Safe Port. As near thereto as she can safely get. Introductory notes

The vessel cannot e said to get safely to that place from which she cannot safely get away with a full cargo.
Per Rolfe B. in Shield v Wilkins (1850) 5 Exch 304, at p.305.

Introduction

Construction ‘as near thereto as she can safely get’ was invented to address situations when without fault from either side the vessel could not get alongside her berth or dock on arrival because of permanent obstruction. All risks of delays occasioned in the ordinary course of navigation, like tides, fog and bad weather the shipowner was considered to agree to bear. Successful invocation of ‘as near as she can safely get’ clause made the owner’s vessel arrived at her alternative destination and the voyage terminated which occurrence was of crucial importance to parties of marine insurance contracts and contracts of carriage. In the former case it made the policy of insurance expired and the insurer discharged from liability, and in the later it started laydays and demurrage provisions together with the charterer liability to load or discharge cargo.

In Shield v Wilkins vessel was chartered to go to ‘Riga via Bolderaa, or as near thereto as she could safely get’. The vessel reached Riga and went further over the entrance bar to Bolderaa (Bolderaa being a bar harbour) but was able to load there only a part of cargo corresponding to a safe draft for crossing entrance bar on her way back. After that the vessel left her loading place and proceed outside of the bar and requested the rest of the cargo to be loaded there. The charterer refused to complete loading for their account. Owner claimed dead freight for the charterer’s failure to load full cargo as per charterparty terms. Charterer contended that it was the master’s choice to go over the bar and it was not in the contemplation of the parties that the vessel to be loaded at two different places. The court did not touch the argument of alternative loading place but held that the meaning of ‘to get safely to’ within the terms of governing charterparty was to get safely inside the port and away with full cargo loaded, therefore the charterers were in breach of contract because Bolderaa was not a place the vessel could safely get.

Outcome could be much less favourable to the owner if the master not only crosses the bar but also gets his vessel alongside the berth and loads the goods. If afterwards the master finds that the vessel is unable to cross the bar on her way back because she draws too much water, then it will be for him alone "to find his way with the goods to their destined port." There is no warranty available when the master choses to proceed to unsafe place:

But if the ship proceeds to the unsafe port or berth that means there is no breach; the shipowner has waived fulfilment of a condition precedent, that is all. Having chosen to load the cargo, he cannot complain that it was supplied at a place where he need not have taken it.
Per Dixon CJ in Australian Wheat Board v Reardon Smith Line Ltd [1954] HCA 27

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