Introduction
The carrier’s liability is regarded as contractual liability. During voyage, if the carrier fails to deliver the goods in the required condition e.g. perished or damaged or that the goods are not been deliver on time, the carrier will be liable unless he can prove otherwise or that the his failure to perform obligations was beyond his will. A carrier is obliged to ensure the seaworthiness of the vessel carrying the cargo. The first and the most significant implied undertakings in contract of affreightment is that the ship will be fit for sailing which implies that the ship must be good for the journey and shall be prepared to load the goods as per the agreement.
Seaworthiness of a vessel
Providing a seaworthy vessel is an absolute duty on part of the shipowner. Under the Maritime law, it is the duty of the shipowner to furnish the shipper/charterer with a ship that is secured. He must keep a vessel in great working order and refresh or change any part of the ship that could cause damages or injuries. Ship is not sea commendable if it isn’t fixed with essential loading and unloading supplies or if its team is unskilled or inexperienced (Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha, [1962] 2 QB 26; The Ardgroom [1966] 1 Lioyd’s Rep 511).
Defining Unseaworthiness
The Doctrine of unseaworthiness comes from the idea of utmost obligation. While the term seaworthiness refers to the capacity of the vessel for the carriage of goods, in the contrary; the term unseaworthiness refers to the unsafe condition of the vessel or to any risky condition happening on a vessel that can or is likely to cause an injury. Besides, am unseaworthy vessel does not have the capacity to explore on the seawater which in turn would sink or overturn. A vessel’s state of unseaworthiness may arise from various conditions such as poor planning/management of a vessel, unskilled or inexperienced crew and Masters on board.
Carrier’s liability for breach of obligation of seaworthiness
Under the Common law, there is an implied obligation of seaworthiness and that the ship will be fit for the purpose intended. Besides that, a standard form charterparty also contains expression provisions as to the seaworthiness of the vessel. Emphasis should be given for note that Hague Rules or Hague Visby Rules are incorporated in a charterparty which have a significant effect on the vessel’s state of seaworthiness. Article III, Rule-1(a) of the Hague-Visby Rules requires the ship to be seaworthy and that the carrier shall be bound before and at the beginning of the voyage to exercise due diligence to ensure the same (Article III, Rule-1). The aforesaid provision also requires the carrier to ensure the vessel to be properly manned, equipped and supplied (Article III, Rule- 1(b). In the Star Sea case, the Master was held and therefore the ship was held to be unseaworthy (Manifest Shipping Co. Ltd vs Uni-Polaris Insurance Ltd, [1995] 1 Lloyd’s Rep.651). Furthermore, Article III, Rule 1(c) requires ship to be fit and safe to carry cargo.
Burden of Proof
The burden of proving unseaworthiness is on the claimant e.g. the one who asserts/claims. However, the claimant must show that the ship was unseaworthy before and at the beginning of the voyage. If the claimant succeeds in establishing that, the burden of proof then shifts to the owner. That is to say, the owner would have to establish that he has exercised due diligence to make the vessel seaworthy before and at the beginning of the voyage (Article IV, Rule-1, Hague Visby Rules; See also, The Hellenic Dolphin [1978] 2 Lloyd’s Rep. 336).
It is also to be mentioned that this onus of proof cannot either be delegated (The Muncaster Castle [1961] 1 Lloyds Rep. 57; The Fjord Wind [2000] 2 Lloyd’s Rep.191 [1991] 1 Lloyd’s Rep. 307). In fact, the owner’s obligation as to the seaworthiness of the vessel at each stage has to be exercised in due diligence. Briefly that said even though the maintenance work is carried out on the main engines by two representatives of the engine manufacturers, the owner must prove that those representatives had exercised due diligence while repairing the engines (The Fjord Wind [2000] 2 Lloyd’s Rep.191 [1991] 1 Lloyd’s Rep. 307).
Exceptions to the Liability
Despite incurring this fairly heavy liability, the shipowner may rely in the exceptions stipulated in Article IV, Rule-1 of The Hague and Hague-Visby Rules. The said provision excludes the carrier or the ship from the liability for loss or damage arising or resulting from the unseaworthiness unless caused by want of due diligence on the part of the carrier. Furthermore, Rule-2(a) of the aforesaid Article also provides a general exception for the carrier or the ship for ‘act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship.’ Seemingly, this general exception stipulated under the aforesaid provision cover negligent errors of navigation. For instances, if the Chief Officer makes a negligent error of navigation when he was on watch, the ship owner will not be liable.
Remedies for Owner’s Breach
While coming to the point of considering the remedies in case of any breach or the ship is not seaworthy, the charterer will have the scope for remedies in the following manner:
- Where the owner has made a false representation that induced the charterer to enter into the charterparty, the charterer has a right to avoid the charterparty.
- In pertinent to that, the charterer may also be entitled to damages for representation.
Conclusion
In the practice of International Trade, more modern standard form charter parties expressly provide that the owner shall exercise due diligence to maintain the ship throughout the charter service (1 Lloyd’s Rep. 262). Despite the development of maritime jurisprudence, the bottom line is that the seaworthiness is an abstract concept that is being used in maritime law which primarily indicates how safe and compatible a ship is for sailing. Ensuring the compatibility of the vessel, and that the highest standards are maintained onboard the vessel all the time are absolute responsibility of the ship owner. If the ship owner found to be negligent, he is liable to face strict action.
References
Book
Avtar singh, Law Of Carriage (Air,Land & Sea) (4th edn, EBC Publishing (p) Ltd 2005).
Scrutton on Charterparties (21st edn., Sweet & Maxwell, 2008) (“Scrutton”), pp. 325, 326.
Case
Eridania S.p.A. v Rudolf A. Oetker (The Fjord Wind) [2000] 2 Lloyd’s Rep. 191;[1999] 1 Lloyd’s Rep. 307.
Hang Fung Shipping & Trading Co Ltd v Mullion & Co Ltd: The Ardgroom, [1966] 1 Lioyd’s Rep 511
Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 Q.B. 26; [1961] 2 Lloyd’s Rep. 478.
Manifest Shipping Co. Ltd vs Uni-Polaris Insurance Co. Ltd (The Star Sea) [1995] 1 Lloyd’s Rep. 651.
Riverstone Meat Co v Lancashire Shipping Co. (The Muncaster Castle) [1961] 1 Lloyd’s rep. 57.
The Amstelslot, [1963] 2 Lloyd’s Rep. 223.
The Hellenic Dolphine [1978] 2 Lloyd’s Rep. 336.
