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Safe Port Clause


Law and Sea.
Ignorant and Illiterate.

Safe Port Clause
Last updated: 06-Oct-2014

Per Lord Roskill in Kodros Shipping Corp v Empresa Cubana de Fletes (The Evia), [1982] 3 All ER 350 at p.365-366:

In my opinion, while the primary obligation of a time charterer under cl 2 of this charterparty is that which I have already stated, namely to order the ship to go only to a port which, at the time when the order is given, is prospectively safe for her, there may be circumstances in which, by reason of a port, which was prospectively safe when the order to go to it was given, subsequently becoming unsafe, cl 2, on its true construction, imposes a further and secondary obligation on the charterer.

In this connection two possible situations require to be considered. The first situation is where, after the time charterer has performed his primary obligation by ordering the ship to go to a port which, at the time of such order, was prospec-tively safe for her, and while she is still proceeding towards such port in compliance with such order, new circumstances arise which render the port unsafe. The second situation is where, after the time charterer has performed his primary obligation by ordering the ship to go to a port which was, at the time of such order, prospectively safe for her, and she has proceeded to and entered such port in compliance with such order, new circumstances arise which render the port unsafe.

In the first situation it is my opinion that cl 2, on its true construction, (unless the cause of the new unsafety be purely temporary in character) imposes on the time charterer a further and secondary obligation to cancel his original order and, assuming that he wishes to continue to trade the ship, to order her to go to another port which, at the time when such fresh order is given, is prospectively safe for her. This is because cl 2 should be construed as requiring the time charterer to do all that he can effectively do to protect the ship from the new danger in the port which has arisen since his original order for her to go to it was given.

In the second situation the question whether cl 2, on its true construction, imposes a further and secondary obligation on the time charterer will depend on whether, having regard to the nature and consequences of the new danger in the port which has arisen, it is possible for the ship to avoid such danger by leaving the port. If, on the one hand, it is not possi-ble for the ship so to leave, then no further and secondary obligation is imposed on the time charterer. This is because cl 2 should not be construed as requiring the time charterer to give orders with which it is not possible for the ship to com-ply, and which would for that reason be ineffective. If, on the other hand, it is possible for the ship to avoid the new danger in the port which has arisen by leaving, then a further and secondary obligation is imposed on the timer charterer to order the ship to leave the port forthwith, whether she has completed loading or discharging or not, and, assuming that he wishes to continue to trade the ship, to order her to go to another port which, at the time when such fresh order is given, is pro-spectively safe for her. This is again because cl 2 should be construed as requiring the time charterer to do all that he can effectively do to protect the ship from the new danger in the port which has arisen since his original order for her to go to it was given.

My Lords, what I have said with regard to these further and secondary obligations under cl 2 of this charterparty will apply to any other similarly worded ‘safe port’ clauses.


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