Safe Port. Meaning of Safe Port. The consept of physical safety

The concept whether a particular port or berth is safe or unsafe is - or at least should be - simple, for the main purpose of such a warranty of safety in a charter-party is to ensure that a charterer, who has an otherwise unfettered right to nominate a port or berth, does not do so in such a way as to imperil the shipowner’s ship, or, it may be, the lives of the shipowners’ servants, by putting that ship or those lives in danger and thereby impose upon the shipowner the risk of financial loss.
Per Lord Justice Roskill in Unitramp v Garnac Grain Co. Inc (The Hermine) [1979] 1 Lloyd’s Rep. 212, at p.214.

Physically safe

Generally, physical safety of the port refers to the dangers which the vessel may encounter when she enters and leaving port, such as wrecks, and other hidden dangers (see The Athos I [2013] US11-2576 and discussion in Express Warranty chapter), narrow channels, shifting mud banks, ice etc.

Beginning from the last quarter of the nineteenth century rapid development of propulsion systems stimulated, in its turn, significant growth in size of the ships. Obviously, a bigger vessel was able to carry more goods and also draw more water but apart from draft limitations, such a vessel required larger sea room for anchoring and safe manoeuvring within port limits, tug assistance in narrow channels, experienced pilot and master to handle it inside the harbour. It therefore became necessary to consider individual particulars of each vessel to ascertain safety of port in question.

The shipowner takes the risk of accident; so does the charterer, because in this case the charterer has to wait for his cargo. There is a risk on both sides, and the risks in some ways depend very much on the nature of the vessel",
Per Lord Blackburn in Dahl v Nelson, Donkin, and Others, (1881) 6 App. Cas. 38, at p.49

In Johnston Brothers v Saxon Queen Steamship Company (1913) 108 L.T. 564 the court held that safety or unsafety of a port must be assessed with regard to the actual vessel which has been chartered to use the port. The period for consideration was stated to be at least the whole period of the vessel’s use of the port and may take account of dangers likely to be incurred on the voyage. In Limerick Steamship Co. v Stott & Co. [1921] 1 K.B. 568, at p.575 the second issue was related to liability for expenses of cutting the masts of the steamer, because otherwise the vessel was unable to pass under the bridge when leaving Manchester upon completion of discharging. Bailhache J said:

In my judgment the expense of cutting the masts must fall upon the charterers, because they were only entitled to order the [vessel] to a safe port, which means a port to which a ship can safely get and from which she can safely return. It was therefore a breach of contract for the charterers to order her to proceed to Manchester, and having committed a breach of contract they must pay the damages which flow from that breach of contract.

When chartered vessel can reach her nominated port only with tug assistance and no such assistance is available at the port itself, then such port is not a safe port, as regards that particular vessel, within the charterparty as it was held in Brostrom (Axel) & Son v Louis Dreyfus & Co (1932) 38 Com Cas 79, 44 Ll L Rep 136. Further it was held that if chartered vessel can reach her nominated port only with tug assistance and no such assistance is available at the port itself, then such port is not a safe port, as regards that particular vessel, within the charterparty. In Compania Naviera Maropan SA v Bowaters Lloyd Pulp and Paper Mills Ltd (The Stork) [1955] 2 All ER 241, [1955] 2 QB 68 it was found on the facts, that the nominated loading place, Tommy’s Arm in Newfoundland, was always inherently unsafe both at the time of nomination and at any later time for a ship of the size of the Stork. The place being exposed to frequent bad weather conditions, at which times much wider sea room was required to manoeuvre the Stork safely due to her permanent characteristics.

In Leeds Shipping Co Ltd v Societe Francaise Bunge [1958] 2 Lloyd’s Rep 127 the clause provided that "the said vessel shall proceed to one or two safe ports in Morocco or so near there to as she may safely get and lie always afloat, and there load a full and complete cargo…". The Court upon examination of extensive documentary basis including detailed description of Mogador and experts’ evidence held that the vital factors of unsafety in port of Mogador were the lack of reliable holding ground in the anchorage area, the lack of shelter and exposure of anchor place to the sudden gusts of high wind which could not be predicted and which might quickly cause an anchor to drag.

This short overview shows that besides sophisticated legal issues, question of safe or unsafe port has also gradually embraced complex technical aspects of shiphandling, maneuvering and passage planning, as Sellers, L.J. said in Leeds Shipping Co Ltd v Societe Francaise Bunge [1958] 2 Lloyd’s Rep 127 at p. 131:

The safety of the port should be viewed in respect of a vessel properly manned and equipped, and navigated and handled without negligence and in accordance with good seamanship. This may include, where circumstances so require, and if available, the engagement of a pilot or the use of a tug or tugs or, especially if such assistance is not available, consultation with a harbour-master or some other responsible person with knowledge and experience of the port.

Physical safety may be extended to such factors as swell from passing along the jetty vessels. In The Carnival [1992] 1 Lloyd’s Rep 449 the charterers were held liable in damages for breach of safe warranty where the vessel was damaged by a fender on the side of dock due to the swell of a passing vessel at Ravenna.

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