damages from the charterers if the port or berth turns out to be unsafe. On the other hand, the charterers have little chance of escaping liability for damage to the ship when the port or berths has been nominated after the navigation and the fixture. In the latter case, the owners and the master have had little or no chance to influence the choice of port or berth.
Another general rule is that where the master has agreed to call at a certain port or to moor at a certain berth it does not mean that the owners' right to claim damages from the charterers has been waived. The charterers' liability for safety remains also when the master has made an excusable wrong decision and called at a port which later turns out to be unsafe.
Disputes about safe ports and safe berths are very complicated, especially as regards production of evidence. The outcome of a dispute very much depends on by what law the charter agreement is governed. Apart from safety it is also common that the charter parties contain a special statement saying that the ship shall always lie afloat. Sometimes the charterers are entitled to nominate a berth where the vessel can lie safely aground.
3. THE OBLIGATION OF THE CHARTERER
Primary and Secondary Obligations regarding safe ports:
When a vessel is ordered to a port there are two obligations, a primary obligation and a secondary obligation, that must be satisfied if the port is to be regarded as safe.
3.1. The Primary Obligation:
A useful starting point on this issue is The Tentonia (1872).The vessel was ordered to Dunkirk. When the ordered was made the port was safe. War broke out after the order was given and the vessel was subsequently diverted to Dover. The question was " was it a justifiable deviation ?". The answer in this question is that there was no breach in ordering the ship to Dunkirk since the port was safe at the time of the order.
The tanker Evangellos Th. was time chartered on November 1968 for trading in the red sea and elsewhere, which was at all material times a war zone the charterers agreed to contribute to the coast of the ships war the cost of the ship's war risk insurance. The charterer contained no express term as to the safety of ports to which the ship might be ordered but provided of cargoes should be loaded or discharged or at any place where the ship could "could always lie safely afloat". The ship was ordered by the charterers to proceed to Suez at the time when there was a cease fire. But following the ship's arrival hostilities broke out again and the ship become a constructive total loss as a result of self fire.
It was held that:
1.the words "always lie safely afloat" were concerned exclusively with the marine characteristics of the place of discharge.
2.a term should be implied that the nominated port of discharge was safe at the time of nomination and might be expected to remain from the moment of the ship's arrival until her departure.
3.since Suez was not unsafe at the time of nomination, nor at time expected to become so, the charterers were not in breach of the implied term as to safety.
Also in The Evia No 2 the Court agreed with the decision in the Evangellos Th. but questioned the reasoning.
3.1.1. When must the port be safe ?
The moment when the order is given the port must be safe. For instance, it is reasonably anticipated that the port will be safe at the time when she actually arrives there and so the charterer must look ahead.
If the port is prospectively safe at time of nomination the charterers will not be liable but what happens when the ship arrives the port becomes unsafe because of unexpected and abnormal events. The charterers will not be liable for unexpected and abnormal events but nonetheless the obligation may still have to be considered.
3.2. THE SECONDARY OBLIGATION
The secondary obligation is to countermand a previous order in certain circumstances when it becomes clear at a later stage that the port is, despite the earlier expectation, in reality unsafe or no longer prospectively safe. Remember that the primary obligation was simply to nominate a safe port in the first place.
3.2.1. The secondary obligation is divided in two sections:
a. while still proceeding to that port, information is received that the port has become unsafe: there is a secondary obligation to countermand the original order. A relevant case is the Concordia Fiord (1984) the vessel was ordered to Beirut in Libanon. It had been a safe port at the time of the order but since then the port had become unsafe. There was in fact sufficient time for the charterer to nominate another port, so he was under the secondary obligation, but he had failed to do so.
b. once the vessel has arrived what happens if the vessel becomes trapped or it becomes clear that danger is imminent and that the vessel will become trapped unless something is done quickly it get out of the port as quickly as possible. A relevant case is Evia No 2 (1982) the vessel was to use safe ports only under the charter party. The Evia was ordered to Basrah. She arrived on the 20th of August 1979.After discharge was completed on the 22nd of September. She was prevented from leaving due to the commencement of the Iran/Iraq war. The shipowner claimed damages from the charterers. In this case the House of Lords decided that Basrah was prospectively safe at the time of the nomination. However, there was a luck of safety at the port due to unexpected and abnormal events after arrival. Was there any point in making secondary nomination ? The question is as to whether or not there was a possibility of leaving and avoid danger. If no there was no point in such a nomination. Thus, there was no duty to make a secondary nomination since by the time the danger was realised.
The safe port clause sometimes takes the form of an obligation to exercise due diligence to ensure that the vessel is only employed between safe ports. The precise effect of this variation, which, as it is coupled with an express statement that the charterers do not warrant the safety of any port, since to have been draft with The Mary Lou in mind, has not yet been finally determined. The charter party contained such a clause in K/S Penta Shipping A/S v Ethiopian Shipping Line Corporation (the Saga Cob 1992) but the port of Massawa was found not to be prospectively safe in spite of an attack on the vessel by a Eritrean guerrillas, as the risk of such attack had not become a normal characteristic of the port, so that the question of due diligence did not arise, nevertheless, Parker L.J., give in the judgment of the court , stated that due diligence is the same as the reasonable care and added: "There is in all judgment at least a strong argument that the test should be expressed thus - "if a reasonably careful charterer would on the facts known have concluded that the port was prospectively unsafe".
Parker L.J also commented that the port will not be regarded as unsafe "unless the political risk is sufficient for a prudent shipowner or master to decline to send his vessel there". In Pearls Carriers Inc. v Japan Line Ltd. ( the chemical venture 1993) get House J. Found this part of the judgment " puzzling" and doubted whether the Court of Appeal was suggesting that the established test of safety needed modification or that the shipowner needs to call evidence from a reasonable shipowner or master. If the port is unsafe and the facts are known to the charterer "the case [or of failure to exercise due diligence] is one of res ipsa loquitur unless the charterer adduces evidence to justify his order".
If a prospectively unsafe port is nominated, the master may refuse the order and may call for an alternative nomination. If the master does comply, however, the charterer remains liable to indemnify the shipowner if damage occurs.
If the port is prospectively unsafe at the time of the nomination in all human probability the obstacle will be removed before the ship arrives.
The problem revolves around interpretation of the term "all human probability". This means that there must be a very high probability. This imposes a heavy onus of proof to be discharged by the charterer before the nomination is valid.
In this context consider the problems the ship is ordered to a port which at the time of the order is ice bound, but is expected to be free of ice when the vessel arrives. What if a cold snap returns and the port is ice bond again? And contrast this with the requirement that "when the order is given that the port is prospectively safe for the ship to get to, stay there as long as it needs and leaves".
Another case which applies to the secondary obligation is The Lucille (1984) where the vessel was ordered on 21st July to Constanza to load cement. She arrived at Basrah on the 25th August. She was waiting at Basrah because of congestion. She entered port on the 20th August and in October she was trapped because of the war. The Arbiter found that Basrah prospectively unsafe on the 20th September since there was evidently a war like situation developing. The charterer broke his contractual obligation by nominating a port prospectively unsafe. The Court discussed unexpected and abnormal events. They are accumulative and conjunctive and not disjunctive. Thus an event may be abnormal but expected or unexpected but normal. Both are required for the charterer to escape liability.
3.2.2 Unsafety not known to charterers
The charterers may be in breach despite their luck of knowledge as the unsafety of the port or berth.
The Terneuzen, which was time chartered, grounded at her berth in Leningrad. This was not expected by the charterers and they representatives or by those on board, particularly as the ship had sagely loaded at the same place on an earlier voyage under the same charter. Despite the charterers' luck of knowledge of the unsafety of the berth, the Court of Appeal held the charterers for the damage cost.
4. SAFE IN DEPARTURE
The port will not be safe if the ship is endangered in departing from it.
The Innisboffin in laden condition reached the port of Manchester by the Ship Canal without difficulty. But after discharging she could not clear the canal bridges on her outward passage owing to her decreased draught. It was held that Manchester was, for her, an unsafe port. After encountering ice on her passage up the Elbe to Hamburg The Sussex Oak was further damaged by the exceptional ice on her way out down river. The charterers were held liable for this damage also.
It is not clear from the authorities how far the warranty of safety extends after the ship has departed from the port. In The Hermine (1979) all three Court of Appeal Judges
expressed doubt whether an up- river port could be regarded as unsafe in a case where the ship had reached and departed from the port in safety and without delay, but had encountered an obstruction about 100 miles down river in the course of her passage to the sea. But logically, the distance between an up- river port and the place in the river where the condition of unsafety exists should not be relevant, given that there is no alternative route which will enable the particular ship to reach the port and departure from it in safety.
The voyage charter for the Mary Lou provided that she was to sail for loading to "one safe port U.S Gulf / New Orleans / Ama / Reserve / Myrtle Grove/ Destrehan counting as one port". The charterers nominated the New Orleans area. A ship of this size has no route to the sea from New Orleans other than the Mississippi and eventually the Southwest Pass of that river, which lies 100 miles from New Orleans and is subject to silting in a manner which can not accurately be forecast. While outward bound through the pass the Mary Lou grounded and was damaged, despite the fact that her draft was lightly less than the less maximum recommended at the time by the river pilots. Arbitrators found that at the relevant time there was a significant risk that ships such as The Mary Lou may ground in the pass and that her grounded had not been caused by negligence on the part on the pilot or the master in navigating the ship. As the choice of draft, they found that the master had acted reasonably in relying on the recommendation on the river pilot and made no finding as to whether the pilot should have checked further to ensure that this recommendation was still up to date.
In accordance with all the above, we should emphasize the importance of determination of a safe port. The charterer's obligation is to prevent vessels from facing problems in ports. Safe ports are those meteorologically, physically and politically safe.
In order for this to achieved, charterers should take into account as many limiting factors as possible giving vessels the appropriate safety and good operation in ports. It is not always easy to make such judgment as there are always external factors which prevent charterers' from giving good predictions. The obstacles that the charterer may meet are many, such as weather conditions, outbreak of war and strikes.
The best solution is for them to collect as much information, about the ports of their interest, as possible, and to follow the legal direction which will be also variable for the shipowner.
1. Carver' s, Carriage of goods by sea #02, by Raoul P. Colinvaux, Stevens, ninth edition 1952.
2. Shipowner 's cargo liabilities and immunities , by W.E Astle, published Witherby Ltd., third edition 1967.
3. Scrutton on charter parties, safe ports p. 135.
4. Contract for the carriage of goods by sea , by Paul Todd, safe ports p.136- 139.
5. Carriage of goods by sea, by Payne Riramy, safe ports p. 26, 31-39, 155-161, 290-292.
6. Case & Materials on the Carriage of goods by sea, by Martin Dockray, safe ports p. 333-349.
7. Case Book Hudges
8. Carriage of Goods by Sea, by John Wilson , published by Pitman
publishing, second edition 1993.
TABLE OF CASES
1. Concordia Fiord (1984) p. 7
2. Dagmar (The): Tage vs. Montoro S.S. (1968) p. 2
3. Eastern City (1958) p. 3
4. Epaphus (1986) p. 2
5. Evangellos Th. p. 6
6. Evia # 02 (1982) p. 7
7. Hermine (1979) p. 3-10
8. Innisboffin p.10
9. Limerick (The) v. Stoss#1 (1921) p. 3
10. Lusille (The ) (1984) p. 9
11. Mary Lou p. 8-11
12. Palace v. Granz (1916) p. 3
13. Saga Cob (1992) p. 8
14. Sussex Oak (1950) p.10
15. Tentonia (The ) (1872) p. 6
16. Therneuzen p.10