Seaworthiness by Zhuchina


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                                                               Igor Sterzhantov©2011

By Igor Sterzhantov©2011

Foundation of liability ................................................................................................................................... 1
Incidental to the carrier’s liability as an insurer ............................................................................................ 2
A relative and flexible term ........................................................................................................................... 3
Not continuous obligation.............................................................................. Error! Bookmark not defined.

 Foundation of liability
Foundation of the carrier’s liability to provide seaworthy vessel originated, so far as the earlier evidence
goes, from the law of bailment where the duties of a common carrier were equal to those of bailees in
general, i.e. to return the goods entrusted to him in same condition as they were initially delivered
under implied absolute responsibility for loss1, even when happening without fault on the part of the
person intrusted.

In the seventeenth century case Morse v Slue (1672) 1 Vent 190, an action was against the master of a
ship lying in the river Thames, for the loss of goods which were taken away by robbers, although the
ship had the usual guard at the time. It was held that the master was liable:

            … for even if the crew be overpowered by a superior force, and the goods stolen, while the ship is
            m a port or river within the body of a county, the master and owners will be answerable for the
            loss, although they have been guilty of neither fraud nor fault: the law in this instance holding
            them responsible from reasons of public policy, and to prevent the combinations that might
            otherwise be made with thieves and robbers.2

It was therefore immaterial how the loss or damage occurred. Later, certain developments3 relaxed
liabilities of the bailees, however the common carriers of the goods by sea were left bound by strict rule
on the grounds of public policy4. Thus, Lord Ellenborough C.J. said in his famous judgment in Lyon v
Mells (1804) 5 East 428 that in every contract for the carriage of goods:

            … between … the owner of a lighter or vessel ready to carry goods for hire, and the person
            putting goods on board or employing his vessel or lighter for that purpose, it is a term of the
            contract on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for
            the purpose or employment for which he offers and holds it forth to the public: it is the very
            foundation and immediate substratum of the contract that it is so: the law presumes a promise

  The common carrier "is liable for all losses which do not fall within the excepted cases", Forward v Pittard (1785)
1 Term Rep 27
  Lord Tenterden in Abbott on Shipping, 10th edit. p. 258
  See Coggs v Bernard.(1703) 92 ER 107.
  Soundness of this approach was questioned by legal writers. “If there is a sound rule of public policy which ought
to impose a special responsibility upon common carriers, as those words are now understood, and upon no others,
it has never yet been stated”, by O.Holmes, Common Law, 204

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                                             Igor Sterzhantov©2011

        to that effect‘ on the part of the carrier without any actual proof; and every reason of sound
        policy and public convenience requires it should be so.

Justification of this rule, which was inapplicable neither to the common carriers by road nor to the
common carriers of the passengers by sea, was thought to be based on an assumption that the owner or
master cannot be ignorant of the bad state of the ship; but even if he be ignorant, he must still answer,
being necessarily bound to furnish a ship good and capable of the voyage.5

Incidental to the carrier’s liability as an insurer
From fundamental rule insisting on delivery of the goods carried by sea undamaged, it flows that the
shipowner’s obligation to furnish a seaworthy ship is incidental to his liability as an insurer6 of safe
delivery of the goods and subject only to the excepted perils. Because of this, the said duty is not a
superadded to, and exceeding the terms of his contract of carriage7 but is implied and independent of
any other contractual term the carrier may have. Actually, the condition of the vessel is generally
immaterial so far as the ship has arrived at her destination and the goods are safe, then question of her
seaworthiness can only arise where the immediate cause of the loss is an excepted peril, or where for
some other reason the contract to insure does not apply8.

The law of marine insurance attaches great importance to the matter of seaworthiness and generally
adopts common law phraseology, e.g. s 39 Warranty of seaworthiness of ship, of the Marine Insurance
Act 1906 states:

        (1) In a voyage policy there is an implied warranty that at the commencement of the voyage the
        ship shall be seaworthy for the purpose of the particular adventure insured.

        (2) Where the policy attaches while the ship is in port, there is also an implied warranty that she
        shall, at the commencement of the risk, be reasonably fit to encounter the ordinary perils of the

        (3) Where the policy relates to a voyage which is performed in different stages, during which the
        ship requires different kinds of or further preparation or equipment, there is an implied warranty
        that at the commencement of each stage the ship is seaworthy in respect of such preparation or
        equipment for the purposes of that stage.

        (4) A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the
        ordinary perils of the seas of the adventure insured.

        (5) In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of
        the adventure, but where, with the privity of the assured, the ship is sent to sea in an
        unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.

Obviously, seaworthiness was and nowadays is a keystone of any insurance claim when the vessel or the
cargo lost or damaged and it is the first burden the shipowner has to discharge against the underwriters’
allegations that the ship was unfit for the voyage contracted. The burden of proving unseaworthiness

  Lord Tenterden in Abbott on Shipping, 10th edit. p. 255
  Readhead v Midland Rly Co (1867) 2 QB 412, Mellor J. at p.427
  Readhead v Midland Rly Co (1867) 2 QB 412, per Lush J at p. 418
  Readhead v Midland Rly Co (1867) 2 QB 412, per Blackburn J at p.436

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                                                Igor Sterzhantov©2011

rests upon the party who asserts it albeit in cases where a ship, shortly after leaving port and without
any apparent reason sinks or leaks, the mere facts afford prima facie evidence of unseaworthiness.

         …while the presumption of law was prima facie in favour of seaworthiness, and the burden of
         proving unseaworthiness was in consequence, in the first instance, on the insurers, yet that if the
         inability of a ship to proceed on the voyage become evident in a short time after her sailing, the
         presumption of law is that the inability arose from causes existing before she set sail; and that in
         such event the burden of proof becomes shifted … But this is not by reason of any legal
         presumption or shifting of the burden of proof, but simply as matter of reason and common
         sense brought to bear upon the question as one of fact, inasmuch as in the absence of every
         other possible cause the only conclusion, which can be arrived at, is that inherent
         unseaworthiness must have occasioned the result.9

Classic definition of seaworthiness was stated in questionable form by Field J in Kopitoff v Wilson (1875-
76) L.R. 1 Q.B.D. 377:

          Was the vessel at the time of her sailing in a state, as regards the stowing and receiving of these
         plates, reasonably fit to encounter the ordinary perils that might be expected on a voyage at
         that season…?

An absolute obligation
It is implied by common law in every contract of affreightment an obligation that the shipowner shall
provide a seaworthy vessel. Extent of the shipowner’s duty under common law to provide a seaworthy
ship is such, that he is responsible for any latent defect10 the existence of which renders the ship
unseaworthy even if the defect could not have been detected by any reasonable means before it
actually showed itself11. Obligation is absolute unless the shipowner has contracted it out. To do it the
shipowner must prove such express contract term operates, i.e. language used must be clear and
unambiguous. Obligation as to seaworthiness is not contracted out if language used may mean that and
may mean something different.12

It shall be underlined that duty as to seaworthiness is absolute in its contractual meaning, i.e. it is
immaterial why the carrier failed to fulfil his obligation, and no defence to plead that he had done his
best.13 But it is not an obligation that vessel shall be of perfect condition and fit for any and all hazards
of sea adventure, neither it an obligation to provide and accident-free ship. In an American case

Read the rest of this article on:

  Pickup v Thames and Mersey (1878) 3 Q.B.D. 594 at p.597-598 by Cockburn C.J.
   The "Dimitrios N. Rallias." (1922) 13 Ll. L. Rep. 363 per Lord Sterndale MR: “… it is safe to say that if a defect such
as appeared could be discovered by the exercise of ordinary care, it cannot be said to be latent.”
   The Glenfruin (1885) 10 PD 103, 5 Asp MLC 413
   Per Lord Loreburn L.C. in Nelson Line (Liverpool) Ltd v James Nelson & Sons Ltd [1908] AC 16 at p.20
   Lord Edmund-Davies in Raineri v Miles [1981] AC 1050 at p.1086, see more - Liability for Breach.

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