Near clause. The obligation of a charterer is to order the ship to a “safe port” or “safe berth”.
Once the ship has been fixed to proceed to a named place, it is the shipowner’s responsibility to take the vessel to that place and not to any other place. For example, the MULTIFORM voyage charterparty states that “ . . . the said vessel…, shall with all convenient speed proceed to . . . as ordered by the Charterers or so near thereto as she may safely get and there load . . . “. Later it states that “Being so loaded, the vessel shall proceed to . . . as ordered by the Charterers, or so near thereto as she may safely get and there deliver the cargo…”.
The GENCON voyage charterparty states in a similar manner that “The said vessel shall proceed to the loading port or place stated in Box I-0 (Note: the 1976 GENCON is in the modem box-layout form) or so near thereto as she may safely get and lie always afloat, and there load a full and complete cargo…”, and continues “. . . and being so loaded the vessel shall proceed to the discharging port or place stated in Box 11 as ordered . . . or so near thereto as she may safely get and lie always afloat and there deliver the cargo . . .”.
Although the shipowner must take the ship to the nominated place, the expression “or so near thereto as she may safely get” does protect the owner against being forced to proceed to a port where it may not be “safe” because of some permanent obstacle or hindrance. Temporary difficulties in a port would not permit the shipowner (or master) to refuse to approach the port. Such temporary hindrances could be congestion in the port, tidal conditions and also insufficient water depth. In the latter case, the ship could be required to discharge part cargo. The waiting time for the hindrance to be rectified or removed would have to be a reasonable period before the master would be allowed to go elsewhere to discharge the cargo. Without such a clause the ship may not be taken to a place not nominated as the agreed destination or else the freight would not be payable.
There are two English cases in which this question of “reasonable time” before an obstruction to the ship’s berthing was decided in apparently different ways. In Metcalfe v. Britannia Ironworks, 1877, a ship was chartered to proceed to a port in the Sea of Azov, or so near thereto as she could safely get. On the ship’s arrival in December, the Sea of Azov was closed by ice and the earliest expected date for the passage of the ship was in the following April. The ship had arrived at a port at the entrance to the Sea, about 300 miles from the agreed discharging port. The cargo was discharged at the entrance port, the shipowner considering that the ship had arrived as near to the agreed port as she could safely get. However, it was held by the court that the shipowner had not completed performance of the charter and was not entitled to freight. The main reason was that the obstruction was “temporary”.
In the more recent case of The Athamas, 1963, the ship was chartered to discharge part of its cargo at Saigon (now named “Ho-Chi Minh City”) in Vietnam and part at the Cambodian port of Phnom Penh, about 250 miles up-river from Saigon. There were strong tidal currents in the river, which were likely to remain for about five months. The pilotage authorities refused to allow the ship to proceed up-river from Saigon. The master discharged all the cargo at Saigon. This was held by arbitrators and by the Court of Appeal that in a charter to Phnom Penh, Saigon was so near thereto as she could safely get because Saigon was in the “ambit” of Phnom Penh. “Ambit” in this context means that the actual discharging port must be the nearest practical port in an area within an area of close proximity to the destination.
Apart from this “ambit” test applied by the courts when deciding cases based on the “near clause”, the courts also apply the safety of the ship as a test before allowing the ship to discharge at an alternative port. The safety is that of the ship, not the cargo.
