The duty to provide a seaworthy vessel, like any other duty, is exercised at a certain period of time. The period varies depending on the type of the contract; i.e. Bill of Lading, time or voyage charterparty. However, this duty is not continuous; the carrier has only to exercise this duty before and at the beginning of the voyage or at the time stated in the contract of carriage, unless otherwise stated, except in the case of ‘time charter’ when the duty is implied.
The duty of seaworthiness is imposed at the beginning of the charter period and, like that in contracts for carriage of goods by sea, is both relative and absolute.
It is relative in that the required level of seaworthiness is fixed by reference to the contemplated area of the world, the contemplated cargo, perhaps the state of scientific knowledge at the time, and, where relevant, the time of year. Fitness for June off Java may not be enough for January off Iceland. The relative nature of the duty is recognised in most countries.
But in the common law world the duty is also absolute: once the level has been fixed, there is an absolute duty to achieve it. It is not so in The Hague Rules: the carrier need only exercise due diligence to that end.
In Bill of Lading and Voyage Charter, the carrier’s duty is to make the vessel seaworthy before and at the beginning of each voyage and this continues from the loading till the commencement of the voyage.
Whereas in time charterparties, where the vessel is chartered for a period of time rather than for a voyage or number of voyages, the carrier has to exercise his duty only at the commencement of the time stated in the charterparty, if that was expressed, or at the time of delivery if the seaworthiness obligation was implied, and he will not be responsible for any unseaworthy condition of the vessel that arises after that, even if there was an express maintenance clause to keep the vessel efficient.
The parties to a charterparty may choose to incorporate the Hague/Hague-Visby Rules into their charterparty, leaving a confusion as to the time of exercising due diligence. Should it be exercised at the beginning of the hire period or at the beginning of each separate voyage
To answer this question, it is first of all important to mention that in order for the Rules to be incorporated into charterparties, whether voyage or time charters, the cargo should be identifiable, i.e. it should be possible to identify the date when the goods relevant to ‘the claim were delivered or should have been delivered’. Once this is done then the rules could be incorporated.
Case Study: Stanton v. Richardson
In Stanton v. Richardson, a cargo of wet sugar was loaded on board the vessel, the cargo owner having had the option of different cargoes, including wet sugar. Usually, a great deal of moisture drains from wet sugar, and therefore any vessel carrying such cargo should be fitted with sufficient pumps in order to extract the moisture, but in this case the pumps on the vessel were not sufficient and when all the cargo was nearly loaded it was found that there was an accumulation in the holds. It was not possible to fit the vessel with extra pumps within reasonable time and the cargo was consequently discharged.
The Court of Common Plea found and the Exchequer Chamber affirmed that the vessel was not seaworthy at the time of loading and that the shipowner failed to discharge his duty to provide a seaworthy vessel.
Case Study: Tattersall v. The National Steamship
In Tattersall v. The National Steamship, the shipper contracted with the shipowner to carry a cargo of cattle, but the vessel on its previous trip had carried cattle infected with foot and mouth disease. The ship was not fumigated before loading the new cargo and during the voyage the cattle became infected.
The court held that the vessel was not seaworthy before loading the cattle since it was not fumigated before loading, and the shipowner was not able to limit his liability.
Case Study: McFadden v. Blue Star Line
In McFadden v. Blue Star Line, the cargo was loaded safely and properly on board the vessel; after that the ship’s engineer opened a sluice-door in a watertight bulkhead in the lower part of the ship, but when he closed it sometime later, he did not screw it down properly in order to ensure that it was watertight. After that the engineer proceeded to fill one of the ballast tanks. In order to do that, he had to open a sea-cock on the side of the vessel to allow seawater to pass through.
The water, on its way to the ballast tank, had to go through a valve-chest, the joint between the lid and body of which had been packed as usual with cotton to make it water tight, but this joint was imperfectly remade just before the cargo was loaded. As a result of the presence of some hard substance, the sea-cock was not closed properly after the tank was loaded and, due to the continued pressure of the water, forced out the packing of the valve-chest and seawater went through the joint into the lower part of the vessel down the sluice-door into the cargo holds and damaged the shipper’s cargo.
The court held: “That the defective fitting of the sea-cock and of the sluice-door, being defects which came into existence after the plaintiff’s goods were loaded, were not breaches of the implied warranty of the fitness of the ship to receive the cargo; but that the defective packing of the valve-chest, being an existing defect at the time of the loading of the goods, was a breach of the warranty”.
When the ship is seaworthy before and at the beginning of the voyage, the fact that she subsequently becomes unseaworthy is no breach of the undertaking, as it is no part of the contract that she is to continue to be seaworthy. On the other hand, if she is unseaworthy at the time of her departure, the shipowner cannot escape the consequence of the breach of the undertaking by subsequent repair, and it is immaterial that the ship may in fact have been made thoroughly seaworthy before the loss or damage takes place.
[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.]