Average reading time 8 minutes
For the two different types of charter parties – both time and voyage, the safe port warranty is a fundamental component that is required for both charter parties. This is because it protects owners from being directed to an unsafe port during a charter, and it enables owners to refuse to follow orders to proceed to an unsafe place, and to recover damages from charterers if they proceed to an unsafe port and suffer loss as a result. Therefore, it is important for people in the marine and legal industry to understand the safety clauses that safeguard their own interests in order to operate safely and effectively. Now, the question that many would have on their minds would then be, “when is a port deemed to be safe?”
In every Maritime law lesson, students are taught that whenever a charterer has the right to nominate a port pursuant to an agreed charter party, it warrants the fact that the port is ‘safe’.
The classic definition of a safe port was given in the “Eastern City” 2 Lloyds Rep 127:
“A port will not be safe unless, in the relevant period of time, a particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship”
These principles apply equally in the context of safe berth warranties, the doctrine being the same in either case. The charterers’ obligation is to nominate a port or berth which, when the order is given, is prospectively safe. Which also means that the port or berth must be likely, subject to the occurrence of abnormal and unexpected circumstances, to be safe at the time of the vessel’s arrival.
Requirements that lead to port safety
The meaning of safety has been subject to numerous interpretations which have each been argued and ruled upon in arbitrations and in courts. The physical make-up of the port is the most obvious consideration for what makes a port safe or unsafe; however, here are some considerations that cause a port to be deemed as safe.
Requirements for a port to be considered a “safe port” are as follows:
- There must be safe access to the port
- Vessels can lie safely afloat at all states of the tide
- Adequate facilities for trade
- Politically safe
The ship, having reached the port (and discharged her cargo), must be able to leave safely, e.g. without having to lower or cut her masts to pass under a bridge.
Safe access to the port
There must be safe access to the port, and it must be free from permanent obstruction. Examples of permanent obstruction include, insufficient depth of water; periodic silting; the presence of ice; and unchartered reefs, an underwater fender which, by reason of its design and construction, causes damage to a ship; or an underwater obstruction within a dredged channel which constitutes the designated route to a port. This is because, when these obstructions are not identified and removed prior to accepting vessels into the port, it could lead to vessel damage that would impinge on safety. A temporary obstruction, e.g. neap tides, does not, however, make a port unsafe.
In order to reap the commercial benefits, ports are catering for a higher volume of shipping with far more vessel movements than a decade ago. The associated risk is that with increased traffic, often in a restricted environment, there is a far higher chance of a ship-to-ship or a ship-to-infrastructure collision. As such, ports need to be able to accommodate such high vessel traffic and be sure that there is no obstruction present in the port.
Vessels can lie safely afloat at all states of the tide
For a port to be deemed as safe, the vessel must be able to lie safely afloat at all states of the tide. The only exception is when it is customary and safe to load and/or discharge aground when there is soft mud or there is special agreement to do so. This prevents vessels from being ordered to proceed to a berth where she cannot load or discharge without touching the ground or a berth which can only be reached safely after discharging part of the cargo into lighters or which can only be reached on spring tidal conditions. As such the so-called “always safely afloat clause” is inserted in the charter party.
While the standard terms stated in the safety may require the vessel to “proceed to the loading port or place stated or as near thereto as she may safely get and lie always afloat”, the terms can be amended to permit a short-sea vessel to lie “safe aground”.
Adequate facilities for trade
There must be adequate facilities for trade, including a safe shore landing of goods, proper wharves, warehouses and other establishments for dealing with the kind of cargo contemplated. Additionally, for the port to be labelled as safe, it has to be equipped with the necessary facilities and equipment needed for the reception of residues and oily mixtures, sewage and garbage. With the appropriate facilities and equipment present, port workers will be able to carry out their tasks easier and minimise the risk of workplace injuries or illnesses.
Another point to ensure in order to judge if a port is safe, would be the political climate that the port is currently in. For it to be safe, it has to be politically safe port, free from any state of war or embargo. This is because embargoes prohibit or restrict certain commerce (division of trade), trade and transportation of certain goods with a certain country because of its political reasons such as government orders and conflicts.
Port safety is just one of the many components in a ship chartering process, to find out more about the ship chartering process do read our other blogs below!
Chartering Ships an A – Z Guide is a 3-day online training course that can be conducted in the comfort of your own company’s premises or your own home. Designed to provide an intensive in-depth study of Ship Chartering Contracts, participants will emerge from the course equipped with valuable key insights into the various aspects of chartering contracts. Furthermore, through the course, participants will learn how to avoid the risks involved with chartering contracts and be exposed to the recent developments in shipping laws and practises that affect chartering contracts.
Unable to make it to the course? Contact us for other available dates.