The vessel was chartered on the Asbatankvoy 1997 form to carry petroleum products from Sitra to 1,2,3 safe ports in East Africa, Mombassa/Beira range. Charterers nominated the port of Beira. The charterparty contained standard Asbatankvoy Clauses 1 and 9:
“1. WARRANTY-VOYAGE-CARGO. The vessel…being… loaded shall forthwith proceed, as ordered on signing Bills of Lading, direct to the Discharging Port(s), or so near thereunto as she may safely get (always afloat), and deliver said cargo…”
“9. SAFE BERTH-SHIFTING. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on arrival, which shall be designated and procured by the charterer, provided the vessel can proceed thereto, lie at, and depart therefrom always safely afloat…”
The “Count” arrived at Beira and tendered notice of readiness on 29 June 2004. On the same day another inbound vessel, “British Enterprise”, grounded in the channel linking port and sea. This vessel subsequently grounded a second time on 1 July. The “Count” proceeded to the discharge berth on 4 July and completed discharge on 9 July. However the “Count” was unable to leave port due to a second vessel, “Pongola”, having grounded in a similar position in the channel as the “British Enterprise”, blocking the channel. The “Count” was not able to sail until 13 July.
Owners claimed against charterers for losses arising out of delay at the disport on the basis that charterers were in breach of the safe port warranty.
Before the tribunal, owners had argued that the Port was prospectively unsafe at the time it had been nominated by charterers due to the fact that the buoys in the access channel were not correctly positioned and the channel had not been adequately monitored and/or no adequate monitoring system was in place. The channel was subject to shifting sandbanks. Owners relied on the groundings of the “British Enterprise” and the “Pongola” as well as evidence about the port and its changing sandbanks to support their claim.
The charterers’ defence rested on a number of grounds, including (1) failure to establish a causal link between the alleged unsafety of the port and the loss claimed, (2) that the buoys were moved by bad weather, (3) that the groundings could have been avoided by good navigation and seamanship, (4) failure to show the vessel itself was exposed to danger, and (5) that any delay must be unreasonable and capable of frustrating the charter as a whole in order to render a port unsafe.
The Tribunal found that there was a causal link between the alleged unsafety and the loss. The Tribunal held that the grounding of the “Pongola” was caused by the incorrect positioning of buoys due to poor monitoring (and not bad weather, as alleged by charterers) and that, therefore, the port was unsafe between 29 June and 13 July, when the buoys were re-aligned and the channel re-opened. Further, the Tribunal found that the port was prospectively unsafe at the time of nomination, as they considered it highly unlikely that the buoys would have been in their correct positions on that date.
Charterers relied on the decision in “Hermine”[1] to contend that the “Pongola” constituted a temporary obstacle which did not render the port unsafe, on the basis that the resultant delay was not unreasonable and did not frustrate the charter as a whole (point 5 above). The “Hermine”, after discharging cargo at Destrehan, was delayed in the Mississippi because of silting. The delay occurred approximately 115 miles down river from Destrehan and lasted for approximately 30 days. The Court of Appeal did not ‘express any concluded view’ on whether an obstruction approximately 115 miles away could render a port unsafe. However, the Court did find that delay caused by an obstruction could only render a port unsafe if the obstruction lasted long enough to frustrate the charter/commercial enterprise itself. It was held that the delay of 30 days suffered by the “Hermine” was insufficient to frustrate the charter and therefore such delay could not alone render a port unsafe for the purposes of the safe port warranty. The Tribunal in the “Count” dismissed this argument, agreeing with owners that the case was irrelevant as it was concerned with the length of delay necessary for a temporary obstacle or hazard to cause a port to be considered unsafe where there were no intrinsic characteristics of the port which made it unsafe, unlike in the instant case.
Charterers appealed on the following questions of law:
1)whether, when determining whether a port was unsafe for the purpose of a safe port warranty, it was sufficient to show that the port was unsafe for any vessel, or specifically for the chartered vessel itself
2)whether delay caused by a temporary obstacle which does not frustrate the charter itself may be capable of rendering a port unsafe for the purposes of a safe port warranty
3)where the delay is caused by the grounding of another vessel due to the port being unsafe for that vessel, is the charterer in breach of the safe port warranty if (i) the grounding is temporary and occurs after nomination, (ii) the delay does not frustrate the charter
Mr Justice Toulson, in the High Court, upheld the decision and reasoning of the Tribunal in finding the port to be prospectively unsafe at the time of nomination. The Court accepted the view that the misalignment of buoys and the lack of effective monitoring did not constitute a temporary obstacle or hazard, but a continuing risk to all vessels entering and leaving the port, including the “Count”. The risk identified was such that it could not be avoided by good seamanship and navigation. The “Hermine” could be distinguished when looking at the specific characteristics of the port. In the circumstances the delay caused to the vessel did not need to be of a frustrating duration to render charterers in breach of the safe port warranty.
The judgment also sets out some of the general principles of law relating to safe port warranties. These can be summarised as follows:
(1) A safe port clause obliges the charterer to nominate a port where, baring any unforeseeable future event, the characteristics of the port render it safe for the vessel at the time she will use it[2] .
(2) A port will also be considered safe if the vessel can arrive, use and leave without being exposed to any danger which cannot be avoided by good navigation and seamanship[3] .
(3) A port which would otherwise be considered safe shall not be rendered unsafe by delay or hazard causing delay to the vessel unless it frustrates the charter itself[4] .
(4) Finally, nomination of an unsafe port is a breach of contract for which an owner may recover damages in respect of any loss through delay or avoidance in accordance with ordinary principles of causation and remoteness[5].
[1] [1979] 1 Lloyd’s Rep 212
[2] Evia (No.2) [1983] 1 AC 736 at 757
[3] Eastern City [1958] 2LL Rep 127 at 131, approved by the House of Lords in the Evia at 749 and 756
[4] SS Knutsford Ltd v Tillmanns & Co [1908] 2 KB 385 (CA), [1908] AC 406 (HL) and the “Hermine” [1979] 1 Lloyd’s Rep 212
[5] Ogden v Graham (1861) 1 B&S 773; Reardon Smith Line v Australian Wheat Board [1956] AC 266; Evans v Bullock 91877038 LT 34
