Lord Diplock regarded the nature of the contractual promise by the charterer in what he called the safe port clause as having been well settled for a quarter of a century at the very least: ‘It was correctly and concisely stated by Sellers L.J. in Leeds Shipping Co. Ltd. v. Societe Francaise Bunge (The Eastern City) [1958] 2 Lloyd’s Rep. 127 in a classic passage which, in its reference to ‘abnormal occurrence,’ reflects a previous statement in the judgment of Morris L.J. in Compania Naviera Maropan S.A. v. Bowaters Lloyd Pulp and Paper Mills Ltd. Sellers L.J. said . . ‘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’ . . It is with the prospective safety of the port at the time when the vessel will be there for the loading or unloading operation that the contractual promise is concerned and the contractual promise itself is given at the time when the charterer gives the order to the master or other agent of the shipowner to proceed to the loading or unloading port.’
Lord Roskill explained the ‘abnormal occurrence’ exception: ‘In order to consider the scope of the contractual promise which these eight words impose upon a charterer, it must be determined how a charterer would exercise his undoubted right to require the shipowner to perform his contractual obligations to render services with his ship, his master, officers and crew, the consideration for the performance of their obligation being the charterer’s regular payment of time charter hire. The answer must be that a charterer will exercise that undoubted contractual right by giving the shipowner orders to go to a particular port or place of loading or discharge. It is clearly at that point of time when that order is given that that contractual promise to the charterer regarding the safety of that intended port or place must be fulfilled. But that contractual promise cannot mean that that port or place must be safe when that order is given, for were that so, a charterer could not legitimately give orders to go to an ice-bound port which he and the owner both knew in all human probability would be ice-free by the time that vessel reached it. Nor, were that the nature of the promise, could a charterer order the ship to a port or place the approaches to which were at the time of the order blocked as a result of a collision or by some submerged wreck or other obstacles even though such obstacles would in all human probability be out of the way before the ship required to enter. The charterer’s contractual promise must, I think, relate to the characteristics of the port or place in question and in my view means that when the order is given that port or place is prospectively safe for the ship to get to, stay at, so far as necessary, and in due course, leave. But if those characteristics are such as to make that port or place prospectively safe in this way, I cannot think that if, in spite of them, some unexpected and abnormal event thereafter suddenly occurs which creates conditions of unsafety where conditions of safety had 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. So to hold would make the charterer the insurer of such unexpected and abnormal risks which in my view should properly fall upon the ship’s insurers under the policies of insurance the effecting of which is the owner’s responsibility under clause 3 unless, of course, the owner chooses to be his own insurer in these respects.’
Lord Denning set out to define a ‘safe port’: ‘What then are the characteristics of a ‘safe port’? What attributes must it possess and retain if the charterer is to fulfil his warranty? To my mind it must be reasonably safe for the vessel to enter, to remain, and to depart without suffering damage so long as she is well and carefully handled. Reasonably safe, that is, in its geographical configuration on the coast or waterway and in the equipment and aids available for her movement and stay. In short, it must be safe in its set-up as a port. To elaborate a little, every port in its natural state has hazards for the ships going there. It may be shallows, shoals, mudbanks, or rocks. It may be storms or ice or appalling weather. In order to be a ‘safe port’, there must be reasonable precautions taken to overcome these hazards, or to give sufficient warning of them to enable them to be avoided. There must be buoys to mark the channel, lights to point the way, pilots available to steer, a system to forecast the weather, good places to drop anchor, sufficient room to manoeuvre, sound berths, and so forth. In so far as any of these precautions are necessary – and the set-up of the port is deficient in them – then it is not a ‘safe port’. Once the set-up of the port is found to be deficient – such that it is dangerous for the vessel when handled with reasonable care – then the charterer is in breach of his warranty and he is liable for any damage suffered by the vessel in consequence of it. To illustrate this proposition, I will give some of the deficiencies in set-up which have been held to render a port unsafe: Its tendency to be ice-bound during that very winter: see G. W. Grace and Co. v. General Steam Navigation Co. Ltd., (1950) 83 Ll.L.Rep. 297; [1950] 2 K.B. 383. Its tendency to sudden storms, endangering a vessel of this size in this bay: see The Stork, [1955] 1 Lloyd’s Rep. 349; [1955] 2 Q.B. 68. The absence of navigational aids such as a hauling-off buoy or waling-piece: see The Houston City, [1956] 1 Lloyd’s Rep 1; [1956] AC 266. The lack of reliable holding ground in the anchorage area: see The Eastern City, [1958] 2 Lloyd’s Rep. 127 . . The absence of an adequate weather forecasting system: see The Dagmar, [1968] 2 Lloyd’s Rep. 563. The absence of adequate room to manoeuvre in bad weather: see The Khian Sea, [1979] 1 Lloyd’s Rep. 545. The tendency of the channel to become silted up so as to produce narrowing or shoaling: see The Pendrecht, [1980] 2 Lloyd’s Rep. 56 and Transoceanic Petroleum Carriers v. Cook Industries Inc. (The Mary Lou), [1981] 2 Lloyd’s Rep. 272.
On the other hand, if the set-up of the port is good but nevertheless the vessel suffers damage owing to some isolated, abnormal or extraneous occurrence – unconnected with the set-up – then the charterer is not in breach of his warranty. Such as when a competent berthing-master makes for once a mistake, or when the vessel is run into by another vessel, or a fire spreads across to her, or when a hurricane strikes unawares. The charterer is not liable for damage so caused.
Lord Diplock, Lord Roskill, Lord Denning
[1982] 2 Lloyds Rep 307, [1982] 3 WLR 637, [1983] 1 AC 736, [1982] 3 All ER 350
England and Wales
Citing:
Cited – Reardon Smith Line Limited v Australian Wheat Board (The Houston City) PC 26-Jan-1956
(Australia) . .
Cited – Compania Naviera Maropan S/A v Bowater’s Pulp and Paper Mills Limited (The Stork) CA 1954
Where, in breach of charterparty, charterers order a vessel to proceed to an unsafe port, the conduct of the vessel’s master in obeying the order (placed as he well may be, on the horns of a dilemma) will be judged sympathetically, in context and . .
Appeal from – Kodros Shipping Corporation of Monrovia v Empresa Cubana De Fletes (The Evia (No 2)) CA 1982
. .
Cited by:
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.641387