Safety System of the Port
Development of infrastructure, dragging and deepening of fairways and providing reliable pilot and icebreakers’ services has a positive impact on physical safety of the ports worldwide. However, notwithstanding to all aforesaid even in well-developed modern ports vessels remain to be exposed to the elements. While usually predictable, adverse meteorological conditions nevertheless can deeply affect safety of any given port. Therefore in many ports a system of protection against bad weather conditions has been developed. A port which is only safe in fair weather is not safe, as Donaldson J said in Vardinoyannis v The Egyptian General Petroleum Corp. (The Evaggelos Th)  2 Lloyd’s Rep 200 at p.206.
Importance of proper arrangements forming a part of safety system was introduced by The Khian Sea  1 Lloyd’s Rep 545, where on approaching of adverse weather the vessel could not leave her berth in time due to encumbered passage in the immediate vicinity of the berth. As a result the vessel was damaged because she was trapped by the sudden onset of bad weather. The concept of such conditional safety of the port was further examined and explained by Mustill J in The Mary Lou at p.277:
… the[re] … is a view of the law which accords with The Dagmar,  2 Lloyd’s Rep. 563, and The Khian Sea,  1 Lloyd’s Rep. 545. Each of these cases depended on the concept that a port could be conditionally safe. Such a port may have geographical, climatic or other characteristics which entail that it will be safe if, but only if, a particular system for securing its safety remains effectively in operation: for example, a system for obtaining and publishing adequate weather forecasts, or for supplying tugs, or for ensuring adequate sea room for manoeuvring. Such a port will be safe if the system works properly, and unsafe if it does not. A situation may well exist in which the system is in effective operation at the time of the nomination, but breaks down whilst the ship is actually within the port. The decision of Mr. Justice Mocatta in the former case, and the judgment of Lord Denning, M.R. in the latter are both to the effect that the charterer is liable for any resulting damage if the system breaks down while the ship is in port, notwithstanding that the port was safe at the moment of nomination.
In The Marinicki  2 Lloyd’s Rep 655 and in The Count  1 Lloyd’s Rep 72 the test of conditional safety was applied to the cases where a) there was no proper system in place to check and/or monitor the safety of the channel to the port and/or to warn traffic using the channel of any such danger as might exist and b) where the misalignment of buoys and the absence of an adequate system to monitor changes in the channel was held to be characteristics of the port which were not temporary.
In Gard Marine & Energy Ltd v China National Chartering Co Ltd & Ors (The Ocean Victory)  EWHC 2199 (Comm) the vessel was ordered to leave Kashima port on account of long waves and bad weather because it was feared that she could not be restrained by her moorings and/or the use of tugs. On her way out of port she was confronted by strong winds of about Beaufort scale force 9 and by heavy seas. As a result of combined force of wind and seas The Ocean Victory lost her steerage way and with her portside exposed to the gale she was driven southwards by the weather and went aground at the end of the breakwater. The owners contented that the port of Kashima was unsafe when nominated by the charterers and the charterers argued that "a port is not unsafe because its systems fail to guard against every conceivable hazard. The emphasis is upon reasonable safety and the taking of reasonable precautions." The judge rejected Charterers’ defence based on "reasonable safety" approach and held that:
A port is not saved from being unsafe where, although the vessel will be exposed to a danger which cannot be avoided by good navigation and seamanship, the port has taken precautions designed to protect vessels against that danger but which in fact do not protect the vessel from that danger. If, despite the taking of such precautions, the vessel remains exposed to a danger which cannot be avoided by good navigation and seamanship then the port is unsafe. … Of course, aids to navigation, the availability of weather forecasts, pilots and tugs, the quality of the holding ground for anchoring, the sufficiency of the sea-room for manoeuvring and the soundness of the berths and of the fendering arrangements are, as with all aspects of the port set-up, relevant when deciding whether the vessel will be exposed to a danger which cannot be avoided by good navigation and seamanship. But if, having taken into the account the set-up in the port, the vessel will be exposed to such danger then the port will be unsafe.
Unsafety of port was held to be based on a risk that the vessel might have to leave, or be advised to leave, the port on account of bad weather at a time when the wind and sea conditions in the channel were such that more than ordinary seamanship and navigation were required to enable the vessel to leave the port safely.
The Court of Appeal disagreed with the judge’s decision. Longmore LJ delivering the only reasoned judgment agreed with the Charterers that the casualty could rightly be described not merely as "remarkable" but also as unprecedented, thus being exemption from safe port warranty as stated by Sellers L.J. in Leeds Shipping Co. Ltd. v Société Francaise Bunge (The Eastern City)  2 Lloyd’s Rep. 127 in a passage which refers to "abnormal occurrence." Longmore LJ said:
A charterer does not assume responsibility for unexpected and abnormal events which occur suddenly and which create conditions of unsafety after he has given the order to proceed to the relevant port. These are the responsibility of the ship’s hull insurers (if owners have insured) or of owners themselves. Moreover the concept of "safety" is necessarily not an absolute one. As the Court of Appeal said in The Saga Cob  1 Lloyd’s Rep. 548 at 551, column 2, in the context of political risk:
"In the latter case [the safe port warranty] one is considering whether the port should be regarded as unsafe by owners, charterers, or masters of vessels. It is accepted that this does not mean that it 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."
In view of the Court of Appeal the judge was wrong in his analysis was it an abnormal occurrence or a normal characteristic of the port that a vessel might be in danger at her berth at the Raw Materials Quay but unable at the same time safely to leave because of navigation dangers in the Kashima Fairway arising from the combination of long waves and gale force northerly. Accordingly the judge wrongly limited his analysis by addressing separately the respective constituent elements of the combination of swell from long waves and gale force winds. The Court of Appeal held that what mattered was not the nature of the individual component dangers but the nature of the event (i.e. the critical combination) which gave rise to the vessel effectively being trapped in port.
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