By Capt. A.K. Bansal
120,000 DWT bulk carriers on time charter arrived at nominated port in North Japan in December. When weather deteriorated, strong northerly winds caused her to range against the quay on heavy swell. One fender unit failed and disintegrated. Constant ranging against the unprotected section of the wharf, with continued pressure from wind and swell, caused heavy damage to shell plating.
Owners claimed that nominated port was not safe because:
There was no protection from northerly winds and no system to provide protection alongside.
There was no satisfactory system in operation at the port to provide warning about deteriorating weather conditions.
There was no system and no facilities for the vessel to leave berth quickly if weather conditions so warranted.
Fenders alongside were inadequate for vessels of the size scheduled to use the facility, and were not properly equipped. Chains required to limit upward and downward movement of fenders were missing on some units.
Berth had been extended to accommodate two ships. Stern of this vessel overhung the end of the berth. Her stern lines were led to a distant post ashore, some three times the length of head lines. This did not allow a balanced and effective mooring system and caused excessive pressure on the fender at the knuckle resulting in its collapse.
Further movement brought the vessel into contact with exposed concrete causing severe shell damage.
It was held that charterers were in breach of C/P contract to nominate a safe port safe berth.
It was accepted that weather was exceptionally severe but such weather conditions were not abnormal for December in North Japan. The test is whether prudent charterers should have nominated that port and berth considering all circumstances, including location, protection and time of the year. If such weather was experienced in summer in North Japan, it may have been accepted that weather conditions were exceptionally severe and charterers’ action to nominate that port and berth may have been found reasonable and prudent. But in this case prudent charterers should have taken into consideration that it was winter in North Japan and that such severe weather was to be expected in December.
M.T. Count
In another case M.T. Count was voyage chartered from Sitra in Bahrain to Beira in Mozambique on Asbatankvoy 1997 C/P form, which included a “safe port” warranty. She arrived at Beira and tendered NOR. Same day, the “British Enterprise” grounded in the port channel twice. Consequently, “Count” was delayed in berthing. Again she was unable to sail out after discharging as another inbound ship grounded in the approach channel.
Owner claimed for delays in Beira for charterers’ breach of “safe port” warranty. Charterer maintained in arbitration that for owner to succeed, they had to establish that the “Count” herself was exposed to danger and suffered loss due to such exposure. Arbitrators upheld owner’s claim because groundings of other vessels were caused due to incorrect positioning and misalignment of buoys in the approach channel, plus shifting of sand banks and shoals.
Therefore Beira was not a safe port between June 29 and July 13, 2004, and was highly unlikely to have been safe when the charterers nominated it on June 17, 2004.
Charterers appealed and argued that closure of the channel because of grounding of another vessel was a temporary obstruction, which could not give rise to a claim for damages for breach of the “safe port” warranty in C/P. English Commercial Court held them liable for breach of “safe port” warranty in C/P even though she herself had safely transited the channel. The buoys were out of position and there was no procedure to monitor changes in configuration of the port’s access channel.
It was clear that the misaligned buoys created a continuing risk of danger to vessels, including M.T. Count, when approaching and leaving the port and it was, therefore, an unsafe port to nominate. Arbitrators were fully entitled to make a finding of fact that Beira had been unsafe when charterers nominated it.
This is an important decision in favour of owners as it makes it immaterial for them to show any damage etc. to their vessel but only to show that taking all factors into consideration the port was unsafe for vessels of that size and draft to safely dock in that port.
Gard Marine v. China National Chartering, “Ocean Victory”, [2013] EWHC.
This Capesize Bulk Carrier was ordered on a time charter trip on an amended NYPE form to carry iron ore from Saldanha Bay to Kashima. She was on demise charter for 10 years. Demise charterers gave her on time charter for 5/7 months. She was in turn placed on a Trip Time charter for the above voyage.
While discharging at Kashima, cargo operations were stopped by heavy rain, gales and storm surge. Waves of long amplitude from the Pacific caused swell and danger of collision against the quay. Additional mooring lines were ordered for the vessel.
Since another Capesize Bulk Carrier was berthed at the same quay, possibility was considered for both vessels to leave their berths for open sea. But this entailed sailing along 2 intersecting fairways and passing in close proximity to a breakwater with danger of the vessel being swept towards the breakwater by prevailing head wind. Master preferred to remain in port.
2 mooring lines broke. Master had them reset and ordered 2 tugs to hold the vessel against the berth. With this he believed that the vessel and the berth were safe as against negotiating the dangerous passage to open sea.
Pilotage was optional. Port Authorities mistakenly thought that Master had requested the services of a pilot to navigate the vessel out to sea. When pilot arrived on board, Master mistakenly thought that this signified an order from Port Authorities to leave.
Vessel unberthed accompanied by 4 tugs which were released at various stages along the passage of the 2 fairways. Pilot disembarked onto the last remaining tug at southern end of the breakwater. While master was sailing his vessel along the 2-mile breakwater into open sea, she lost steerage and grounded against the breakwater. Crew were airlifted to safety.
Hence this action against trip time charterers. Main issue was safety of the port as against vessel’s berth. The court also held demise charterers liable to owners for breach of safe port warranty contained in the demise charter and concluded that the port was unsafe because it had no early warning system in the event of the onset of long waves.
Court also found that Master was negligent in the choice of navigational aids deployed in leaving the port as he used a GPS instead of the accepted parallel indexing method. But this did not lead to situational unawareness and was not causative of the casualty, and ordinary seamanship and navigation could not ensure safe exit from the port in prevailing conditions. Charterers were held liable at first instance, for breach of safe port warranty.
Comment
The judgment uses the expression “good navigation and seamanship” interchangeably with “ordinary skill expected of a prudent mariner” as required benchmarks for the Master. But that the Master was not causally negligent may not have been fully investigated. He left the port when it was dangerous to do so and against his own better judgment under his mistaken assumption that he had been ordered to leave by the Port Authorities.
In this case the decision to leave was that of the Master alone. Also once the vessel had sailed past the breakwater, Master steered the ship heavily to port. This caused loss of speed and momentum and allowed the wind to take over. This does not appear to figure in the judgment.