IF A SHIP IS LOST TO A PERIL OF THE SEA, HOW CAN YOU SAY SHE WAS SEAWORTHY?

by John Weale Taken at face value, this is like asking why a church needs to be insured against Act of God. But it does raise some interesting issues in relation to the shipowners responsibility for the safe carriage and delivery of cargo. An early source for international maritime law is a book entitled Consolato del mare, which was published in Barcelona towards the end of the fifteenth century. At one point, this states: If goods on board a ship shall be damaged by rats, and there be no cat in the ship, the managing owner is bound to make compensation. But if the ship has had cats on board in the place where she was loaded, and after she has sailed away the said cats have died, and the rats have damaged the goods, if the managing owner of the ship shall buy cats and put them on board as soon as they arrive at a place where they can find them, he is not bound to make good the said losses, for they have not happened through his default. In other words, the complement of every well-found mediaeval ship carrying grain should include at least one able-bodied feline for the proper care of its cargo. This ancient rule actually tells you all you really need to know about the concept of seaworthiness. First, it is not just about the ship itself: it also includes the concept of cargoworthiness that is, the ability of the ship to carry the cargo safely and in good condition to its destination. Secondly, it is not an absolute concept, but depends on the standards of the time and the nature of the intended voyage. Third, the shipowner, as the carrier, will be liable to pay for any damage caused by unseaworthiness. Fourth, the Consolato neatly illuminates the idea of seaworthiness as to causation which is, that unseaworthiness is only relevant to the extent that it causes or contributes to the loss or damage claimed. And fifth, the obligation as to seaworthiness usually bites only at the commencement of the voyage: after that, the question is whether the carrier has acted properly in caring for the cargo. The modern definition of seaworthiness goes something like this: The ship must have that degree of fitness which an ordinary careful owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it. In other words, would a prudent shipowner, knowing everything about the ship, have required the defect to be rectified before allowing the vessel to proceed to sea? Was she reasonably fit to encounter the ordinary perils that might be expected on that voyage at that time of year? If the answer to that question is: Yes, and the vessel is then overwhelmed by a freak event, the owner will be entitled to the benefit of the exception of perils of the sea; but it will come as no surprise to learn that this defence is not one which is usually pleaded with much success, just because of the inherent contradiction with the concept of seaworthiness. It is, however, important to remember that errors of navigation on the part of those on board the ship have no relevance to the issue of unseaworthiness unless, of course, they stem from incompetence, sometimes referred to human unseaworthiness. The crucial question is always this: what was the state of the ship at the commencement of the voyage? If she was well-found and fit to receive and carry the cargo in question, and manned with an adequate and competent crew, then she was seaworthy.

It is often said that the shipowners right to rely on the exceptions and immunities contained in the contract of carriage are conditional upon the vessel being seaworthy. But in the end, this really boils down to a simple question: was the loss or damage caused, in whole or in part, directly or not, by the ships unseaworthiness? If the answer is: Yes, then the shipowner will be liable and that is the end of the matter. If the answer is: No, then the defences and immunities can come into play. But if it all seems too complicated, just think of the cat from Catalonia.1

John Weale Senior Vice-President Fednav Limited Email: jweale@fednav.com

A surviving 1532 charter party, covering a voyage of the Anne of Hull to the Isle of Man, stipulates that she will carry a doge and a cat with all other necessaryes.