The development
With immediate effect the Port of Durban has increased the under keel clearance requirement for vessels calling at container berths in the Port of Durban from 30 cm to 60 cm. This change has been made on the basis of safety requirements from the port.
Going forward, any vessel calling at the berths with a draft in excess of 12.2 meters will be considered a "tidal vessel" and will need to apply to the harbour master's office, and provide tidal calculations, prior to arrival or departure.
Furthermore, the port authority may ask the vessel to provide an indemnity as part of this procedure (more on which below).
Details of this change can be found in the attached notice of 26 September 2014.
Port and terminal indemnities
The Association has noted that in recent times there have been more frequent demands for indemnities to be given by vessels to ports and terminals before calling and making use of their facilities.
These indemnities often seek to do the following, which have significant liability consequences:
- provide complete indemnities to the beneficiary of the indemnity irrespective of fault or circumstance
- provide indemnities for extensive matters, such as providing a full reimbursement of legal and other costs
- require the waiver of defences and exclusions to liability
- seek to introduce unlimited liability and / or waive rights to limitation of liability
- impose local law and jurisdiction
These, especially points 1-4, may take the indemnity outside and beyond the scope of P&I cover and expose the member to risks which are uninsured, and potentially uninsurable.
This development has been noted at the International Group P&I level and is being investigated further.
If members are asked to agree to sign off on such indemnities, they are asked to contact the Association and provide details of the requested indemnity / documents, so that further advice may be given on the potential risks and liabilities that the member is facing.
Loss prevention advice
Members will be aware that vessels, especially those trading on a worldwide basis, face potential issues with respect to the size and dimension of their ships whenever they call at a port, even if this is a repeat call.
Typically these issues are concerned with the following vessel characteristics:
- a. the beam / width
- b. her length
- c. under keel clearance
- d. air draft
It is important for owners and charterers to be fully aware of the vessel's dimensions - at the charter fixture stage!
If a vessel is fixed for a business which she cannot perform, either due to regulatory restrictions or simply due to physical impossibility, a serious dispute is likely to follow.
Owner's concerns
Given the potentially significant variation in physical facts as well as local regulation, it is worth ensuring that owners who fix out on the basis of "worldwide" trading, ensure that they:
- a. communication the dimensions of their vessels very clearly to charterers prior to fixing
- b. have adequate protective clauses in their charterparty, so that vessels are not forced to enter locations that they may not be able to access without risking physical or regulatory consequences
Where owners fix the vessel to particular named ports or places, they may share some responsibility with charterers to checking in advance that the vessel can actually, physically and legally, go there in safety.
Charterer's concerns
For charterers, it would be very prudent before fixing out down the line, to particular ports, to check with local agents as to the very latest restrictions and requirements as these can change, sometimes without prior warning or "lead-in" time.
Doing this extra homework in advance will help to ensure that the right vessel is used for the proposed voyage, and this helps to reduce the risk of potentially deal breaking issues arising later on.
Charterers could face being caught in between two positions if they have certain obligations to the owner, but have warranted the vessel's ability to trade to a particular place to a sub-charterer, and these two positions do not match.
Previous loss prevention advice
The Association has previously given advice on such issues.
If members have further queries, they are asked to contact the Association: lossprevention@skuld.com
The Association is grateful to Messrs. P&I Associates (Pty) Ltd of Durban South Africa for contributing to this update.