Seaworthiness
Foundation of liability
Foundation of the carrier’s liability to provide seaworthy vessel originated, so far as the earlier evidence goes, from the law of bailment where the duties of a common carrier were equal to those of bailees in general, i.e. to return the goods entrusted to him in same condition as they were initially delivered under implied absolute responsibility for loss, even when happening without fault on the part of the person intrusted.
In the seventeenth century case Morse v Slue (1672) 1 Vent 190, an action was against the master of a ship lying in the river Thames, for the loss of goods which were taken away by robbers, although the ship had the usual guard at the time. It was held that the master was liable:
… for even if the crew be overpowered by a superior force, and the goods stolen, while the ship is m a port or river within the body of a county, the master and owners will be answerable for the loss, although they have been guilty of neither fraud nor fault: the law in this instance holding them responsible from reasons of public policy, and to prevent the combinations that might otherwise be made with thieves and robbers.
Lord Tenterden in Abbott on Shipping, 10th edit. p. 258
It was therefore immaterial how the loss or damage occurred. Later, certain developments relaxed liabilities of the bailees, however the common carriers of the goods by sea were left bound by strict rule on the grounds of public policy. Thus, Lord Ellenborough C.J. said in his famous judgment in Lyon v Mells (1804) 5 East 428 that in every contract for the carriage of goods:
… between … the owner of a lighter or vessel ready to carry goods for hire, and the person putting goods on board or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public: it is the very foundation and immediate substratum of the contract that it is so: the law presumes a promise to that effect‘ on the part of the carrier without any actual proof; and every reason of sound policy and public convenience requires it should be so.
Justification of this rule, which was inapplicable neither to the common carriers by road nor to the common carriers of the passengers by sea, was thought to be based on an assumption that the owner or master cannot be ignorant of the bad state of the ship; but even if he be ignorant, he must still answer, being necessarily bound to furnish a ship good and capable of the voyage.
Under the common law, any contract of sea carriage of the goods, whether bill of lading or charterparty, impliedly impose on the carrier an absolute obligation to provide seaworthy ship at the time when loading begins.
When, however, the contract of carriage governed by the Hague-Visby Rules, by virtue of the Carriage of Goods by Sea Act 1971 or by express term, such absolute undertaking replaced by the carrier’s duty to exercise due diligence to make the ship seaworthy before and at the beginning of the voyage only.
It shall be also noted that under the Hague-Visby Rules the carrier’s duties extended to the whole period of loading, from at least the beginning of the loading until the ship starts on her voyage, and therefore do not cease if operation has been interrupted, as would be the case under the common law and doctrine of stages.
The undertaking of seaworthiness is neither a condition nor a warranty. An extent of shipowner’s undertaking was once expressed by Diplock LJ in Hong Kong Fir Shipping Co. Ltd. v Kawasaki Kisen Kaisha Ltd. [1962] 1 All E.R. 474 in the following words:
The shipowner’s undertaking to tender a seaworthy ship has, as a result of numerous decisions as to what can amount to "unseaworthiness", become one of the most complex of contractual undertakings. It embraces obligations with respect to every part of the hull and machinery, stores and equipment and the crew itself. It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which must inevitably result in a total loss of the vessel.
Duty to provide a seaworthy ship at common law also includes cargoworthiness, which is an undertaking that the vessel should be reasonably fit to receive and carry the cargo and deliver it at the specified destination, see Empresa Cubana Importada de Alimentos ‘Alimport’ v Iasmos Shipping Co SA, The Good Friend [1984] 2 Lloyd’s Rep 586.
Obligation as to cargoworthiness contemplates not only readiness of cargo compartments to receive cargo, but goes beyond only physical state of the vessel, see Alfred C Toepfer Schiffahrtsgesellschaft mbH v Tossa Marine Co Ltd (The Derby) [1985] 2 Lloyd’s Rep. 325, where it was held that NYPE 1946 wording that "vessel … to be ready to receive cargo … and in every way fitted for the service &hell (and with full complement of officers, seamen …" covers also:
Where the ship is employed under a charterparty, the shipowner must indemnify the charterer against the claims of third persons whose goods have been carried in the ship and who, under the particular contract of carriage, have the right to hold the charterer responsible for breach of the undertaking of seaworthiness.
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