Safe Port. Nugatory nomination. Some condition about safety to prevent the making of a derisory nomination …

…the nomination of Aalborg as the port of discharge, when it was perfectly well known that the ship could not proceed there because of the restriction on the carriage of nitrates from the UK to Denmark, was in truth and in fact no exercise of the option at all. It was merely a nugatory nomination and which could not possibly be acted upon.
Olivebank A/S v Dansk Svovlsyre Fabrik (The Springbank) [1919] 2 KB 162, per Bankes LJ at p.166

Impossible versus unsafe

When unlike cl.9 of ASBATANKVOY the charter stipulate a port or berth but does not say that it is to be safe, then the court may imply a warranty that the port or berth is safe.

ASBATANKVOY
9. SAFE BERTHING-SHIFTING
The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival, which shall be designated and procured by the Charterer, provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer.

For a long time such implication was considered to necessary follow from the Charterers’ duty to order vessel, within the limits mentioned in the charterparty, to go to the port to which she could proceed. Nomination of impossible port is a nugatory nomination which could not possibly be acted upon.

Statement of Devlin J in Compania Naviera Maropan S/A v Bowaters Lloyd and Pulp and Paper Mills Ltd (The Stork) [1955] 2 QB 68 at p.72 almost obliterates elusive distinction between unsafe and impossible place:

There must be an obligation, express or implied, to nominate a loading place of some sort; if the ship is not told where to load she cannot earn her freight, and so, by failing to nominate or by nominating an obviously unsafe place the charterers would defeat the object of the charterparty without being liable for damages. There must therefore be an obligation to nominate at least one loading place, and there must be implicit in that some condition about safety to prevent the making of a derisory nomination.

Although in many cases it would be difficult to draw clear border between unsafety and impossibility a modern trend is sceptical that any term about safety of port should be automatically implied into a voyage charter.

Thus, on the one hand, to prevent the making of a derisory nomination there must be some condition about safety, but on the other hand it is said that no decision had yet gone so far in a voyage charterparty case and any suggested implied term has to be considered against the general business background to the transaction and the express terms of the charter.

The concept of implied warranty as to safe port or berth assumes that when the charterer has a liberty to nominate the loading or discharging place at his choice it can be reasonably expected by the parties that the charterer shall ascertain the safety of such place before nominating it because the owner would not know what port or berth the charterer is going to nominate:

In the days before steam a shipowner who let his ship upon a voyage charter for a voyage from or to safe ports as ordered by the charterer would more naturally regard the latter as warranting the safety of the ports to which he ordered the ship. The merchant who chartered the ship might be supposed to have at his command more information than the shipowner as to the safety of the distant ports whence or whither he shipped his merchandise. The merchant had his correspondents and it was to them that a chartered ship was often consigned.
Per Dixon CJ in Australian Wheat Board v Reardon Smith Line Ltd [1954] HCA 27

In absence of express warranty it is, however, for the owner to ascertain risk of compliance with the charterer’s nomination and insist on express warranty if he considers it necessary, read more: Named port or ports and Express Warranty.

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