3.2 Port unsafety arises after nomination: charterers secondary obligation
The first obligation is to nominate a safe port. The second obligation arises if the initially nominated port becomes prospectively unsafe when the vessel is en route to it. Situations where there is an escalation or increase in the same risk, such as heightened hostilities, can render a port unsafe. Such an escalation imposes a new obligation on the charterers, especially if the port becomes unsafe but the danger is still avoidable. This is exemplified in The Lucille case.(1) Coghlin et al. (2014), at 10.44, The Teutonia (1872)
In such situations, the charterers are required to cancel the original order and issue fresh orders for an alternative port. If they persist in refusing to revise their orders despite the change in the port's safety status, this is considered a breach of the agreement, making them liable for damages(2) Ibid.. An exception to this rule exists: if the shipowner's vessel is already in the nominated port and it is impossible to leave, the charterers are not required to renominate a port.(3) Lord Roskill in The Evia 2 [1982] at 315
Additionally, when charterers have the right to redirect the vessel, the safe port warranty imposes both primary and secondary obligations. However, when there is only one designated port in the charterparty, their obligation is confined to ensuring the prospective safety of that port at the time of nomination.(4) Gay [2010] at 122 Gay, in his article dealing with Safe ports undertaking, points out however, that in both The Greek Fighter and The Livanita cases, despite the charterparty designating a single named port, a distinct safe port provision existed, and the judges concluded that the warranty continued to be applicable to the specified port. The judges in these instances did not exhibit any willingness to modify the safe port warranty based on the naming of a solitary port.(5) Ibid.