The fact that an event (in this case a guerrilla attack) was theoretically foreseeable did not make it an ‘normal characteristic’ of the port: ‘Be that as it may, there is no evidence whatever that the system introduced after the Omo Wonz had any defects until the attack on Saga Cob itself when at anchor four or five miles outside the port. This cannot in our judgment be regarded as other than an abnormal and unexpected event unless it is to be said that as from the Omo Wonz incident, any vessel proceeding to or from Assab or Massawa was proceeding to an unsafe port. This in our judgment is untenable. The situation in this case was drastically different from that in The Lucille when the Shatt-al-Arab had become the centre of hostilities. All that can be said in this case is that since a guerrilla attack may take place anywhere at any time and by any means, that the guerrillas had two boats and that they had made one seaborne attack 65 miles away, it was foreseeable that there could be a seaborne attack either en route from Assab to Massawa or in the anchorage at Massawa. If this were enough it would seem to follow that, if there were a seaborne guerrilla or terrorist attack in two small boats in the coastal waters of a country in which there had been sporadic guerrilla or terrorist activity on land and which had many ports, it would become a normal characteristic of every port in that country that such an attack in the port or whilst proceeding to it or departing from it was sufficiently likely to render the port unsafe. This we cannot accept. Omo Wonz was itself clearly an isolated abnormal incident and, until the order to proceed to Massawa almost three months later, nothing further had occurred to suggest that the risk of further attack on the Assab/Massawa voyage or in the anchorage at Massawa had not been contained. In such circumstances, to say that such an attack or even the risk of such an attack was a normal characteristic of the port, is in our view impossible.
As to the letter of the master immediately after the Omo Wonz incident we do not consider that it can be regarded as of any importance. The master was no doubt at the time alarmed but thereafter he visited Massawa on several occasions despite the provisions of the charter-party entitling him to refuse. The charterers expressly disclaim any arguments that by entering into the charter-party the owners accepted the risks but it appears to us that the master’s actions indicate clearly that whatever he may have thought immediately after the Omo Wonz incident he, like every one else, considered that Massawa was a safe port.
We further consider that what occurred subsequently is relevant on the question whether Massawa was a safe port.
We accordingly hold that on the Aug. 26. 1988 Massawa was a safe port.’
In the context of political risk: ‘In the latter case [the safe port warranty] one is considering whether the port should be regarded as unsafe by owners, charterers, or masters of vessels. It is accepted that this does not mean that it is unsafe, unless shown to be absolutely safe. It will not in circumstances such as the present be regarded as unsafe unless the ‘political’ risk is sufficient for a reasonable shipowner or master to decline to send or sail his vessel there.’
Judges:
Parker LJ
Citations:
[1992] 2 Lloyd’s Rep 545
Jurisdiction:
England and Wales
Cited by:
Cited – Gard Marine and Energy Ltd v China National Chartering Co Ltd CA 22-Jan-2015
The Ocean Victory went aground in a storm in Kashima port. The court was now asked (i) what, as a matter of law, was the correct test for an abnormal occurrence; (ii) in particular, was the judge correct to hold that the combination of two weather . .
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.
Transport
Updated: 05 August 2022; Ref: scu.641390
