Seaworthiness has been a concept central to maritime law for centuries and it might be believed that its meaning and scope were settled. This is not the case, however, and it remains as important and as topical as ever.
In modern times, what is of central importance is not so much the old absolute implied term as to seaworthiness but the carrier’s obligation, under Article III, rule 1 of the Hague and Hague-Visby Rules, before and at the beginning of the voyage, to exercise ‘due diligence’ to make the ship seaworthy, properly man, equip and supply the ship and to make the holds, refrigerating and cool chambers, and any other part that carries goods, fit and safe for their reception, carriage and preservation.
Three important questions arise, namely: what constitutes unseaworthiness? What are the limits of due diligence? What is the impact of the new International Safety Management (ISM) code?
Seaworthiness
When alleging unseaworthiness, it is not necessary to identify precisely what was wrong with the vessel. This is particularly relevant in the case of engine and machinery breakdowns that may not be readily explained. The recent and important case on unseaworthiness, The Fjord Wind [1999], is an example. In this case, the judge found that the vessel was unseaworthy, despite his inability to decide precisely what caused the breakdown.
One of the classic tests of seaworthiness is the ‘prudent owner’ test – would a prudent owner have required that [the relevant defect] should have been corrected before sending his ship to sea had he known of it?
This test was considered in The Fjord Wind (supra) and also in another recent case, The Liepaya, in which Rix J took the view that the
relevant knowledge to be attributed to the
prudent owner for the purpose of the test was
of the actual condition of the ship (in this case, the state of its tank coatings), rather than some unforeseeable consequence of that condition.
Even at common law ‘seaworthiness’ includes ‘cargoworthiness’ but it is unclear as to what extent sub-paragraph (c) of Article III, rule 1 broadens or merely clarifies the common-law position. There are plenty of modern cases in which the relevant failure has been due to cargoworthiness, including The Komninos S [1990] (reversed on other grounds) and The Fiona [1993] (failure to wash lines and ducts so as to remove residues of previous cargo).
The fact that a hold is unfit for carriage of cargo A because of the presence of cargo B does not, however, render a vessel unseaworthy where the problem is due to bad stowage, as in The Thorsa [1916], where cheese contaminated chocolate in the same hold. In the case of The Apostolis [1997], the Court of Appeal held, drawing an analogy with the bad stowage cases, that even on the assumption that sparks were falling into a hold of cotton from welding works going on above the hold – igniting the cotton – the presence of sparks did not render the owners in breach of their obligations as to seaworthiness or under Article III, rule 1(c).
