There are two main types of express warranties: a warranty of absolute safety or a qualified one.įor example, an absolute warranty of safety can be found in the NYPE 1993 form. Depending on the particular charterparty clause, the warranty of safety may be express, or implied. They usually contain a warranty by charterers that the nominated ports, berths and/or anchorages a vessel is ordered to are safe. NAABSA clauses must be considered within the wider context of warranties of safety of ports, berths, anchorages and places mentioned in a charterparty. It must also be kept in mind that the master is required to exercise reasonable navigation and seamanship to ensure the safety of the ship.
However, the success of such an argument will depend on a factual assessment of the characteristics of the berth. Therefore, if the vessel’s hull is damaged as a result of lying aground at a NAABSA berth, it may be possible to argue that charterers will have breached their obligation to nominate a safe port/berth where the vessel can lie safely aground. NAABSA clauses must be read in conjunction with the general warranty of safety in the charterparty. NAABSA clauses in charterparties indicate owners’ acceptance that such an event may occur. NAABSA clauses are usually incorporated to avoid charterers finding themselves in breach of the “always afloat” requirement in most charterparties where it is intended for the vessel to call at ports or places where, due to tidal conditions, she may touch bottom. What is the legal effect of a NAABSA clause? Then we look at procedural and practical considerations for both owners and charterers followed by loss prevention recommendations. What was the effect of the NAABSA clause in light of the safe berth warranty? Was the Master justified in discontinuing cargo operations and ordering the vessel to an alternative berth? Was the charterer entitled to take the vessel off hire when the Master discontinued loading and who ultimately bears the risk of the damage to the vessel?īefore addressing the specific questions raised by this scenario, we first consider NAABSA clauses in general. Indentation on ship’s bottom was discovered and this was confirmed by the inspection of the ballast tanks. Charterers put the vessel off-hire for the period that loading was suspended.Īlthough there was no water ingress into the ship, owners wanted to carry out an underwater survey, however it could not be carried out at the load port and was instead done at the discharge port. The vessel refloated a few hours later, at which point the vessel was shifted to another berth at the Master’s request and loading resumed. They further insisted to continue loading, but the Master refused citing structural strength and stability issues. Charterers rejected the protest on the basis that touching bottom was “customary” at NAABSA ports. The Master stopped loading and issued a letter of protest to the charterers and the terminal, holding charterers responsible for all loss, damage and expense suffered as a result of the vessel touching bottom.
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Manual soundings were taken by crew and it was confirmed that vessel had touched bottom on the jetty side. Taking to ground had not been anticipated by the ship’s crew as the master had missed the NAABSA mention in the agent’s message. Furthermore, the company had no procedures in their Safety Management System (SMS) for vessels calling NAABSA ports. She had also moved laterally away from the fenders. Loading of deck cargo started at 1530 hrs and around 1830 hrs the vessel started to list to the sea side. Local agent’s pre-arrival message, however, identified it as one but this was overlooked by the Master. The port authorities had not officially declared the port as NAABSA but the local agents were of the assumption that the said port was a NAABSA port for vessels above a certain size. In their message containing the voyage instructions, charterers did not mention that the port is a NAABSA port. The NAABSA provision in the charterparty stated “ unlimited NAABSA option for ECSA ”.
It contained an express safe port/berth warranty. The charterparty was on an amended NYPE 1946 form. Case study 1: Unanticipated sitting on the groundĬharterers nominated a load port in South America.
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