The detailed examination of whether or not a port was safe for a particular vessel at a given time is perhaps the quintessence of maritime arbitration, involving as it does the scrutiny of numerous background facts concerning the port, crucial questions of causation and the underlying relationship of owner and charterer. In most cases this last aspect has been of relatively little moment, and it may be thought there is no obvious reason for such a question as “safety” to require lengthy legal analysis.

However, lawyers recognize a good thing when they see it and have not been slow in finding any number of ways of complicating what ought to be a mainly factual exercise. This tendency has recently been supported by the House of Lords, whose decision in The Evia 1, concerning a ship trapped in Al Basrah (“Basrah”) as a result of the Iran/Iraq war, promises to throw maritime arbitrators and lawyers alike into even greater depths of legal uncertainty.

In most time or voyage charters there will be found an express term whereby the charterer is obliged to order the vessel only to ports which are safe. Clause 2 of the Baltime 1939 form is a typical example:

The vessel to be employed in lawful trades for the carriage of lawful merchandise only between good and safe ports or places where she can safely lie always afloat.

Vessel … to be employed … in such lawful trades, between safe port and/or ports … as the Charterers or their Agents shall direct …

Even where such obligations are not expressly mentioned, an implied duty to choose a safe port rests on a charterer whenever it falls upon him to nominate a port whether under a time or voyage charter. The classic definition of a safe port is that of Sellers, L.J., in The Eastern City 2:

Most unsafe port cases are concerned solely with the marine characteristics of a port, e.g. loss or damage resulting from inoperative navigational aids, an undredged (and unmarked) “high spot” in the fairway, inadequate searoom or tugs to enable vessels to leave an exposed berth before the onset of bad weather, etc. Very occasionally, the unsafety may have nothing to do with navigational matters, and may be caused by factors outside the control of the most scrupulous port administration. For example, there may be an outbreak of plague in the area of the port.