Seaworthiness
Incidental to the carrier’s liability as an insurer
From fundamental rule insisting on delivery of the goods carried by sea undamaged, it flows that the shipowner’s obligation to furnish a seaworthy ship is incidental to his liability as an insurer of safe delivery of the goods and subject only to the excepted perils. Because of this, the said duty is not a superadded to, and exceeding the terms of his contract of carriage but is implied and independent of any other contractual term the carrier may have. Actually, the condition of the vessel is generally immaterial so far as the ship has arrived at her destination and the goods are safe, then question of her seaworthiness can only arise where the immediate cause of the loss is an excepted peril, or where for some other reason the contract to insure does not apply.
The law of marine insurance attaches great importance to the matter of seaworthiness and generally adopts common law phraseology, e.g. s 39 Warranty of seaworthiness of ship, of the Marine Insurance Act 1906 states:
(1) In a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose of the particular adventure insured.
(2) Where the policy attaches while the ship is in port, there is also an implied warranty that she shall, at the commencement of the risk, be reasonably fit to encounter the ordinary perils of the port.
(3) Where the policy relates to a voyage which is performed in different stages, during which the ship requires different kinds of or further preparation or equipment, there is an implied warranty that at the commencement of each stage the ship is seaworthy in respect of such preparation or equipment for the purposes of that stage.
(4) A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured.
(5) In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.
Obviously, seaworthiness was and nowadays is a keystone of any insurance claim when the vessel or the cargo lost or damaged and it is the first burden the shipowner has to discharge against the underwriters’ allegations that the ship was unfit for the voyage contracted. The burden of proving unseaworthiness rests upon the party who asserts it albeit in cases where a ship, shortly after leaving port (see also Watson v Clark (1813) 1 Dow 336) and without any apparent reason sinks or leaks, the mere facts afford prima facie evidence of unseaworthiness.
…while the presumption of law was prima facie in favour of seaworthiness, and the burden of proving unseaworthiness was in consequence, in the first instance, on the insurers, yet that if the inability of a ship to proceed on the voyage become evident in a short time after her sailing, the presumption of law is that the inability arose from causes existing before she set sail; and that in such event the burden of proof becomes shifted … But this is not by reason of any legal presumption or shifting of the burden of proof, but simply as matter of reason and common sense brought to bear upon the question as one of fact, inasmuch as in the absence of every other possible cause the only conclusion, which can be arrived at, is that inherent unseaworthiness must have occasioned the result.
Pickup v Thames and Mersey (1878) 3 Q.B.D. 594 at p.597-598 by Cockburn C.J.
Classic definition of seaworthiness was stated in questionable form by Field J in Kopitoff v Wilson (1875-76) L.R. 1 Q.B.D. 377:
Was the vessel at the time of her sailing in a state, as regards the stowing and receiving of these plates, reasonably fit to encounter the ordinary perils that might be expected on a voyage at that season…?
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