Seaworthiness (law)
The examples and perspective in this article may not represent a worldwide view of the subject. (May 2018) |
Admiralty law |
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History |
Features |
Contract of carriage/Charterparty |
Parties |
Judiciaries |
International conventions |
International organizations |
Seaworthiness is a concept that runs through
Statutory seaworthiness – criminal liability
The Merchant Shipping Act 1995 makes it a criminal offence to send or attempt to send an unseaworthy ship to sea. Seaworthiness in this context relates to defective structures, equipment, under-manning, overloading etc. and the vessel may be detained. In every contract of employment at sea there is an implied obligation on the owner to ensure the seaworthiness of the ship and an allegation of unseaworthiness may be brought by the crew, though at least five members of the crew are required to bring the action.
Seaworthiness in Marine Insurance
Under Section 39 of the Marine Insurance Act 1906, in a voyage policy there is an implied warranty that the vessel is "reasonably seaworthy in all respects":
S. 39 (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.
Seaworthiness in Carriage of Goods by Sea
At common law
At common law, when goods are carried by sea by a “common carrier” (a public carrier), then, if the contract of carriage does not contain an exception clause relating to seaworthiness, there is an absolute undertaking that the vessel is seaworthy. Liability is “strict”**, meaning the carrier is liable even in the absence of negligence, as in Liver Alkali v Johnson. This does not mean the vessel need be capable of encountering any peril. The test of seaworthiness may be "that the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in the voyage to be performed". However, the strict liability at common law is invariably modified in contracts of affreightment. In charter parties the shipowner may negotiate an express clause excluding his liability for unseaworthiness or he may, as it more usual, agree to incorporate the provisions of the Carriage of Goods by Sea Act 1971 into the charter.
By statute
Article III Rule 1 of the
Section 3 of the Carriage of Goods by Sea Act 1971 adds: " There shall not be implied in any contract for the carriage of goods by sea to which the Rules apply by virtue of this Act any absolute undertaking by the carrier of the goods to provide a seaworthy ship." This provision makes it clear that there is no strict liability to provide a seaworthy ship.
McFadden v Blue Star Line (1905)[2] provides that: "A vessel must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it…Would a prudent owner have required that it (i.e. the defect) should be made good before sending his ship to sea, had he known of it? If he would, the ship was not seaworthy…" [3]
Together with the Hague Visby Rules, the common law provides that the concept of "seaworthiness" covers: the ship, its equipment and supplies,[4][5] the crew,[6] the vessel's suitability for the particular cargo [7] and its suitability for the particular voyage or for particular ports.[8][9]
The
Seaworthiness in Chartering
A shipowner will normally owe the following duties to the charterer:[11]
- To provide a seaworthy ship which complies with the charterparty description;
- To properly and carefully load, handle, stow, carry, keep, care for, discharge and deliver the cargo;
- To comply with charterers’ legitimate employment instructions;
- To prosecute voyages with reasonable dispatch.
In
Seaworthiness in Shipbuilding Contracts
See also
References
- ^ "SEAWORTHY Definition & Legal Meaning". Black's Law Dictionary (2nd ed.). Retrieved March 10, 2023.
- ^ McFadden v Blue Star Line (1905) 1 KB 697
- ^ "A shipowners duty to provide a seaworthy ship under the charterparty".
- ^ Burges v Wickham (1863) 3 B & S 669
- ^ Hang Fung Shipping & Trading v Mullion [1966] 1 LL R 511
- ^ Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962] 2 QB 26
- ^ Stanton v Richardson (1874) LR 9 CP 390
- ^ Thin v Richards [1892] 2 QB 141
- ^ Ciampa v British India Co [1915] 2 B 774
- ^ "Rotterdam Rules The: A Practical Annotation" - (2009) -ed. Yvonne Batz - Institute of Maritime Law /Informa
- ^ "A shipowners duty to provide a seaworthy ship under the charterparty".
- ^ Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962] 2 QB 26
- ^ The Moorcock (1889) 14 PD 64