Ukraine Сlosed Four Sea Ports until Reoccupation
The Ministry of Infrastructure issued the Order #256 dd. 28 April 2022 On Closing Sea Ports, which has been registered by the Ministry of Justice. According to the Order, the Ministry closed two Ukrainian ports located in the Sea of Azov (Berdyansk and Mariupol) and two Ukrainian ports located in the Black Sea (Kherson and Skadovsk). Relevant information will be published in the Notice to Seafarers issued by the State Hydrographic Service of Ukraine. The Ukrainian Government advised that this step was taken due to impossibility of servicing vessels, conducting transshipment of cargoes and securing safety of shipping provided by the international conventions, where Ukraine is a contracting party during the ongoing russian aggression against Ukraine in these designated regions (Donetsk region, Zaporizhzhia region, Kherson region).
Along with that nine other sea ports, including four biggest ports of Ukraine (Pivdennyi, Odesa, Chornomorsk, and Mykolaiv) will remain formally opened. We have been asked by number of foreign shipowners why these ports are de facto closed for navigation and why foreign vessels stuck in the port cannot sail?
Martial law and increased security level in Ukrainian ports
On 24 February 2022 at 05:30 AM local time russia invaded Ukraine through missile attacks on Ukrainian cities. In the light of aforesaid, according to the Presidential Decree #64/2022 On Implementation of Martial Law in Ukraine starting from 05:30 AM of 24 February 2022 the martial law has been implemented at the territory of Ukraine for the period of 30 days which has been further extended until 25 May 2022. Due to russian invasion and increased threat of accidents related to the guard of vessels and port facilities, for the period of the martial law the Cabinet of Ministers of Ukraine issued the Order #183-p dd. 25 February 2022 establishing a 3rd (exceptional) security level of guard of vessels and port facilities in sea and river ports of Ukraine starting from 24 February 2022.
Coastal warnings published by Ukrainian Navy Forces and State Hydrographic Service
According to Ukrainian Sea Port Authority (USPA) statement on Facebook share on 3 March 2022, entrance/sailing to Ukrainian ports is closed due to coastal warnings 83-91/22, 96-97/22 of the Ukrainian Naval Forces of the Armed Forces of Ukraine due to mining danger; coastal warning 92/22 of the State Hydrographic Service; coastal warning 98-99/22 due to piracy threat from the ships of the Black Sea Navy Fleet of the Russian Federation in the Black Sea and the Sea of Azov. Cargo handling operations in the ports in fact have been suspended, which has been further confirmed by the Ministry of Infrastructure in its official Telegram-channel.
What state authority is empowered to open and close Ukrainian sea ports?
It should be noted that according to the clause 5 of the Procedure of Opening and Closing of Sea Ports of Ukraine approved by the Resolution of the Cabinet of Ministers of Ukraine #495 dd. 11 July 2013, decision on closing of a sea port should be adopted by the Ministry of Infrastructure of Ukraine based on the proposal of the USPA agreed with the Maritime Administration. The Order #256 dd. 28 April 2022 on closing Mariupol, Berdyansk, Kherson and Skadovsk is the first case on closing sea ports issued by the Ministry after the russian invasion commenced.
The Chamber of Commerce and Industry has qualified martial law as the Act of God
Finally, we would like to add that according to the notification of the Chamber of Commerce and Industry of Ukraine #2024/02.0-71 dd. 28 February 2022 published on the official web-site of the UCCI (https://ucci.org.ua), military aggression of the Russian Federation against Ukraine and further introduction of the martial law at the territory of Ukraine has been recognized as the Act of God (force majeure). Starting from 24 February 2022 until its official ending these circumstances are extraordinary, unavoidable and objective circumstances for the business entities under the agreement. Therefore, port operators and marine terminals, shipping agents and freight forwarders shall take into account while resolving the disputes with clients arisen due to non-fulfillment or improper fulfillment of contractual obligations after 24 February 2022.
Artem Volkov, Head of Maritime Law Practice, Attorney-at-law at ANK Law Office, UMAC arbitrator