Independent Petroleum Group Ltd v Seacarriers Count Pte Ltd

A safe-port warranty requires nomination of a port whose characteristics will, barring unforeseeable events, enable the vessel safely to reach, use and leave it. A port may be unsafe because latent or continuing characteristics create a risk of danger, even if the vessel itself avoids damage. Temporary obstruction causing non-frustrating delay will not ordinarily make an otherwise safe port unsafe. That principle does not apply where the obstruction evidences continuing unsafe characteristics existing when the port was nominated. Loss caused by delay is recoverable for breach, subject to ordinary causation and remoteness.

The charterers nominated Beira as the discharge port for the tanker Count. Two other vessels grounded in the access channel, and the Count was delayed in leaving after discharge. The arbitrators found that the port was prospectively unsafe when nominated because channel buoys were misaligned and there was no adequate monitoring system. They awarded the owners US $63,241.58 for detention.

The charterers appealed on questions of law, arguing that the port had to be unsafe for the Count itself, that temporary non-frustrating delay could not breach the warranty, and that the grounding of another vessel broke causation.

1. The appeal was dismissed and the arbitrators’ award was upheld.
2. A safe-port clause requires nomination of a port whose characteristics are such that, barring unforeseeable future events, the vessel can safely reach, use and leave it. Safety is assessed by reference to exposure to danger which cannot be avoided by good navigation and seamanship. Actual damage to the chartered vessel is unnecessary.
3. A temporary and evident obstruction causing delay insufficient to frustrate the adventure will not, by itself, deprive a port of the characteristics of safety. That principle is distinct from a port whose characteristics create a continuing risk of danger. Latent hazards may create such a risk even though actual danger to the particular vessel depends on chance.
4. The arbitrators’ findings that the buoys were out of position and that no adequate system monitored changes in the channel amounted to a finding that Beira was prospectively unsafe for the Count when nominated. The grounding of the Pongola was evidence of those pre-existing characteristics and caused the Count’s detention.
5. The reasoning in The Hermine was confined to temporary obstruction in a port otherwise safe in all other respects. It did not prevent a finding that continuing unsafe characteristics existed at the date of nomination.
6. Breach of a safe-port warranty may give rise to damages for loss caused by delay, damage to the vessel or reasonable avoidance measures, subject to ordinary principles of causation and remoteness. The Pongola’s grounding was not an independent intervening event because it resulted from the characteristics making the port unsafe.

1. High Court (Commercial Court): on an appeal on questions of law from the arbitrators’ award, the court rejected the charterers’ grounds and upheld the award of US $63,241.58.