I must briefly explain that seaworthiness can be broadly defined as the fit condition or preparedness of a vessel, which is necessary for transport or other maritime specific purposes: “fitness for a particular purpose”. That is, the “special aptitude and suitability, from all points of view objective and subjective, that the vessel must meet to provide operational safety and effective and efficient performance needed for shipping”. Although safety of the vessel is in the heart of seaworthiness obligation, we see that the ability or condition that is required from the vessel, is referred to other aspects connected with the efficiency for a particular service (public legal concept) or her ability to meet the intended purpose (private legal notion of seaworthiness implied or expressed which is inevitably assumed by most of legislations). As has sometimes been argued, this institution is undoubtedly the “key of the maritime safety system”. In practice, neither more nor less than the “Achilles heel” of ship-owners (someone told me it is a hand-bomb in the pocket of the ship-owners). And I dare say, after much thought during my research, that this figure or institution is to be regarded as the horizontal “Axis of Maritime Law”, even though it is more similar to a crankshaft, for the apparent shape as is understood (different content and scope).
It has become clear that technical advances that are applied to make a vessel seaworthy are constantly evolving. That is why the notion of seaworthiness is included in the concept of a vessel (as is expressly understood in English and Spanish Law), and is the only concept that is used to legally consider a boat as a vessel in the sense of her ability to be navigated or be sailed. This basic standard of condition, which is actually the most basic standard of seaworthiness that vessels must possess and maintain throughout her operational life, it cannot be said that this simply deals with the simple availability of the vessel before the agreed upon time of the shipping operation.
At present, the International Safety Mánagement Code, 1993 (ISM Code), mandatory for most commercial vessels as a new international operational and management standard of the vessel, means that a new and demanding criteria of seaworthiness and marine liability has appeared in the scene. Seaworthiness conditions have been redefined objectively and subjectively. The parameters for the operational management of the vessel’s safety now include not only those relative to the vessel (seaworthiness) or relative to the cargo (cargoworthiness), but also aspects of environmental protection that are to be completed by the crew, by ship-owners and by their dependents on land. Although one could strictly speak of statutory seaworthiness, it seems more accurate to also refer to the human factor (human management worthiness). So much has been raised about the standard in the management of navigation in carriage of goods by sea, that even the CMI and UNCITRAL have stated on more than one occasion that the exception of the carrier’s liability for nautical faults (faults of the crew in the navigation or in the management of the vessel) of the H-HVR, “has fallen” and must be interpreted strictly under these new criteria. In fact, it has gone missing or has disappeared from the HR and RR.
Today, maritime safety is no longer the sole responsibility of the governments or individual States. Now it has come to be directly shared by the ship-owners, who have to implement their Management Security Systems within their companies and vessels. The continuing risk of all types to which professional nautical activity is subjected – think in recent accident occurred in Genova -, requires that the safety of a vessel is necessary and needs to be standardized – nationally and internationally – in detail. And we have to understand that seaworthiness is not only a Commercial Law obligation; it affect other legal disciplines such as the Criminal Law, as well as Labour or Administrative Law.
Now, the control of seaworthiness by the governments is much greater than before. The contents of the vessel’s inspection activities of national and foreign ships – for instance, here in EU ports – has been expanded from previous regulations. The prevention of pollution of the maritime environment produced from vesse now is joining to the traditional checking compliance of national and international maritime safety legislation. For more effective compliance, it has been regulated the exercise of sanctioning powers of governments, establishing some criteria for the detention of vessels in the legal frame of seaworthiness regulated by Port State Control [we cite for their importance: the agreement between maritime administrations Port State Control Paris MoU, 1982; the United Nations Convention on the Law of the Sea, 1982 (UNCLOS); and the Directive 2009/16/EC of The European Parliament and of the Council, of 23 April 2009, on Port State Control (Recast)].
Paradoxically, many of the conflicts relating to seaworthiness occur internally within the shipping companies, where the owners, making profit at the expense of safety, ordering the Master to proceed to sea knowing that the vessel does not meet the appropriate seaworthiness conditions. Therefore, our Laws criminalize these kinds of behaviours as very serious offenses against Maritime Safety.
After control of the vessel and after the owner meets with each of the Laws and binding Conventions – among which, highlights the SOLAS, International Convention for the Safety of Life at Sea, 1974 -, a series of documents shall be issued by the Maritime Authority (the list has more than 30 international certificates). Those certificates give or produce in favour of the ship-owner a rebuttable presumption or precondition of seaworthiness for the vessel (statutory seaworthiness condition). Currently, the implementation of the original seaworthiness has been reinforced in the EU space to express solidarity, obligating Master Mariners and ship-owners to the regular and permanent maintenance of the condition of their vessels.
Other International Maritime and Vessel Safety Conventions sources we have highlighted (besides SOLAS and its ISM Code), are: the International Convention for the Safety of Fishing Vessels, 77/93 (SFV Convention); and to a lesser extent, the International Ship and Port Facility Security Code, 2002 (ISPS Code). There certainly are a group of more specialized conventions and are equally important: the International Convention on Load Lines, 1966 (LL Convention), the International Convention on Tonnage Measurement of Ships, 1969 (TM Convention), the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREG), the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL). And any other conventions approved within the UN International Labour Organization (ILO) among which the Maritime Labour Convention, 2006 (MLC), which will entry into force next 20th of August; the Standards of Training and watch keeping International Convention, 1978 (STCW), and the Standards of Training, Certification and watch keeping for Fishing Vessel Personnel (STCW-F). Many of them are usually accompanied by EU Directives and national regulations that transposes, confirm and give effect to them.
Finally, there is an area of great interest and importance in terms of seaworthiness for each specific type of vessel and cargo traffic; other provisions in the form of opinions, Resolutions, Recommendations and Codes of Conduct of the IMO and the EU which, even when not all of them are mandatory, are clear manuals of the due diligence of Master Mariners, ship-owners, and sailors. All involved parties should know and follow these provisions. They can be used perfectly in maritime lawsuits and processes by experts, lawyers, prosecutors, judges and arbitrators as the appropriate professional conduct of due diligence by them. SOLAS itself makes a good selection of the most relevant and mandatory Conventions: the IBC Code (International Bulk Chemical Code), Code for the construction and equipment of vessels for bulk transportation of goods and hazardous chemicals; and the IGC Code (International Gas Carrier Code), for the Carriage of Liquefied Gases in Bulk; among others.
Clearly, even if the technological advances require legal and technical expertise of the seafarer, in turn, for the same reason, they transfer over too many of the business functions that traditionally were assigned (yes, there is therefore a distribution of distinct activities and responsibilities between ship-owners and crew members: management’s own nautical and commercial management).
In the field of European Community Law, the slow, insufficient and unstable policies of the past that deal with Maritime Safety are shifting, especially after accidents of M/T “Erika” and “Prestige”, to loss prevention (risk assessment has been created) with a new active policies of prevention. For this, the EU has adopted an organizational structure and institutional support, adopting coercive measures such as the temporary detention of the vessel or the denial of access to EU ports to those vessels at the highest risk of unseaworthiness. In terms of access to the vessels in need of assistance to ports or places of refuge, it seems that political criteria are imposed, and ignore the most essential nautical principles and the main interests of the nations. Perhaps if there was a couple of places of refuge available (one in the English Channel and one in Cape Finisterre, in Spain, where most of the accidents occur) the chance of avoiding any kind of damage being caused could be minimized.
In the other hand, although the legal framework for Maritime Safety would be adequate to ensure compliance with the obligations of the seaworthiness of vessels, the problem lies in finding mechanisms to ensure its effectiveness. Part of the solution appears to be in the public and private functions that are performed by the classification societies.
By Dr. Maximiliano Navas