2.4 The content of the obligation
The nature of the obligation- Safe port clauses: warranty or due diligence
The central issue at hand is determining the nature of the obligation under a safe port/berth clause in a charterparty agreement. Specifically, the question is whether this clause imposes an absolute warranty(1) The term is defined in the introduction as being a mere promise and not in the mean of a warranty in inusrance terms. on the charterer, i.e, for any damage incurred by the vessel while it is in the nominated port (2.4.1), or whether the charterer's responsibility is limited to exercising due diligence (2.4.2). This inquiry involves examining the legal implications of such a clause, considering whether the charterer is accountable for all risks associated with the port's safety, or if their obligation is confined to taking reasonable care in the selection and nomination of the port.
2.4.1 Absolute obligation
The commitment to designate a safe port is often referred to as the "primary obligation" and the “charterers warranty is of safety not reasonable safety.” This distinction implies an absolute obligation, whether it is implied or explicitly stated in the contract. The Ocean Victory [2014] notably diverged from Lord Denning's perspective of “reasonably safe,” as expressed in the Evia 2.(2)The Evia 2 [1982] ; Gard Marine & Energy Ltd v China National Chartering Co Ltd, The Ocean Victory [2014] 1 Lyod’s Rep. 59, at 100-101 It clarified that charterers would be in breach of the warranty even if they were unaware of the unsafety of the port and despite having exercised reasonable care.
Furthermore, in The Greek Fighter [2006], J. Colman, in an obiter comment, proposed a test for determining the safety of a port. He suggested assessing whether "an objective observer could be expected to perceive the risk.”(3) Coghlin et al. [2014]., at 10.53 However, it is argued that this view does not accurately represent the law and should not be followed.(4) Ibid.
2.4.2 Due diligence clauses
If there is an express clause in a charterparty agreement that is specifically prescribing “due diligence,” then a breach occurs only if the charterer fails to employ reasonable care to ensure the port is safe.(5) This concept is illustrated in The Greek Fighter [2006]; see Coghlin et al [2014] at. 10.55 In The Evia 2 [1982], the vessel was ordered by the charterer to Basrah, a safe port at the time of the agreement. However, after the vessel reached the port and discharged its cargo, it became unable to leave due to the outbreak of “large scale hostilities” between Iraq and Iran. The safe port clause in this instance was different, stating: “Vessel to be employed... only between good and safe ports or places where she can lie always afloat.” This implies a higher obligation than what was found in the Saga Cob,(6)The Saga Cob [1992] at 547 where the requirement was only a due diligence to ensure that the vessel is employed between safe ports, highlighting the importance of specific wording in these agreements.
In Saga Cob, “due diligence” is defined as “reasonable care.”(7)The Evia 2 [1982] at 757 Furthermore, when evaluating political danger, it is crucial to note that what needs to be assessed is subjective. The judge emphasises that the required level of due diligence is distinct from that in the context of physical danger. The test applied is as follows: "if a reasonably careful charterer, based on the available facts, would have concluded that the port was prospectively unsafe."(8)The Saga Cob [1992] at 551 The test, therefore, is to determine whether the charterer has exercised due diligence in ascertaining whether the port is prospectively safe or not. A discussion on this last point will be elaborated below.