Seaworthiness An absolute term implied by law

… 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 …
Per Lord Ellenborough held in Lyon v Mells (1804) 5 East 428 at p.437

An absolute obligation

It is implied by common law in every contract of affreightment an obligation that shipowner shall provide a seaworthy vessel. (See also Foundation of carrier’s liability to provide sseaworthy ship). Extent of this duty is such, that he is responsible for any latent defect the existence of which renders the ship unseaworthy even if the defect could not have been detected by any reasonable means before it actually showed itself and for any other loss or damage caused by unseaworthiness because exception clauses would not cover loss or damage occasioned by the initial unseaworthiness of the ship. Since otherwise, as Lord Ellenborough held in Lyon v Mells (1804) 5 East 428 at p.438, it would:

… in effect be saying, we will be at liberty to receive your goods on board a vessel, however leaky, however unfit and incapable of carrying them; we will not be bound even to provide a crew equal to the navigation of her; and if through these defaults on our part she be lost, we will pay nothing.

As later in the nineteenth century the court held in Kopitoff v Wilson (1876) 1 QBD 377 (see Field J statement below), this implied undertaking arises not from the shipowner’s position as a common carrier, but from his acting as a shipowner.

… although it is strictly true that Lord Ellenborough proposition in Lyon v Mells is in its terms confined to carriers, or persons holding themselves forth as ready to carry, the principle itself has always received a wider application; and in the cases of Liver Alkali Company v Johnson, and Nugent v Smith, in the observations of the Courts, the existence of the warranty in question on the part of a shipowner is asserted with reference to his character as such, and not as existing only in those cases in which he is also acting as a public carrier.

Obligation is absolute unless the shipowner has contracted it out. To do it the shipowner must prove such express contract term operates, i.e. language used must be clear and unambiguous. Obligation as to seaworthiness is not contracted out if language used may mean that and may mean something different.

It shall be underlined that duty as to seaworthiness is absolute in its contractual meaning, i.e. it is immaterial why the carrier failed to fulfil his obligation, and no defence to plead that he had done his best (Read more - Liability for Breach). But it is not an obligation that vessel shall be of perfect condition and fit for any and all hazards of sea adventure, neither it an obligation to provide and accident-free ship. In an American case President of India v West Coast SS Co (The Portland Trader) [1964] 2 Lloyd’s Rep 443, Kilkenny DJ formulated this principle as below:

Although the duty to furnish a seaworthy ship is absolute and is a species of liability without fault, limited neither by concepts of negligence nor by those which might be contractual in nature, the obligation does not require the owner to furnish a ship or gear beyond that which is reasonably fit for the use intended. In other words, the standard is not an accident-free ship, nor an obligation to provide a ship or gear which might withstand all conceivable hazards. In the last analysis, the obligation, although absolute, means nothing more or less than the duty to furnish a ship and equipment reasonably suitable for the intended use or service.

Another statement of the doctrine is that the standard is not perfection, but reasonable fitness. It does not require a ship which will weather every conceivable storm or withstand every imaginable peril of the sea, but only a vessel reasonably suitable for the particular service. Obligation to provide a seaworthy ship does not apply to the approach voyage because the implied warranty attaches not on the approach voyage but when the vessel sails with her cargo

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