F05a.

2b Safe ports and berths

* 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 opinion11: “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.” For examples of practical conditions which may make a port “unsafe” within the meaning of this
definition, see I01d.1.
* Requirements for a port to be considered a “safe port” are as follows:
1. 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.
2. 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
afloat”, the terms will often be amended to permit a short-sea vessel to lie “safe aground”.
3. 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.
4. It must be a politically safe port, free from any state of war or embargo.
5. 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 shipowner’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. For notes
on the master’s action on being ordered to an unsafe port or berth see I01d.3.
I01d.3 Action on being ordered to an unsafe port or berth
* If ordered to an unsafe port or berth, or if a port or berth is found on arrival to be unsafe, or if a port or berth
becomes unsafe during the vessel’s stay, the master should:
communicate with the owner and charterer;
collect evidence as detailed below;
note protest at the first opportunity;
where ice is the reason for the non-safety, check the contract of carriage for the provisions of any Ice Clause;
make an Official Log Book entry describing the conditions considered to be unsafe.
* Lawyers dealing with unsafe port or berth claims (e.g. acting for the owners’ or charterer’s P&I club) will usually
require evidence from the master, including some or all of the following:
photographs or video film (taken by master or crew members) showing damage to vessel, berth, etc.;
deck and engine room log books, bell books, movement books, data logger charts, etc.;
statements from relevant crew members (e.g. master, OOW, chief engineer, watch ratings);
relevant weather forecast(s);
note of protest made by master following incident;
any Letters of Protest written by master relating to the port/berth before the incident;
drawings of port and berth layouts, with supplementary information;
drawings of berth facilities (including ro-ro ramps, piling, cranes, bollards, etc. where relevant);
relevant published data about the port or berth including extracts from sailing directions, Guide to Port Entry,
etc.;
copy of relevant charter party clauses;
damage survey reports by class and/or owner’s surveyors;
ship’s particulars;
relevant ship’s plans/drawings.
* Some of the above items may be obtained from the owner’s superintendents, etc., but the ship should provide any
items available.