Safe Port
As near thereto as she can safely get
…when, by the terms of a charterparty, a loaded ship is destined to a particular dock, or as near thereto as she may safely get, the first of these alternatives constitutes a primary obligation; and, in order to complete her voyage, the vessel must proceed to and into the dock named, unless it has become in some sense "impossible" to do so…
Per Lord Watson in Dahl v Nelson, Donkin, and Others, (1881) 6 App. Cas.38, at p.57
1. Geographical limits
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 charter party 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 he finds himself unable to cross the bar because his vessel draw too much water, then it is for the master to find his way with the goods to their destined port.
Geographical meaning of ‘as near thereto as she can safely get’ was first defined in Schilizzi v Derry (1855) 4 E & B 873, where sailing brig chartered for a voyage from London to Galatz was not able to cross the bar in the mouth of Danube river for more than one month, from 5th of November until 11th of December due to lack of water. Having lost in stormy weather both of her anchors, the vessel was forced for the sake of safety to sail back to Odessa. In Odessa the master, being in disagreement with the charterers’ representative about alternative employment, found another, more profitable service and sailed under another contract back to England. Charterers claimed damages for loss of profit. Lord Cambell CJ said:
… the meaning of the charter party must be that the vessel is to get within the ambit of the port, though she may not reach the actual harbour. Now could it be said that the vessel, if she was obstructed in entering the Dardanelles [340 miles from Galatz], had completed her voyage to Galatz.
The ‘ambit test’ was applied in Metcalfe v Britannia Ironworks (1876) 1 QBD 613 and confirmed in the Court of Appeal (1877) 2 QBD 423, in case where the steamer was chartered to ship a cargo to Taganrog, a port in the Sea of Azov, or as near thereto as she could safely get. The vessel arrived at Kerch, another port which is at the entrance of the Sea of Azov, at the distance from Taganrog of about 300 miles by sea. Although it was admitted that the captain was right in stopping at Kerch because the buoys had been taken up, and the navigation of the Sea of Azov was closed for the winter, but both the High Court and the Court of Appeal held that the master was wrong to consider the carrying voyage completed and was not entitled to discharge the cargo at Kerch and the owner therefore did not earn any freight. Lord Coleridge C.J. formulated his conclusion in such words:
It is not necessary to say more than that the obstruction was only temporary, and is such as must be incident to every contract for a voyage to a frozen sea…
The court obviously took a view that a shipowner should have been aware of conditions in the Sea of Azov at that time of year and by signing the charter undertook it to bear. Likewise delays suffered from any other known temporarily obstructions occidental to the ordinary course of navigation such as tides, shallow waters, etc. fall outside of protection of ‘as near as she can safely get’ clause.
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