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

Conclusions

Analysis of case law shows that right to proceed to alternative destination under ‘as near as she can safely get’ clause does not arise unless it is either unsafe or impossible for the ship to proceed to her original destination. Obstruction preventing the ship from getting alongside shall be of permanent character but not necessary of physical nature, thus political unrest can render the port unsafe in same way as rocks, shoals, etc. When expressly amended, the wording ‘as near as she can safely get’ may discharge the shipowner even from liability accrued from delays occasioned in the ordinary course of navigation, like tides and other temporary impediments.

Application of this clause in respect of safety or unsafety of nominated port or place was of limited nature. Looking through the nineteenth century case law it is easy to notice that when examining ‘as near as she might safely get’ provision the courts were dealing not with safety of approach, stay and departure form each given port but rather with the matter of accessibility of that port or place in prevailing conditions – i.e. they considered inaccessibility rather than hazards which caused physical damage. The vessel’s draft corresponding to loaded quantity was usually a sole factor limiting her ability to reach place nominated in contract. Inaccessibility either temporary or permanent when examined, bearing in mind the contract as a whole, provided the judges with the answer whether the charterers have broken implied warranty as to safe port.

Simple contracts of that era did not expressly state any safe port warranty, therefore ‘as near as she might safely get’ together with implied obligation not to order the vessel to any unsafe place, was the main instrument for allocation liabilities for risks associated with dangers and delays in getting inside the ports or places nominated in the contract. The way which shipping law took in its development into settled principles with regard to safe port warranty was so described by Dixon CJ in Australian Wheat Board v Reardon Smith Line Ltd [1954] HCA 27:

It is true that the course of judicial decisions affecting the question has not been entirely uniform and decisions directly dealing with damage to the ship itself are few and comparatively recent. But decided cases have worked out gradually the general operation of the clauses in a charterparty which require the charterer to provide a cargo at a safe port or safe wharf or the shipowner to deliver at a safe port or safe wharf as directed by the charterer. The result is that their purpose has been made clear and their application in many respects has been settled.

It may sounds strange, but nowadays express safe port warranty is far from become a must of modern charterparty contracts. There are many reasons, both commercial and legal, which may explain such state of things. Here, it is sufficient to mention that only some modern charterparty forms include ‘safe port/berth’ warranty, (Asbatankvoy, clause 9, Tankervoy 87, clause 2) when some (EMV2005 clause.16(b) and BPVoy4 clause.5.1) impose on the charterers obligation to exercise due diligence only and do not warrant the safety of any port or berth. Some as Gencon 94 clause 1 (see below) and Shellvoy 6, clause 3.1 still use of ‘as near thereto as she may safely get’ provision.

gencon94_1

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