By Nicola Kneizeh

UAE ports have been successful in attracting the attention of traders, suppliers, and more importantly shipowners and charterers, especially Dubai which has been able to develop a reputation as one of the safest and most reliable ports in the Middle East. This is due to their efficiency and to the fact that most of the UAE ports have succeed in adopting a thriving and long standing strategy in meeting international standards in providing a safety navigation system within their limits. A strategy which enhances shipowners and charterers to address UAE ports as their preferred ports of call for their needs in the Middle East.

From time to time, however, practice differs from law, hence the controversial question whether in the light of the worldwide reputation of UAE ports, the shipowners’ right against a charterer in default of a safe port warranty under UAE law is at all times preserved. It may in fact come as a surprise to many shipowners that although UAE ports succeeded in reserving an advanced position among other ports worldwide, a failure in securing the safety of vessels in those ports may not, under the UAE law, enable the innocent shipowner to obtain a suitable remedy.

The bottom line of the above speculation is whether there is a clear and understandable criteria or definition in UAE law or UAE precedents to what it could be considered as a safe port.

Under English law a port is to be considered safe when in the relevant period of time the vessel can enter it, use it and finally leave the port without being exposed to danger which cannot be avoided by good navigation seamanship, further being prospectively safe, i.e. without any consideration to when the nomination order of the port has been given by the charterers. UAE law would have to adopt or establish similar practical approaches in order to guarantee the rights of a shipowner under a safe port warranty, not being sufficient for UAE courts to constantly reach a decision on a case by case basis but in the absence of a legal outline which could guide the contractual parties on how some particular breach of contractual terms can be interpreted by UAE court.

In the absence of clear precedents, it is also not enough for UAE judges to be guided in their decisions by articles 243 and 274 of the Civil Transaction Law (Federal Law No. 5 of 1985) as the two mentioned articles are only concerned with the breach of a contractual duty and its remedy and further, in order for those articles to be applicable, it is essential that the non compliance of the charterers to nominate a safe port is found to be a ‘breach’.

At the end, UAE courts have substantial ability to contribute effectively to the shipping commercial practice by simply adopting practical approaches within the law. Such approaches would enable both parties to any commercial contract to clearly identify their position under UAE law before binding themselves to such a contract and overcome any ambiguity which may arise in the future due to the blurred interpretation of a breach of a contractual term in the contract.