20/02/2022
𝟮. 𝗔𝗿𝗲 𝗽𝗼𝗿𝘁𝘀 𝗶𝗻 𝘁𝗵𝗲 𝗨𝗸𝗿𝗮𝗶𝗻𝗲 (𝗮𝘁 𝗽𝗿𝗲𝘀𝗲𝗻𝘁) 𝗹𝗲𝗴𝗮𝗹𝗹𝘆 𝘂𝗻𝘀𝗮𝗳𝗲?
This is a more difficult question because it is currently unclear whether the risk of prospective danger is sufficient to make ports legally unsafe, bearing in mind that hostilities have not yet broken out and that, even if there is an outbreak of hostilities, that may not affect the safety of ships.
For these purposes, a relevant question (as formulated in In The Ocean Victory [2017] 1 Lloyd's Rep. 521 at 529) is "whether a reasonable shipowner in the position of the particular shipowner trading the ship for its own account and knowing the relevant facts would proceed to the nominated port". It is difficult to answer such a highly theoretical question. Some Owners would no doubt be concerned about sending a vessel to Ukraine when hostilities could be imminent. In addition, the Joint War Committee has now added Ukranian and Russian waters in the Black Sea as Listed Areas, but with the following comment:
"Whilst the current assessment is that there is armed balance, it was decided to issue JWLA-028 as a precautionary measure. There have been no maritime incidents but the possibility of a miscalculation is clear so the JWC have enabled notification of voyages to underwriters."
However, this in itself would not be sufficient to enable Owners to treat ports within the Listed Areas as unsafe.
Consequently, although this is an issue on which different Courts and Tribunals may hold different views and although those views may no doubt be heavily influenced by subsequent events, it is doubtful whether all Ukrainian ports would, at present, be treated as legally unsafe.
Again, however, the situation is extremely fluid and should be monitored on a case-by-case basis. It may also be the position that certain Ukrainian ports (for example those in the Sea of Azov) are more exposed to potential imminent danger than others.
If ports are prospectively unsafe, then Owners would be entitled to refuse to follow orders to proceed to such ports, even if there is no applicable war risk clause in the Charterparty.
We are publishing the following general FAQs so that our members and assureds can have some general guidance on a few fundamental questions.