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 insurer 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 carriage 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 apply.
Seaworthiness Igor Sterzhantov©2011 Seaworthiness By Igor Sterzhantov©2011 www.lawandsea.net 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 1 The common carrier "is liable for all losses which do not fall within the excepted cases", Forward v Pittard (1785) 1 Term Rep 27 2 Lord Tenterden in Abbott on Shipping, 10th edit. p. 258 3 See Coggs v Bernard.(1703) 92 ER 107. 4 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 Page 1 Seaworthiness 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 port. (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 5 Lord Tenterden in Abbott on Shipping, 10th edit. p. 255 6 Readhead v Midland Rly Co (1867) 2 QB 412, Mellor J. at p.427 7 Readhead v Midland Rly Co (1867) 2 QB 412, per Lush J at p. 418 8 Readhead v Midland Rly Co (1867) 2 QB 412, per Blackburn J at p.436 Page 2 Seaworthiness 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: http://www.lawandsea.net/COG/COG_Seaworthiness_3_absolute.html http://www.lawandsea.net/COG/COG_Seaworthiness_4_relative.html http://www.lawandsea.net/COG/COG_Seaworthiness_4_relative.html 9 Pickup v Thames and Mersey (1878) 3 Q.B.D. 594 at p.597-598 by Cockburn C.J. 10 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.” 11 The Glenfruin (1885) 10 PD 103, 5 Asp MLC 413 12 Per Lord Loreburn L.C. in Nelson Line (Liverpool) Ltd v James Nelson & Sons Ltd  AC 16 at p.20 13 Lord Edmund-Davies in Raineri v Miles  AC 1050 at p.1086, see more - Liability for Breach. Page 3
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