UNSAFE PORTS AND BERTH

UNSAFE PORTS AND BERTH

Introduction

Charter‑parties often contain terms that a port or berth is 'safe'. In such a case, the obligation of the charterers is to nominate a port which at the relevant period of time, the particular ship may approach, use, and depart from without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good seamanship and navigation.

This chapter examines the following:‑

The Charterers obligation to nominate a safe port

Time Charters,

Voyage Charters;

The elements of safety :

Port must be safe to approach and depart from,

Port must be safe to use,

Good navigation and seamanship;

The evidence required from the Master.

In the appendix to this chapter a case history is provided.

Charterers' Obligation

Time charters ,

Where time charterers have the option to nominate a safe port within a certain range, the charterers obligation to nominate a safe port arises at the time when the order is given. At that time, charterers must nominate a port which is prospectively safe for the ship to approach, use, and leave.

If the port nominated later becomes unsafe, charterers are under a further obligation to protect the vessel by issuing new orders for the vessel, often to proceed to another port. However, this obligation does not arise in a case where the port later becomes unsafe due to an unexpected and abnormal danger of which the charterers were unaware.

If charterers nominate a port which, in the Master's opinion, is unsafe, the Master should immediately contact owners explaining in detail the reasons for his opinion and request further instructions. If the Master reasonably obeys the charterers' orders to proceed to the port and the vessel becomes damaged as a result, charterers will be liable. However, it is important that the Master considers carefully voyage orders given by the charterers before proceeding to a port and follows closely

any instructions given by the charterers in relation to that port.

Voyage charters

Voyage charterers are also under an obligation to nominate, from the range of ports specified in the charter party, a safe port, which at the relevant time is safe to approach, use, and leave. However, it is uncertain whether the secondary obligation to issue new orders for another safe port arises in the case of voyage charters. Moreover, in voyage charters if a port is specifically named in a charter‑party and there is no express term of safety in the charter‑party with regard to that port, there is no obligation of safety on the charterers. Therefore, it is important that the owners and the Master establish that the port is safe as owners will be held responsible for any damage suffered by the ship as a result of the unsafety of the port.

Elements of Safety

A safe port or berth is one that a vessel may approach, use, and leave without being exposed to danger. A port will not be unsafe if any dangers inherent to the port may be avoided by ordinary standards of navigation and seamanship.

Port must be safe to approach and leave

Charterers must nominate a port which a vessel may safely approach and from which a vessel may safely depart. Although charterers are not under an obligation to ensure that the most direct route or any particular route to or from the port is safe, charterers are under an obligation to ensure that the voyage that they order is one that an ordinarily prudent and skillful master may make safely. Therefore, a port will be unsafe if a vessel cannot approach it without dismantling part of her structure, or if a vessel is forced to discharge some of her cargo on to lighters if her draft is too great to allow her to enter the port.

Port must be safe to use

The location, layout, and other physical characteristics of a port nominated by charterers must be safe for the particular ship. The port must have a sufficient amount of technical equipment, tugs, and pilots. The port also must have sufficient access to meteorological services which issue weather reports in a language which the Master would understand. Finally, in addition to physical dangers, a port may be Unsafe as a result of a dangerous political situation which is an inherent feature of that port. However, a port will not be unsafe because the vessel has to leave in certain weather conditions provided that the onset of these conditions are predictable and the Master has been given adequate warning by the charterers to leave or,

alternatively, been made aware that he should keep a watch for local warnings. Furthermore, a port only will be safe if the ship has to leave it in bad weather if that port has an adequate weather forecasting system, a sufficient amount of pilots and tugs available, adequate searoom to manoeuvre, and an adequate system for ensuring that there is always searoom and room to manoeuvre.

Good Navigation and Seamanship

A port will not be unsafe if any dangers inherent to it may be avoided by good navigation and seamanship. The Master is under a duty to take whatever reasonable steps are necessary to circumvent or mitigate these dangers. However, if the dangers may be overcome only by exercising extraordinary standards of navigation and seamanship, the port will be considered unsafe.

Evidence required from the Master

When an accident involving an unsafe berth or port occurs, the information required to bring a claim against charterers relates not only to the actual incident resulting from the unsafety of the port, but also to the point at which the voyage planning commenced. To ensure that all the information required is available, the Master should follow the procedures listed below:

Retain a complete record of the communications dealing with the proposed voyage;

Retain a copy of the voyage orders in which charterers have given details of ports to which the vessel should proceed, including current draft restrictions and other pertinent information;

Retain all charts in use at the time of the incident (no alterations of any kind are allowed);

Retain all rough notes and calculations from the chart room table;

Ensure that all shore personnel such as pilots, tug Masters, coastal state officials as well as any other craft in the area are fully identified and a record of their names is kept in the deck log;

Keep a note of all the ship's personnel on and off watch who witnessed the incident;

Ensure, when writing a report of the circumstances of the accident, that the editions of each publication referred to are noted;

Ensure that the bridge and engine room clocks are synchronised to avoid any errors in the recording of events during the incident, and maintain a record of when they were synchronised;

Retain all weather forecasts and weather fax charts, and ensure that these are updated as frequently as possible;

Retain any other sources of printed information such as course recorder, echo sounder, telegraph recorder printouts;

Request the Coast Guard to retain recordings of VHF traffic and radar plots (if this request is not made promptly, the tapes may be erased);

Ensure that the Master's night orders are acknowledged and retained;

Retain all notes and documentation used for passage planning;

Ensure that the pilots have been made aware of the vessel's dimensions and handling characteristics, and maintain a record of the person who informed the pilots of the vessel's details;

Ensure that detailed records are kept of all events connected with the accident and/or machinery breakdown;

Ensure detailed records are kept of services provided by third parties;

Establish whether any similar incidents have occurred in the port, attempting to find out the names of the vessels involved and dates;

Ensure that deck, engine, and radio log books as well as bridge and engine movement books (bell books) are available and current;

Ensure that a complete photographic record of he events as they unfold is made.

In addition to the above information, solicitors representing owners will take detailed statements from all the officers involved and from pilots and tug masters involved in the incident.

A P P E N D I X

Case History

The vessel involved in this incident was a 120,00013M bulk carder which had been time chartered for a period of 11 to 13 months, charterers' option. The charter‑party was on the New York Produce Exchange form with the vessel to be employed carrying lawful merchandise between safe ports within institute warranty limits. The charter‑party contained an arbitration clause whereby all disputes between owners and charterers were to be resolved by arbitration in London. In accordance with the

terms of the charter‑party, the charterers ordered the vessel to load a cargo of coal in Queensland for discharge at a nominated port in Japan.

The vessel arrived at the named port in December and commenced discharge on arrival. Weather conditions deteriorated, and northerly winds caused the vessel to range against the quay on a heavy swell. The stress generated on the fenders by the vessel's movement resulted in the disintegration and failure of one fender unit, which caused the fracture of the vessel's shell plating in a number of places. Further damage was then caused by contact with the unprotected section of wharf under continued pressure from the wind and swell.

As a consequence of this accident, owners incurred substantial off‑hire and repair costs. Owners commenced arbitration proceedings in London to recover the loss from charterers.

Owners claimed that the nominated port was unsafe for the following reasons:

- There was no protection from northerly winds in the port;

- There was no system in operation at the port to provide protection at the berth or to enable the

vessel to leave the berth quickly if weather conditions demanded such action;

- There was no satisfactory system in operation at the port for providing warnings about

deteriorating weather conditions;

- The fenders on the wharf were inadequate for vessels of the size scheduled to use the facility.

Additionally, the fenders were not properly equipped in that the chains required to limit the

upward and downward movement of the fenders were missing on some of the units;

- The berth was not provided with a system of mooring points which allowed balanced and

effective use of mooring ropes and wires. This unbalanced mooring system resulted in bits

being placed at other than optimum angles which exacerbated the movement of the vessel

against the quay when under the influence of a strong northerly wind.

The arbitrators found that the charterers were in breach of their contractual obligation to nominate a safe port for the following reasons:

- The berth was overexposed to the elements. The breakwater afforded little protection in the

wind and swell conditions present at the time of the casualty.

- No tugs were immediately available.

- The construction of the berth was such that the facilities to moor did not enable the vessel to

have a symmetrical mooring layout. The berth had been lengthened to accommodate two

vessels, and as a result, the stern of the vessel overhung the end of the berth. There were

no mooring posts on the berth for stern lines except a distant post on the shore. Therefore,

the stern lines were some three times the length of the head lines. In bad weather

conditions, the movement of the vessel caused excessive pressure on one fender as a result

of which it collapsed into the water. Further movement brought the vessel into contact with

the exposed concrete causing severe shell damage.

The fender which collapsed may not have been sufficiently strong.

The arbitrators rejected the charterers' arguments that the weather was exceptionally severe. They found that although the weather conditions were unusual, they were not abnormally so. The arbitrators further rejected the charterers' arguments that the Master had been negligent in the mooring of the vessel and the lines had become slack. They held that the Master had acted in accordance with the standards of prudent seamanship.