English Law - In search of a safe heaven

When dealing with legal matters, Gard News articles tend to focus on new developments in a particular area of the law. This article is an exception to that general rule, in that it deals with safe port warranties, an area in which there have been no recent developments. However, it is a topic which impinges on a number of the products offered by Gard Services, especially in what concerns charterers' liabilities.

The starting point is the classic definition provided by Sellers L.J.¹ as follows:
"(…) 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 (...)".

Whilst that definition applies to both voyage charters and time charters, it is of note that a number of voyage charters, the Gencon in particular, contain no express safe port warranty. It poses the question of whether a warranty of safety should be implied and that implication depends on the degree of liberty that the charterer enjoys under the terms of that voyage charter, insofar as loading and discharging places are concerned; if the liberty is extensive then there will be, of necessity, a greater need to imply a warranty. Therefore, common scenarios are as follows:
i) The ports are named;
ii) There is a range of named ports;
iii) The charterers have the liberty to load/discharge at a number of unnamed ports within a range; and
iv) The charterers are obliged to nominate a safe berth within a nominated port.

Dealing with the above in order, where there is a named port, then there would be no need to imply a warranty as to the safety of that port. In Reardon Smith Line Ltd v Australian Wheat Board,² in the judgment of the High Court of Australia, subsequently approved by the Privy Council, Dixon C.J. stated as follows:
"When the charterer is prepared at the time of taking the charter to specify the place where the cargo will be available or the place at which he desires it delivered, the shipowner must take the responsibility of ascertaining whether he can safely berth his ship there or will take the risk of doing so. If he agrees upon the place, then, subject to excepted periods, his liability to have his ship there is definite".

Where there is a range of named places it would appear that similar considerations as arose in the Reardon Smith case² should hold good. A somewhat more vexed position arises where a range of ports has been specified but, save for the determinant ports to that range, the ports within that range are unnamed. It has been held that such a warranty has been implied in a time charter; the position is not as clear in the case of a voyage charter. There is authority that the warranty will be implied in the case of the unnamed ports but the charter in question was subject to some special provisions. However, the learned authors of Voyage Charterers have submitted that the nominated ports, which define the range, would not be subject to the implication of a warranty; however, the unnamed ports within that range would be subject to an implied warranty as to safety. Lastly, whilst the charterparty may be silent as to a safe port warranty, it may well contain a provision as to the safety of the berth but not to the port itself and the approaches thereto.

One can contrast this with the provision in respect of the time charter with no express provision as to the safety of the ports - it seems that the courts will imply a term as to safety. This, by and large, supports the view that the implication of a warranty of safety depends on the liberty provided to the charterer in the employment of the vessel.

The charterers' obligation as to the safety of the port which they order the vessel to proceed to and from, arises at the time that they give that order. At that particular time the port should be prospectively safe for the vessel, at the time it is envisaged that the vessel will be at that particular port, to reach it, to use it and to leave it. Thus, a port which is presently unsafe may well be safe by the time that the vessel arrives there and, accordingly, there will be no breach by the charterers in making such a nomination. Further, the charterers will not be in breach of their obligation if they make their nomination to a port which is prospectively safe at the time of their order but a state of unsafety arises subsequently from some abnormal or unexpected event occurring: see the EVIA (No. 2)³ where Lord Roskill said:
"The charterers' contractual promise must, I think, relate to the characteristics of the port or place in question and, in my view, means that when the order is given that port or place is prospectively safe for the ship to get to, stay at, so far as necessary and in due course, leave. But if those characteristics are such as to make that port or place prospectively safe in this way, I cannot think that if, in spite of them, some unexpected and abnormal event thereafter suddenly occurs which creates conditions of unsafety where conditions of safety had previously existed and, as a result the ship is delayed, damaged or destroyed that contractual promise extends to making the charterer liable for any resulting loss or damage, physical or financial".

However, that is not to say that if the charterers have complied with their initial obligation in nominating a prospectively safe port then the port becomes unsafe whilst the vessel is en route to that port, then the charterers have a new obligation to provide fresh orders to another port. The factual position in the EVIA (No. 2) is illustrative of the point, in that the vessel became trapped by the commencement of the Iran/Iraq war and the House of Lords held that the charterers were not in breach of the safe port warranty because at the time of the order to proceed to Basrah, the port was prospectively safe and it did not become unsafe until the commencement of the war.

The warranty is dependent upon the vessel. A port may be perfectly safe for vessel A but not for vessel B. If the port is safe for vessels of different sizes and different characteristics that is not relevant in determining whether the port is safe for the particular vessel in question. The point is made with admirable clarity by Roche, J. in Brostrom v Dreyfus:⁴
"The test of whether a port is safe in the physical sense and in the political sense, is whether it is safe for the particular ship (laden as it is contemplated that she will be laden and as she is, in fact, laden under the particulars of carriage in question), to enter and load or unload in the port in question".

With regard to the dangers, these are not limited to purely physical matters, for instance sandbars and certain weather conditions. It is clear from the authorities that a danger created by a political situation or an existing state of war will render a port unsafe.

The charterers will not be in breach of their obligation if the vessel is damaged by some abnormal occurrence. For example, a port will not be unsafe simply because the vessel is subject to damage by a wholly exceptional event such as a storm or an exceptional nature or damage caused by another vessel which has been negligently navigated. The position was succinctly set out by Denning, M.R in the Court of Appeal decision in the EVIA (No. 2):⁵
"If the set-up of the port is good but nevertheless the vessel suffers damage owing to some isolated, abnormal, or extraneous occurrence - unconnected with the set-up, then the charterer is not in breach of his warranty. Such as when a competent berthing Master makes for once a mistake, or when the vessel is run into by another vessel (…)".

Further, the charterers will not be liable where the danger was avoidable by ordinary good navigation and seamanship. Again, in the EASTERN CITY Sellers L.J., said:
"Most, if not all navigable rivers, channels, ports, harbours and berths have some dangers from tides, currents, swells, banks, bars and revetments. Such dangers are frequently minimalised by lights, buoys, signals and other aids to navigation and can normally be met and overcome by proper navigation and handling of the vessel in accordance with good seamanship".

If more than ordinary skill is required to avoid the dangers that the port presents then the port will not be safe.

In conclusion, the law on safe ports is reasonably well settled and, as such, individual cases will by and large depend on their particular facts. An illustration comes from an incident handled by Gard Services. The master was advised to put out 14 mooring ropes but, having experienced some dragging of the anchor at the roadstead, he decided to put out four additional lines. At first blush it would appear that the master was acting extremely prudently. The mooring lines parted and the vessel collided with a jetty and another vessel. One is tempted to conclude that the berth was unsafe. However, the arbitration tribunal thought otherwise and concluded that the berth was not unsafe but that the incident was as a result of the following:
i) The chief officer's negligent action in attempting to shift mooring ropes whilst under load;
ii) The master was criticised for not having the main engine on standby; and
iii) The expert evidence was that at least 50 per cent of the mooring ropes were in need of replacement.

This illustrates that, whilst the legal principles were well known, the factual issues themselves became of paramount importance and in practical terms the costs involved in the arbitration amounted to not far short of USD 1 million, which, of itself, shows what sort of level of exposure can be incurred under the policies provided by Gard Services.