Under Section 336 of Indian M. S. Act 1958, unsafe ship may be defined an unsafe ship, that is to say, is by reason of the defective condition of her hull, equipment or machinery, or by reason of overloading or improper loading, unfit to proceed to sea without serious danger to human life, having regard to the nature of service for which she is intended.
‘Unsafe’ ships may be divided into two categories.
One category relates to her ‘seaworthiness’, which, strictly speaking, should only concern matters impinging upon her ability to encounter the ordinary perils of the sea.
The other category is concerned with conditions on board a ship which affect the health, safety and welfare of human lives. Thus, it would not be inaccurate to say that the word ‘unsafe’ is a wider concept, and seaworthiness is only one aspect of safety.
Under Section 334 of Indian M. S. Act 1958, a ship is said to be unseaworthy “when the materials of which she is made, her construction, the qualification of master, the number, description and qualification of the crew including officers, the weight, description and stowage of the cargo and ballast, the condition of her hull and equipment, boilers and machinery are not such as to render her in every respect fit for the proposed voyage or service.”
It is interesting to note that the warranty which is implied in maritime commercial contracts is one of ‘seaworthiness’ and not one of ‘safety’. On the other hand, in maritime criminal law, the term ‘safety’ is used to describe some of the statutory offences. Broadly, we can say that ‘unseaworthiness’ depends on design factors and physical factors and it is a condition. But a ship becomes ‘unsafe’ due to human factors. It is an act.
A ship having inadequate medical supplies: Such a deficiency would probably render a ship unsafe, but not unseaworthy in its strict legal sense. Similarly, the absence of a fire extinguisher on board was held to be a matter which could not affect the seaworthiness of a ship.
Section 335 of M. S. Act 1958 deals with Obligation of owner to crew with respect to seaworthiness.
Case Study 1
Hong Kong Fir Shipping Co. v. Kawasaki Kisen Kaisha
Generally in practice, the ship is found to be unseaworthy, by the aggrieved party only after she has sailed; this coupled with indiscriminate use of the words ‘condition’ and ‘warranty’ have led the courts to give cumbersome decisions. In this situation of doubtfulness, the Court of Appeal’s judgment in Hong Kong Fir Shipping Co. v. Kawasaki Kisen Kaisha is illuminating.
The Court affirmed the judgement of Salmon J. that a breach of the undertaking of seaworthiness entitles in most cases the charterer or bill of lading holder to recover damages against the shipowner; the breach can only lead to a repudiation of the contract if it gives rise to circumstances that frustrate the contract.
Diplock L. J. went further and said:
“It is not a condition at all .... Unseaworthiness is a breach of an obligation but it does not entitle the injured party to avoid the contract.”
The Court gave the judgment for the shipowner on the basis that the circumstances in that case did not frustrate the contract and disallowed the charterer from repudiating the contract even though the ship was unseaworthy. It is probable that if the charterer had not accepted the unseaworthy ship at the beginning of the voyage, knowing it to be unseaworthy, then the decision would have been otherwise.
It is submitted that this obligation of seaworthiness is a hybrid between a warranty and a condition and is peculiar to the law of carriage by sea. It operates as a condition before the ship sails and as a warranty after she has sailed. Further, if the charter accepts the ship at the beginning of the charter-party, knowing it to be unseaworthy, when he could have repudiated the contract, then his only recourse will be for damages unless, on the facts of the case, he proves that subsequent operation of initial unseaworthiness has frustrated the commercial purpose of the contract.
Case Study 2
Riverstone Meat Case (Union of India v. N. V. Reederji Amsterdam)
Shipowner as carrier is liable to the cargo owners for the negligence of a carefully selected reputable ship repairers was affirmatively decided in the Riverstone Meat case where Lord Radcliffe said: “The obligation is not to exercise due diligence in making the ship or to provide a seaworthy ship or to see that it is made seaworthy, but to exercise due diligence to make it seaworthy.”
The House of Lords refused to go further in this case and disturb the proposition that a shipowner cannot be held liable for latent defects caused by the shipbuilder’s bad workmanship in the construction of the ship, before the ship came into his hands.
That proposition submitted has been qualified in the later case of Union of India v. N. V. Reederji Amsterdam, where the ratio of the Riverstone Meat case was extended to cover ships taken over by a new owner, and it was decided that a shipowner can be held liable for latent defects caused by the shipbuilder’s bad workmanship in the construction of the ship, if he does not exercise due diligence to discover such defects when the ship becomes his. The shipowner was held not liable (in this case), for he had in fact exercised due diligence to discover such defects.
Lord Reid 76 went further on the point of requisite standard of exercise of due diligence and said: “There must be some compromise or balance in deciding what steps to take in any particular case keeping in mind both the serious consequences which may flow from failure to detect a defect and the remoteness of the chance that such a defect may exist; for it would plainly be impractical to make elaborate scientific test for every defect which could possibly be present in any part of the machinery surveyed.”
Their Lordships said that the standard of exercise of due diligence required is that of the standard generally applied to ships of the same kind on a continuing survey, and to be carried out in accordance with the standard both as regards its extent and nature required by Lloyd’s Register.
Further, the effect of the decision of the Riverstone Meat case has made the shipowner’s liability into nearly an absolute liability as under common law.
[Article compiled and contributed by Adv. (Capt.) Ashwani Jhingan, Director of Malaxar ShpgLogistix Law & Solutions Pvt. Ltd. He is an Advocate at Mumbai High Court and Member of Supreme Court Bar Association. Adv. (Capt.) Jhingan can be contacted at legal@malaxar.com. You can visit www.malaxar.com. Views expressed are his own.]