Originally from Navigating Maritime Arbitration: The Experts Speak - Second Edition

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There is an ongoing debate concerning whether comparative fault should apply to the contractual safe port/safe berth warranty in charter parties. The differing views on this topic appear in the two papers below, the first by Armand M. Paré, Jr. and the second by Don P. Murnane, Jr. The first presentation outlines the view that a claim of unsafe port requires a showing that the unsafe port condition could not have been avoided by prudent seamanship. The second presentation outlines the view that comparative fault should be applied to the safe port warranty in appropriate cases.

THE CASE AGAINST APPLYING A COMPARATIVE FAULT ANALYSIS TO THE SAFE PORT/SAFE BERTH WARRANTY

I. INTRODUCTION

A typical charter party, whether a voyage or time charter, contains a warranty by which a charterer warrants to the vessel owner that the vessel will be sent to “safe” ports and berths. One developing issue in safe port case law is whether there should be a comparative fault analysis in a safe port case where the facts show the existence of both an unsafe port condition and a lack of good seamanship when good seamanship could have avoided the unsafe condition or whether, instead, such a comparative fault analysis is inconsistent with the established approach to determining breach of the safe port warranty. This article addresses that issue.