HOT OFF THE PRESS
US Supreme Court decides that the safe berth clause establishes a warranty of safety. A monumental, yet widely expected, decision.
In the relevant clause, the charterers‘ duty to select a safe berth was absolute. There were no expressed qualifications on that duty.
The charterer had to designate a berth that was safe and where the vessel could come and go always safely afloat. This absolute duty constituted a warranty of safety.
Charterers‘ attempts to read a due diligence standard into the clause, where those words did not expressly appear, failed.
In the final paragraph of the Opinion, the Supreme Court stated, „Charterers remain free to contract around unqualified language that would otherwise establish a warranty of safety, by expressly limiting the extent of their obligations or liability.“
This is nub of the decision. If the parties agree on a due diligence standard for safe berth or port selection, then they can write it in the contract – as many charterparties do. If they do not say so, then ordinarily the duty will be considered absolute.