In the legal notice published by Esenyel Partners, it was pointed out that “As a result of the unfortunate war between Russia and Ukraine, problems have arisen about how the ships in or entering the territorial waters of this country should move”, the effect of the state of war on contracts and actual situations was discussed. The notice in the form of questions and answers is as follows:
1- What will be the situation of voyage charters in wartime?
First of all, the contractual provisions regarding the said voyage are of great importance. Almost all printed contracts have War Risk and Force Majeure clauses. It grants the Carrier the right not to sail to the Ports in the war zone in question, by the general rule adopted under the printed contracts.
However, in such cases, it is stipulated that the Carrier cannot be held responsible for possible damages. Especially, Conwartime grants the Shipowner the right to take security measures and not to make the voyage in case there is a risk of war in the Voywar war clauses. Contracts for tanker charters such as Shelltime and Shellvoy, on the other hand, are more limited in terms of war risk, but give the right to withdraw in case of war.
2 – What will be the state of the time charter and contracts in wartime?
As in the voyage charter, the provisions regulating the legal relationship of the parties should be examined in Time Charter and Ship Contracts. First of all, the notification obligations of the parties to each other are of great importance. In this context, if the Carrier or the Captain believes that the said port is not safe and has strong arguments to support this, she must notify the charterer as soon as possible. (“unsafe port decleration”). According to the notification obligation, the Carrier may request to be notified of a safe port (“safe port”) by giving the charter a certain period.
Ships that are making regular voyages should also pay attention to their contracts within the framework of the above provisions, and if an alternative safe harbor cannot be determined in such contracts, it will be possible to cancel the contract unilaterally or bilaterally.
3 – Can the ports of Ukraine and Russia be considered safe harbors? What is the current status of the ports?
When we look at the current situation and analyze the situation as a result of the previous decisions of the British and Turkish Courts, the opinion that the Ukrainian Ports cannot be considered as a safe harbor is predominant. Considering the declarations of Russia and Ukraine that the territorial seas of the Black Sea and the Sea of Azov are not safe harbors, it seems difficult to classify the ports of these countries as safe harbors.
Russian Ports are currently operating at the time of this fact sheet, and the Kerch Strait has been closed. Ukrainian Ports, especially at the ports in the Azov region, first of all, the ports of Mariapul, Berdiyansky, Odesa, and Chernomorsk were banned after the entry and exit were prohibited, and all Ukrainian Ports were closed. It is reasonable and explainable for the ships already in these ports to leave the said ports, taking into account the safety of life and property.
4 – Who will have to stand the consequences if the ship is stranded in any Ukrainian or Russian port due to war?
In case the ship is stranded in a Ukrainian or Russian port due to war, the contract between the charterer and the carrier should be carefully examined. Especially, force majeure and war clauses should be read carefully. If the situation of being stranded in question is considered as force majeure, then it should be noted whether the necessary notifications are made by this article. However, perhaps the most basic issue here is to determine whether the ship’s being stuck in the said port constitutes a violation of the ship’s obligation to navigate between safe harbors. Because if there is a violation of the obligation to navigate between safe harbors, then the party over this obligation may be responsible for damages.