Seaworthiness

 

l      Implied obligation under common law – provide a seaworthy vessel ‘fit to meet and undergo the perils of sea and other incidental risks to which of necessity she must be exposed in the course of a voyage’. (Field J in Kopitoff v Wilson); ‘tight, staunch, strong and in every way fitted for the service.’ (NYPE)

 

l      The obligation under common law is absolute – in the event of breach, the shipowner will be liable irrespective of fault.

 

l      The duty of seaworthiness can be excluded or abated by the charterparty: The Fina Samco. But the courts will take great care before imposing strict liability during the voyage; or before the delivery of the vessel: The Trade Nomad. And in the case Nelson Line v Nelson, a clause exempting the shipowner from liability for any damage to goods ‘which is capable of being covered by insurance’ was held not to be effect in excluding liability for damage to cargo resulting from unseaworthiness.

 

l      Where the Hague or H/V Rules are incorporated into the charterparty, the clauses excluding liability for unseaworthiness or improper stowage would be null and void, at any rate where the charter itself makes clear that this is the desired result. (Art Ⅲ.8)

 

l      Where the Hague or H/V Rules are not incorporated into the charterparty, clauses excluding liability for bad stowage will only exclude liability for losses caused by bad stowage, not by that caused by stowage going to the ship’s seaworthiness: Elder Dempster v Patterson Zochonis.

 

l      The vessel must be seaworthy for the intended voyage. The standard required will therefore be variable depending on the nature of the voyage, the type of cargo to be carried and the likely dangers to be encountered en route: McFadden v Blue Star Line. Channel J: ‘the vessel must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage having regard to all the circumstances of it.’

 

a.       The vessel must be suitable manned and equipped to meet the ordinary perils likely to meet the ordinary perils likely to be encountered while performing the services required of it.

①    the physical condition of the vessel and equipment;

②    the competence of the crew;

③    the adequacy of stores

④    the adequacy of documentation;

b.      The vessel must be cargoworthy in the sense that it is in a fit state to receive the specified cargo.

c.       The stowage must not to affect the safety of the vessel. (The bad stowage only damaging the goods is not a breach of the duty of seaworthiness, but it is also an implied duty under common law.)

 

a.       Where the Rules are not incorporated, the duty is absolute and the ship owner can escape liability by pleading neither that he did his best to make the ship seaworthy; nor that the cause of the unseaworthiness was attributable to others not in his employ. – ‘not merely that they should do their best to make the ship fit, but that the ship should really be fit’. Lord Blackburn in Steel v State Line Steamship Co.

b.      Where the Rules are incorporated, the owner can escape liability by pleading that he did his best to make the ship seaworthy (due diligence), but he cannot stipulate for a lower level of duty and neither can he exercised due diligence in selecting reputable engineers, that is to say, the owner cannot escape liability by pleading that the cause of the unseaworthiness was attributable to others not in his employ: The Muncaster Castle.

 

l        In a voyage charter, the vessel must be seaworthy at the beginning of the voyage; in a consecutive voyage charter, at the beginning of every voyage; and in a time charter, the vessel must be seaworthy at the time of delivery of the vessel. It is immaterial that defects exist rendering the vessel unseaworthy during the preliminary voyage to the loading port, or even during the loading operation.

l        The obligation is discharged if the vessel is seaworthy at the time of sailing.

l        The owner is under a duty to look after the goods while at sea and that must import a duty to do his best to keep the vessel good shape while at sea. But if H/V Rules incorporated in the charterparty, breach of this duty can be protected by the exclusions.

l        In respect of the implied undertaking as to cargoworthiness, it is operative as from the commencement of loading; and the duty is discharged when the loading finish: ‘The warranty is that, at the time the goods are put on board, she is fit to receive them and encounter the ordinary perils that are likely to arise during the loading stage; but … there is no continuing warranty after the goods are once on board that the ship shall continue fit to hold the goods during that stage and until she is ready to go to sea, notwithstanding any accident that may happen to her in the meantime.’ Channell J in McFadden v Blue Star Line.

l        In a contract of affreightment, the answer of this problem depends on the clauses of the contract. In The Fjord Wind, cl.1: ‘That the said vessel being tight, staunch and strong and in every way fit for the voyage, shall with all convenient speed proceed to [the river Plate]. . .and there load . . .’; cl.35 ‘Owners shall be bound before and at the beginning of the voyage to exercise due diligence to make the ship seaworthy . . .’, then held by MOORE-BICK, J that ‘cl. 1 governed the obligation of the shipowner in relation to seaworthiness of the vessel in respect of events occurring during the period prior to the commencement of loading, that being the point at which the cargo-carrying stage of the adventure began; cl.35 governed the obligation in relation to events occurring thereafter although the fulfilment of the owners' duty would depend on what had gone on before.’

 

The breach of the obligation to provide a seaworthy vessel is a breach of an innominate term: The Hong Kong Fir. The test is whether a party had been deprived of substantially the whole benefit of the contract should be the same whether it resulted from breach of contract by the charterer or from the operation of the doctrine of frustration.

 

l        Where the breach is discovered before performance of the charterparty has commenced, the charterer will be able to treat his obligation under the contract as discharged if the breach deprives him of substantially the whole benefit of the contract and it is a breach which cannot be rectified within such time as would prevent the object of the contract from being frustrated: Stanton v Richardson. If the effects of the breach are less severe, the charterer will be restricted to his remedy in damages. The permissible time allowance will vary as between a voyage and a time charter. A relatively brief delay may be sufficient to frustrate the object of the former. In The Hong Kong Fir, the court held that the absence of a vessel for five months undergoing repairs was insufficient to frustrate the objects of a 24-month time charterparty. But the parties have the right to stipulate a period in the charterparty.

l        Where the unseaworthy state of the vessel is not discovered until after it has set sail, mere acceptance of the vessel does neither amount to a waiver of the charterer’s right to damages nor amount to a waiver of the right to repudiate the charter provided that the breach, when discovered is sufficiently fundamental.

 

l        The burden of proof of unseaworthiness will rest on the party alleging it, i.e. the cargo owner or shipper. And two tings should be established: a. there is a breach of duty of seaworthiness; b. the unseaworthiness caused the loss of which he complains: The Europa. But as argued by Tetley that it is often extremely difficult for the cargo owner to discharge the burden of proof of unseaworthiness. In practice, the problem is frequently solved by the readiness of the court to treat the presence of seawater in a vessel’s hold as prima facie evidence of unseaworthiness.

l        Then if the shipowner want to decline the breach, he should prove that he has exercised due diligence to make the vessel seaworthy.

 

 

Under the B/L, the Hague/Visby will apply, then there are some differences of the duty of seaworthiness between the B/L and charterparty.

 

Article Ⅲ rule 1 provides that:

‘The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to –

a)       Make the ship seaworthy.

b)      Properly man, equip and supply the ship.

c)      Make the holds, refrigeration and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.’

 

l      ‘before and at the beginning of the voyage’ – ‘the period from at least the beginning of the loading until the vessel starts on her voyage …’ Lord Somervell in Maxine Footwear Co Ltd v Canadian Government Merchant Marine. This is different from the duty under charterparty.

l      If the shipowner have exercised due diligence to make his ship seaworthy in all respects before she sails on her voyage, he will not be liable for the unseaworthiness during a call at an intermediate port. This is different from the doctrine of charterparty, under which the vessel is required to be seaworthy at the commencement of each stage: Leesh River Tea Co v British India Steam Nav Co.

l      The carrier is not responsible for the seaworthy condition of vessel until it comes under his control, i.e. the carrier is not be liable for existing defects rendering the vessel unseaworthy unless such defects were reasonably discoverable by the exercise of due diligence at the time of takeover.

 

The aspects which have not mentioned will be the same as those under charterparty.