NAABSA or “Not always afloat but safely aground” Ports are special ports where vessels rest without staying afloat. However, this feature often leads to tremendous ship damages and delays which ultimately strains the relationship between charterers and shipowners.
Keeping this in mind, the Gard has issued a guideline of checkpoints to consider before calling at such ports. Let’s look at that article today.
About NAABSA
The NAABSA phrase has its roots in commercial realities and disputes around the charterparty clause and the practice are not uncommon, especially when taking to ground is not anticipated by the crew. Gard as a P&I, Hull and Machinery and Defence insurer, handles claims and disputes under charterparties containing a NAABSA term with cases and inquiries coming from both our insured owners and charterers. We outline three case studies followed by discussion of the legal position raised and provide practical loss prevention advice.
The legal effect of a NAABSA clause
NAABSA clauses are usually incorporated to avoid charterers finding themselves in breach of the “always afloat” requirement in most charterparties where it is intended for the vessel to call at ports or places where, due to tidal conditions, she may touch bottom. NAABSA clauses in charterparties indicate owners’ acceptance that such an event may occur.
NAABSA clauses must be read in conjunction with the general warranty of safety in the charterparty. Therefore, if the vessel’s hull is damaged as a result of lying aground at a NAABSA berth, it may be possible to argue that charterers will have breached their obligation to nominate a safe port/berth where the vessel can lie safely aground. However, the success of such an argument will depend on a factual assessment of the characteristics of the berth. It must also be kept in mind that the master is required to exercise reasonable navigation and seamanship to ensure the safety of the ship.
NAABSA clauses must be considered within the wider context of warranties of safety of ports, berths, anchorages and places mentioned in a charterparty. They usually contain a warranty by charterers that the nominated ports, berths and/or anchorages a vessel is ordered to are safe. Depending on the particular charterparty clause, the warranty of safety may be express, or implied.
Express warranties of safety
There are two main types of express warranties: a warranty of absolute safety or a qualified one.
For example, an absolute warranty of safety can be found in the NYPE 1993 form. The reference to safe places would also include the vessel’s approach to the berth. The measure of safety in an absolute obligation is whether the dangers of the port or place could have been avoided by good navigation and seamanship. Some standard forms, such as the Shelltime forms (Shelltime 3 and Shelltime 4) contain a qualified warranty of safety, lowering charterers’ obligations to one of due diligence.
This means that a nominated port or place would be considered safe if a charterer could have reasonably concluded, based on the known facts, that the nominated port or place was prospectively safe, at the time the orders to proceed were given.
Implied warranties of safety
Sometimes, the charterparty does not contain an express warranty of safety of a port or place to which a vessel has been ordered. In certain, narrow circumstances, the English Courts may be prepared to imply a safe port/place obligation into the charterparty.
It is important to note that where a charterparty does not contain an express warranty of safety, but ports have been expressly named in the charterparty, whether as a list or described as a range between two specific ports, no warranty of safety will be implied into the charterparty.
Negotiating NAABSA clauses
It is important to consider the wording of the NAABSA clauses incorporated into the charterparties. Some charterparties may incorporate the BIMCO NAABSA clause. This clause is more comprehensive, and owners retain a reasonable right to reject charterers’ request to call at a NAABSA port. The clause also requires charterers to confirm in writing that a vessel will lie on a soft seabed without suffering damage and charterers must indemnify owners for any consequential losses suffered due to the vessel lying aground.
More common, however, are clauses which require owners to call at NAABSA ports, meaning that owners do not have the option to reject such an employment order. These clauses may name specific ports or refer to a range of ports where vessels are permitted to lie safely aground. Some clauses may be worded more broadly, referring to ports where it is customary for vessels to lie safely aground. These clauses do not usually include an express indemnity from charterers to owners.
There is no legal definition of what is “customary”, and the question of whether it is “customary” for vessels to rest on the seabed at a certain location is one of evidence. If vessels regularly touch bottom at a particular berth or place without suffering damage, this could be considered customary.
Procedural and practical considerations
Shipowners or managers do not always have guidance on NAABSA calls in their Safety Management System (SMS) to which the crew can refer. As in our above case study, the actions taken are very much reactive after the vessel has touched bottom. The SMS should contain detailed procedures on the preparations needed and actions to be taken both by the crew and shore management when a vessel calls a NAABSA port. SMS procedures should generally cover the four stages discussed below. A simple checklist with the key points can assist crew members.
- Before arrival at port
This is the information gathering stage. First refer to the NAABSA provisions in the charterparty and also the charterer’s voyage instructions. Then collect the information which can be provided by the sources on ground, i.e. local agents and P&I correspondent. Some of the things to look out for are:
- Any official declaration by authorities recognizing the port as NAABSA
- Nature of seabed and its topography to determine that the seabed is uniform
- Minimum depths and maximum draft allowed
- Date of last survey and dredging works carried out
- Loading and discharging rates
- Any official guidelines provided by the authorities
- Tidal information
- Past history of vessels of similar size touching the ground at the relevant berth.
- After berthing
This would cover the actions which crew need to take to avoid any damage to the vessel or its machinery and other equipment. It would cover items such as changing over to high sea chest, 6-9 point manual sounding around the vessel to ascertain the depths, and bottom sampling. Bear in mind that soundings taken from the hand lead line may not be accurate if there is significant flow at a river berth. Mariners should therefore use echo sounder readings to verify and notify port authorities, if in doubt.
- After vessel takes to ground at low tide
For structural strength and stability reasons, our recommendation is to cease loading if the vessel touches bottom. This is an important issue to highlight to the charterers as the vessel’s stability is calculated in an afloat condition in the loading computer and the vessel will experience a virtual loss of stability upon touching bottom. This effect is particularly pronounced when loading deck cargo. If the vessel’s loading computer cannot calculate stability for the condition when the vessel sits on the ground, the vessel’s class society may be contacted for guidance on stability calculations.
The second most important thing is to ensure that the vessel’s hull is not breached. Crew will need to frequently monitor soundings in spaces such as double bottom tanks, duct keel, cofferdams, stool spaces and cargo hold bilges. The vessel may move laterally away from the berth upon taking ground and for that reason the moorings might need extra attention. The vessel’s sudden lateral movement can also cause damage to the ship and shore equipment such as the cranes and gangways.
- After refloating
An underwater survey should be arranged to determine whether there is damage to the hull and steering system.
Citing Unsafe Conditions
When the slant of the seabed caused by silting and the absence of regular dredging, could be considered an unsafe condition.
Owners can prove unsafe conditions where vessel damages reported in the Underwater survey done just after refloating to substantiate their claim.
NAABSA and your insurance – P&I and H&M cover
Gard’s P&I covers for owners and for charterers (including liability for damage to hull) would normally not be prejudiced so long as it is a customary trade under standard charter party terms and the Member or client complies with the relevant requirements. For vessels in NAABSA trade, owners are recommended to check whether the Hull and Machinery policy includes a clause that waives notification to the insurer but requires owners to obtain agreement from the charterer to indemnify the owner for damage caused to the vessel by grounding at berth. Charterers should be aware that accepting charterparty clauses that apply strict liability for damage to hull irrespective of negligent navigation would need to be approved by Gard for cover to remain intact. Thus, for owners and charterers, it is wise to check with their brokers and insurers when agreeing to NAABSA trade.
Recommendations
- When calling a NAABSA port, a certain amount of due diligence is required not only from the crew members but also the owners’ shore management and charterers to avoid not only damage to the vessel and delays, but also straining the commercial relationship between owners and charterers.
- Both owners and charterers therefore need to be aware of the NAABSA clauses agreed to in the charterparty and their effect.
Key Points To Consider Before Voyaging
- As Masters are generally less familiar with charterparty terms, owners/managers should highlight such clauses to Masters, to ensure that the crew are aware that the vessel may touch bottom at certain ports.
- Charterers should clearly identify the nominated port as a NAABSA port in the voyage instructions and request an acknowledgement from the Master.
- The Master should carefully read the voyage instructions, and the agents’ arrival message.
- The Master can request further information on the characteristics of the port from the agent.
- Owners should have procedures to guide the crew on the risks of calling NAABSA ports and actions required by them to ensure operations are carried out in a safe manner.
- Owners and charterers should, insofar as is practicable, agree to jointly carry out bottom sampling at the nominated port/berth. This should give both parties a clearer picture of the risks of touching bottom, and potentially avoid damage to the vessel, the costs of which charterers would likely end up being responsible for.
- Owners should check their hull and machinery policy terms for any conditions to cover.
- Charterers entered with Gard should notify their underwriter when agreeing to non-standard and onerous NAABSA terms to ensure they remain covered for damage to hull.
Those members and clients with Defence cover may also consult with their Defence lawyer, regarding the legal effect of the NAABSA clause at the time of negotiation and fixing or during and after an incident where allocation of costs is in dispute.
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Source: Gard
