Absolute liability and one of due diligence
Tank cleaning operation is a procedure by which the owner assures cargo readiness or in other words physical readiness of the vessel to load the goods nominated by the charterer. If the vessel is not fit to carry the goods specified in the contract, that will amount to uncargoworthiness as an integral part of unseaworthiness, even though the vessel itself might well be able to complete the contract voyage in safety.
The duty to provide a cargoworthy ship is absolute at common law and will be implied by the court if not expressly defined otherwise or qualified. But this implication would not be made by the court unless it was necessary and unless it is also consistent with the express words of the contract.
In Petrofina SA of Brussels v Compagnia Italiana Trasporto Olii Minerali of Genoa (1937) 53 TLR 650, a cargo of benzine was discoloured due to failure to clean the vessel’s tanks properly prior to loading. The owners exercised due diligence to make the tanks clean and suitable for the cargo. The tanks had been inspected to the satisfaction of the charterer’s surveyor as expressly required by the charterparty. Nevertheless, the shipowners were held liable for breach of the implied warranty because as Lord Wright MR put it at p 291:
If it is sought to effect a limitation of the overriding obligation to provide a seaworthy ship (whether that is express or implied for this purpose does not matter) by other express terms of the charterparty or contract of affreightment, that result can only be achieved if perfectly clear, effective and precise words are used expressly stating that limitation.
Such absolute liability is usually mitigated to one of due diligence either by application of the Hague or the Hague-Visby Rules to bill of lading contracts, or by express provisions in charterparties.
To pass the test of due diligence the owner must show that he, his servants, agents or independent contractors, had exercised all reasonable skill and care. Moreover, such test must be objective, namely to be measured by the standards of a reasonable shipowner, taking into account international standards and the particular circumstances of the problem in hand.
Physical readiness of the vessel renders her suitable for contracted services and provides the charterer with unrestricted access to her cargo spaces as provided by governing contract, whether it be a voyage or a time charterparty. Liability of owners under voyage charter is limited by the extent of contracted voyage and particular cargo to be carried, whilst time charter contracts impose on the ship owner continuous, often stretched for several years, duty to maintain or restore the vessel and usually be able to carry variety of the cargoes.
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