INTRODUCTION
Seaworthiness is a crucial implied guarantee of a ship or vessel, as described in Section 41 of the Marine Insurance Act, 1968.[1] It might be seen as a requirement that must be met by a vessel before it embarks on its journey. Seaworthiness refers to the state of a vessel being deemed suitable to encounter ordinary perils and go on a voyage without any possible mishaps. In order to assert a legitimate claim with the insurance company, it is crucial to ensure that your vessel was in a state of being fit for sailing before it embarked on its journey. The rationale for this is to avoid imposing liability on the insurance company for the shipowner’s negligence, as the shipowner is legally obligated to ensure the ship’s fitness before to commencing its voyage.
Vessel worthiness encompasses not only the vessel’s physical condition but also other factors that can impact its overall worthiness.
Physical Worthiness: This indicates that the ship must be properly equipped. The engine, including pipelines, bunkers, and other components, must be kept in excellent condition. In Stanton v Richardson,[2] The ship was declared unseaworthy because it did not have enough suitable holds, making it unable to efficiently handle the extra moisture caused by the wet sugar.
Seaworthiness and the season of the voyage: A ship’s seaworthiness can vary depending on the current season or weather conditions. It may be deemed seaworthy at one point in time but become unsuitable for sailing in the future. It is noted that in summer, a vessel necessitates less force in comparison to sailing in winter due to the need to endure strong winds and storms. In the case of Moore v Lunn,[3] Lord Justice Bankes determined that the ship’s load of timber logs, which were not properly secured on deck and had insufficient crew members, would render the ship unseaworthy due to its operation during winter.
SEAWORTHINESS AND THE NAVIGATIONAL WATER
A vessel that is fit to sail in inland waters might not be seaworthy to sail in ocean or waters beyond EEZ. Thus, the shipowner possesses a duty to either send a vessel that would be appropriate for the destined waters or if the vessel is going through different water, then shall make arrangements for intermediate stops so that the adjustment can be made.
In the Quebec Marine Insurance Company v The Commercial Bank of Canada[4] case, the vessel was designed for navigation in both rivers and the open sea. Although a problem in the vessel’s boiler went unnoticed during the river cruise, it was promptly identified and repaired once entering the sea and coming into contact with the saline water. Consequently, the ship was deemed unfit for sailing and the owner of the ship was obligated to compensate the insured party.
Seaworthiness and the type of vessel: Each machine possesses unique strengths and capabilities. An automobile with a capacity of 4 seats is not capable of accommodating 10 seats. Likewise, each ship possesses distinct characteristics and is specifically engineered to carry a particular kind of goods. The Paterson, Zochonis v Elder Dempster [5]case revolved around the carriage of barrels holding palm oil and palm kernels. The ship required twin-deck holds to adequately store the cargo. Nevertheless, the lack of twin-deck holds led to the kernels’ weight being exerted on the barrels, resulting in their splitting.
Human Worthiness: As the title suggests, it means that only if the ship is seaworthy and the humans are not, then also it would be a case of unseaworthiness.
COMPETENCY AND THE ADEQUACY OF THE SEAMEN
Both of these convey that the Seamen sailing needs to be properly trained, be familiar with the parts of the vessel, and not have a history of sea sickness. From the psychological perspective, it also suggests that the behaviour of the seamen also needs to be taken into consideration. This means how the crew is reacting to a situation, and whether they are capable of fighting against the odds which might happen during their voyage.
In the Hong Kong Fir Shipping Company Ltd. V. Kawasaki Kisn Kaisha Ltd. [6]case, it was discovered that the Chief engineer was a drunkard, and the Engine Room staff were incompetent.
The charterer attempted to reject the charter agreement and refused to make payment for the hire. However, simultaneously, there was a significant and disastrous decline in the market rate of hiring. The ship was rendered fit for sailing within a period of 3 months after expressing the intention to reject it. In the aforementioned circumstance, it was determined that charterers do not have the right to reject their obligations, as their actions were motivated by exploiting the current market conditions. Therefore, despite the ship being considered unfit for sailing, the charterers were held responsible for compensating the shipowners due to their unjustified refusal to fulfil their obligations. In Burnard & Alger, Ltd v Player & Co[7], the principal officer departed from the ship. After a few days, another engineer departed as well. This was deemed a case of unseaworthiness because of the insufficient number of seamen meeting the required criteria.
- Ignorance of the crew: If the crew is capable and well-equipped yet lacks awareness of crucial facts, the ship is considered unfit for sailing. This situation can occur when the carrier fails to convey such information to its crew. Standard Oil Company of New York v Clan Line Steamers, Ltd [8]established that “there is no difference between disabling want of skill and disabling want of knowledge.”[9] Each makes the ship not worthy for the voyage.
- Negligence of the crew: The differentiation between negligence and incompetence within a ship’s crew is determined by their ability and the effective use of their abilities. Competence is defined as having the necessary knowledge and experience, while incompetence refers to a lack of expected skills. If a shipowner guarantees that the crew possesses the necessary qualifications and supplies a well-equipped vessel, they could be deemed negligent if the crew fails to perform their duties efficiently.[10] In Hedley v. The Pinkney and Sons Steamship,[11] it was established that the death of a crew member resulting from a railing that was not properly fastened was deemed as negligence rather than a lack of seaworthiness. However, the ship itself was deemed competent for the voyage. The court concluded that the shipowner had discharged his responsibilities and attributed responsibility to the actions of the crew.
Documentary Worthiness
The crucial documents to deem a ship seaworthy include nautical charts, ship plans, other documents indirectly associated with seaworthiness, and documents unrelated to seaworthiness yet mandated by some organisations.
- Navigational maps are vital for charting the path of a journey and should be consistently revised. In the case of The Marion, [12]the captain directed his subordinate to retrieve the charts. Regrettably, the assistant erred by bringing the obsolete charts, leading to the selection of an older route. Therefore, due to the oversight of an empty berth, the pipeline incurred damage.
- A ship plan is a document that shows how a particular part of a ship works. If the seafarers are not qualified, this paper serves as a safeguard and decreases the likelihood of accidents occurring.
- Other documents that are indirectly associated with the fitness of a vessel include those that are required by the authorities. In the Madeleine [13]case, the Court determined that the failure to obtain the deratting certificate, which was mandatory according to the port authorities prior to loading the cargo, rendered the vessel unfit for sailing.
- Lastly, there are documents that, while not directly related to the seaworthiness of the vessel however, are still necessary to comply with numerous rules. For instance, During the unloading of the Derby[14], The International Transport Workers Federation requested information regarding the existence of an ITF card aboard the vessel. This card serves as a certificate guaranteeing that the job conditions and wage rates meet the necessary standards. Due to the absence of the necessary card, the ship was prevented from unloading and was deemed unseaworthy.
Conclusion
Maintaining the seaworthiness of a ship is essential for maintaining the safety of maritime voyages. Carriers must exhibit due diligence, an unequivocal legal obligation, in assuring the seaworthiness of their vessels for maritime transport. This involves verifying that the ship is physically competent to navigate without risk and is equipped with appropriate safety equipment for the vessel, cargo, and crew. Furthermore, carriers must verify that their crew members possess the necessary skills and talents, and must provide them with continuous training to ensure their competency. Carriers must verify that the vessel possesses all the necessary papers, including nautical charts and ship designs, to adhere to regulations and facilitate a seamless journey. This comprehensive plan guarantees the security and dependability of maritime operations.
Name: Shruti Agarwal (Symbiosis Law School, Pune)
References-
[1] Marine Insurance Act 1968, s 41
[2] Stanton v Richardson [1872] LR 7 CP 421
[3] Moore v Lunn [1923] 15 Ll. L. Rep. 155
[4] The Quebec Marine Insurance Company v. The Commercial Bank of Canada [1869-71] L.R. 3 P.C. 234
[5] Paterson, Zochonis v Elder, Dempster [1924] A.C. 522
[6] Hongkong Fir Shipping Company Ltd. v Kawasaki Kisen Kaisha, Ltd [1961] 1 Lloyd’s Rep. 159
[7] Burnard & Alger, Ltd. v Player & Co. (1928) 31 Ll. L. Rep. 281
[8] Standard Oil Company of New York; v. Clan Line Steamers, Limited [1924] A.C. 100. p. 120-121
[9] Ibid
[10] Ahmad Hussam Kassem, “The Legal Aspects of Seaworthiness: Current Law and Development, (Swansea University, 2006) <https://discovery.ucl.ac.uk/id/eprint/6988/1/6988.pdf> accessed 9 July 2024
[11] Hedley v The Pinkney and Sons Steamship Company, Limited [1894] A.C. 222 at p.227
[12] Grand Champion Tankers Ltd. Appellants v. Norpipe A/s and Others Respondents, (The Marion), [1982] 2 Lloyd’s Rep. 52, p.57
[13] Cheikh Boutros Selim El-Khoury and Others v. Ceylon Shipping Lines, Ltd., (The Madeleine), [1967] 2 Lloyd’s Rep. 224
[14] The Derby, [1985] 2 Lloyd’s Rep. 325. at p. 331
