Posted: 22/07/2025
As part of the bicentennial celebration of Thomas Cooper’s founding in 1825, Penningtons Manches Cooper is spotlighting a different standout case conducted by the firm across its two centuries of English legal practice for each month of 2025.
This seventh instalment focusses on the decision in Vardinoyannis v The Egyptian General Petroleum Corporation, The Evaggelos Th [1971] 2 Lloyd's Rep 200; the only case in which a warranty of safety was ever implied into a charter party.
That same year, Thomas Cooper began trading as 'Thomas Cooper and Stibbard', having finally combined the names of Thomas Cooper & Co and Stibbard Gibson & Co, which the partners had been keeping alive since the merger of those practices in 1878. The new name would stick around for some 38 years.
Recorded cases on port safety date back to 1861, affording the common law plenty of time to whittle its way towards certainty on the meaning of a safe port. Earlier references in The Sagoland (1932) 44 Ll.L Rep 136 and The Stork [1955] 1 Lloyd’s Rep 373 discernibly paved the way for Lord Justice Sellers to deliver one of history's most oft-quoted pieces of maritime dicta in the seminal decision of The Eastern City [1958] 2 Lloyd’s Rep 127:
'… a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship… .'
This conceptualisation would also stick around, meeting with the approval of the House of Lords in The Evia (No. 2) [1982] 2 Lloyd’s Rep 307 and the Supreme Court in The Ocean Victory [2017] 1 Lloyd's Rep 521.
In order to so curtail a charterer's discretion, entitling them to only choose safe ports for the vessel, the mere insertion into the charter party of the word 'safe' in relation to the subject port is normally enough. The law of safe ports presents itself as an edifice of common law jurisprudence, rendered contractually effective by this one-word express term.
Perhaps this is why the question of whether a warranty of safety ought to be implied where none is expressed is of some fascination to lawyers. In The Stork, at first instance, Mr Justice Devlin observed the importance of implying 'some condition about safety to prevent the making of a derisory nomination', and as early as Ogden v Graham (1861) 1 B&S 773, Mr Justice Wightman acknowledged that 'I do not know what force can be given to the word 'safe' when added to the word 'port'.'
In the aftermath of the Six Day War of June 1967, an uneasy ceasefire persisted between Israel and Egypt with the port and Gulf of Suez within reach of both sides' artillery. Vessels traded in and out of Suez, but sporadic shelling would cause the occasional casualty.
Against this backdrop, the Greek tanker Evaggelos Th was time chartered to the Egyptian General Petroleum Corporation by a charter dated 2 November 1968 for trading in the Red Sea. The charter stated that the vessel may be sent to any 'place the charterers may direct, where the vessel can always lie safely afloat' but did not contain any other stipulation for the safety of the places of loading and discharge. Initially, the vessel was traded between the refinery at Suez and the Egyptian oil fields in the Gulf of Suez.
On the evening of 8 March 1969, shelling began while the vessel was discharging in the Suez Roads. After charterers gave orders to halt the discharge, the master decided to vacate the jetty. However, being of the same mind, the shore staff had already abandoned their stations, leaving the ship's crew to cut their mooring ropes with axes and make good their escape.
Over the following three days, two ships were sunk by shell fire at Suez, and another was damaged in Suez Bay, with a fourth vessel running aground while trying to get away.
Thereafter, with the refinery out of action, the Evaggelos Th was employed in carrying crude from the oil fields to Aden, refined products from Aden to Suez, and fresh water from Suez to the oil fields.
Having loaded a cargo at Aden on 13 June, the ship proceeded to the Suez Roads for discharge into lighters and arrived there on 21 June. Intermittent shelling began that afternoon, with shells landing in the water on the port side of the vessel by the following morning.
The Evaggelos Th shifted to get away from the immediate danger, but, on 25 June, with discharge still in progress, Israeli guns began firing at ships in the Suez Roads. The Evaggelos Th was hit at the break of the poop, causing drums of lubricating oil and kerosene on deck to ignite, and fracturing a steam pipe, which meant she could no longer raise anchor.
The master ordered the crew ashore in boats until the shelling ceased, following which he went back onboard with a skeleton crew to perform repairs. When shelling recommenced on 27 June, the master and crew again headed ashore. While they were en route, the Evaggelos Th was struck in the aft accommodation. Flames broke out and the vessel became a total loss.
Thomas Cooper acted for the charterers in the ensuing litigation.
Having failed to convince two LMAA arbitrators of their claim for damages arising out of charterers' orders to discharge at Suez, owners appealed to the High Court. The arbitrators had been clear, as a matter of fact, that Suez and the Suez Roads were not safe on 25 and 26 June 1969, although that did not place the charterers in breach of charter.
Mr Justice Donaldson held that the wording 'always lie safely afloat' did not avail owners. This wording applies only to the marine characteristics of the place of discharging, 'and requires that the vessel shall at all times be water-borne and shall be able to remain there without risk of loss or damage from wind, weather or other craft, which are being properly navigated.'
There being no express safe port warranty, the judge considered the question of an implied one. He determined that a term should be implied 'because common sense and business efficacy require it in cases in which the shipowner surrenders to the charterer the right to choose where his ship shall go' and 'the implied term should in my judgment be limited to a warranty that the nominated port of discharge is safe at the time of nomination and may be expected to remain safe from the moment of the vessel's arrival until her departure.'
In the case of Evaggelos Th, however, the outbreak of hostilities on 8 March and 25 June 1969 were unexpected and the vessel had successfully traded to Suez in the intervening months. '[I]n the light of the fact that the vessel was being properly employed in a war zone', and that there was no hostile action when the vessel was ordered to Suez on 19 June or when she arrived there on 21 June 1969, the implied term was not breached. The charterers had succeeded in defending the claim.
The textbook Time Charters, 7th Ed, reminds us that the wording 'always lie safely afloat' does not mean the same thing as 'safely lie always afloat', which appears in the NYPE 46 and Baltime forms and 'should be read as a stipulation for safety in all the aspects …'.
Conspicuous as the sole authority showcasing an implied warranty, the Evaggelos Th is not without its critics. In The Evia (No.2), Lord Roskill said that he agreed with the outcome but 'would respectfully question its reasoning', while Time Charters cites the case for the proposition 'that the court may in certain circumstances imply a term as to safety'.
It may be inferred that Mr Justice Donaldson's implied term could only be breached in circumstances where the danger of being 'employed in a war zone' had markedly increased since the charter was agreed. If so, the decision would appear to accord with the prevailing view that a claim under an implied warranty of safety for damage caused by an order to an unsafe port would be coextensive with one brought under the employment and indemnity clause. The Evaggelos Th may not be as controversial as its singularity would suggest.
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