MarIus

2.5.1 Prospective safety: the time of assessment

The leading case is The Evia 2. The term “prospective” safety was first introduced in this case. The port must be safe at the time of nomination by the charterers. Lord Roskill stated that:

The charterer’s contractual promise must,I think, relate to the characteristics of the port or place in question and in my view means that when the order is given that port or place is prospectively safe for the ship to get to, stay at, so far as necessary, and in due course, leave. ^{(2) Ibid.}

It is not necessary for the port to be safe at the time of the order. If it is foreseeable that obstacles would be eliminated, then the port should be considered prospectively safe. In essence, it was held that if it is reasonably foreseeable that the conditions of unsafety will be resolved or no longer present by the time the chartered ship is required to arrive at, remain in, and depart from the port, then the port is deemed prospectively safe at the time of its nomination.^{(3) David Chong Gek Sian, “Revisiting the safe port” (1992) Singapore Journal of Legal Studies 79, at 82; Baker and David [1986]}

In The Saga Cob [1992], a case that will be studied in detail below, the court addressed the issue of whether a specific source of danger could legitimately be considered a characteristic of the port and, consequently, if this danger made the port prospectively unsafe. The test set forth by the court was:

“It is accepted that is unsafe unless shown absolutely safe. It will not, in circumstances such as the present, be regarded as unsafe unless “the political” risk is sufficient to a reasonable shipowner or master to decline to send or sail there.” ^{(4)The Saga Cob [1992] at 549}

Several criterias were proposed tin this case to prospectively determine if a port is safe.

2.5.2 The criterias to be taken in accoount when assessing the prospective safety of the port

In The Saga Cob, the concept of a port being prospectively safe was examined, particularly in the context of whether Massawa port was safe when the order to proceed there was issued on August 26th.

As of August 26, 1988, hostilities had been ongoing for many years between the Ethiopian government and forces from the Eritrean government. While there were a few attacks inland in March 1988, only one notable attack had occurred at Massawa port in 1986.^{(5) Ibid.}

Sporadic attacks were made in the town of Massawa from April to august 1988.^{(6) Ibid.} One attack was registered in April 1988 on oil refinery. In May 31, 1988, a convoy system is established for certain vessels departing or heading towards Assab to counter small boats operating for EPLF forces and hiding in the coastline (the same boats used in the attack on the oil refinery). On this day, the vessel Omo Wonz was attacked by a guerrilla force, 65 nautical miles from Massawa. Immediately after this attack, Saga Cob was ordered to proceed in convoy. However, by June 14, the escort was considered unnecessary (according to the Minister of Transport), and the Ethiopian navy would provide an escort if the situation changes. Vessels were instructed to maintain a minimum distance of five miles from the coast while proceeding between Assab and Massawa. Escorts were provided sporadically to Saga Cob.

In May 1988, government declared a state of emergency establishing prohibited areas. Notably, Massawa was not listed among these prohibited areas. Reflecting on this, L.J Parker inferred that Massawa was not unsafe at that time. Therefore, it appears that the instructions from the concerned government are also considered in assessing a port's safety. Nonetheless, it is highlighted at [550] that the responsibility for taking adequate precautions, once a risk is identified, rests with the charterers. The charterers bear the duty of ensuring the safety of the vessel entering a port.

Additionally, Parker L.J. stated at [549]: “There are in essence only a very few incidents from which it could be concluded that on Aug. 26, the port was prospectively unsafe”. The frequency of incidents is thus also an important factor to consider when assessing the safety of a port.

Moreover, it was noted that from May 31 to August 26, 1988, there were no other attacks or incidents, and similarly, none occurred after August 26 (when the order to call at the port was given) until the attack on September 7. Additionally, there were no further attacks until January/February 1990. The judge outlined that it was not until January 1990 that war risk underwriters demanded additional premiums for vessels traveling along the coast. Thus, the event following the attack and the requirement of additional premiums are also regarded as a relevant factor in assessing the safety of a port.

Additionnaly, an old case of 1916 appears to take into account the degree of risk in assessing if the port is prospectively safe or not at the time of the nomination.^{(7) Palace Shipping company Ltd. V Gans Steamship Line [1916] 1 K.B 138, cited in Cooke et al. (2014), para note 133 para 5.74} The German Government's announced that they intend to destroy hostile merchant ships near Great Britain and Ireland. The charterers ordered the vessel to go to Newcastle from Le Havre. The owners argued that Newcastle was not a safe port due to the German government's threat, and they wanted to withdraw their vessel from the time charter. Sankey J concluded that despite potential dangers, the German government's threat did not materialise, deeming Newcastle a safe port. The court assessed the intensity of German hostilities and upheld the principle that a shipowner must accept some degree of risk. In this context, the breach was found in the order because the owners sought to withdraw their vessel.

The outcome of the prospective safety test appears to be determined by a range of factors. These include the situation at the time the charterers issued their orders, the number of past and anticipated incidents, and directives from the relevant government (excluding precautions taken by the coastal state). Additionally, the decision takes into account whether insurers have imposed extra premiums. It is worth noting that future events have also been considered relevant in determining whether the charterers exercised due diligence or not. For instance, the absence of an attack for one and a half years following the incident in The Saga Cob worked in favor of the charterers in deciding that they had indeed exercised their due diligence while assessing if the port was safe. However, this reasoning may appear somewhat lacking some logic. Charterers should demonstrate reasonable care in determining subjectively whether the port is safe or not, based on objective elements. Due diligence is carried out prospectively, not retrospectively. The crucial condition is to send a vessel to a port considered safe at the time of the charterers' orders. If events during the journey alter the situation, charterers must adjust their judgment and consequently their orders.^{(8) This will be discussed in the implications of an unsafe port and refered to as « secondary obligation », see below para 3.2} However, events following the port visit are beyond their control and are unknown at the time of assessment. Unforeseeable, post hoc events at the time of the orders should in no way come into play when assessing retroprospectively if charterers exercised due diligence. They can only reflect a change in the port's status from safe to unsafe when the conditions required to deem it unsafe are met. Furthermore, in our view, it cannot be said that the port should be considered prospectively unsafe on a particular date when this event merely represents the first in a series of incidents that will start to determine the port's status as unsafe, especially when this event was unpredictable at the time of the charterers' orders. As said above, it may reflect a change in the port's status from safe to unsafe. In a volatile context, situation can change rapidly from safe to unsafe and vice-versa. Therefore, in our view, when determining the issue of due diligence, such post hoc events should not be taken into account by the judges.

Finally, it is worth to note that when assessing the prospective safety, it is essential to assess it for the time the ship will call at the port, use it and also depart from it.^{(9)The Eastern City [1958]; The Archidimis [2007] 2 Llyod’s Rep 597 (C.A)}

Additionally, the risk or danger must be inherent to the port to which the charterers directed the vessel.

2.5.3 The distinction between abnormal events and inherent dangers of a port

For a port to be considered unsafe, the risk must be an inherent characteristic of the port.

In The Saga Cob, it is determined that a vessel is only considered to be proceeding to an unsafe port if any vessel heading to that port is at risk of danger. If this is not the case, the situation is regarded as an abnormal and unexpected event. In this instance, the observed attacks were deemed sporadic, marking the first occurrences in a lengthy period, which indicated their scattered or isolated nature. However, if the port is the focal point of hostilities, as it was observed in The Lucille, this would be considered an inherent characteristic of the port.^{(10)The Lucille [1984]}

In The Saga Cob, it was noted that along the coast from Assab to Massawa, a guerrilla attack could occur, and there were indeed sporadic guerrilla attacks in the coastal waters. However, even though an attack was foreseeable, it was not considered a characteristic of the port. The judge opined that if the attacks were isolated incidents and not a defining feature of the port, they were insufficient to establish that it is a normal characteristic of every port in the country for a guerrilla attack to occur during arrivals or departures. However, if there is an escalation or increase in the same risk, such as heightened hostilities, this can render the port unsafe. This escalation would create a new obligation for the charterers, particularly if the port becomes unsafe but the danger is still avoidable^{(11) Coghlin et al. [2014] at 10.44 ; The Lucille [1984]; see below 3.2 “Secondary Obligation”}. We can discern a requirement for a certain continuity of hazardous events, a necessity for a sequence of events, taken collectively, that render the port unsafe. This involves the concept of a danger present for a sufficient duration to become a characteristic of the port. Such a requirement implies that sporadic or isolated incidents may not be enough to classify a port as inherently unsafe; rather, there needs to be an ongoing or consistent pattern of danger that establishes it as a defining feature of the port.^{(12) See. The Saga Cob [1992].; Houston City [1954]}

In the Black Sea, the situation is volatile and unstable. There have been periods of strike attacks followed by intervals with no incidents, and then a resurgence of attacks. Additionally, there is the possibility of encountering mines.

During the mirror agreements from August 2022 to June 2023, there were no attacks. However, this initiative concluded on July 17, 2023, and attacks resumed thereafter. This raises a question: if peace is negotiated or the mirror agreements are reinstated and charterparties proceed, but there is a sudden new attack, for example, by the Russian State, how should it be interpreted? Would such an attack be considered a "sudden attack," an isolated incident after a long period of calm. Would the historical context and the declared state of war weigh instead, in favor of deeming the port or the entire Black Sea leading to Russian or Ukrainian ports unsafe? This scenario would require careful consideration of both the recent and historical patterns of conflict in the area to assess the safety of ports in the Black Sea region at the time of the attack.

Currently, media outlets suggest that any vessel proceeding to or departing from Ukraine is a potential target^{(13) Llyod’s list, Russia warns that ships heading to Ukraine are now a military target, retrieved on November 20, 2023, https://lloydslist.com/LL1145965/Russia-warns-that-ships-heading-to-Ukraine-are-now-a-military-target}. This scenario mirrors Lord Justice Parker's observation in Saga Cob, where he stated that a hazard should be considered "an abnormal and unexpected event unless it is to be said that..., any vessel proceeding from Assab or Massawa was proceeding to an unsafe port"^{(14)Saga Cob [1992] at 550} (in our case, any vessel proceeding to ports in the Black Sea). However, the situation in The Saga Cob also highlighted that any vessel traveling the route from Assab to Massawa was a target for guerrilla/terrorist attacks; this raises the question: is there a difference? Why was the guerrilla attack in The Saga Cob deemed "an abnormal and unexpected event" despite the existing risk?

It appears that in The Saga Cob, the risk encompassed the entire coastal route rather than just the port itself. Similarly, in the current situation, the entire Black Sea region is riddled with dangers such as mines and missile attacks. The distinction, in our opinion, may stem from the ongoing war's more permanent and less sporadic nature compared to guerrilla or terrorist attacks. Furthermore, there are additional factors indicating that Ukrainian ports are specific targets.^{(15) Llyod’s list, note 108} However, this assertion cannot be confidently made for Russian ports. Nonetheless, the whole Black Sea region leading to these ports remains politically dangerous due to the ongoing war. If we apply the findings in The Lucille above, if the port is the focal point of hostilities, this would be considered an inherent characteristic of the port^{(16)The Lucille [1984]} . By analogy, accessing a Russian port, by an area that is the center of hostilities, would render Russian ports unsafe in our view, as the warranty also applies to access to and egress from the port.

Moreover, if a hazard could be avoided but persists due to an external factor (like a power supply cut by the Russian state, akin to a power cut caused by guerrilla action mentioned in Saga Cob), it is not deemed a characteristic of the port. Thus, in the context of the Russian/ Ukrainian war, if a mine is floating and can be avoided through proper implementation of the lookout rule, and this mine persists due to an external factor, it may not be considered a characteristic of the port.

Additionally, if the mine or the hazard encountred on the way to the port is deemed avoidable, this latter will be deemed safe.

2.5.4 Dangers avoidable by good navigation and seamanship

Dangers that can be avoided through competent navigation and seamanship do not make a port unsafe. As noted in The Eastern City, such avoidance is “expected of the ordinary prudent and skillful master.”^{(17)The Eastern City [1958] at 131} It is important to note that even if a ship sustains damage in a port while the master demonstrates the requisite degree of care and skill, this alone does not necessarily mean that the port was unsafe, nor does it automatically imply a breach of the safe port warranty by the charterer.^{(18) Transoceanic Petroleum Carriers v. Cook Industries Inc. The Mary Lou [1981] 2 Lloyd’s Rep. 272 at 279}

As for the hazards encountered en route to a port, the warranty of a safe port/berth includes access to the port, meaning that the channels and surroundings must be safe to reach the port. This was judged in the cases of Palace Shipping Company Ltd. v Gans Steamship Line [1916] concerning the presence of enemy submarines,^{(19) Palace Shipping company Ltd. V Gans Steamship Line [1916]; See also The Teutonia (1872)} and The Mary Lou.^{(20)The Mary Lou [1981] at 272} In this case, it was decided that the route a ship must take to access the port/berth is included in the safe warranty without limitation regarding the distance of the encountered danger from the berth, unless there was an alternative safe route that could have been taken to reach the port/berth.^{(21) Ibid.}

Aditionnally, the guarantee from the charterer that a berth will be "always accessible," "always available," or "reachable on arrival" constitutes an absolute warranty that the vessel will be able to enter the specified berth without any delay or danger right upon arrival, regardless of whether any obstacle is temporary or avoidable by simply waiting.^{(22) Shipping developments Corp. V V/O Sojuzneftexport, The delian Spirit [1972] 1 Q.B 103} This promise, however, is limited solely to the ship's entry to the berth and does not extend to the loading of cargo or the vessel's departure from the berth.^{(23) Lond. Arb. 3/06 (2006) 685 L.M.L.N 1 (2), and (1997) 463 L.M.L.N 11/97 cited in, Cooke et al. (2014), para 5.70}

Concerning the risks encountered on the way to a port, the issue of mines is currently a relevant concern in the context of trading in the Black Sea. It represents a significant risk to vessels entering the area. If we apply the findings above, the presence of mines in or near a ship's path may render a port unsafe under the warranty of safe port/berth. However, no alternative safe route should be available and the mine must be unavoidable. Although mines are designed to be difficult to detect, modern technology such as sonar and radar systems can sometimes identify them. The detection and avoidance of mines often require the use of specialised technologies and demining procedures carried out by naval forces. Civilian ships in the balck sea will be particularly vulnerable as they lack the necessary equipment to detect mines. Hence, whether mines are considered avoidable obstacles can depend on the vessel and the systems in place. For instance, if a safe corridor, like the one established for accessing Ukraine today, is not utilised despite leading safely to the berth, then the mine might be deemed an avoidable hazard. Therefore, in our view, mines in the Black Sea would generally be considered an unavoidable danger unless there is an established safe passage corridor which the vessel fails to utilise. Between August 2022 and June 2023, the grain agreement facilitated the export of around 30 million tons of Ukrainian grain. Nevertheless, this initiative came to an end on 17 July 2023. A directive was then issued on 9 August 2023 to create temporary pathways for ships to and from Ukrainian ports. The Joseph Schulte was the first to leave a Ukrainian port post-agreement.^{(24) Nytsevich (2023)} In a scenario where these pathways are in place, and a vessel chooses a different route where a mine subsequently explodes, that mine would likely be deemed avoidable due to the existence of the safe corridor which was not utilized.

In light of our study on port safety warranty, it is pertinent to acknowledge that there are other measures available when dealing with unsafe ports.