Safe Port. Meaning of Safe Port. Politically safe and unsafe

…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

Effect of threats of war, aggression or terrorism

Not only physical dangers and obstacles can render port unsafe, a threat to have the vessel captured by pirates or enemy as well as be seizure by the government because of embargo or other hostilities has a similar effect. In the nineteenth century case of Ogden v Graham (1861) 1 B & S 773 it was held that port is not a safe port within the meaning of the charterparty if the vessel cannot enter it without being confiscated by the Government of the place. Accordingly the charterer must not name a port in which the unloading of the cargo is by law prohibited, or which cannot be reached by the ship without running the risk of hostile capture.

If not the ship itself but only the goods would be subjected to confiscation such nominated port will also be unsafe and the master’s duty to take care of the cargo will justify him, apart from any express provisions in the bill of lading or charterparty, in landing the goods at another safe place. The case of Nobel’s Explosives Co. v Jenkins [1896] 2 Q. B. 326 shows that only threat (albeit well founded) of seizure is sufficient for the port to be considered as unsafe, Mathew J formulated his opinion in the following words:

I am satisfied that if the master had continued the voyage with the goods on board he would have been acting recklessly. It was argued for the plaintiffs that the clause did not apply unless there was a direct and specific action upon the goods by sovereign authority. It was said that the fear of seizure, however well founded, was not a restraint, and that something in the nature of a seizure was necessary. But this argument is disposed of by the cases of Geipel v Smith (1872) L.R. 7 Q.B. 404, L. R. 7 Q. B. 404, and Rodoconachi v Elliott, (1874) L. R. 9 C. P. 518. The goods were as effectually stopped at Hong Kong as if there had been an express order from the Chinese government that contraband of war should be landed. The analogy of a restraint by a blockade or embargo seems to me sufficiently close.

This line of authorities leads us to more recent case of The Saga Cob [1992] 2 Lloyd’s Rep. 545 where it was held by the Commercial Court the port of Massawa was prospectively unsafe at the time the order to proceed to the port was given, because it was a characteristic of that port that vessels proceeding to and from it or at anchor outside the port could be subject to seaborne attack. However, the Court of Appeal held that although a seaborne attack was foreseeable there had been none since an incident some three months earlier, which itself was held to have been isolated and abnormal. Therefore it was not correct to say that an attack or even the risk of such an attack was a normal characteristic of the port of Massawa.

The court further explained that a difference between physical danger, such as a sand bank or reef, and political danger is that later when has to be assessed is necessarily subjective. Therefore a test proposed by Parker LJ goes to ask "if a reasonably careful charterer would on the facts known have concluded that the port was prospectively unsafe". His Lordship upon examining and explaining such Iran-Iraq war authorities as The Evia (No. 2) (H.L.) [1982] 2 Lloyd’s Rep. 307; [1983] 1 A.C. 736; (C.A.) [1982] 1 Lloyd’s Rep. 334 and Uni-Ocean Lines Ltd. v C-Trade S.A. (The Lucille), (C.A.) [1984] 1 Lloyd’s Rep. 244; [1983] 1 Lloyd’s Rep. 387, Parker LJ concluded at p.551 that:

[it] does not mean that [port] is unsafe unless shown to be absolutely safe. It will not, in circumstances such as the present, be regarded as unsafe unless the "political" risk is sufficient for a reasonable shipowner or master to decline to send or sail his vessel there.

That decision corresponds well with the latest authorities which acknowledge the view that basic risk to the integrity of his vessel is upon its owner. Thus, whether a reasonable shipowner should be inclined to refuse nomination or refuse to go port when he doubts it safety, such owner takes the risk of being able to establish a legitimate basis for his refusal.

In either case, of course, the owner takes the risk of being able to establish a legitimate basis for his refusal. Thus it might be that what entitles the owner to refuse to proceed is that an order to go to an unsafe berth is an illegitimate order not because of any implied warranty of safety but because of an obligation not to nominate an impossible port (or berth) which, if persisted in, might amount to a repudiation, or at least to a frustration of the contract. A similar problem might arise if a valid nomination of a port or berth (even if warranted safe) becomes unsafe as a result of some abnormal occurrence after nomination (a problem left open in The Evia (No 2) at 749, 764/5). In such a case it is an open question whether a voyage charter is frustrated, or whether the charterer must renominate, or whether the problem is to be resolved by other terms of the contract…
Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc (The Reborn) [2009] EWCA Civ 531, per Rix LJ at para58.

It, however, remains to be seen whether charterers are in breach of safe port warranty when the vessel sent and subsequently damaged in such places and ports like Lagos, Bonny river and off the Nigerian / Benin coast up to about 150nm. The fact of regular announcements about pirates attacks will probably easily fit The Saga Cob test when such attacks will result in damage to the ship and the cargo, at the very least these accidents can hardly be described as "isolated abnormal incident".

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