Ensuring safety in ports and berths is one of the most important issues in maritime law. Many standard forms of time charter parties contain an express warranty of safe ports whether it’s a load port or discharge port or berth by the Charterer. The Baltime 1939 (Revised 2001) Charter Party, expressly states that “The Vessel shall be employed in lawful trades for the carriage of lawful merchandise only between safe ports or places where the Vessel can safely lie always afloat within ….”. Similarly, New York Produce Exchange Form 1946 (NYPE 1946) states that the Vessel is to be engaged in lawful trades “between safe ports and/or places”. With regard to Voyage Charter Party Agreements, the express obligation towards the port’s or berth’s safety is not always stipulated.
The most classic definition that is being used to identify a safe port (or berth) is the one given by Sellers J. in Leeds Shipping vs. Société Francaise Bunge (The Eastern City) [1958] 2 Lloyds Rep. 127, where he said “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 definition has become a starting point in examining the problem of safety in judicial courts and arbitration proceedings. When a claim is filed against the Charterer for nominating an unsafe port or berth, the Court examines the following which is based on the aforementioned definition.
- Whether that particular ship can proceed to a port, use it, and return without being exposed to danger.
- If not, whether good navigation and seamanship could have helped to avoid the danger.
- If not, whether the danger stemmed from any event other than an abnormal occurrence in the port.
Particular Ship : while nominating a “Particular” port or a berth, consideration shall be given to the “particular” ship involved and the particular condition she is in. The particu- lar port or berth must be safe for the particular ship, taking into account her type, class, dimensions, features, laden or ballast, etc. The particular port or berth must be safe not only for the particular ship but also for its crew as well. During the outbreak of Covid– 19 or Ebola, many ports and berths were considered unsafe since the crews were likely to get exposed to these health hazards. The safety of the port or berth may also get affected by the season or time of the year, or even may be due to civil and political issues.
Relevant Period of Time : It indicates the entire period of time when the ship is using, staying, and returning from the port/berth. In practice, the charterer is considered liable, if an unsafe circumstance exists, at the time of the charter- er’s order, despite it being remedied prior to arrival.
Safety : Physical risks include the grounding of the ship due to rocks, bars, submerged objects, hidden wrecks, berth characteristics, etc. whereas political unsafety includes the risk of war, epidemics, terrorism, etc. and also the risk where the ship is being blacklisted or detained at a subsequent port.
Abnormal Occurrence : The charterer is not in breach if the cause of any danger is due to an abnormal occurrence. A port will therefore only be unsafe if the danger flows from its own qualities or attributes.
Good Navigation and Seamanship : The charterer shall not be liable when the danger was avoidable by ordinary good navigation and seamanship. If more than ordinary skill is required to avoid danger, then the port will not be safe.
This being said, each claim of the unsafe port dispute requires a unique analysis of the evidence that is likely to be relevant. A ship owner has his own duties and obligations in response to an order from the charterer. Any order given by a charterer directing a ship to an unsafe port is a breach of the charter party and the owner is not obliged to follow it. However, if the master reasonably obeys the order and the owner suffers loss as a consequence, it will be entitled to damages.