University of Groningen The meaning of a good safe port and berth in a modern shipping world Kharchanka, Andrei IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2014 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Kharchanka, A. (2014). The meaning of a good safe port and berth in a modern shipping world Groningen: s.n. Copyright Other than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons). Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Downloaded from the University of Groningen/UMCG research database (Pure): http://www.rug.nl/research/portal. For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date: 20-03-2018
SAFE PORT AND SAFE BERTH
Full title The Meaning of a Good Safe Port and Berth in a Modern Shipping World Printer Ridderprint Offsetdrukkerij BV, Ridderkerk, the Netherlands ISBN 978-90-367-6613-5 Copyrights 2014 A. Kharchanka, the Netherlands This publication is protected by international copyright law and Dutch law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanic, photocopying, microfilming, recording or otherwise, without the prior written permission of the author
THE MEANING OF A GOOD SAFE PORT AND BERTH IN A MODERN SHIPPING WORLD PhD thesis to obtain the degree of PhD at the University of Groningen on the authority of the Rector Magnificus, Prof. E. Sterken and in accordance with the decision by the College of Deans. This thesis will be defended in public on Thursday 27 February 2014 at 11:00 hrs. by Andrei Kharchanka born on 6 August 1978 in Grodno, Belarus
Supervisor: Prof. M.H. ten Wolde Co-supervisor: Prof. M.J. Davies Assessment committee: Prof. J.B. Wezeman Prof. T. Hoff Prof. A. Tettenborn
ACKNOWLEDGEMENTS. The idea to write this research has long roots. The idea grew from a spontaneous conversation on a subway train to Midway airport in Chicago. In 2006, I was a seaman. My brother Vasili and his wife Anastasia, urged me that it was about time to start a new career. After spending five years at sea, I decided to pursue a master in Admiralty Law at Tulane University to continue my maritime experience. For that bright idea, I thank you both. The faculty of Tulane University contributed to my academic development and guided me through the rough waters of maritime law. I would like to give special thanks to Professor Martin Davies. Professor Davies supervised not only my research at Tulane, but he was also a co-promoter for a dissertation. He provided me with priceless advice and assistance. Life in New Orleans allowed me to meet many great people. One of them was my teacher, mentor, and supervisor Ed Anderson. Ed not only brought me to BBC Chartering (a world leading operator of multi-purpose vessels), but also coached my development for the past four years. I am grateful for all of the help and guidance. Another person whom I owe a fortune to is Svend Andersen. As the CEO of BBC Chartering, Svend allowed me to assume responsibilities as an in-house counsel. Svend possesses tremendous experience and respect in the maritime community and he sincerely shared his knowledge of managing a shipping company and dealing with owners and charterers in various situations. Thank you, Svend. The topic of writing on safe port and berth warranties did not come to me spontaneously. The idea was born after an unfortunate grounding in the Orinoco River of a BBC Chartering time chartered vessel. A solicitor, Andrew Preston, from Clyde & Co. handled the case and provided brilliant solutions on defending safe port warranty. Thank you. Once a foundation of the research was laid, the topic was further developed through the help of Professor Mathijs ten Wolde, who patiently helped me to lay brick after brick in order to structure the research. Professor ten Wolde meticulously advised me through several meetings the past three years on how to expand my research and present it in a reader-friendly way. I am appreciative of everything you have done for me, professor. V
My special thanks go to Professor Hoff of the University of Alabama, Professor Tettenborn of Swansea University, and Professor Wezeman of the University of Groningen who agreed to devote their time and wisdom to read and evaluate this dissertation. I would like to thank my colleagues Alexander Williams, who assisted in editing the dissertation, Thomas Bock, with whom I discussed safe port warranty on numerous occasions to understand its apprehension both from the owners and charterers side, and Juan Salmeron, who assisted me in organizational matters. Lastly, I would like to thank my family for their understanding and patience. I love you all. Leer, December 2013 Andrei Kharchanka VI
To my Mom Моей маме посвящается
Table of Contents ACKNOWLEDGEMENTS.... V Table of Contents... IX 1. INTRODUCTION... 1 2. Standard in determining liability of the parties responsible for nomination of the port under English and American Law... 5 2.1. Defining parties involved in maritime adventure... 5 2.2. Defining trading limitations of the vessel... 6 2.3. Introduction to English and American Standards of Safe Port Warranty... 8 2.4. English Law Standard... 9 2.4.1. Safety at the time of nomination... 11 2.4.1.1. Valid renomination under voyage charterparties... 14 2.4.1.2. Valid renomination under time charterparties... 17 2.4.1.3. Nomination of an impossible port in voyage charterparties... 19 2.4.2. Abnormal activity or events in the port... 22 2.4.2.1. Physical conditions... 24 2.4.2.2. Political conditions... 24 2.4.2.4. Commercial sense... 26 2.4.3. Good navigation and seamanship... 26 2.4.4. Intervening negligence of third parties... 29 2.4.4.1. Pilot... 30 2.4.4.2. Consignee... 30 2.4.4.3. Voyage charterer as an Indemnitor... 32 2.4.4.4. Charterers and Owners agents... 34 2.4.4.5. Wharf owners... 35 2.4.4.6. Authorities... 36 IX
2.5. American Law Standard... 37 2.5.1. Majority approach established by the Second Circuit... 38 2.5.2. Minority approach established by the Fifth Circuit... 39 3. Construction of good safe port, safe berth clause and legal significance of each term..46 3.1. Historical development of safe port warranty... 46 3.1.1. Risk allocation between owners and charterers... 51 3.2. Definition of terms... 52 3.3. No express warranty of the safety of either port or berth... 53 3.4. Implication of the safe port and berth obligation... 55 3.4.1. Implication of safe ports... 56 3.4.2. Implication of safe berth... 58 3.4.3. Implication of safe approaches or route... 58 3.4.4. Constructional implication of safe port warranty... 60 3.5. Legal significance of the phrase always lie safely afloat... 62 3.6. Legal significance of the phrase as near as she may safely get... 66 3.7. Legal significance of the phrase safely aground in a Not Always Afloat But Safely Aground ( NAABSA ) clause... 70 3.8. Legal significance of reachable on arrival clause... 71 3.9. Express warranty of the safety of both port and berth... 74 3.10. Inconsistency of terms in the charterparties... 75 3.11. Express warranty of safety of berth only... 77 3.12. Express warranty of safety of the port only... 79 3.13. Does the term good imply any warranty?... 80 3.14. Distinction between Port and Berth Charterparties... 82 4. Attributes of the safety of a port.... 89 4.1. Physical safety... 90 4.1.1. Ice... 91 4.1.2. Draft... 95 X
4.1.3. Air Draft... 101 4.1.4 Wind... 102 4.1.5 Tides... 104 4.1.6. Current... 106 4.1.7. Silting... 108 4.1.8. Swell... 109 4.1.9. Reliable seabed... 110 4.1.10. Insufficient room to maneuver... 110 4.1.11. Radiation... 111 4.1.12. Legal significance of accident free history of the port... 117 4.1.13. Fouling... 120 4.1.14. Conclusion... 121 4.2. Political safety... 121 4.2.1. War... 122 4.2.2. License... 125 4.2.3. Confiscation... 125 4.2.4. Blockade... 128 4.2.5. Piracy... 130 4.2.6. Politically-Inspired Retaliation Against Vessels of Specific Flag... 137 4.2.7. Embargo... 140 4.3. Administrative safety... 142 4.3.1. Wharf... 143 4.3.2. Charts... 144 4.3.3. Pilotage, Buoys, and Tug Assistance... 146 4.3.4. Monitoring System... 149 4.3.5. Weather Forecasting System... 151 4.3.6. Dredging... 153 4.3.7. Judicial System... 154 XI
4.3.8. Security System... 155 4.4. Environmental Safety... 157 4.4.1. Diseases... 158 4.4.2. Pollution... 160 4.4.3. Waste management... 164 4.4.4. Conclusion... 165 5. Damages for nominating an unsafe port... 167 5.1. Type of damages... 167 5.1.1. Physical damage to the vessel... 167 5.1.2. Economic damages of shipowners... 168 5.1.3. Unrecoverable damages... 171 5.2. Claims of cargo interests... 172 5.3. Quantum of damages... 174 6. CONCLUSION... 179 SUMMARY... 185 SAMENVATTING... 189 LITERATURE... 193 LEGISLATION... 200 CASES... 201 INDEX..... 209 XII