Safe Port Warranty
When charterer impliedly warrants safe berth
Sir Anthony Clarke MR in Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc [2009] EWCA Civ 531 analysed an issue of implied safe berth warranty in voyage charterparty contracts. Where there is an express warranty of safety of the port but not the berth but the charterers are left to nominate the berth, the learned judge agreed with the authors of Voyage Charters, who at para 5.42 propose that, if the port to be nominated must be safe, it follows that the berth must impliedly be safe. Such proposition flows from Sellers LJ’s description of a safe port in Leeds Shipping Co Ltd v Société Française Bunge (The Eastern City) [1958] 2 Lloyd’s Rep 127 given at page 133.
In cases when there is no safe port warranty but the charterers expressly warrant safety of berth, such warranty is qualified by two assumptions:
Since, on the construction I prefer, the charterers had not promised that the port they declared would be safe, I do not accept that the vessel’s passage to and from a nominated berth should be treated as including any part of the voyage to or from the port. It would only include movement within the port to and from a nominated berth.…The second qualification is equally important. The charterers’ promise should, in my view, be understood as limited to a promise that the berth or berths nominated would be prospectively safe from risks not affecting the port as a whole or all the berths in it. To hold otherwise is to erode what I think is intended to be a meaningful distinction between berths and ports.
Finally, there is no authority which extends any implied warranty of safety to a voyage charterer’s choice of berth in a port which is not itself warranted safe, i.e. where there is no warranty of safety as to the port, there is unlikely to be any warranty of safety as to its berths, in the absence of an express warranty.
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