Navigating the Safe Port Challenge
One of the most basic aspects of shipping is the relationship between where a ship goes, and who orders it to go there. This is the interplay between shipowner and charterer, and the fundamental safety issue of where a chartered ship is instructed to load or discharge. The “safe port” debate sits at the heart of potential claims, legal disputes, and the challenge of keeping seafarers, ships and cargoes safe.
When ships are chartered, the charterer instructs a shipowner where to load and discharge. It is one of the most fundamental parts of the business. Someone has a cargo somewhere, someone else has a ship, and cargo has to be moved to somewhere else. The absolute basic premise of shipping, but behind such elegant simplicity lay hidden complications.
Just because this is fundamental does not make things simple. Far from it. The charter party agreement sets out the terms of the hire, and within that is the small matter of the ports and berths involved, and the requirement for them to be “safe” for the vessel and operations.
It is a charterer’s duty to order the ship to a prospectively safe port, in the sense that the ship can safely reach, use and depart from the port at the relevant time in the future. Therefore, the prospective safety of the port is to be assessed at the time that the charterer makes its nomination.
Even then, an owner is not obliged instantly to obey the instruction (even if the order is lawful). Rather, the law affords the master a reasonable period within which to consider and evaluate matters.
IT’S SIMPLY SAFETY
Put in its most simple form, a safe port is somewhere the ship can get to, use and get out of…safely! The case of Leeds Shipping v Société Française Bunge (the EASTERN CITY)  sets out the concept of a “Safe Port”, as “a port which, during the relevant period of time, the ship can reach, enter; remain at and depart from without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship.”
It is useful to have such a clear and well-accepted legal definition, but that does not mean that safe port fallouts are either reducing in their number or complexity. Far from it, there are numerous disputes and the practical applications are being tested all the time.
So, what do we mean by “safe”? The meaning of safety has been subject to numerous interpretations which have each been argued and ruled upon in arbitrations and courts. The physical make-up of the port is the most obvious consideration for what makes a port safe or unsafe; however, here are some considerations that cause a port to be deemed as safe.
- There must be safe access to the port
- Vessels can lie safely afloat at all states of the tide – or a NAABSA “Not always afloat but safely aground” agreement is in place.
- Adequate facilities for trade.
- Politically safe.
INTELLIGENCE IS VITAL
Keeping the ship safe, while also making sure there are no surprises is pivotal. Various standard charter forms usually contain some form of safe port provisions, such as “the vessel shall be employed “between safe port and/or ports”, or “Charterers shall exercise due diligence to ensure that the vessel is only employed between and at safe ports, places, berths, docks, anchorages and submarine lines where she can also lie safely afloat”.
Which prompts the question, just what due diligence is when it comes to safe ports? The obligation is on the charterers to display “reasonable care” and that this duty would be discharged if “a reasonably careful charterer would, on the facts known, have concluded that the port was prospectively safe”. While lawyers might hold the lock, it is information that is the key to the safe port conundrum.
Gaining the right intelligence and information means hitting a moving target – indeed the thinking around traditional risks and expectations is changing constantly. COVID-19, for instance, has an obvious impact on maritime operations given closures and lockdowns at key ports. However, there is currently no case law as to whether a pandemic renders a port unsafe.
With a risk of crew infection, and with the potential for ships to be detained or even blacklisted elsewhere it seems that this will be a pivotal issue. Another issue could be port cyber security. With ports increasingly boasting of their connected credentials, and “Smart Port” capabilities. It could perhaps be argued that cyberattacks might render a port unsafe.
MANAGING THE RISK
The issue of safe ports is coming back into focus, and while it may well be a question of law, the question of safety is one of fact. So, for that reason, access to the right data, analysis and intelligence is vital.
Unsafe port/berth cases are invariably expensive and may involve different underwriters and interests. The pursuit and defence of unsafe port disputes are notoriously difficult. Such cases usually turn on contemporaneous evidence, which is of crucial importance. The gathering of intelligence, data and evidence is a vital part of protecting interests and avoiding any problems in the first place.
Capabilities such as reviewing vessel behavioural data as well as technical and maintenance information, detentions and dry-docking give the ability to build vessel profiles as well as the layering of other risk indicators on top in a static or dynamic report. Suddenly with the right answers to the right questions, the issue of safe ports comes clearer.
Geollect port reports also allow understanding of the seasonal nuances, likely behaviours and overall suitability of the port itself in all conditions. By using Geollect’s intelligence and data, it is possible to better understand the factors that would be seen as an attribute of the port versus those that could be seen as abnormal. Suddenly the risk profile changes and confidence replaces doubt.
Intelligence is at the heart of understanding whether a port is or was “Safe”. Whether as part of due diligence, for ongoing awareness compliance or retrospectively as part of a dispute resolution. To find out more, contact email@example.com