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Warranties

Safe port and safe berth

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A charterer names a port, and the owner sends the ship there because the charter requires it. If the port turns out to be dangerous and the ship is damaged or lost, someone must pay a very large sum. A few words in the charter, and the law used to read them, decide who pays. No short phrase in chartering causes more disputes.

The test

The classic English test comes from the Court of Appeal in Leeds Shipping Co Ltd v Societe Francaise Bunge, known as The Eastern City, decided in 1958. Sellers LJ put it this way: 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.

That sentence contains the whole test. Each part of it has a separate purpose.

The particular ship. Safety is not a feature of the port alone; it depends on the port and this hull together: its draft (depth in the water), beam (width), length, air draft (height above the water) and how it moves and steers. A berth that is completely safe for a handysize (a small bulk carrier) can be unsafe for a capesize (a very large one), and the same berth can be safe on one tide and unsafe on another.

In the relevant period of time. The duty applies when the port is nominated (chosen by the charterer), and it looks ahead: the port must be expected to be safe for the time the ship will be there. Seasonal ice, a known season of heavy swell, and a berth that dredging works are about to close are all part of the question.

Reach it, use it and return from it. Arriving and leaving are both included. Many unsafe port cases are about getting out rather than getting in, because on the way out the ship is loaded, so it sits deeper and is harder to steer.

In the absence of some abnormal occurrence. The promise covers the normal features of the port, not everything that could happen there.

Danger which cannot be avoided by good navigation and seamanship. A hazard that a competent master and crew can handle does not make a port unsafe. This is also where the owner's own conduct matters: if the ship is navigated carelessly, the careless navigation, and not the port's features, may be treated as the cause of the loss.

Danger is not only physical, because political and legal danger counts too. A port where the ship would be detained, blockaded or seized can be unsafe even when the water is perfectly deep.

The abnormal occurrence question, and what settled it

The United Kingdom Supreme Court decided this point in Gard Marine and Energy Ltd v China National Chartering Co Ltd, The Ocean Victory, on 10 May 2017. A capesize bulk carrier ran aground while leaving the Japanese port of Kashima in October 2006, in severe weather, and was a total loss. Two features of the port were involved: long waves affected the berth, and strong northerly winds made the single narrow channel out of the port dangerous. Both were known and each was normal on its own, but they had never happened at the same time before.

The court held that this combination was an abnormal occurrence, so there was no breach. The reasoning is the most useful part for later cases. The question is not whether each separate part was foreseeable, but whether the event that caused the loss was a normal feature of the port, or something rare and unexpected. A port is not unsafe just because something bad has happened there.

The same case makes a second point that surprises owners. Where the charter provides for joint insurance of the ship, the way that insurance is set up can stop the insured parties from claiming against each other at all, whoever was at fault. The safe port argument does not always decide the case.

Warranty or due diligence, and why the answer depends on the law

This is a real difference between legal systems, not a small detail.

Under English law, the safe port promise is a promise in the contract about the port, subject to the limits in the test above. It is not just a duty to take care when choosing. Some forms, especially tanker time charters, deliberately change the wording to a duty to exercise due diligence (reasonable care) in nominating a safe port. That is a much weaker promise, and where that wording is used, it applies.

Under United States law, different courts disagreed until the Supreme Court decided CITGO Asphalt Refining Co v Frescati Shipping Co, The Athos I, on 30 March 2020. The charter used the ASBATANKVOY form, and the court held that the plain words of the safe-berth clause, which require the charterer to designate a safe berth, create a warranty of safety (a guarantee), not a duty of due diligence. The charterer was liable whether or not it had been careful.

The result is simple, but people often miss it: the same printed clause, on the same form, means different things in London and in New York. If the safe port question matters on a trade, the clause that chooses the law and the place of arbitration is part of the safe port negotiation, not a routine line at the end of the recap (the summary of the agreed terms).

What is promised, and about which place

War risk is covered by separate rules

A war zone is a danger, but the owner's right to refuse an order to go there usually comes from a war risks clause, not from the safety warranty. The BIMCO clauses for time and voyage chartering set their own test, their own rules on who decides, and their own results, including who pays the extra insurance premium and where the ship goes instead. Treating a war risk refusal as a safe port question is a common and expensive mistake. See war risk areas.

What to record

Safe port disputes are decided on what was known when the port was nominated. The nomination is often a line in an e-mail that nobody kept. Keep the nomination with its time stamp, the exact wording of the warranty as agreed, the ship's particulars relied on, any protest the master made, and the weather and port information available at the time, not information found afterwards.

References

Navigating limits and AWIWLFour letters on a recap that point to a hull insurer’s list of sea areas. Most are excluded only in winter, and none is forbidden outright. War risk areasAn insurers’ list of sea areas, not a report of last week’s attacks. What being inside one does to the premium, the crew, the route and the rate. P&I clubs and marine insuranceA ship carries several insurances that do not overlap, so “is the ship insured?” is not a question with one answer. Charterparty formsNobody writes a charterparty from a blank page. People name a printed form, change it, and then disagree about which part of the document applies. Reading a ship's particularsWhat each figure on a vessel description limits, why GRT measures volume, and why draught rules a ship out long before deadweight does.

Neptune Atlas

Safety is relative to the particular ship, so the answer starts with its draft, beam, length and air draft, which Neptune Atlas holds as particulars on the register record. It does not hold port depths, tidal windows or berth restrictions, and it does not tell you whether a port is safe. Every paid plan starts with 7 free days. A card is needed to start them, and cancelling before they end costs nothing.

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