Seaworthiness
Modern regime
Notwithstanding implied common law obligation nowadays practice is to replace common law’s absolute undertaking by one to exercise due diligence to make the ship seaworthy. It is done by express words stipulating that the contract of carriage is to be governed by The Hague, Art III 1(a) and/or The Hague-Visby Rules, Art III 1(a). Although provisions of the Hague-Visby Rules are not applicable to charterparties but, if bills of lading are issued in the case of a ship under a charterparty, they must comply with the terms of the Hague-Visby Rules. Moreover the parties may incorporate the Hague-Visby Rules into a charterparty in which case the result will be not of incorporation the ipsissima verba of the rules but:
… to import into the contractual relation between owners and charterers the same standard of obligation, liability, right and immunity as under the rules subsists between carrier and shipper; in other words, ... [to] agree to impose on the owners, in regard, for instance, to the seaworthiness of the chartered vessel, an obligation to use due diligence in place of the absolute obligation which would otherwise lie on him.
Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co Ltd (The Saxon Star)[1958] 1 All ER 725 per Viscount Simonds at p.731
Many standard charter forms have now adopted the Hague/Hague-Visby Rules regime with regard to the requirement of seaworthiness by incorporation of so-called 'clause paramount', see NYPE93 cl.31 below:
The essence and intend of the statutory instruments replacing the absolute obligation at common law to provide a seaworthy ship with one to exercise due diligence to make the ship seaworthy is to avoid:
… responsibility for latent and undiscoverable defects. But the warranty of diligence remains; and this requires the application of the usual rule, that the acts and negligences of the agent are deemed those of the principal.
The Colima, (1897) 82 Fed. 665
In many cases, however, this limitation and qualification of the implied warranty of seaworthiness is a limitation or qualification more apparent than real, because if due diligence has been used by the shipowner and all his servants and agents the vessel in fact will be seaworthy.
On the other side, when incorporated into charterparty by way of the Paramount Clause or otherwise, an effect of “due diligence” limitation of the owners’ liability to make the ship seaworthy may give to the owners rather extended protection. For example in The Muncaster Castle case owing to mechanical breakdowns the vessel lost 106 days from her eighteenth months consecutive voyage charter, however, it was found that, in the main, the breakdown of the machinery was due to incompetence of the engine-room staff amounting to unseaworthiness, but that the owners had exercised due diligence in appointing the staff and were excepted from liability where they had observed due diligence.
As any other provision which serving to benefits of one party only the clauses qualifying or excluding the shiponwers’ obligation to provide a seaworthy vessel, in cases of doubt, must be construed against the person who produced it, and for whose benefit it operates. However even very wide drafted clauses, intended to relieve the carrier of liability for loss of or damage to the goods shipped caused by, amongst other things, the unseaworthiness or uncargoworthiness of the vessel, or the negligence of the carrier, its servants or agents can still survive the scrutiny of contra proferentem rule. In Mitsubishi Corporation v Eastwind Transport Ltd. & Ors [2004] EWHC 2924 (Comm), the High Court held that such wording shifts most risks which might result in loss of or damage to the goods shipped from the carrier to the holder of the bill of lading, but that is not inconsistent with the purpose of a commercial contract of carriage where the bearer of a risk can insure against it.
It shall be also noted that under the Hague-Visby Rules the carrier’s duties to make the ship seaworthy before and at the beginning of the voyage (but sometimes can apply to an earlier stage), are extended to the whole period of loading, from at least the beginning of the loading and 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. Furthermore, when incorporated into charterparty, the Rules may apply not only to laden but to the ballast voyages as well. Thus in Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co Ltd (The Saxon Star) [1958] 1 All ER 725 a majority of the House of Lords considered that it was natural in a case where there might be many ballast voyages that the parties should have intended the Hague Rules to apply over the whole of the vessel’s employment. And in Fyffes Group Ltd and Caribbean Gold Ltd v Reefer Express Lines Pty Ltd and Reefkrit Shipping Inc, (The Kriti Rex) [1996] 2 Lloyd’s Rep 171 it was held that the Hague-Visby Rules provision as to seaworthiness are applicable to ballast voyages insofar as they formed part of the contractual service.
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.
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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