Please use this identifier to cite or link to this item: https://www.um.edu.mt/library/oar/handle/123456789/62670
Title: The safe port : issues of safety and impossibility of ports in the practice and interpretation of charterparties
Authors: Gauci, Gianfranco
Keywords: Charter-parties -- Malta
Maritime law -- Malta
Harbors -- Security measures
Issue Date: 1997
Citation: Gauci, G. (1997). The safe port : issues of safety and impossibility of ports in the practice and interpretation of charterparties (Master’s dissertation).
Abstract: This work attempts to approach the subject of safety of ports in charterparties from several points of view. Part I commences with a brief definition of the commercial activities regulated by the law relating to charterparties and the place of safe port obligations within it. Maltese historical sources of law are identified in Roman Law, in the mediaeval European ius commune, and in the autochthonous Consolato del Mare, enacted by Grandmaster Perellos, and successively revised and recompiled by Grandmasters de Vilhena and de Rohan; the provisions of the Code de Rohan are illustrated by Scopinich vs de Cesare (1841), regarding a politically unsafe port. The conclusion reached is that, since the relevant sections of the Code de Rohan have been abrogated, the primary source of Maltese law on safe ports is the English common law, inasmuch as, in accordance with Section 3 of the Commercial Code, it represents international maritime usage and custom. Part II of the work examines the prevalent maritime usage and custom by reviewing the express clauses regarding choice of port in the most common standard form contracts used in the industry, as well as the authoritative statements of English courts concerning the necessity, in certain limited cases, of implying safe port terms, even in the absence of express provisions, in the construction of charterparties. It is submitted that, while an obligation not to nominate impossible ports will always be implied, the implication of safety terms in relation to the choice of port will always depend on the interpretation of the particular contract in its totality. In Part III, concerning the judicial application of the clauses and implied terms described in Part II, the work covers the standard definition of safe ports and its evolution, and attempts a classification of unsafe ports in its basis; the decision delivered by a unanimous House of Lords in The Evia (No.2) leads to the conclusion that, whilst a charterer is excused in respect of danger that arises at a time when it is too late to give alternative orders, there is a duty to give alternative orders right up that time. It is found, that although The Stork had apparently defined the safe port obligation as a warranty, The Evia (No.2) laid down that the intrinsic exception regarding abnormal occurrences has the practical effect of characterizing the obligation as a "contractual promise" rather than as a strict absolute warrant.
Description: LL.D.
URI: https://www.um.edu.mt/library/oar/handle/123456789/62670
Appears in Collections:Dissertations - FacLaw - 1958-2009

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