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Seaworthiness is a concept that runs through
maritime law Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between priva ...
in at least four contractual relationships. In a
marine insurance Marine insurance covers the physical loss or damage of ships, cargo, terminals, and any transport by which the property is transferred, acquired, or held between the points of origin and the final destination. Cargo insurance is the sub-branch o ...
voyage policy, the assured warrants that the vessel is seaworthy. A carrier of goods by sea owes a duty to a shipper of cargo that the vessel is seaworthy at the start of the voyage. A shipowner warrants to a charterer that the vessel under charter is seaworthy; and similarly, a shipbuilder warrants that the vessel under construction will be seaworthy.


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 The Marine Insurance Act 1906 (8 Edw. 7 c.41) is a UK Act of Parliament regulating marine insurance. The Act applies both to "ship & cargo" marine insurance, and to P&I cover. The Act was drafted by Sir Mackenzie Dalzell Chalmers, who had earli ...
, in a voyage policy there is an
implied warranty In common law jurisdictions, an implied warranty is a contract law term for certain assurances that are presumed to be made in the sale of products or real property, due to the circumstances of the sale. These assurances are characterized as warr ...
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 Hague-Visby Rules provides: "The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to— (a) Make the ship seaworthy. (b) Properly man, equip and supply the ship. (c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 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 In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
to provide a seaworthy ship. ''McFadden v Blue Star Line'' (1905) 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…" Together with the Hague Visby Rules, the common law provides that the concept of "seaworthiness" covers: the ship, its equipment and supplies, the crew, the vessel's suitability for the particular cargo and its suitability for the particular voyage or for particular ports. The
Rotterdam Rules The "Rotterdam Rules" (formally, the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea) is a treaty proposing new international rules to revise the legal framework for maritime affreightment ...
, which are intended to replace the
Hague Rules The Hague Rules of 1924 (formally the "International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, and Protocol of Signature") is an international convention to impose minimum standards upon commercial carrie ...
, Hague-Visby Rules and
Hamburg Rules The Hamburg Rules are a set of rules governing the international shipment of goods, resulting from the United Nations International Convention on the Carriage of Goods by Sea adopted in Hamburg on 31 March 1978. The Convention was an attempt to ...
, are many years away from ratification. If and when the Rotterdam Rules come into force, the carrier will have to maintain seaworthiness throughout the voyage, not just at the start. Presumably the standard of seaworthiness at sea would be somewhat lower than when in port (where refit facilities are available).


Seaworthiness in Chartering

A shipowner will normally owe the following duties to the charterer: #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 '' Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha'', the ship's unsatisfactory team of engineers meant that the vessel was unseaworthy, and the consequent delay in delivery amounted to serious deviation. However, in a controversial judgment, the court held that the charterer could not cancel and was entitled only to
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
, since neither breach denied the
claimant A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
of the main benefit of the contract.


Seaworthiness in Shipbuilding Contracts

Shipbuilding contracts will normally be effected using a
standard form contract A standard form contract (sometimes referred to as a ''contract of adhesion,'' a ''leonine contract'', a ''take-it-or-leave-it contract'', or a '' boilerplate contract'') is a contract between two parties, where the terms and conditions of the co ...
. However, the common law "business efficacy rule" in ''
The Moorcock ''The Moorcock'' (1889) 14 PD 64 is a leading English contract law case which created an important test for identifying the main terms that the law will imply in commercial, or non-consumer, agreements, especially terms that are "necessary and ...
''The Moorcock (1889) 14 PD 64 may require that seaworthiness is an implied term of the
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
. Also, sections 13 & 14 of the
Sale of Goods Act 1979 The Sale of Goods Act 1979c 54 is an Act of the Parliament of the United Kingdom which regulated English contract law and UK commercial law in respect of goods that are sold and bought. The Act consolidated the original Sale of Goods Act 189 ...
require (respectively) that "the goods", (the ship), "comply with description" and shall be of "satisfactory quality".


See also

*
Seakeeping Seakeeping ability or seaworthiness is a measure of how well-suited a watercraft is to conditions when underway. A ship or boat which has good seakeeping ability is said to be very seaworthy and is able to operate effectively even in high sea s ...
* Carriage of Goods By Sea Act 1971


References

{{reflist Contract law Admiralty law