The outbreak of Ebola Virus Disease (EDV) besetting West African countries since March 2014 has raised serious concerns within the shipping industry with regards to vessels trading in infected regions. This epidemic is already regarded as the largest outbreak of EDV in history, and is likely to have a major impact in global trade as the number of reported cases is escalating.
Liberia was the first country to be hit by the virus, which subsequently spread into Sierra Leone and Guinea; Nigeria has also reported ten suspected cases of EDV1. The virus is transmitted through direct contact with blood or body fluids of infected persons.2
Various reports and guidelines have been published by the World Health Organisation (WHO) and the Center for Disease Control and Prevention (CDC) containing information regarding the prevention of transmission. It is noteworthy that the WHO is of the opinion that transport to Liberia, Sierra Leone and Guinea needs not be restricted3, while the CDC recommended as of July 31st that travellers should avoid nonessential travel to the same region.4
On August 4th the ICS (International Chamber of Shipping), the IMEC (International Maritime Employers' Council) and the ITF (International Transport Workers' Federation) issued a joint press release containing guidance to their members on the risks posed to ships' crews calling in countries affected by the EDV.5 They advise as follows:
- The Master should ensure that the members of crew are aware of the risks, how the virus can be spread and how to reduce the risk.
- The ISPS requirements on ensuring that unauthorised personnel do not board the vessel should be strictly enforced throughout the duration of the vessel being in port.
- The Master should give careful consideration to granting any shore leave whilst in impacted ports.
- The shipowner/operator should avoid making crew changes in the ports of an affected country.
- After departure the crew should be aware of the symptoms and report any occurring symptoms immediately to the person in charge of medical care.6
At the moment, the Liberian government has closed all borders except from major entry points and screening measures have been instituted.7 It has also been reported that the seaport of Monrovia was closed until August 4th.8 Sierra Leone and Guinea were a bit slower in implementing health measures. In Nigeria all airports and seaports are under red alert since July 24th.9
B. Issues of potential concern
In light of the above, owners may be faced with a significant legal dilemma as to whether they are obliged to call at certain ports of West Africa and if so, what the implications may be.
Secondly, there may be a risk of significant delay to a vessel if a port is closed on arrival or closes during a vessel's stay.
There may also be repercussions when a vessel calls at a subsequent port. After a voyage to the infected zones such vessels are likely to face great scrutiny upon arrival. This may entail delays in loading or discharge, or may even lead to refusal of access to a port, detention or quarantine.
C. Compelling Questions
C-1. Is it safe to call at ports of West Africa?
C-1. (a) Can EDV infected ports be considered as unsafe ports?
The majority of legal authorities on the safety of ports relate to their physical or political characteristics and it seems that there are no authorities relating to the safety of disease overridden ports.
It is nevertheless, submitted by Cooke et al. on Voyage Charters that “if a port or place is the subject of a fever epidemic which would result, were the vessel to call there, in her being blacklisted, detained or impounded at a subsequent port, then that port would be unsafe for it would render the vessel unseaworthy and would thus pose a physical threat.”10
It is also worth considering the cases mentioned in support of this argument as they provide a good illustration of the potential risks and liabilities faced by owners calling at disease overridden ports:
Campia and Others v British India Steam navigation Company Limited11
In this case, the plaintiffs loaded lemons on board the defendants' vessel for a voyage from Naples to London. The bill of lading contained a restraints of princes exception and a liberty clause. The ship had come to Naples from Mombassa and subsequently sailed to Marseilles. Upon arrival at the port of Marseilles the vessel was fumigated in accordance with French law due to the fact that it had previously called at the port of Mombassa which was a plague contaminated port. As a result of that the cargo of lemons was damaged. The owners were found by the court to be liable for the damage caused to the lemons and not protected by the restraints of princes exception. The fact that the ship would have to undergo fumigation at the port of Marseilles caused her to be not reasonably fit at Naples for the carriage of lemons and therefore unseaworthy.
The 'Giannis NK'12
This case is related to a cargo of ground-nuts infested with Khapra beetle which was found to have come on board with other cargo loaded on a vessel. A laboratory examination of the cargo identified the infestation, as a result of which the owners were required to dump all cargo at sea. The reasoning of the court in relation to dangerous cargoes provides indirect support to the argument that ports may be rendered unsafe as a result of an epidemic. The court in the 'Giannis NK found that the goods were 'dangerous goods' as they were liable to cause physical damage to some object other than themselves. Whilst there was no physical damage to the vessel, there was a risk of damage to the other cargo loaded on board the ship, which was eventually dumped at sea.
These two cases illustrate that a voyage to an affected port could render a vessel 'unseaworthy' in just the same way as damage caused by a physical danger.
In the case of the 'Apollo' two members of the crew of a vessel were disembarked at the port of Naples and taken to hospital with acute gastroenteritis. It was later ascertained that they were infected with contracted typhus. The vessel subsequently sailed to Lower Buchanan in Liberia, where it had to undergo through extensive scrutiny as a result of the incident in Naples. As a result, 'Free pratique' was not obtained until two days later. The time charterers, relying on an off-hire provision of the charterparty, made a deduction from hire. The owners objected to the deduction claiming that the vessel and the crew were fit for the service and the delay was due to outside interference by the port authorities. The court found that the scrutiny of the vessel by the health port authorities was justified in view of what had happened in Naples. Those actions did prevent the full working of the vessel and did bring the off-hire clause into play.
The outcome of this case is indicative of the general view of the courts that health issues can go to fitness of a vessel for service (and also illustrates the costs that the owners might have to bear as a result of extensive scrutiny of the vessel at a subsequent port).
C-1. (b) Turning back to the facts – West African Ports: To go or not to go?
Owners would have to weigh all available information regarding the safety of a nominated port before making a decision on whether to accept the nomination. This exercise, however, is not without difficulty as the measures taken by each infected country against EDV and the recommendations given by well-respected health organisations vary. It is worth considering that the measures taken in Nigeria since the outset of the EDV outbreak were extensive, whereas in Sierra Leone and Guinea health measures have only just been instituted despite the large numbers of reported cases. Moreover, at a time that the CDC advises individuals to avoid unnecessary travel to Liberia, Sierra Leone and Guinea, the WHO is still of the view that transport to the same countries needs not be limited. The answer to the question at which point a disease ‘overridden' port becomes unsafe is highly subjective and renders decision making extremely difficult. Also, the fact that Liberia, Sierra Leone and Guinea have been hit by the virus does not necessarily mean that all ports in those countries present a hazard. The infected zones might be far from a nominated port. Therefore, the geographical spreading of the virus is an additional factor to be taken into account.
What also remains unclear is the level of evidential weight that may be ascribed to each of the available sources of information in potential proceedings.
There is ample authority14 that a port will only be unsafe if the hazard cannot be avoided by good seamanship (which in the present case we consider would extend to implementing the various recommendations of P&I Clubs and other bodies as to precautionary measures).
C-2. Did the charterers promise that the loading or discharge port will be safe?
One of the first issues to be determined is whether the charterer has actually given a warranty for the safety of the port. If an express warranty cannot be traced in the charterparty, the question which arises, is whether one can be implied. This will very much depend upon the true construction of the charterparty. The degree of liberty enjoyed by the charterer in choosing the port of loading or discharge is an important factor. In general, the more extensive the liberty of the charterer, the greater the necessity for an implied warranty; conversely, the more narrow the description of the intended port, the more likely it is for the court to conclude that the owners were prepared to take the risk.
C-3. Could the charterer have anticipated the issue of unsafety at the time of the nomination?
The answer to this question will greatly influence a decision on whether there is a breach of a safety warranty. It is well established15 that a charterer is under the obligation to nominate a port which is, as at the time of the nomination, prospectively safe for the period of the vessel's visit. If the nomination of the port was made prior to the outbreak of the virus, then the charterer could not be held to be in breach of the warranty since the outbreak of EDV could not have been predicted at the time of the nomination. The situation is, however, far from clear where the nomination of the port took place after the virus outbreak. A few reported cases would not raise major concerns. When did, however, the number of infected persons become alarming? As already mentioned, the answer to this question is not without difficulty.
instance, in the case of the 'Evia' (No.2)16 the charterers was held not to be liable for the detention of the ship at an Iraqi port due to hostilities, since the latter could not have been anticipated at the time of the nomination of the port. However, in the case of 'Teutonia'17, the charterers were again found not be in breach of the warranty of safety, although in this case they were aware that there was a significant danger of a war outburst at the time of nomination.
C-4. How can the parties respond to an issue of supervening unsafety?
At this point a distinction between time charters and voyage charters should be drawn.
In the case of time charters, a charterer is under a constant duty to give orders to the owners regarding the employment of the vessel. Thus, if following a valid initial nomination a state of unsafety arises, the charterer will be obliged to make a fresh nomination of a safe port. Failing such an alternative nomination, the owners would nevertheless be entitled to cease obeying the initial order.
On the contrary, under a voyage charter a valid nomination usually exhausts duty of the charterers to nominate a safe port. The charterers will be therefore under no secondary obligation to nominate a new safe port. However, it is always open to the parties to vary the terms of the charter and agree on an alternative port. Failing an agreement between the parties, the owner may be entitled to call at nearby (safe) port according to the “so near as it may safely get” provision of the charterparty. In that case and provided that the alternative port discharge was done in accordance with the charterparty, the charterer shall be liable for the payment of the extra costs. In practical terms however, this is usually unattractive as there are likely to be complications if the unsafe port was the one named in bills of lading and owners necessarily bear the extra costs in the first instance.
It is worth mentioning at this stage the case of The 'Kanchenjunga'.18 The charterparty in this case defined the loading ports as 1/ 2 safe ports Arabian Gulf excluding Fao and Abadan (due to the war between Iraq and Iran) but including Kharg Island. The charterers ordered the vessel to call at Kharg Island. The vessel proceeded and tendered NOR. On the same day, there was an Iraqi raid upon the island during which bombs were dropped. The master managed to proceed away from the island to a point of safety and asked for a fresh nomination of a safe port. The charterers insisted that the master should go back to Kharg Island, as a result of which a dispute arose. The court found that the owners were aware of the dangers involved in calling at the port of Kharg Island, but nevertheless elected not to treat the order as an improper nomination. As a result, they were deemed to have waived their right to refuse to load cargo at the nominated port. However, a clause in the charterparty conferred a separate and independent right of refusal to the master in case of war danger and none of the actions of the owners could be construed as a waiver of the master's discretion. The case however illustrates that owners' decision to go or not to go – or to choose an alternative 'so near to' port may in fact be a reckless decision breaking the chain of causation, The knowledge owners have or ought reasonable to have of the risks involved in calling at a certain port and their subsequent behaviour is of great importance.
C-4. C-5. Are owners obliged to wait until the danger ceases to operate?
Temporary dangers will generally not render a port unsafe provided that the master is or should be aware of them and their temporary nature and can therefore avoid them by waiting. In such a case the charterers will be entitled to insist that the owners wait until the danger ceases to operate and deliver the cargo at the nominated port. However, if the delay is so lengthy as to frustrate the whole adventure, the danger will not be considered as temporary.19
As the EDV outbreak is still ongoing and is spreading both numerically and geographically, the nature of the danger will have to be measured against the factual circumstances at the noninated port at the time of arrival.
C-6. Is there room for an indemnity claim?
Where a claim for breach of the safety warranty is unavailable, the owners may, depending on the circumstances, recover their loss by way of an indemnity claim for loss suffered in the course of complying with the charterers' orders. Under a voyage charter there is generally no express or implied indemnity. Under a time charter there is often an express indemnity clause but in any event it is settled law that an implied indemnity arises out of an obligation (such as Clause 8 of the NYPE form) to obey charterers' orders.
In the 'Evaggelos Th'20 the vessel was chartered for trading in the Red Sea which was a war zone at all material times; she was ordered to call at the port of Suez at a time when there was a cease fire. After the vessel's arrival at the port the cease-fire collapsed and the vessel became a total loss as a result of Israeli shell fire. Having found that the port of Suez was a safe port at the time of nomination and remained safe at the time of the arrival of the vessel, the Court of Appeal concluded that the charterers were not in breach of a safety warranty. It was held however that the owners could in principle recover the loss suffered under an employment and indemnity clause if they could prove that the cause of the loss of the vessel was the master's compliance with the charterers' orders. Accordingly, the case was remitted to the arbitral tribunal to decide on this issue (and the result is not known).
The Courts' willingness to award an indemnity against the consequences of obeying an order (even a perfectly legitimate order) was illustrated in the case of the 'Island Archon'.21 In this case the Court of Appeal held that the shipowners were entitled to rely on an implied right to be indemnified against the consequences of complying with the time charterers' order to proceed to a port and deliver cargo there because as a matter of causation that order directly led to a claim and detention - notwithstanding that it was an order which the charterers were entitled to give and the owners were bound to obey.
In the case of a time charter indemnity, causation will be key – did the owners' compliance with the order to proceed to the EDV-affected area cause them loss? Was this a risk known to and accepted by the owners?
Both factual and legal circumstances surrounding EDV are fluid; however, there is room to believe that at least certain West African ports could be regarded as unsafe for certain vessels in certain circumstances. A more careful consideration of cases regarding non seafaring safety of ports reveals that significant weight is placed on the time at which key events occurred, i.e.
- the time at which EDV was manifested in each region
- the time of the port nomination
- the time at which the parties became aware of the risks; also their subsequent behaviour
- the time at which the vessel arrived or was supposed to arrive at the port in question
The nature of the proposed operations the vessel will carry out at the port and the degree of involvement of local workers will also be relevant.
Given that the outbreak of EDV is still ongoing, owners would have to proceed to make decisions on the basis of all information available at the time when a port nomination is given.
Written by Louise Glover and Angeliki Georgouli
Table of Abbreviations
Table of Cases
- EDV: Ebola Virus Disease
- ICS: International Chamber of Shipping
- IMEC: International Maritime Employers' Council
- ITF: International Transport Workers' Federation
Table of Books
- Campia and Others v British India Steam Navigation Company Limited  2 K.B. -  2 Lloyd's Rep 774
- Compania Naviera Maropan SA v Bowaters Lloyd Pulp and Paper Mills Ltd (The Stork)  2 QB 68
- Leeds Shipping v Bunge (The Eastern City)  2 Lloyd's Rep. 127
- Kristiansands Tankerederi A/S v Standard Tankers (Bahamas) Ltd. (The Polyglory)  2 Lloyd's Rep. 353
- Sidermar S.p.A. v Appollo Corporation (The ‘Appollo')  Lloyd's Rep. 2001
- Vardinoyiannis v The Egyptian General Petroleum Corporation (The 'Evaggelos Th')  2 Lloyd's Rep. 200
- Duncan v Koster (The Teutonia) (1871–73) LR 4 PC 171, PC
- Kodros Shipping Corporation v Empresa Cubana de Fletes (The 'Evia' No. 2)  Lloyd's Rep. 334
- Batis Maritime Corporation v. Petroleos del Mediterraneo S.A. (The Batis)  1 Lloyd's Rep. 345
- Motor Oil Hellas (Corinth) Refineries S.A. v Shipping Corporation of India (The 'Kanchenjunga')  1 Lloyd's Rep. 391
- Triad shipping co. v Stellar Chartering & Brokerage Inc. (The 'Island Archon')  2 Lloyd's Rep. 227
- Effort Shipping Co. Ltd v Linden management S.A. and Another (The 'Giannis NK')  1 Lloyd's Rep 338
Table of Links
- Julian Cooke, Timothy Young, Andrew Taylor, John Kimbal, David Martowski and Leroy Lambert – Voyage Charters (Third Edition) - 2007
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