Safe Port
Historical Background - Obligations of a Merchant and a Shipowner
It may be that the charterers were perfectly innocent on this occasion as regards any knowledge of the danger that might be incurred by the vessel, but at the same time here is a contract that she is to go into a safe port … which charterers shall name.
Per Wightman J in Ogden v Graham (1861) 1 B&S 773 at p.780
See also Charterer’s Dutiy not to nominate an utterly impossible port | Safe Port. Obligation to exercise due diligence
The law of contract regulates performance of obligations which the parties have chosen to impose on themselves in the course of their commercial relations. Most of general principles of the English law of contract were developed in the eighteenth and the nineteenth centuries on the rise of public interest to the philosophy of laissez-faire, accordingly the courts saw their role mainly in holding the parties to their bargain as provided in contract. Contacts of sea carriage were no exception to this rule (read more on absolute contracts here).
Obligations of a shipowner and a merchant were mutually absolute – the former shall reach place or places named in contract, there load the goods and deliver them to the receiver. The latter shall provide for the goods and pay freight. Absolute duties were subject only to few exceptions such as acts of God or King’s enemies and perils of the sea. Generally speaking, only total loss of the vessel excused the shipowner from fulfilling his contract. Cresswell J in Moss v Smith [1850] EngR 155; (1850) 9 CB 94 described these duties at pp.105-106:
Even when excused from performance the owner was not entitled to any payment for the services done before his vessel become a total loss, same as contractor who performed his contract in part but was not able to finish it without fault of his own - Blackburn J said Appleby v Myers (1867) L. R. 2 C. P. 651:
The case is in principle like that of a shipowner who has been excused from the performance of his contract to carry goods to their destination, because his ship has been disabled by one of the excepted perils, but who is not therefore entitled to any payment on account of the part performance of the voyage, unless there is something to justify the conclusion that there has been a fresh contract to pay freight pro rata.
Harshness of an absolute obligation to reach the named place, imposed on the shipowner was recognised by the lawmakers, but this duty was thought to be compensated by a counter obligation of the charterer to handle the particular ship and provide the goods at the place she reaches. Bramwell B expressed this dilemma in Bastifell v Lloyd (1862) 1 H & C 388 at p.394:
At the trial I was struck with the hardship of making the shipowner responsible for the condition of a particular wharf; but the charterer is responsible for the condition of the particular ship, and it was by the conjoint condition of the wharf and ship that the latter was prevented from getting alongside the wharf.
However, from the second half of the nineteenth century, the courts, while insisting on performance of the contract within strict limits of self-imposed obligations, started to abandon a pure literal approach in cases, where, if followed to the letter, performance would lead to results so irrational that it was absurd to suppose that two commercial men entered into a contract to pursue it to this end. One way to deal with this problem was to discharge the parties from further performance, and this approach later brought to formation of the doctrine of frustration. And another way was to construe the contract so, that it would satisfy principles of mercantile reasonableness and business necessity.
To the same period of time belongs rapid development of ‘safe port’ warranty and ‘as near thereto as she might safely get’ provision in charterparties. Initially the only way to impose safe port warranty onto the charterer was to imply this term in the contract, whereas ‘as near thereto as she might safely get’ clause was not, strictly speaking, attributed to the safety of the ship but rather to her physical ability to reach the place named in the contract. Wording 'as near as she might safely get’ was used as a legal tool to construe the contract and mitigate rigidity of the bargain by permitting the charterparty to be performed under the concept of a secondary destination.
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