Determining the safety of a port is a question of fact. However, the criteria which
have to be applied in determining whether a port is legally “safe” are matters of law.
Important factors are the type of vessel involved, the details of the charterers’
employment order and the conditions in the port at the relevant time. Additionally,
safety means both physical safety and political safety.
60 A port may, therefore, be
unsafe if there is a risk for the vessel of seizure or attack, or if the vessel may be
detained, impounded, blacklisted or confiscated.
61 Thus, where war risk-type situations apply, the charterer is promising a (reasonably based) forecast: When the ship
reaches the nominated port, it will be safe. Thus, the time for assessing the safety of
the port is the time at which the charterer nominates the port (i.e. it must be
“prospectively” safe).
A second legal obligation arises for the charterer in case the port should become
unsafe after the nomination has been made but before the ship reaches it. In such
situations the charterer must make a fresh nomination of an alternative safe port and
send the ship to it. If the ship has already reached the originally designated port and
the port then becomes unsafe, the charterer has a residual obligation to order it out, if
there still remains opportunity to do so. The English judgement in Ogden
v. Graham
62 states that ordering a ship into a port that is closed and exposing it to
the risk of arrest may render the port in question “politically unsafe”.
63 The case is
frequently regarded as authority for the proposition that a port may be politically
unsafe and this assessment has been confirmed later in the case of The Evia (No.2).
64
In Ogden v. Graham, Chile had closed one of its ports (Carrisal Bojo) and a vessel
was detained by Chilean authorities in another port (Valparaiso) after it became clear
that the vessel was preparing to sail to the closed port. Remarkably, this ancient
jurisprudence could become relevant at some point in the situation of Crimea/
Sevastopol and in relation to other Ukrainian ports.
It seems, however, unclear where the limits to the principle enunciated in Ogden
v. Graham should be drawn. The threat to the owner’s proprietary interest in the
vessel was evident in Ogden although the vessel itself was in no danger of physical
harm. Generally, the risk of (later) confiscation as a characteristic of the port to
which a vessel is ordered may suffice to render it unsafe. As a result, one could argue
that the five affected Crimean ports, officially closed by Ukraine but operating under
Russian control, are politically unsafe if a charterer would nominate other
(non-Crimean) Ukrainian ports to be called in the future and if the trading history
of the vessel indicates that there have been past calls to the five affected Crimean
ports since 2014.
60 Girvin (2011), pp. 21.32–21.44; Ward (2010).
61 Ogden v. Graham, (1861) 1 B. & S. 773; 121 E.R. 901.
62 Ibid.
63 See, e.g., Girvin (2011), p. 21.44; Ward (2010), p. 497.
64 Kodros Shipping Corporation v. Empresa Cubana de Fletes (The Evia (No.2)), 2 Lloyds Law
Reports [1982], 307 (314).
304
H. Jessen
have to be applied in determining whether a port is legally “safe” are matters of law.
Important factors are the type of vessel involved, the details of the charterers’
employment order and the conditions in the port at the relevant time. Additionally,
safety means both physical safety and political safety.
60 A port may, therefore, be
unsafe if there is a risk for the vessel of seizure or attack, or if the vessel may be
detained, impounded, blacklisted or confiscated.
61 Thus, where war risk-type situations apply, the charterer is promising a (reasonably based) forecast: When the ship
reaches the nominated port, it will be safe. Thus, the time for assessing the safety of
the port is the time at which the charterer nominates the port (i.e. it must be
“prospectively” safe).
A second legal obligation arises for the charterer in case the port should become
unsafe after the nomination has been made but before the ship reaches it. In such
situations the charterer must make a fresh nomination of an alternative safe port and
send the ship to it. If the ship has already reached the originally designated port and
the port then becomes unsafe, the charterer has a residual obligation to order it out, if
there still remains opportunity to do so. The English judgement in Ogden
v. Graham
62 states that ordering a ship into a port that is closed and exposing it to
the risk of arrest may render the port in question “politically unsafe”.
63 The case is
frequently regarded as authority for the proposition that a port may be politically
unsafe and this assessment has been confirmed later in the case of The Evia (No.2).
64
In Ogden v. Graham, Chile had closed one of its ports (Carrisal Bojo) and a vessel
was detained by Chilean authorities in another port (Valparaiso) after it became clear
that the vessel was preparing to sail to the closed port. Remarkably, this ancient
jurisprudence could become relevant at some point in the situation of Crimea/
Sevastopol and in relation to other Ukrainian ports.
It seems, however, unclear where the limits to the principle enunciated in Ogden
v. Graham should be drawn. The threat to the owner’s proprietary interest in the
vessel was evident in Ogden although the vessel itself was in no danger of physical
harm. Generally, the risk of (later) confiscation as a characteristic of the port to
which a vessel is ordered may suffice to render it unsafe. As a result, one could argue
that the five affected Crimean ports, officially closed by Ukraine but operating under
Russian control, are politically unsafe if a charterer would nominate other
(non-Crimean) Ukrainian ports to be called in the future and if the trading history
of the vessel indicates that there have been past calls to the five affected Crimean
ports since 2014.
60 Girvin (2011), pp. 21.32–21.44; Ward (2010).
61 Ogden v. Graham, (1861) 1 B. & S. 773; 121 E.R. 901.
62 Ibid.
63 See, e.g., Girvin (2011), p. 21.44; Ward (2010), p. 497.
64 Kodros Shipping Corporation v. Empresa Cubana de Fletes (The Evia (No.2)), 2 Lloyds Law
Reports [1982], 307 (314).
304
H. Jessen