Over the past two decades the public has been outraged by ocean vessel groundings and the related environmental consequences.
Focus has been placed on navigational errors and operational shortcomings of vessel owners.
Many solutions have been proposed for the problems associated with grounding casualties. They range from compulsory schemes for the control of vessels in and out of ports to double-bottom requirements for all tankers.
Surprisingly, the public has failed to focus its attention on the area that has been a major of two groups that are directly affected by grounding casualties. These groups are vessel owners and charterers. Their mutual concerns have focused on the subject of safe ports and berths.
The vessel owner is most interested in protecting his ship from grounding damage in unsafe ports or berths. The charterer is interested in having his cargo carried from a safe load port to its destination without incident.
This mutual concern is specifically addressed in charter parties under safe port, safe berth clauses. These clauses frequently state that the vessel shall only be ordered by the charterer to proceed to a safe port or berth where it may be always afloat. The words “always afloat” have been interpreted by numerous tribunals to mean that the vessel will not touch ground or hit bottom.
Under maritime law, the charterer who nominates the ports or berths is held to warrant that the particular vessel can travel to and from the ports and berths without being subjected to the risk of physical damage in the absence of special circumstances. The word “berth” has been interpreted to include anchorages and offshore moorings.
These warranties also encompass the approaches to the port and berth. Thus, the depth of water at the port or berth is an important factor in determining the safety warranty. Underwater shoals and obstructions also may render harbors unsafe. Weather conditions at times may make a berth hazardous. Physical conditions at the port with respect to a particular vessel also may cause an unsafe condition such as lack of fenders or tug assistance.
The effect of the safe port warranty is that the vessel can refuse to proceed to the unsafe port or berth nominated by the charterer without being in breach of the charter party. If the vessel proceeds to the port or berth and is damaged without the fault of the master, the charterer will be liable for damages attributed to the unsafe conditions.
In many potential unsafe port situations, the master of the vessel is faced with a dilemma illustrated in one federal court case (208 F. Supp 573) “When a charterer directs a vessel to a port the captain believes to be unsafe…he may refuse to comply, thus thwarting the designs of the charterer and assuming the risk of an ultimate determination that the port was not in fact unsafe. Or he may attempt to comply and run the risk of making a miscalculation in seeking to avoid the damage to which the charterer’s directive has subjected the vessel. When a captain has been placed in such a dilemma…the entire burden of responsibility for the safety of the ship cannot legally be shifted to the captain…unless the course followed by the captain is so imprudent that it can fairly be said to be an intervening act of negligence.”
The charterers’s safe port and berth warranty is based on the premise that the charterer is in the best position to select safe ports and berths. The charterer controls the vessel’s itinerary and is often familiar with ports and their facilities because of his former and present business relationships in specific localities.
The weak link in this rationale is that the charterer may be a merchant who knows nothing about seamanship and has limited knowledge of the port and berth conditions. Furthermore, while the charterer will nominate a particular berth, he may not actually control the berth’s operation.
If future vessel groundings are to be minimized, more emphasis must be placed on collecting and assimilating information on potentially unsafe port and berth conditions.