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

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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.

II. THE EASTERN CITY AND THE AVOIDANCE PRINCIPLE

The seminal case which defines the scope and meaning of the safe port warranty is the English decision in Leeds Shipping, Ltd. v. Société Francaise Bunge (The Eastern City).  In that case, Lord Justice Sellers of the Court of Appeals said a port will not be safe:

... unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship,  

In other language, Justice Sellers stated:

The safety of the port should be viewed in respect to a vessel properly manned and equipped, and navigated and handled without negligence and in accordance with good seamanship. This may include, where circumstances so require, and if available, the engagement of a pilot or the use of a tug or tugs or, especially if such assistance is not available, consultation with a harbour-master or some other responsible person with knowledge and experience of the port.