Safe port. A report of a fixture can indicate that the ship is fixed to load at “1/2 s.b. 1/2 s.n.” in a certain range. This means that the Charterer has the option to order the vessel to proceed to load at one or two safe berths in one or two safe ports within a named range of ports.
In both time charters and voyage charters the Charterer must order the ship to a “safe port” (unless circumstances, known to both the shipowner and the Charterer, make the port unsafe). If the Charterer sends the ship to a port and it is damaged there the charterer becomes liable to the shipowner if the port is not found to be a “safe port”. Whether the port is “safe” for the purpose of the charterer’s liability is usually decided by an arbitrator, or a judge because a dispute may arise when the ship suffers damage at a place (or on the way to a place) to which the Charterer sends it. The “safe” nature of a port is therefore determined in fact and in law and does not depend only on the mere opinion of well-informed people. Therefore “shipping men” accept what has been decided by judges as the “safe” nature of a port. The legal definition of a “safe port” by a judge in the case of The Eastern City, 1958, has become so classic that it is now the definition of a “Safe Port” in the Charterparty Laytime Definitions 1980.
The definition is:
“ . . . a port which, during the relevant period of time, the ship can reach, enter; remain at and depart from without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship.”
This definition became crucial in the above case, which concerned meteorological safety. The ship was ordered to. a port which had no shelter. A sudden, unpredictable, high wind could cause the ship to be damaged on some rocks near the anchorage off the port. It was decided that the port was not safe. This meteorological safety frequently features in the determination of “safe port”.
If the vessel is exposed to danger that can be avoided by good navigation and seamanship, the port may not be an “unsafe” port. This means that if the port is nominated early enough in the charter, the master (and owners) have an opportunity to determine if good navigation and seamanship world not avoid that danger. If they still agree to take the vessel to that port, they may be considered to have accepted the charterer’s nomination of the port.
The port must also be physically and politically safe. This is a question of fact at the time the ship is ordered to a part when the obligation of the charterers arises. In The Evia (No.2), 1982, the ship was ordered in March to discharge at Basrah, Iraq. The ship berthed on 20 August and completed discharge on 22 September. However, on that very day war broke out between Iraq and Iran. The ship was trapped and the time charter was frustrated. It was held in the House of Lords that the charterers were not in breach o£ their obligation to employ the ship between “good and safe ports” because at the time they ordered the ship to Basrah the port was “prospectively” safe (that is, safe as far as could be foreseen). The lack of safety arose after the ship’s arrival. This was an unexpected, unforeseeable, sudden and abnormal occurrence.
The “safe port warranty”-which is primarily an obligation of the charterer must be correct only at the time the port is nominated. It does not have to continue until the vessel leaves the port. Consequently, if there is some unexpected and abnormal event which occurs after the nomination, causing damage to the owner, the Charterer would be free of liability. The Eastern City definition of a “safe port” was further explained in The Evia where it was said:
“But if those characteristics are such as to make that port or place prospectively safe in this way, I cannot think that in spite of them, some unexpected and abnormal event thereafter suddenly occurs, which creates conditions of unsafety where conditions of safety have previously existed and as a result the ship is delayed, damaged or destroyed, that contractual promise extends to making the Charterer liable for any resulting loss or damage, physical or financial.”
For example, heavy swell affecting the sea conditions in a port would be foreseeable if it always occurred. If, however, unusual swell conditions occur because of an unforeseeable action of ocean currents, the Charterer would not be liable. However, if the swell conditions existed at the time of entering into the charter, and the vessel was still ordered to that port whether or not reasonable enquiry had been made by the charterers or their agents, the safe port (or “safe berth”) warranty would be broken.
If the port becomes unsafe during the voyage, the owners may divert the vessel to a safe port if the charterers do not. If the port is unsafe and it is neither possible nor practicable to choose a substitute port, the charter may become frustrated.
The courts apply other criteria to determine if a port is “safe”. The ship must be able to return from, or leave the port, without damage, given-sufficient sea room. Ordinary good navigation and seamanship is necessary to avoid damage. The port is not “safe” if more than this is required.
Unreasonable delay in leaving a port because, for example, silting reduces the depth of water available for the ship could cause the port to be unsafe. This silting occurred in the case of The Hermine, 1979, but the delay of 37 days was insufficient to frustrate the contract. Therefore the port was “safe”.
In The A.P.J. Priti, 1987, the ship was on a voyage charter to one or two “safe berths” in one of three ports in Iraq, which was at war with Iraq. The charterers declared the port of Bandar Khomeini in the northern corner of the Persian Gulf, to be the discharging port. The charterparty did not specify that the discharging port was to be a “safe port”. It did contain a “War clause” allowing the master to discontinue the voyage if the vessel was put into danger. While approaching Bandar Khomeini, the ship was struck by an Iraqi missile.
The owners conceded that the charterer could not be considered to have impliedly guaranteed that the port would be safe. The circumstances of the fixture to a port in a country at war with another country could not justify the charterer’s promising that the port would be safe. A judge in the case said:
“There is no ground for implying a warranty that the port declared was prospectively safe because the omission of an express warranty may well have been deliberate . . .”
The omission of an express clause in the charterparty stating that the ship was to discharge at “1/2 safe berths, 1 safe port” could not be cured by extending the safe berth warranty to the approach to the port.
During the vessel’s stay at the port (and berth) it must lie always safely afloat, without touching the bottom as tidal effects reduce the depth of water. However, it can be expressly agreed by the shipowner that the ship can be sent to a port where it will be “Not always Afloat but Safely Aground” (NAABSA).