Safe port warranty in charterparty contracts. Historical Background - Obligations of a Merchant and a Shipowner by Zhuchina

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									                              Safe port warranty in charterparty contracts
                                             Igor Sterzhantov@2011



As near thereto as she can safely get
Geographical limits
    Construction ‘as near thereto as she can safely get’ was invented to address situations when,
without fault from either side, the vessel could not get alongside her berth or dock on arrival
because of permanent obstruction. It has a carefully circled scope of application when all risks of
delays occasioned in the ordinary course of navigation, like tides, fog and bad weather were
considered to be those which the shipowner agreed to bear7. Successful invocation of ‘as near as
she can safely get’ clause made the owner’s vessel arrived at her alternative destination and the
voyage terminated which occurrence is of crucial importance to parties of marine insurance
contracts and contracts of carriage. In the former case it made the policy of insurance expired
and the insurer discharged from liability8, and in the later it started laydays and demurrage
provisions together with the charterer liability to load or discharge cargo9.
    In Shield v Wilkins10 vessel was chartered to go to ‘Riga via Bolderaa, or as near thereto as she
could safely get’. The vessel reached Riga and went further over the entrance bar to Bolderaa
(Bolderaa being a bar harbour) but was able to load there only a part of cargo corresponding to a
safe draft for crossing entrance bar on her way back. After that the vessel left her loading place
and proceed outside of the bar and requested the rest of the cargo to be loaded there. The
charterer refused to complete loading for their account. Owner claimed dead freight for the
charterer’s failure to load full cargo as per charterparty terms. Charterer contended that it was the
master’s choice to go over the bar and it was not in the contemplation of the parties that the
vessel to be loaded at two different places. The court did not touch the argument of alternative
loading place but held that the meaning of ‘to get safely to’ within the terms of governing charter
party was to get safely inside the port and away with full cargo loaded 11, therefore the charterers
were in breach of contract because Bolderaa was not a place the vessel could safely get.
    Outcome could be much less favourable to the owner if the master not only crosses the bar but
also gets his vessel alongside the berth and loads the goods. If afterwards he finds himself unable to
cross the bar because his vessel draw too much water, then it is for the master 'to find his way with
the goods to their destined port12'.
    Geographical meaning of ‘as near thereto as she can safely get’ was first defined in Schilizzi v
Derry (1855) 4 E & B 873, where sailing brig chartered for a voyage from London to Galatz was not
able to cross the bar in the mouth of Danube river for more than one month, from 5th of November
until 11th of December due to lack of water. The rest of this article you can read here:
    http://www.lawandsea.net/COG/COG_Safe_Port_2as_near.html


7
  Parker v Winlow (1857) 7 E & B 942
8
  See Samuel against The Royal Exchange Assurance Company [1828] EngR 594; (1828) 8 B & C119; 108 E.R. 987
(13 May 1828) per Lord Tenterden distinguishing temporary delays caused by ice from such as an ability to procure an
order to enter King's Dock at Deptford.
9
  Parker v Winlow (1857) 7 E & B 942, Armement Adolf Deppe v John Robinson & Co, Ltd - [1916-17] All ER Rep
1084, Schilizzi v Derry (1855) 4 E & B 873, Bastifell v Lloyd (1862) 1 H & C 388, Dahl v Nelson, Donkin, and Others,
(1881) 6 App. Cas. 38, Horsley v Price (1883) 11 QBD 244, 5 Asp MLC 106
10
   (1850) 5 Exch 304
11
   Shield v Wilkins (1850) 5 Exch 304, per Rolfe B at p.305
12
   Per Erle CJ in The General Steam- avigation Company v Slipper [1862] EngR 308; (1862) 11 CB NS 493, see also
Dixon CJ in Australian Wheat Board v Reardon Smith Line Ltd [1954] HCA 27: 'But if the ship proceeds to the unsafe
port or berth that means there is no breach; the shipowner has waived fulfilment of a condition precedent, that is all.
Having chosen to load the cargo, he cannot complain that it was supplied at a place where he need not have taken it.'

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