The Supreme Court has given its long-awaited judgment in this US$170 million case concerning the total loss of a capesize bulk carrier in 2006. This note focusses on the circumstances in which weather and similar temporary hazards may amount to a characteristic of a port and the meaning of “abnormal occurrence” within the classic definition of safety set out in the EASTERN CITY.
The vessel was discharging its cargo of iron ore at berth in the modern and purpose built port of Kashima in October 2006. The quay in use was vulnerable to a meteorological condition known as long waves which can make it difficult for a vessel to remain at berth. The port was also prone to severe northerly winds, which can make it difficult for a vessel to navigate the relatively narrow entrance channel. These conditions operate independently of one another; however, on the date in question, both occurred simultaneously. The vessel sought to leave port due to the adverse effect of long waves, but was unable to navigate the entrance channel due to the severe northerly winds and she grounded on a breakwater, becoming a total loss.
Owners claimed a breach of the safe port warranty. It was common ground that the test was whether damage was caused by an “abnormal occurrence”.
At first instance, Charterers were found to be in breach of the safe port warranty. Teare J ruled that long waves and northerly storms were each characteristics of the port and the concurrence of those two conditions, although rare, could not be said to be an “abnormal occurrence”.
The Court of Appeal, however, disagreed. The question was whether the critical combination of long waves and northerly gales was an abnormal occurrence or a normal characteristic of the port. This requires an evidential evaluation of the particular event giving rise to the damage and the relevant history of the port. No vessel in the port’s history had been dangerously trapped at the quay at the same time the entrance channel was not navigable due to gale force winds (it was also relevant that the storm was of exceptional severity) and the combination was therefore “abnormal”.
The Supreme Court unanimously upheld the Court of Appeal decision. Lord Clarke, giving the leading judgment, began by reinforcing that the date of the safe port promise is the date of nomination and is a prediction about the safety of the port when the ship arrives in the future. “Abnormal occurrence” should be given its ordinary meaning, namely something which is rare and unexpected, out of the ordinary course, well removed from the normal and which a notional charterer would not have in mind. One should ask whether the particular event was sufficiently likely to occur to have become an attribute of the port. The evidence in this case established that the conditions were an abnormal occurrence and there had accordingly been no breach of the safe port warranty.
From an operational perspective, the judgment reinforces the importance of considering the likelihood of the vessel being exposed to danger during its visit and, if so, whether the set-up of the port adequately deals with such hazards. Temporary events such as weather conditions may be considered characteristics of a port if they are sufficiently regular or sufficiently foreseeable in the historical context of the port. If more than one event is concerned, it is the likelihood of the combination of those occurrences which is to be considered.