Vol. 30 No. 2 (2016): Australian and New Zealand Maritime Law Journal

Safe Port Promise By Charterers: Rethinking Outstanding Complications

Published 2022-02-10


A charterer’s contractual safe port promise lies at the heart of modern charterparties law. Far back in the 1950s, Sellers LJ in The Eastern City [1958] 2 Lloyd’s Rep 127, 131 had pronounced a broad statement of law in this respect, which reads,
“... a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship.” This classic formulation has in turn laid the foundation of modern risk allocation between charterers, shipowners and their respective insurers. Since a breach of a safe port promise attracts astronomical damages, the attribution of liabilities to the concerned stakeholders therefore hinges on the accurate assessment of safety and the unambiguous ascertainment of the ambit of such a promise. As straightforward as it may seem, the modern world has time after time stumbled over its application.

The paper, by comparing and contrasting court cases, analyzes the two main sources of outstanding complications revolving a charterer’s safe port promise. Firstly, as regards the assessment of safety, whether reasonable foreseeability should be applied to the test of prospective safety propounded in The Evia (No.2) [1983] 1 AC 736 (HL). Secondly, concerning the notion of abnormal occurrence as an exception to a charterer’s safe port promise, whether the newly formulated unitary question by the Court of Appeal in The Ocean Victory [2015] EWCA Civ 16 requires rethinking. More importantly, whether the notion of abnormal occurrence itself is of reduced, if not no significance. The paper then proceeds to present possible solutions to the aforementioned uncertainties. Through examining outstanding complications over a charterer’s safe port promise and putting forward related suggestions, it is hoped that interests may be revived in the academic field to revisit the said issues, and that the safe port promise may truly be acted upon by the charterers.