- An important contractual provision in virtually all time and voyage charter parties is that the vessel may be sent only to safe ports and berths. This requirement will often be expressed in the preamble to the terms of a modern charter party rather than in a separate clause.
- Charterers usually give an absolute warranty that ports to which they will send the vessel will be “good and safe”, but in some charter parties the charterer’s warranty is one of “due diligence” only. If charterers breach their warranty, the master has a right to refuse to enter, or refuse to stay at, the port in question.
- The legal definition of “a safe port” is contained within the following legal opinion: “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.”
- Requirements for a port to be considered a “safe port” are as follows:
- There must be safe access to the port and it must be free from permanent obstruction. However safe a port may be in other respects, it is not “safe” if the vessel cannot reach it without serious risk of damage by ice, etc. A temporary obstruction, e.g. neap tides, does not, however, make a port unsafe.
- It must be a port where the vessel can lie safely afloat at all states of the tide, unless it is customary and safe to load and/or discharge aground or there is special agreement to do so. Whereas the standard terms may require the vessel to “proceed to the loading port or place stated or as near thereto as she may safely get and lie always a float”, the terms will often be amended to permit a short-sea vessel to lie “safe aground”.
- There must be adequate facilities for trade, including a safe shore landing of goods, proper wharves, warehouses and other establishments for dealing with the kind of cargo contemplated.
- It must be a politically safe port, free from any state of war or embargo.
- The ship, having reached the port (and discharged her cargo), must be able to leave safely, e.g. without having to lower or cut her masts to pass under a bridge.
Unless there is specific agreement to the contrary, the master is always entitled to refuse to enter a port which his vessel cannot safely reach (due to lack of sufficient water depth) without first lightening in a roadstead or other port, even if it is a customary method of discharge at the port.
A safe berth must be safe in the same respects as a “safe port”. The master’s duty is normally to ascertain whether the berth is safe and to refuse to go to an unsafe berth even if ordered to do so. Damage done to the ship or quay at an unsafe berth is usually the ship owner’s liability, not the charterer’s (although courts have held the reverse).
If the charterers order the vessel to an unsafe port or berth, they will usually be in breach of contract.