A charterparty either time or voyage will usually provide that the ship may only be ordered to safe ports or places. In some more sophisticated charterparties, the charterer’s obligation is limited to one of due diligence to ensure that the ship is only employed between and at safe places. Where there is no such express term there may be an implied obligation.
Sellers LJ in The Eastern City case descried a safe port to be “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”.
Thus, a port may be unsafe because the ship cannot safely get to it, for example, because her draft is too great, there is ice, the anchorage is unreliable or there is no adequate system of monitoring the channel.
Simply because there are hazards at a port does not necessarily make that port unsafe as it may be possible to avoid them with good navigation and seamanship. There must be a safe system in the port to warn of hazards and to avoid them. Thus, a port is still safe if it is prone to bad weather and it is necessary for the ship to leave the port during such weather, if there is an adequate system for forecasting bad weather, sufficient tugs and pilots, adequate sea room to manoeuvre and an adequate system of making sure that adequate sea room is always available to manoeuvre. A port may also be unsafe for political reasons, for example, as a result of the outbreak of hostilities so that the ship is trapped at her discharge port.
When a time charterer gives voyage instructions its obligation is to nominate a port which is prospectively safe, i.e., the port will be safe at the time that the ship arrives there, uses it and leaves. The port does not need to be safe at the time the order is given, provided it will have become safe for this ship by the time she arrives, for example, because the ice currently at the port will have melted. The charterer is liable for the normal characteristics of the port whether they were known to it or not. However, it does not guarantee the safety of the port, as it will not be liable for abnormal and unexpected events.
When a charterer gives voyage instructions under a time charterparty to proceed to an unsafe port the owner is entitled to reject the order as invalid and ask for valid voyage instructions.
If the charterer were to insist on invalid voyage instructions, the charterer would be in repudiatory breach of charter party and the owner would have the right to elect to terminate the charterparty. Where the owner is not aware that the port is unsafe, but it subsequently becomes clear that that is the position, the owner may refuse to enter the port.
The war risks clause in the charterparty may entitle the owner to refuse to proceed to a port in a war zone. This will depend on the construction of the trading limits of the charterparty and the war risks clause in the light of the intended pattern of trading at the time the charterparty was entered into.
Where, however, the owner is aware that the port is unsafe but accepts the order to proceed there, the owner cannot then change its mind although it may still have a right to damages for breach of contract. Where the master ignores obvious danger and proceeds to enter the agreed port, this may constitute a break in the chain of causation so that the owner cannot recover damages from the charterer as the loss resulted from the choice of the owner’s servant rather than the charterer’s breach.
When the charterer is in breach of its safe port obligation it will be liable in damages for the consequences of its breach such as physical damage to the ship, additional costs incurred at the port, for example, if the ship is unable to enter due to her draught being excessive and it is necessary to lighten her. Where the consequence is delay, the time charterer would continue to be liable for time charter hire and other expenses incurred such as additional insurance premiums while the delay continued, whereas a voyage charterer would be liable for damages for detention.
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