Is there a Safe Port in the Arabian Gulf?

Abstract

Murray writes this article in the context of the Iran-Iraq War, which had been resulting in attacks on merchant vessels in the Arabian Gulf since 1984. The purpose of this paper is to argue, from a lawyer's perspective, that there is a safe port in the Gulf, based on the development of some English cases during the war as well as prior.

Murray focuses in particular on the case of 'The Evia', which arose from the closure of the Shatt al Arab in 1980 (the ship was trapped in an Iraqi port). That case involved a decision on the meaning of 'safe port', whether war was an uncommon occurrence, and whether the charterers were in breach of their duty to bring the ship to a safe port. The House of Lords concluded that because the port had been prospectively safe and was only made unsafe due an unexpected and abnormal event occurring afterwards, the charterer could not be held liable for resulting loss or damage (although a secondary obligation was added to this, to make a new order where possible). Based on this decision, Murray finds that the tests for whether a port is prospectively safe, or actually safe, are one and the same.

After considering decisions made after The Evia, especially on the topic of war risk clauses/premiums, Murray concludes that the risk of loss or damage to a vessel has shifted from the charterers to the owners, where a vessel is in a port that after its arrival becomes unsafe. Provided that a vessel was in the Shatt al Arab before 21 September 1980, Murray writes, Basrah was a safe port in the context of the safe port warranty. Because the ships still there were believed to be heading to a safe port before and up to arrival, they were still, technically, in a safe port.