Notes on safe port warranties


Checklist:

• Is there an express warranty?

• To what danger is the ship exposed?

• Could the danger be avoided by good navigation and seamanship?

• Was the port “prospectively safe” at the time the ship was ordered to the port?

• When the port became unsafe could the danger have been avoided by a change of orders?

• Did the Master act reasonably?

• Is the danger an abnormal occurrence, unrelated to the prevailing characteristics of the port?

Supplementary Comments:

1. In the absence of an express term, the Courts will not imply a term as to safety unless it is necessary to give business efficacy to the charterparty.

2. A port will not be safe unless, in the relevant period of time, the 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.

3. At the time the charterer orders the ship to the port, the port must be “prospectively safe” for the ship. That is to say safe at the future time when the ship is to reach, use and leave the port. If the port is prospectively safe at the time of the order then the charterer is not responsible for unsafety arising from subsequent unexpected and abnormal events.

4. Where a prospectively safe port subsequently becomes unsafe, then in some circumstances a charterer, particularly a time charterer, may come under a secondary obligation to change his orders. The charterer is required to do all he can effectively do to protect the vessel from the new danger.

5. Safety means both physical safety and political safety. The location, size and layout of the port must be safe for the particular ship having regard to all aspects of these. In order for a risk of hostile seizure or attack to render a port unsafe, the risk must be sufficiently real to deter a reasonable shipowner from proceeding to the port.

6. Unsafety is not limited to risk of physical damage, it may include risk of the vessel being blacklisted, detained, impounded or confiscated and possibly even risks to crew. In order for delay to render a port unsafe it must be such a period of delay as would frustrate the charterparty altogether.

7. Temporary delay due to tidal, meteorological and other reasons may not in itself render a port unsafe, even if in some situations ships have to put to sea for safety. But temporary deficiencies can render a port unsafe, especially if; the Master is not aware of the deficiency or, there is a lack of warning or, the danger cannot be avoided because of lack of pilots, tugs or lack of available sea room.

8. Safety can include features of the approach to the port or features that the ship will encounter upon its departure from the port.

9. If the set up of the port is good but nevertheless the ship suffers damage owing to an isolated, abnormal or extraneous occurrence, such as an error by an otherwise competent berthing Master, then there is no breach of the safe port warranty.

10. Safe means safe for the particular ship, laden as it is contemplated that she will be laden.

These notes reflect the author's opinion at the date of publication of the typical issues relevant to this topic from an English law perspective. The notes are only a general guide, they are not comprehensive. These notes do not contain or constitute any representation of fact. Individual circumstances vary and other features of English law may be relevant. It is recommended that you contact us and take detailed advice before taking any decisions. If you would like to be added to the mailing list for these notes then please write to us with your name and mailing address. Comments and suggestions for further topics are welcome. Contact: info@morgans-law.com Copyright © 2006 Morgans. Pursuant to s.78 Copyright Designs & Patents Act 1988, Morgans asserts the right to be identified as author of this work.