4. Final Remarks

4. Final Remarks

In conclusion, the concept of port safety warranties in the context of war and political conflicts, such as the Ukrainian/Russian conflict, is a complex area of maritime law. When characterising prospectively port dangers, it is important to distinguish between inherent dangers of a port and abnormal events or avoidable hazards that do not render a port unsafe. The complexity, as we see it, arises from the need to evaluate the port's prospective unsafety when charterers make their port nomination, and this assessment involves considering the evolving situation. Recent events highlight the unpredictability of the region. For instance, two grain-trading vessels departed from a port near Odesa on September 17, 2023, without incident.(1)https://www.rferl.org/a/ukraine-two-grain-ships-odesa-corridor-russia/32574447.html However, just four days later, Ukraine carried out a missile strike targeting the headquarters of Russia's Black Sea fleet in occupied Crimea.(2)https://www.theguardian.com/world/2023/sep/22/ukraine-mounts-missile-strike-on-russian-black-sea-fleet-hq-in-crimea Subsequently, on the 25th, an attack occurred on the port of Odesa in Ukraine.(3)https://www.nrk.no/nyheter/guvernor_-en-skadet-i-angrep-mot-odesa-1.16570015 However, these events underscore the ever-present risk to maritime vessels in the region.

Additionally, determining when a port can be considered unsafe due to conflict-related delays is challenging. Legal precedents vary, with the Hermine case emphasizing frustrating delays as a requirement for a breach of port safety warranties, while the Eva 2 case does not. In our view, it may be more appropriate to focus on whether the delay poses a danger to the vessel, crew, or cargo. Furthermore, provisions for delays due to minor delays should be considered, as they may not typically fall under port safety obligations.

Moreover, sanctions risks can also impact port safety, and charterers may be liable if they order the vessel to a port where it can be in risk of being detained or blacklisted due to EU sanctions imposed on Russia.

In terms of alternatives to port safety warranties, shipowners can consider seeking damages on the base of the doctrine of indemnity if no express port safety clause is found. Owners should consider adding war risk clauses, trade zone exclusions, and war cancellation clauses to charterparties to safeguard their interests when called into a Black Sea port. While the warranty ensures prospective safety at the time of nomination, it may not account for evolving risks if hostilities diminish in the Black Sea and sporadic attacks occur. Additionally, force majeure and frustration doctrines may come into play when port safety warranties are not applicable.

Finally, the consequences and implications of an unsafe port vary depending on the situation. First, shipowners may be entitled to damages for breach of the safety warranty if they reasonably obeyed charterers' orders. Furthermore, owners and masters have the right to refuse charterers' orders and the obligation if the risk is obvious, but compliance with such orders does not necessarily waive claims for breach of the port safety warranties. However, they may be deemed negligent and lose their right to compensation in a situation such as the Ukraine-Russian war. This holds particularly valid if the owner has made prior visits to the area, and the unsafety is obvious. Indeed, security analysts are increasingly concerned about ships being targeted under suspicion of transporting Ukrainian military cargo, as well as the risk of vessels encountering mines.(4) Meade [2023] The Joint War Committee in London has included Ukrainian and Russian sea waters in its listed area, signifying heightened risk and unsafety. Some insurers have excluded these zones or imposed additional premiums. Given these hostilities, it is prudent to consider the entire Black Sea as an obvious hazardous zone and clearly allocate the risks in the agreements when trading in this area.

In conclusion, the determination of port safety in conflict zones requires a careful analysis of the specific circumstances and legal agreements involved. The assessment of whether to proceed to a potentially unsafe port in a conflict zone is a complex decision that depends on various factors, including the degree of risk, the terms of the charterparty, and the ship's previous voyage in the area.