Safe Port Promise By Charterers: Rethinking Outstanding Complications

• Author: Choi Wai Bridget Yim
• Position: LLB (City University of Hong Kong). The author wishes to acknowledge Dr. Poomintr Sooksripaisarnkit, Lecturer in Maritime Law, Australian Maritime College, University of Tasmania, for his unfailing support and invaluable advice on earlier drafts
• Pages: 1-12

(2016) 30 ANZ Mar LJ

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SAFE PORT PROMISE BY CHARTERERS:

RETHINKING OUTSTANDING COMPLICATIONS

Choi Wai Bridget Yim∗

1 Introduction

The modern law governing charterparties has long been sophisticated. At the heart of these intricacies lies a

charterer’s safe port promise. A charterparty allows for the charterer’s otherwise u nfettered right to exploit the

earning capacity of the vessel,1 subject however to the doctrine of safe port. The doctrine places a limitation on

the charterers to not pursue financial interest at the expense of the safety of the vessel and its crew and thereby

expose the shipowner to financial loss. This is of paramount importance to the shipowner because the contract of

affreightment, be it voyage or time charter-party, dictates that masters and all crew members are to comply with

the charterer’s orders, as long as the orders are given in compliance with the charter-party.2 Lamentably, as Roskill

LJ has put, ‘this concept should be simple, but unfortunately its very simplicity has led to a multitude of decisions

which at one time raised considerable doubt as to the exact meaning and extent of the promise of safety.’3

The classic definition of a charterer’s promise of safety, as laid down in The Eastern City, is that

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.4

Whilst the Court has made every effort to elucidate the scope of the promise, the current state of law leaves much

to be desired. The paper is dedicated to revealing uncertainties and deficiencies of the current law governing safe

port promise and proposing appropriate changes, if any. The writer attempts, in the first part, to clarify the

definition and the extent of safe port promise. In the second part, through an examination of the tests for assessing

safety of the port and abnormal occurrence as an exception outside the scope of charterer’s safe port promise, the

writer analyses outstanding complications of the prevailing law. Then, the writer puts forward suggestions to

address the uncertainties . The paper concludes with the writer’s predictions of the future developments of safe

port promise.

2!Safe Port Promise: What does it Entail?

2.1!Safe Port ‘Warranty’

The safe port ‘promise’ is customarily referred to as a ‘warranty’ in judgments.5 Peculiar the term ‘warranty’ may

seem, it means no more than a contractual promise.6 The term, as with the so-called warranty of seaworthiness, is

used as a matter of convenience. It is to be distinguished from an expression of the legal consequences of breach

or a term in the nature of a marine insurance warranty.7 Despite the historic and vast usage of the term, such use,

as Lord Roskill cautioned, is inaccurate and potentially misleading.8 For the purpose of the paper, the charterer’s

‘warranty’ as to the safety of the port will be referred to as ‘promise’.

∗ LLB (City University of Hong Kong). The author wishes to acknowledge Dr. Poomintr Sooksripaisarnkit, Lecturer in Maritime Law,

Australian Maritime College, University of Tasmania, for his unfailing support and invaluable advice on earlier drafts.

1 Whistler International Ltd v Kawasaki Kisen Kaisha Ltd (The Hill Harmony) [2001] 1 AC 638, 652 (House of Lords, Hobhouse LJ).

2 Unitramp v Garnac Grain Co Inc (The Hermine) [1979] 1 Lloyd’s Rep 212, 214 (Court of Appeal).

3 Ibid (Roskill LJ).

4 Leeds Shipping Co Ltd v Societe Francaise Bunge (The Eastern City) [1958] 2 Lloyd’s Rep 127, 131 (Court of Appeal, Sellers LJ).

5 See for example Vardinoyannis v The Egyptian General Petroleum Corp (The Evaggelos Th) [1971] 2 Lloyd’s Rep 200, 205 (Queen’s

Bench, Donaldson J); The Hermine [1979] 1 Lloyd’s Rep 212, 215 (Roskill LJ).

6 D. Rhidian Thomas, ‘The Safe Port Promise of Charterers from the Perspective of the English Common Law’, (2006) 18 Singapore

Academy of Law Journal 597, 597-8.

7 Marine Insurance Act 1906 (UK) c 41, s 33(3) provides that:

‘A warranty, as above defined, is a condition which must be exactly complied with, whether it be material to the risk or not. If it be not so

complied with, then, subject to any express provision in the policy, the insurer is discharged from liability as from the date of the breach of

warranty, but without prejudice to any liability incurred by him before that date.’; See additionally an elaboration on the nature of warranty

in The Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1991] 2 Lloyd’s Rep 191 (House of

Lords).

8 Kodros Shipping Corporation of Monrovia v Empresa Cubana De Fletes (The Evia (No.2)) [1983] 1 AC 736, 765 (House of Lords).