SAFETY OF PORT OR BERTH

KRISTINE ROSE R. RITO

OBJECTIVES:
• Define a safe port
• Requirements for a safe port

• Define a safe berth

• Requirements for a safe berth
SAFE PORT
• Legal definition: “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 safe port
1. There must be safe access to the port and it must be free from
permanent obstruction.
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.
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.
Requirements for a safe port
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

• 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.
• 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.
 Requirements for a safe berth
• Approach to and departure from the berth
• Ex: While proceeding to Bandar Bushire, the vessel was damaged by an Iraqi
missile. The owners argued that this amounted to a breach of the safe berth
warranty. The Court of Appeal held that the only express promise under the
terms of the charter was that, when the order was given to proceed to a
particular berth, that berth was prospectively safe. This promise did not extend
to cover the approach voyage to the port.
• Risks affecting the port as a whole or all the berths within it
• A safe berth warranty is limited to an undertaking that the nominated berth will
be prospectively safe from risks which do not affect the port as a whole or all the
berths in it. There would thus be no breach of a safe berth warranty by the
charterers if every berth or the port as a whole was prospectively unsafe in the
same way and to the same extent.
 SAFE OR NOT?
Ocean Victory (2015)
Facts:
• The events giving rise to this case occurred in October 2006 when the "OCEAN VICTORY" ran aground,
and later broke apart, whilst attempting to leave the port of Kashima, Japan, in a gale.

• Insurers' losses resulting from the incident exceeded US $137 million in total, which included the value
of the vessel, loss of earnings, salvage costs and wreck removal costs.

• Gard, Owners'/Charterers' insurers, claimed these sums against Time Charterers, who claimed against
Voyage Charterers, arguing that Kashima was unsafe as the casualty had been caused by a combination
of severe northerly gales and a swell caused by long waves, both of which were known to be problems
at the port.
 SAFE OR NOT?
Ocean Victory (2015)
At first instance:

The court found that Kashima port was unsafe because it did not have a safe system to
make sure that vessels needing to leave the port due to these weather could do so safely,
and that safe navigation out of the port required more than good navigation and
seamanship.
 SAFE OR NOT?
Ocean Victory (2015)
On Appeal:

The court concluded that the “concurrent occurrence” of (i) the severe swell at berth
from long waves that made it dangerous for a vessel to remain at the Raw Materials
Quay; and (ii) the severe gale force winds from the northerly/north-easterly direction in
the exit fairway conditions which affected Kashima was rare and was therefore an
“abnormal occurrence”.

Hence, in this case, there was no breach of the safe port warranty. This case is under
appeal to the UK’s Supreme Court, so the test for “abnormal occurrence” may be further
redefined.
 THE END
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