English law of contract regulates performance of obligations which the parties have chosen to impose on themselves in the course of their commercial relations. Most of general principles of the English law of contract were developed in the eighteenth and the nineteenth centuries on the rise of public interest to the philosophy of laissez-faire, accordingly the courts saw their role mainly in holding the parties to their bargain as provided in contract. Contacts of sea carriage were no exception to this rule.
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  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  EngR 308; (1862) 11 CB NS 493, see also Dixon CJ in Australian Wheat Board v Reardon Smith Line Ltd  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.' page 4
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