Safe port Revised

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“In the case of vessels on time charter, it is the duty of the charterer to nominate a safe port. This duty is an easy one to comply with”.
Introduction
In the track with the reputable maritime run through, most of the charter party arrangements consist of a provision that the vessel has to be sailing concerning safe harbors. Although this condition mostly applies to the time charter parties, the concept of secure ports is of particular importance and relevance also for the voyage charter party. However, there is an essential difference between time and voyage charter parties in this regard. The commitment to recommend a safe harbor is considered as a warranty under the period charter revelry, while the cruise contract party that has an option of choosing the port from the list of unnamed ports does not imply such warranty automatically. This point was proved in The Evaggelos Th, a case related to the time charter. Mr. Donaldson J established that where the permit is under obligation to specify a particular port, this port no doubt must be safe; this reflects the common understanding of maritime practice and business efficacy. In contrast, Lord Clarke M.R. in The Reborn found that in each particular case, not depending on what type of charter party, an implication of safe port warranty is subject to specific circumstances. Focus to some exemptions; it is essential to place down equally in the voyage and in period charter party provisions or any of their hybrids that the ports and the berth’ of packing and discharging to the safe harbor to which the vessel is designated.

Apparently, this responsibility is billed alongside the charterers, and it’s referred to as the safe port warranty. In contrast, the term ‘warranty’ in this context might be ambiguous, and hence it is a matter of historical used and not in use in place of contractual terms classification under English Law of Contact. The English law controls the remedies available to the party affected. Therefore, the safe port warranty is merely a promise granted by the charterer for seamanship and navigation that the charterer ship employs between the safe ports. In most cases, the safety concept is viewed through a public course of action spectacles as commercial expediency. Thus, the nature, as well as the ambit of the promise, are stated and defined by the parties’ intentions. In a different approach, it is considered as according to the correspondent article of the parties arrangement with due regard to its phrasing concerning the charter party forms. Most of the charter party agreements though not all of them contains a straightforward provisions framing safe port warranties. This is precisely applicable to the time charter parties. For illustration, Cl. 2 Baltime of 1939 and revised in 2001 specifies the following:
“The vessel shall be employed in the lawful trades … only between good as well as safe ports and places.”
Correspondingly, line 27 of the New York Produce Exchange Form (NYPE 1946) positions that the ship is to be engaged in lawful trades “between safe ports or places.”
The other one that can be of good reference in this concept is the BIMCO General Time Charter Party (Gentime) from 1999, CI. 2(a) stating: “The vessel shall be employed in lawful trades…. Between safe ports where she can enter safely, always lie afloat and depart”.
Turning to the point that the majority of charters contain standardized clauses regarding the safe ports, the Baltime would be a good example to mention. It is prescribed that ‘the vessel shall be employed only between safe ports or places.’ A clause with almost the same content is stipulated in the Liner time charter. In all particular cases, this variety of specific requirements serves the main purpose to protect the ship-owner by determining a safe port or range of safe ports in the charter. Taking into account that parties may be not capable to duly perform their obligations, these unifying and standardized charter-parties significantly ensure understanding of legal nature and complexity of the safe port clauses.
While the conception of the safe port clause may be determined as straightforward, the disputes arising in this respect are quite complicated. This point can be expounded by the circumstance that the requirements connected to the safe port are extensively acknowledged, and often its observance may be affected by other requirements or circumstances. This is highly single-minded by the type as well as the location of the port, the country’s operations the maritime law alongside others.
However, the essence of this clause is not only that the charter must guarantee that the vessel would go to the safe port. This clause is a useful legal instrument to indemnify for losses to the ship owner in the case the port was unsafe. Given above, in some academics works, it may be found that the nomination of a safe port is considered as an absolute warranty. In the meantime, other theorists in the field of international maritime law are somewhat of the opinion that it is more a historical practice to use such a word combination and there should be no link between this contract term and the classification of remedies under English Law. Other than the above, it might be more precise to contemplate the safe anchorage assurance as a contractual promise of a contractor regarding the safety of the port as well as the risk factors.
In the instance of the vessel during the time grant, it is decided amid the vessel owner and the certification that s/he is to use the container at the port for a given retro of time. This agreement between the charter and the ship-owner is defined by time. The license has the right to utilize the vessel in whichever capacity within the period he is in the position of the vessel. The primary concern of the ship-owner within this period is the safety of his boat. However, this covenant concerning the vessel owner alongside the charterer creates a comprehensive warranty for the vessel proprietor that in the event his or her ship is damaged due to the conditions at the port he can seek damage from the charterer unless the loss is from abnormal occurrences. It makes safe harbor the primary contractual obligation.
The duty of nominating a safe port lies on the charterer. The security of the vessel at the seaport is highly determined using of environmental influences, technical factors, and security reasons. Ships will mostly suffer mutilation mostly resulting from poor grounding, wash offs from transitory vessels, ice injury or else damage by sea buccaneers. Though the responsibility to recommend a sea port that is safe may seem forthright, the risk associated with a damaged ship is way too high. This considered it is recommended that the master finds hiring personnel with skillful navigational skills and even employ pilots to be more curtained on the security of the container. According to recently published data, losses relating to ship incidents at the port have reported the highest loss related to damage.
In this context, it is vital to define the meaning and shared appreciative of the safe port clause, to set forth the requirements that should be observed for the port to be safe and to evaluate whether these conditions are simple to comply with or not. These core issues highlighted above to be analyzed in the present essay.
This agreement between the charter and the ship-owner is defined by time. The charter has the right to utilize the vessel in whichever capacity within the period he is in a position of the vessel. The major concern of the shipowner within this period is the safety of his ship. However, This agreement between the vessel owner and the charterer creates an absolute warranty for the ship owner that incase his ship is damaged due to the conditions at the port he can seek damage from the charterer unless the damage is from abnormal occurrences. This makes safe port the primary contractual obligation
The duty of nominating a safe port lies on the charterer. Factors that determine safety include; environmental factors, technical factors, and security reasons. Poor grounding, ice, increase in the number of pirates are among the leading cause of ship damage.. Though the duty to nominate a safe port may seem easy, the risk associated with a damaged vessel is way too high. This considered it is recommended that the master considers hiring personnel with skillful navigational skills and even employ pilots to be more curtained on the safety of the vessel.Recently published data; losses relating to ship incidents at the port have reported the highest loss related to damage. As a result, it is absolute for the safety of the ship.
What constitutes a safe port?
To achieve the primary objective as per the contract, the charterer can only have a safe port with good navigation and seamanship. However, abnormal occurrences are inevitable, and the charterer should ensure that their ship can only incur damage if this happens. They range from unpredictable weather conditions, accidents caused by other vessels and civil wars. The haven helps the ports escape from damage especially during times of storms.
The question of the safety of a vessel lies on the vessel itself to some extent. The New York Produce Exchange charter party argues that decision on ports safety is decided in regards to the particular vessel considering the fact the needs and safety of the vessel lying on the infrastructure at the port. The party, therefore, defines the decision of choosing a safe port as a matter of common sense. A system designed to fit any form of danger is the best strategy to mitigate the possible damage. The Bunge corp case argues that a safe port is not only determined by seamanship, and navigational skills. The case argues that is the charterer mentions a harbor as safe, and the owner proceeds to that destination without hesitation, then it is said to be safe.
A port is also constituted to be safe if it is physically suited for use in terms of location, current climatic condition and layout. It must not necessarily have been previously used by other vessels. Other than that it must the necessary physical requirements of the port if it is suited for departure and approach of the vessel.
The port berth also plays a key role in determining the safety of the port. Considering this to be the area of approach and departure, its safety determines that of the port. Since the safety of the berth determines that of the port, any occurrence within the berth that would lead to a loss is judged dependent with the time of meeting the berth’, safety determines that of the seaport, hence judgment is made depending on its condition at the moment of raising the order.
When does the breach of the contractual obligation lie?
In case of abnormal occurrences, the charterer is free from damage caused on the vessel. In case the ports turn to be unsafe at the time of hosting the vessel. Any judgment on who should be blamed for the damage should be made based on the time when the vessel was ordered to move to that destination. The judgement is made on the assumption that the order was made in good faith and that they were not aware of the probability of the occurrence of the risky event. The master and the second party may not always agree on the security of the harbor; in this case, the dominant will end up breaching the contract if they move to the contradicting destination. This is because it is believed that the master was aware of the situation but negligent enough by listening to the charterer.To recover any damage contracts should make amid in a reasonable sense. This is to demonstrate that the agreement was binding while the owner assigned the vessel.
In case of damage caused by a bad port, the owner has to prove that they were in a contractual agreement with the charterer in regards to the vessel. This involves the provision of documents showing documentation of the agreement.
The nature of time charter
The time charter is riskier than the voyage charter in that it is for a defined period of time. The risk associated with this charter is on the type of duty undertaken and the by the team. This is grounded on the element that goods in the carriage are of different value. The passenger cruise charter serves passenger a package that includes accommodation, food and, transport while on board. As a result, the master has to plan the safety of the cruise and a suitable destination that is safe for the passengers on board too. Mostly the time is standard, and the route is not specified. A trip time charter is a shorter time charter in which the route it is to take is agreed on upon. Thus one has to sure that the routes are safe. Taxation laws can also affect the safety of the vessel if not fully complied with.
The bare yacht charter is unique in that it is mainly for holiday purpose. The owner supplies it while fully stocked with fuel and any other service; the employees may also belong to the owner. The time it is hired is short in that it can even be lesser than a month or a few days. It is easy to predict the route and safety at the harbor.
A Contract of Affreightment
This owner decides to take the vessel to transport cargoes to a given destination. This involves other dangers as it is mostly a target for the pirates and they can even tamper with the port to hinder the safety of the cargo. Factors such as vessel size affect harbor choice, the charterer is required to choose a suitable harbor for the landing, loading and offloading reasons. This type of contract attracts the need for considering the demurrage period in the agreement. A demurrage period is a time taken to offload and load the cargo. This depends on the logistics complexity within the port and taxation policy on imports and exports. The traffic and congestion at the port is also a determinant of the demurrage period. Demurrage mainly affects the oil industry, to curb this; the port has decided to apply simulation and queuing theory. The vessel manager can manipulate the theory to their advantage. Since the owner does not cater for damages within this period. Port safety is important and should be the major factor to consider when making a choice. There are also penalties that one has to pay the harbor for exceeding the set timeline. Such policies attract extra costs and can even lead the harbor to hold the ship if the payment process is not done in a due process. The offloading and loading can also lead to the ship-owner demanding more costs for an extension on the timeline of the contract. The infrastructure available at the port for loading and offloading, clearing and forwarding personnel and the logistics management attribute to the demurrage. Making the infrastructure compatible with the environment and climate factors are more effective. Complying with the imports and export policies is also necessary to avoid such penalties that would affect the vessel time charter contract.
Safe port clause
The concept of safe port and understanding its meaning is often regarded as a subject of the drafting of the charter party following a principle of the freedom of the contract. It means that revelries can fix specific port characteristics they find suitable to identify the port as a safe one or not safe. Given the fact that the parties typically stay within the standard terms in general practice, some facts determine the safety of the port concerning the safe port clause. Thus, the further particular focus will be mainly on a public understanding of the safe port clause.
A safe port clause has various definitions depending on the nation, insurance companies, and the logistic firms among others. The most commonly accepted interpretation of the safe port clause is derived from ‘The Case Eastern City.’ It implies that a port can be considered safe as long as during a period required for a voyage a certain vessel can arrive at this port, use it (for loading and unloading) and leave it in the absence of unusual incidents. Bestowing to the ‘The Eastern City’ situation, the container should be navigating between safe ports in Morocco to Japan. Due to winter season conditions, the Japanese port Mogador was not safe for the vessel. Moreover, the situation was considerably complicated because if the vessel’s size and the master left the port believing that an anchor would be dragging. As a result of a result of the events described, the ship-owner alleged a breach of voyage agreement by the charter based on the suggestion of the unsafe anchorage. The defined by ‘The Eastern City’ had a decisive impact on developing an understanding of safe ports not only in England but also in other countries. This is dictated by the fact that definition stated a conceptual unity of all views from a legal perspective regarding the port safety. Ancillary to this, an accepted test to define the port’s safety was developed. This test includes the following points: whether the ship can arrive at the nominated port, use this port directly for sea shipping purpose and return without any risks of danger; further if the above-mentioned requirement is not observed it should be determined whether a good navigation system and seamanship could help to overcome immediate problems arising from the dangerous situation; finally if the vessel failed to continue moving without any risks or even the excellent navigation and seamanship do not help to prevent the danger, it would be a matter for the determination of the Court whether the dangerous situation derived from any other circumstances excluding an abnormal occurrence in the port. Abnormal occurrences do not require the master to be penalized as illustrated in the case of ocean victory case. These include acts of God and any other unpredictable occurrence.
The wording “danger which cannot be avoided by good navigation and seamanship” clearly defines that the charter cannot be considered as only one responsible for each accident that might occur in the port. All members of the crew, the master, the shipowner and even agents or other port employees may be accused of responsibility for any violations due to their professional negligence.
In some cases any port may be dangerous for various reasons caused by force major circumstances in particular storm surges, strong swells, shallows, freezing of the water and many other weather conditions.
When the port is unsafe and the charterers’ secondary role in safe port warranty
Usually, the assurance that the charterer has regarding the seaport being safe does not include incidence or situations of normalcies. It comes the charterer nonetheless is mandated to make sure the ship is safe at the harbor regardless. He/she should make any necessary moves within their power to ensure the ship does not expose herself to any danger arising. In case of an unexpected threatening event may occur in the expected landing port, the charterer has the obligation of canceling the order and ensuring that the ship is directed to another port that is safe for her landing. When the charterer decides or is forced to order for another vessel or make a subsequent order, it is called the secondary obligation of nominating a safe port.
The charterer must ensure that the safety of the port is not only based on the port but also on the inside part where the goods are carried. To ensure that the safety warranty law is fully complied with, the charterer has to abide by every of the law. According to Franklin Mutual Insurance vs. Broan-Nutone the company whose goods were in the carriage is responsible for the loss incurred as a result of the damaged committed by the good. Even though the charterer is obliged to nominate a safe port, there are factors that limit their secondary obligation. One, the port cannot be re-nominated if the ordered vessel does not comply with the new voyager order. Any failure of the charterer to re-nominate a port in case of unsafety of the initial nomination results into the breach of the contractual agreement leading to payable damages. Two, if the charterer had entered into sub chartering; it may make it challenging in fulfilling the secondary obligation of nominating a safe port. According to The Gazelle and Cargo, 1888 it was noted that the owner would have made more profit if the charterer would have obliged to his warning if not taking the defined route, he is thus legible to compensation for the amount of loss incurred.
Obligation to safe port and the parties’ agreements
The current trade situation has called for flexibility between the two sides involved in the port landing, and the charter party agreements. The agreement is not just a simple affreightment contract but is also one of the required vital fundamentals of the contract of the international sail agreement on the shipment terms. The agreement, in essence, means that it stems from the sale contract which is the dominant one. Otherwise, the agreement on load can be made in a way that permits the charterer to fulfill his duties and responsibilities under the agreed contract. The charter party agreement flexibility is linked to the stocking and release ports. The suppleness has been seen during the modern terms of the time charter party terms that commonly and regularly give the charter the capability to propose a safe seaport. Such flexibility definitely leads to a positive impact as far as business is concerned but poses an additional obligation to the parties involved in the charter. Sometimes, as soon as the time charter gets the opportunity to recommend a port, it is his commitment to warrant, the safety of the seaport and thus, the primary safe port responsibility concept relates to the time charterers.
Granting the charterer right to re-nominate a port
The possibility to re-nominate a seaport under the agreement occurs when the port is rendered unsafe for the vessels due to various reasons. A council ruling once decided that the re-nomination right should be granted to both parties since they both fulfilled the contractual obligation so that the shipowner is not left with unpaid freight. On the contrary, the council made it clear that the shipowner was the one to choose a safe port for his ship rather than the charterer. It led to several disagreements among lawmakers resulting to several alternatives giving the charters an option to nominate a port in case there is subsequent unsafety of the initial nomination. One of the other options was that in fact, the primarily appointed port is not reachable for various reasons; the vessels can land in the nearest port. In case the agreement does not give the charterer the right to redirect the ship in case of anything, then the shipowner faces a lot of difficulties in choosing whether to proceed to the unsafe port and expose the ship to danger or an option of frustrating the charterer in seeking relief from the obliged contract.
There are several solutions that the parties involved can have in case of the unsafety of the port that occurs after the port nomination. As far as the secondary obligation to nominate a second safe harbor is concerned, in case the first appointment fails, Lord Roskill made submissions that directly related to the time charter parties. He said that the possibility of redirecting a vessel to a secondary safe port could due to the meeting an iceberg or eruption of war as discussed in the secondary obligation clauses of such calamities. He also compared it to the voyage charter parties where he explained that voyage charter parties, unlike the time charter parties, have permanent effects because it was difficult to find a voyage charter party in a secondary obligation agreement of renominating a safe port in case the initially nominated port declared unsafe. Nonetheless, any subsequent unsafety leading to difficulties in the ship landing in the designated port in case of the voyage charter parties can be solved merely revising the contractual terms of the agreement. For example, the individuals might decide not to stipulate any absolute obligation that regards the nomination of the port but can agree on terms of landing the ship on the nearest port or embodying the subsequent designation right in case of ice or war.
Conclusion
Time charterer takes on most of the responsibility and any risks that may arise from the operation of the vessels making some decisions. The charter also has the obligation of reimbursing the owner of the ship in case the engine fails, and any other fails that arise from the poor functioning of the ship. Those who own the vessels are always answerable to the devaluation of the vessel and provide the capital and also pay any breakages that may accrue from the brokers. Chartering can be a hazardous trade for the ship-owner since s/he remains the proprietor of the vessel; the fact is that he commercially allocates the tasks of the ship to the time charterer which may cause overwhelming damages to the boat owner.
This essay is an evaluation of the general issues that are related to safe port warranty in the charter parties’ agreements and terms. The essay has proven that the ability to suggest a harbor can generate the commitment to ensure the harbor is harmless for the vessel to land, can stay the lengthiest time possible and that the boats are able to leave in any scheduled time. It is known as the safe port warranty where the word warranty can be understood as the promise of the port being safe for the vessels. The essay also noted that whereas the obligation to primarily nominate a port is the same practice, as long as the contract allows the time charterer to do so, the secondary responsibility is held back in doubt.
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