Court Rules On Liability For Damage Caused By Breach Of An Unsafe Port Warranty

In Gard Marine & Energy Ltd v China National Chartering Co Ltd (The "Ocean Victory") [2013] EWHC 2199 (Comm), the Claimant Underwriters claimed damages from the Defendant Time Charterers where the vessel was lost on departing Kashima port.

Facts

Charterers ordered the vessel, a Capesize bulk carrier, to discharge at Kashima. The vessel sought to leave the port during a severe gale on the advice of Charterers' representative at the port, a local experienced mariner, that she should leave. The concern was that there was a risk that she could not be restrained by her moorings and/or tugs. As she was leaving, she encountered strong winds and heavy seas in the fairway, ran aground and broke apart.

The Claimants submitted that the port was prospectively unsafe, as there was a risk that vessels moored there might be advised to leave when there were gales in the fairway, such that safe navigation required more than good navigation and seamanship. In addition, they argued, there was no system in place to ensure that vessels left in conditions which did not threaten safe navigation, or that they did not attempt to depart in conditions which posed a threat.

Charterers argued that the port was safe, and that the cause of the casualty was the master's misunderstanding that the vessel had been ordered to leave the port and/or his negligent navigation when leaving. They also submitted that the emphasis must be on reasonable safety and taking reasonably precautions, and that a port cannot be unsafe because its systems fail to guard against every conceivable hazard.

Judgment

The claim succeeded. Charterers were found liable in damages for breach of the safe port warranty.

On the safety of the port, The Eastern City [1958] 2 Lloyd's Rep. 127 was followed. To interpret the safe port warranty as Charterers' submitted, with an emphasis on "reasonable safety", was to introduce an inappropriate level of uncertainty. Safety is not absolute, but the measure is not what is "reasonable" but whether any dangers can be avoided by good navigation and seamanship. A port could be safe even if the vessel might be required to leave in certain circumstances, but departure had to be capable of being safely performed.

The Court noted that the enquiry in an unsafe port case is not into the conduct of the port authority, for example in taking precautions designed to protect vessels against danger but which in fact did not protect the vessel. It is into the prospective exposure...