Lloyd's Maritime and Commercial Law Quarterly
THE SAFE PORT/BERTH OBLIGATION AND EMPLOYMENT AND INDEMNITY CLAUSES
Charles G. C. H. Baker*
1. Introduction
The title of this paper requires some explanation. It is not intended to suggest that the two clauses to be considered are necessarily connected, but they do both exist to give extensive protection to owners and their underwriters in the event of a vessel’s getting into trouble. The safe port obligation is as likely to be found in a voyage charter as in a time charter and what follows applies equally to both types of agreement.1 The employment and indemnity clause is not merely confined to questions of safety but is intended to protect the owner from all consequences that may arise when the master complies with the time charterer’s orders as to how and where the vessel is to be employed. Such a clause is generally to be found only in time charterparties but that is not to say that there would be no scope for implying a wide right of indemnity in a voyage charterparty which gave charterers the right to nominate ports or load goods of their choice. It should be noted that any comments made on unsafe ports apply equally to unsafe berths, the doctrine being essentially the same in either case.2
It may be wondered why the topic of unsafe ports needs detailed consideration. Is it not the charterers’ duty simply to nominate a port which is safe—and, if it turns out otherwise, to pay the shipowner for any damage suffered? Surely, the words “safe” and “port” require no elaboration? A look at some everyday problems which can arise will show, however, that the law on unsafe ports is not without its complexities.
Consider one example. Voyage charterers nominate a river port with a difficult approach which cannot be navigated safely unless the navigational aids are working. The port authority is normally highly efficient but one night a navigational light goes out and this fault is not monitored due to the absence of an employee. A ship entering the port runs aground. Are the charterers liable? Is the answer different if ships are given adequate warning of the defective light? And, if the ship has to wait several days for navigational aids to be repaired, can the owners look to the voyage charterers for detention damages?
Take another port in a little-known part of South America to which a master is
* Partner, Holman, Fenwick & Willan.
1. G.W. Grace & Co. v. General S.N. Co. [1950] 2 K.B. 383; Reardon Smith Line v. Australian Wheat Board (The Houston City) [1956] A.C. 266. Dicta in these cases, at pp. 396 and 281 respectively, support the view that the type of charterparty (voyage or time) does not affect the nature of the obligation. See infra, p. 49 where the secondary obligation of a time charterer is discussed.
2. Cia. Naviera Maropan S.A. v. Bowaters Lloyd Pulp and Paper Mills (The Stork) [1955] 2 Q.B. 68, 98, per Hodson, L.J.
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