Considering whether The "Marinicki" (QBD 29 July [2003] 2 Lloyd's Rep. 655) adds anything new to present case law on safe ports
The definition of a safe port
“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 a danger, which cannot be avoided by good navigation and seamanship..” The Eastern City [1958] 2 Lloyd's Rep.
The Marinicki QBD 29 July [2003] 2 Lloyd's Rep 655:
By a charter party on an amended NYPE form dated Dec 24 1999 the Owners chartered the vessel for one time charter trip via safe port from Vancouver to Indonesia. The charterers ordered the vessel to proceed to Jakarta on 9/02/2000. It was common ground that on an occasion prior to the vessel’s arrival at her discharge berth in Jakarta she sustained serious bottom damage, which breached her number 1 and 2 starboard ballast tanks. The Owners claimed that the damage was caused by an underwater obstruction located just to the north of the breakwater and within the dredged channel, which constituted the designated route into and out of Jakarta. The charterers argued that the damage occurred when the vessel ran over her own anchor on some occasion prior to entry into the port of Jakarta.
Belinda Bucknall QC sitting as deputy Judge found that the owners “..discharged their burden of proof of establishing, on a balance of probabilities, that the vessel was damaged by some underwater obstacle a little to the north of the breakwater ..”. The Court found that the Owners were not able to establish when the object came to rest in the channel and thus went on to consider whether the port was unsafe because there was no system in place to check and/or monitor the safety of the channel to the port and/or to warn traffic using the channel of any such danger as might exist.
The Court found that there was no buoy to mark the obstacle, no notice to mariners and no warning given by the pilot that the dredged channel had any obstacle. After the incident the local authorities made no investigation as to how the incident occurred or whether there was an object in the channel. There was conflicting evidence from two witnesses from Jakarta that the channel was dredged in 1999 and 1997. There was conflicting evidence on the depth of the channel and the Court held as a matter of fact that the evidence showed that the channel was in parts 14 meters and in parts around 13.6 meters or less. (This was the only way through the channel, given the vessels already anchored there).
The Court ”held that the port of Jakarta was unsafe on 9/02/2000 because there was no proper system in place to investigate reports of obstacles in the channel and/or to find and remove such obstacles and in the interim to warn vessels that there was such an obstacle in the channel by means of notice to mariners and by buoying the obstruction..” …” That regime appears to have been a longstanding one.
Year 2004
There is no evidence at present to suggest that, since this case, the Indonesian authorities have located the object and marked it with a buoy or removed it. Further there is no evidence that the authorities have improved their procedures for investigating incidents of this nature or issuing notices to mariners.
(1) Has this case added anything new to the existing case law on unsafe ports?
The short answer is no, it has not.
The prospective safety of the port is to be judged at the time of the charterer’s orders to it (The Evia No 2 [1982] 2 Lloyd's Rep.). The relevant period of time during which the port is to be safe is the time when the ship will be using it which will include getting to it, the approach passage, and leaving it.
In The Evia No 2 the judge held that “it is the system that must be adequate.”
The Marinicki does not significantly add anything further to The Mary Lou([1981] 2 Lloyd's Rep. 272). In The Mary Lou, the voyage-charter provided that she was to sail for loading to “one safe port US Gulf (excluding Brownsville) New Orleans/Ama/Reserve/Myrtle Grove/Destrehan counting as one port. The charterers nominated the New Orleans area. A ship of this size had no route to the sea from New Orleans other than the Mississippi and eventually the Southwest Pass of that river, which lies about 100 miles from New Orleans and is subject to silting in a manner which cannot accurately be forecast.
While outward bound through the pass The Mary Lou grounded and was damaged, despite the fact that her draught was slightly less than the maximum recommended at that time by the river pilots.
The Arbitration Tribunal found that at the relevant time there was a significant risk that ships such as The Mary Lou might ground in the Pass and that her grounding had not been caused by negligence on the part of the master or pilot in navigating the ship. As to the choice of draught, they found that the master had acted reasonably in relying on the recommendation of the river pilots and made no finding as to whether the pilot should have checked further to ensure that this recommendation was up to date.
(2) Is the port of Jakarta safe?
Unofficial enquiries were made of the port authorities earlier this year. The local authorities were reluctant to give any information to confirm or deny changes to the port system for locating, marking and dealing with obstacles in the channel, or in handling complaints from masters on objects or difficulties with navigation to the port. It appeared from our enquiries that the local authority took issue with the findings of The Marinicki judgement and did not agree with the findings of that judgement. This may make it difficult to obtain a clear picture on the present status of the port and whether its system has changed since 2000. If there have been no changes since 2000 Jakarta could be viewed as an unsafe port in so far as vessels of the size of The Marinicki are concerned for that time of year i.e. February when the incident occurred.
We are not aware that the Indonesian authorities have now marked the obstruction found in The Marinicki case or removed it and amended their system of investigation into incidents, but if they have done this then the port would now be considered safe as the conditions which existed as of 9/02/2000 have changed.
(3) Can an owner refuse to follow an order to proceed to Jakarta based on this case assuming a period time charter is involved on the NYPE 1946 form?
Assuming, the charter is for a period of time and no port is specified in the charter party, and the port is unsafe as outlined above in paragraph 2, the owners can refuse to follow an order to proceed to Jakarta. (See The Kanchenjunga [1987] 2 Lloyd's Rep. 509).
(4) Can owners refuse to follow an order based on a Time Charter Trip and a Voyage Charter where Jakarta is the only named port?
The answer is no.
Where the charter party is for one port to load and one to discharge and there is no express warranty of safety in the charter party, the owners will be liable to proceed to that port.
See The Houston City [1954] 2 Lloyd's Rep. 148
“Where the charterer is prepared at the time of taking the charter to specify the place where the cargo will be available or the place at which he desires it delivered, the ship owner must take the responsibility of ascertaining whether he can safely berth his ship there or will take the risk of doing so. If he agrees upon the place, then subject to excepted perils, his liability to have the ship there is definite.”
(5) Can owners refuse to follow an order based on a Time Charter Trip and a Voyage Charter where Jakarta is one of a limited number of ports named?
Provided there is no express warranty of safety in the charter party the answer is no. Where the charter provides for the nomination of a port or place out of a number of named ports or places without any express warranty, no warranty should be implied as to safety and it is arguable that the owners having agreed the named ports are liable to proceed to those ports. (See A.P.J. Pritt [1987] 2 Lloyd's Rep.) However, if one of the ports nominated were impossible to reach the owners would have a right to refuse the order to proceed to that port.
Conclusion
The Marinicki has not added anything new to the law on unsafe ports. However it has raised interest with both owners and charterers, as Jakarta is a popular port of call. Whether Jakarta is safe or unsafe will depend on the evidence from the port authority (or other reliable sources) as to what if anything has been done to the port system, since year 2000 in the light of The Marinicki judgement. Given the fact that the local authorities have taken issue with the findings of fact in The Marinicki judgement regarding the port of Jakarta, getting that evidence from them or indeed from local agents, who may be reluctant to offend the port authority, is going to be extremely difficult.