Safe Port. Named port or ports. Unnecessary to imply any undertaking on the part of the charterer that port is safe…

…There being no express safe port warranty, the question whether there was any implied safe port warranty might in some cases call for consideration, …. No such claim could have succeeded for no such warranty could be necessary to give business efficacy to the charter-party …
The APJ Priti [1987] 2 Lloyd’s Rep 37 , Per Parker, L.J. at p.39

Necessary to give business efficacy

When the charterparty provides for a named port/berth or for two or more out of a number of named ports or berths nominated for the owners’ vessel to go, but silent as to safety, it is doubtful whether the charterer will be under any obligation as to the safety at all. The only qualification expressed by Willmer L.J. in Reardon Smith Line v Ministry of Agriculture [1962] 1 Q.B. 42 at pp. 109, at 110, concerns to Charterers’ duty not to nominate an impossible port or berth.

Such conclusion follows from the principle that it is for the owner to ascertain risk of compliance with the charterer’s nomination and insist on express warranty if he considers it necessary. When upon such assessment and consideration the owner makes decision to send his vessel to the nominated port, without express safety warranty given, then as Dixon CJ in Australian Wheat Board v Reardon Smith Line Ltd [1954] HCA 27 fDixon CJ in Australian Wheat Board v Reardon Smith Line Ltd [1954] HCA 27 said the owner’s liability is definite:

When the charterer is prepared at the time of taking the charter to specify the place where the cargo will be available or the place at which he desires it delivered, the shipowner must take the responsibility of ascertaining whether he can safely berth his ship there or will take the risk of doing so. If he agrees upon the place then, subject to excepted perils, his liability to have his ship there is definite. But where the charterer cannot specify the place of loading or discharge at the time of the charter the shipowner must agree to submit his ship to the charterer’s orders.

Thus it is considered that the owner to have promised that his vessel can reach and enter the named port and that she will go there, subject only to express exceptions and/or unless operation of any supervening event would frustrate the adventure.

In The APJ Priti [1987] 2 Lloyd’s Rep 37 charter-party provided for nomination of discharging ports as below:

cl.1
… the said vessel shall proceed to the loading port or place stated in Box 10 or so near thereto as she may safely get and there lie always afloat and there load … and being so loaded … shall proceed to the discharging port or place stated in Box 11 …

Box 10 is headed "Loading Port or place (Cl. 1)" and was filled in "1/2 Safe Berth(s) Damman." Box 11 is headed " Discharging port or place (Cl. 1)" and is filled in
1/2 Safe berths Bandar Abbas
1/2 Safe berths Bandar Bushire
1/2 Safe berths Bandar Khomeini in Charterers’ option always afloat both ends.

The Court of Appeal held that in absence of express safe port warranty, the question whether there was any implied safe port warranty might in some cases call for consideration where such warranty could be necessary to give business efficacy to the charterparty. Otherwise given an unqualified promise to proceed to any one of the three possible ports and were concerned only that, having got there, the vessel should be directed to a prospectively safe berth. There was no warranty or promise as to the safety of the approach voyage to any of the nominated ports.

The owners shall be aware that in absence of safe berth/port warranty they have to satisfy themselves not only that anticipated berth or port is safe for vessel to reach and remain, but also that their vessel is fully fitted for that berth and/or port. In London Arbitration 11/14 the vessel was rejected from loading terminal because she could not moor and shift safely at the loading port, due to the fact that vessel did not have adequate mooring facilities. The Tribunal found that there would have been "serious and indeed unacceptable risks" in mooring and/or shifting the vessel at the installation had the vessel been accepted by charterers, such as to make those operations unsafe. Accordingly owners were held to be in repudiatory breach because the vessel was not "in every way fitted for the voyage" and their claim for damages failed.


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