Good and safe - Trade Sol Shipping Ltd v Sea-Land Industries Bermuda Ltd

THIS dispute before New York arbitrators arose under a Seatime charter party between sea-Land Industries Bermuda, as charterer, and Trade Sol Shipping Ltd, as owner, covering the eighteen-month time charter of the containership Chesapeake Bay.

Sea-Land in turn subchartered the vessel under a similar time charter to P&O Container Lines for service in a vessel-sharing agreement between P&O, Maersk and Sea-Land.

The vessel grounded in inclement weather on Benghajsa Reef outside the entrance to Marsaxlokk, Malta while performing a voyage between the US east coast and Bombay, via Mediterranean ports, while operating under the P&O subcharter.

Trade Sol argued that Sea-Land had breached Clause of the charter, which warranted that the vessel would be employed between "good and safe ports". It maintained that Marsaxlokk was neither a good nor a safe port when the vessel called there because: the Benghajsa Reef Buoy was missing at the time; because no warnings of this danger were ever given to the vessel prior to the casualty; and because the Malta Maritime Authority failed to manage adequate port systems, ensure the proper maintenance of aids to navigation, and issue warnings of missing and/or defective aids to navigation.

Sea-Land, meanwhile, maintained that Marsaxlokk was a safe port for the vessel when it grounded. It argued that the master had ample opportunity to avoid the reef danger but had failed to observe elementary safeguards. Sea-Land claimed that the vessel had failed to post a proper look-out, failed to adequately plot and adjust its course, failed to better utilise its GPS, improperly relied on a floating aid to navigation to determine its position and, most importantly, neglected to stand off the port in safe waters until the rain squall which obscured visual and radar observations had passed through the area. Sea-Land said it had no obligation to advise Trade Sol of the missing buoy, and that the vessel had adequate opportunities to know the buoy was not there.

Clause 2 provided, "The vessel may be employed trading with lawful harmless merchandise via good and safe berths/ports always afloat …"

The panel majority, Manfred Arnold dissenting, concluded that the addition of "good" to the safe port wording of the charter added nothing to charterer's obligation to trade the vessel between safe ports. They said that, even if some additional obligation could be imputed by adding "good" to the warranty, the obligation would still require, and be subject to, the vessel's duty to avoid danger by the exercise of good navigation and seamanship.

It was then necessary for the panel to decide whether the port of Marsaxlokk was safe for the Chesapeake Bay based on generally accepted legal and commercial definitions, it being the owner's burden to establish that it was unsafe. The owner's expert testified that, given the very heavy rain and deteriorating sea conditions at the time of the incident, the missing buoy Made the difference between the port being safe or unsafe. The arbitrators, however, noted that the enhanced danger presented by the limited visibility could easily have been averted if the vessel had remained off the port until the rain squalls had passed. Such a decision would have been prudent, and a proper exercise of ordinary care, good seamanship and safe navigation.

In summary, it was found that the vessel would not have stranded had the master exercised ordinary navigational skills and good seamanship. If the master had made proper use of the facilities available to him, he would have come to the realisation that the buoy was not in place. And this conclusion was achievable using ordinary navigational skills.

The panel majority found that the sole proximate cause of the incident was imprudent navigation by the master. The port of Marsaxlokk, being accessible using ordinary seamanship, was safe, regardless of the word "good" in the safe port warranty clause. And the charterer had no duty to forewarn of possible dangers easily discovered using ordinary care.

In his dissenting opinion, Mr Arnold noted that there were no reported decisions on the "good and safe" port issue in American jurisprudence. He said that the word "good" clearly had a meaning, and the parties intended it to have one when they added it, and this amendment should be given proper weight. He said the use of the term "good and safe port" led to the conclusion that the port was very safe, completely safe or exceedingly safe. And the addition of the word "good" augmented the charterer's responsibilities to provide a safe port.

The master, concluded Mr Arnold, was surely entitled to an alert about the absent buoy, absent which the vessel did not have any independent means to determine the conditions at the time it approached Marsaxlokk.