Safe Port. Meaning of Safe Port. Inaccessibility temporary and/or permanent

…an obvious danger does not make the port unsafe in the ordinary sense, although the loss caused by waiting until it has dissipated is recoverable as a breach of the warranty; and if it cannot be circumvented, the vessel can properly refuse to visit the port. If the master nevertheless chooses to go ahead, in face of the known danger, his action may (but will not necessarily) have the effect of cutting the causal link between the order to the port and the loss. Per Mustill J in The Mary Lou [1981] 2 Lloyd’s Rep. 272 at p.280

Legal consequences of inaccessibility

In cases when impediment made the port inaccessible for uncertain period of time the courts were involved in proceeding on an erroneous estimate of the facts and probabilities to apportion liabilities for resulting delays, or in other words, it was necessary to decide whether what had in fact been done was a commercially reasonable way to act to avoid an absurd result. This concept naturally involves consideration on the matter of degree, i.e. whether anticipated delay would have been inordinate. For example in Steamship Knutsford, Ltd v E Tillmanns & Co [1908] AC 406, where the master left port of Vladivostok, then inaccessible on account of ice, after 3 days waiting, Lord Loreburn LC approached this issue in the passage below:

Was the port of Vladivostok "inaccessible" on account of ice? At the moment and for two or three days, undoubtedly it was; but the meaning of this bill of lading, in my opinion, is that the port must be inaccessible in a commercial sense, so that a ship cannot enter without inordinate delay. There is no ground whatever for saying that a delay of three days on a journey so long as the one from England to Vladivostok could be regarded as inordinate delay. The next point taken was that by the bill of lading she may discharge at the nearest port, "should the entry and discharge at a port be deemed by the master unsafe in consequence of war, disturbance, or any other cause." That, also, does not mean unsafe at the moment, but it means unsafe for a period which would involve inordinate delay.

The House of Lords appreciated that the master could not possibly know for how long inaccessibility of Vladivostok would last and even assumed that he may have been right, in view of the danger of his anchorage to give up the attempt to enter Vladivostok when he did. Nevertheless their Lordships held that the master must have judged of inaccessibility reasonably, so to repeat his attempts when the weather conditions changed. In his very short statement Lord James of Hereford in Steamship Knutsford, Ltd v E Tillmanns & Co [1908-10] All ER Rep 549 underlined that reasonable time shall envisage interests of both the charterer and the owner:

He did not wait the time which a person acting in the interests of the charterers would have waited near the mouth of the river to see whether the ice did or did not pass away. If he had done so for a reasonable time, none of this litigation would have arisen.

In Unitramp v Garnac Grain Co. Inc (The Hermine) [1979] 1 Lloyd’s Rep. 212 under the terms of the charter, the vessel was required to proceed to "…one (1)/two (2) safe berths, one (1) safe port U.S. Gulf … understood New Orleans, Destrehan, Ama, Myrtle Grove Reserve, count as one (1) port." All ports situated on the Mississippi River.

Vessel was delayed on departure from Destrehan port on the Mississippi River, about 140 miles from the open sea. Total delay resulted initially from the lack of water and later aggravated by the grounding of another vessel - the Mary Lou - was of 30 days. The owners claimed damages for detention. The arbitrators found that Destrehan was a safe port within the meaning of the Charter-party at the time of its nomination and at the time of the call of the Hermine but stated their award in the form of a special case for the opinion of the Court. The question of law being: whether on the facts found and on the true construction of the charter-party, the owners were entitled to damages in respect of the delay. Donaldson J in the High Court answered this question in the owners’ favour, stating that the port of Destrehan was unsafe because the owners’ vessel was delayed for commercially unacceptable time. On appeal in the Court of Appeal, Roskill LJ, with whom other members of the court concurred, found that the phrase "commercially unacceptable" was a difficult concept because of lack of clarity whether it should be applied from point of view of the owner or of the charterer as well? The learned judge agreed with Lord Justice Willmer in Reardon Smith Line Ltd. v Ministry of Agriculture, Fisheries and Food [1961] 1 Lloyd’s Rep. 385; [1962] 1 Q.B. 42 that nothing short of an obstruction sufficient to frustrate the commercial object of the voyage can deprive the charterers of the right to nominate the port of their choice and further explained his conclusions as below:

It seems to me for the same reasons as those which Lord Justice Willmer gave in the Vancouver Strike cases, that if you substitute any other test than frustration you use a yardstick which is extremely difficult to apply in any given case. How do you judge whether a particular delay is commercially unacceptable? It may be perfectly acceptable commercially to the charterer if he is in no hurry for his cargo and if he does not have to pay the shipowner for the delay. These matters cannot be judged unilaterally in the interests of one party only. There are two parties to the contract and their mutual rights and obligations have to be determined by reference to that upon which they have expressly or impliedly agreed in their contract.

The question of degree is equally applicable to the issue of geographical limits within which safety of port is warranted by the charterers. Thus in Palace Shipping Co, Ltd v Gans Steamship Line [1916] 1 K.B. 138 it was held that, subject to a question of fact and a question of degree5, geographical limits of safe port warranty also encompass an approach part of a voyage to the port. Commenting this decision, Devlin J in G W Grace and Co Ltd v General Steam Navigation Co Ltd [1950] 1 All ER 201 stated that: "It is immaterial in point of law where the danger is located, though it is obvious in point of fact that the more remote it is from the port the less likely it is to interfere with the safety of the voyage." This wide proposition gives clear indication that the borders of safe port warranty can be extended far beyond geographical limits of the port itself and in case of the river ports it may encompass all river passage to and from the port.

Inaccessibility of port usually does not affect physical safety of the vessel if no efforts to overcome an obstacle has been done. In instances when following the charterers orders the master decided to proceed into the port and the vessel sustained damage as a result of such decision, there is no need to decide on duration of impediment and whether such an impediment was inordinate or not. In G W Grace v General Steam Navigation (The Sussex Oak) (1950) 2 KB 383 the damage was sustained by the vessel from ice during approach passage to port of Hamburg via the river Elbe. The charterers tried to bring this case under decision in Steamship Knutsford, Ltd v E Tillmanns & Co [1908] AC 406 arguing that condition of unsafety due to ice was temporary only. The learned judge distinguished the Steamship Knutsford on the footing that in case on hands he was dealing not with the decision of the master not to proceed to icebound port, but with the fact that the master did proceed, and thereby the ship was damaged. Therefore the right to damages depended on a wrong done and an injury actually sustained, not on someone’s estimate of whether a wrong is likely to be done or an injury likely to be sustained.

Accordingly, it was necessary to decide whether the charterers committed a breach of contract by giving an order to proceed to unsafe port, or the master was at liberty to refuse to go. Alternatively, the charterers contended that damage was caused solely by the voluntary act of the master in taking the navigational decision to proceed up river. In absence of conclusive authorities on the point Devlin J expressed his opinion in the following words:

Ex hypothesi, the order has no contractual force, and is, therefore, of no greater validity than an order given to the ship by a stranger. The charterers in this case do not expressly warrant that their orders will be within their powers, and it might be argued that it is for the recipient to determine for himself whether they are binding on him or not. In some types of contract, that may be so, but in this case counsel for the charterers concedes that the charterparty, either on its true construction or by implication, forbids the giving by the charterers of orders outside their powers, and, accordingly, that the giving of an order to sail to an unsafe port is a breach of the charterparty. …The giving of an order does not necessarily cause the damage that flows from an act done in pursuance of it. Put more specifically, the decision of the master to obey the order may in certain circumstances amount to a novus actus interveniens, but, in the circumstances of this case, the arbitrator clearly regarded the acts of the master as done in the ordinary course of things and not blameworthy. He was doing what any intelligent observer, knowing exactly how he was circumstanced, would have expected him to do.

Authorities considered above allow to conclude that question of safety or unsafety of port when an obstruction render it inaccessible mainly depends on the following factors:

1. Whether on facts an impediment falls within limits of safe port warranty.
2. Whether an obstruction was so long lasting as to make the delay of the ship until it shall have ceased to exist a delay which would practically and in a mercantile sense frustrate the adventure
3. Whether the master was acting reasonably in interest of both parties, the owners and the charterers as well dealing with an impediment
4. Whether an obstruction was or was not an incident to the contract.

When it was attempted to overcome an inaccessibility and the shipowner sustained damages two more points are to be considered:

1. Whether the Charterers’ orders to send the vessel to icebound or otherwise unsafe port constitute breach of charterparty and;
2. Whether decision of the master to obey such orders amounts to a novus actus interveniens.

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