Moving now definitively on to the field of Private Legal regime (the Private Legal aspects of the obligation), it is important to say that the basic and abstract obligation of seaworthiness qualify the vessel, it is relative when the parties agree to privately hire transport or maritime activity. Under Common Law and International Conventional Law we have discussed, the term “fitted for ordinary cargo service” used in several forms and policies, shall be understood in conjunction with the terms “tight, staunch, strong”, which can reach and impose an automatic and an implied or expressed absolute warranty of seaworthiness, normally at the time of the delivery of the vessel to the Charterer.
It is very important to note that after being verified the cargoworthiness, the performance of the vessel in terms of the crew and for the voyage, the vessel must be absolutely seaworthy (in the context –content and scope- of the specific rules that must be applied), in this order. That is when you can see the value of the full seaworthiness, an essential characteristic obligation: the first and one of the most important of the ship-owner’s obligations and responsibilities under any contract because it involves its intended purpose and the particular interests pursued and sought after by the client (the contractual creditor).
As to the conduct or behaviour promised by the debtor, sometimes it will be purely subjective involving only and activity – due diligence obligation – and others will consist and be required in obtaining a factual result: to arm, equip and supply the vessel properly (objective obligation). Such behaviour is formally required at the beginning of the contractual relationship (initial seaworthiness obligation) and, later, during the execution of one or more contracts (maintenance obligation of seaworthiness).
A very particular case is found in the legal regimen provided for the unseaworthiness of the vessel within Spanish Commercial Code, which has to be considered special. In the absence of absolute compliance with the expressed obligation (see art. 676 C. c., in which seaworthiness is not considered as an implied term as in the Common Law is; it is an automatic obligation in form of an action), the behaviour of debtors shall be valued – if necessary – later, attending firstly to an objective criterion of compliance or attribution of liability. For this reason, as far as any unexpected fortuitous event, ship-owners do not always discharge of their debt, and they will have to bear the risks that they themselves have created to obtain benefits. What is relevant is that in the most serious cases, we could be facing a lack of seaworthiness or professional negligence equivalent to wilful misconduct or gross negligence, sufficient cause to declare the absolute unseaworthiness of the vessel (the ship-owner has should have to reimburse the freight paid in advanced and also pay all damages to the charterer).
Incidentally, the idea of due diligence serves to provide content and determine the extent of lending of professional seaworthiness in any obligation (whether to give, to do, not to do, by an activity or with a result). In addition to establishing a pattern of behaviour in terms of expected performance based on the project or program, the due diligence of the ship-owner serves as the title to define the accusation in case of the breach of contract by negligence. In all cases, particularly in the international carriage of goods by sea rules, carrier due diligence regarding initial seaworthiness of the vessel must be consider as a previous condition of the ship-owner or carrier that it is necessary to be fully proved by him before going to the special regime of exemptions contained in some contractual terms (e.g., the nautical fault or the latent defects). What matters is that the obligation of seaworthiness, with its respective scope and content, has gone on to become a compliance issue and an imperative public policy matter.
As all of you know, the so-called category of vessel exploitation and operating contracts originated in the Italian doctrine, deals with the forming of channels for the shipping business use of vessels. If we accept that the vessel is only delivered to the charterer for navigational purposes (in the abstract, as understood by a part of the doctrine in your country and among others), decoupling the contract for the lending or provision of transport or activity in question, we are subtracting the substantial or essential value of the content of seaworthiness. If we eliminate the reciprocal or synallagmatic generic functional requirements of seaworthiness obligation (the causal link with the contractual lending one), we should eliminate it of its complete examination. Therefore, in my point of view, we must connect the voyage and time charters contracts with the specific transport contractual purpose. With this criterion, we are able to understand that the contractual obligation of the ship-owner incorporates a transport duty when the bill of lading leaves the hands of the charterer (he is converted into an effective carrier, in a similar position to a non-contractual carrier of goods by sea).
It also happens that the primary obligation of delivering the vessel to the client and the main obligation of seaworthiness, because of its causal connection, are both part of one essential and superior mandatory obligation. And we wonder if perhaps the initial seaworthiness obligation of the vessel and the maintenance obligation of the conditions achieved should in this case be covered in a wider upper mandatory seaworthiness relationship that would last until the end of the contractual relationship (similar to what happens in charters with demise; may be seaworthiness is the object of the contract). There is a causal connection between both obligations’ objects and also there is a causal link with the very purpose of the contractual provision of transport or maritime activity (for instance, tow-worthiness or passenger-worthiness). However, in legal practice this does not happen as I have explained. In the other hand, perhaps the doctrine of stages is neither more nor less than just one of the various manifestations of the broad subject of seaworthiness obligation relationship, evidenced due to its division in parts.
Here we could open an initial discussion of an objective or subjective nature if there should be a continuing obligation to maintain the seaworthiness when it was initially required as a warranty or objective condition of the vessel (absolute and automatic; being implicit or explicit). I really think that when the initial seaworthiness is a warranty, the execution of the maintenance obligation (to return the vessel to its initially achieved and objective conditions) should be observed as an over-diligence obligation, at least in these cases.
The usual contractual overlap that occurs in shipping necessarily involves the overlap of various commitments of seaworthiness obligations. Another example is the time charter. In many cases it is a framework contract in which the contractual relationship is reciprocal. The seaworthiness obligation of ship-owners – initial scope limited to the type of vessel, its classification and the traffic employment of the vessel – is presented by force as a lasting or permanent collaboration obligation, at times and on certain aspects, has to be determined in due course by the charterer (he has to indicate in advance the safe port of destination, the number of tones to be loaded, the type of packaging and the stowage factors -m3/Tm, an iron scrap cargo has a different one than iron bars cargo-, and so on), also at the beginning of each stage or phase of the contract. The charterer, as a commercial or business manager, will give diligent orders to the Master of the vessel in the employment of the ship, in order to carry loads of third parties (either as a contractual carrier or as voyage charterer). If he do not do it, the ship-owner could not make and keep the vessel seaworthy. This diligent maritime operator, will move ultimately his responsibility for the unseaworthiness of the vessel to the ship-owner. But, to do this, he shall assist him with the customary assistance and in continued collaboration.
Another paradox happens in the demise charter, particularly in bareboat charter. In it, the seaworthiness obligation is in the hand not only of the owner but also the charterer of the vessel as well. He also has to partly arm and equip the vessel and prepare her to be used for operating by his company (as correctly recognized in your Legal System). We note that, in maritime insurance field, the difference between Bareboat Charter and other demise charters is not at all legally irrelevant. The conclusion of a bareboat charter without the consent of the insurer is an automatic grounds or cause for termination of the hull and machinery insurance contract because it affects the risk assumed by him (in particular, the required international seaworthiness standards could be affected if the ship fly a substandard new flag). In fact the vessel is required to be objectively and absolutely seaworthy warranty (as an implied condition term) before the perfection of the contract of marine insurance, being established as a precedent or previous requirement or condition. In our insurance internationalized practice, it is not unreasonable to generally say that we are faced with an absolute implied warranty that must be fulfilled at the beginning of each stage or a voyage (Secc. 39 Marine insurance Act 1906). We could discuss it later if you want.
In the Brussels Convention of 1924 (H & HVR), it is declared as an essential rule, but subject to exceptions, the irresponsibility of the carrier and the ship for the unseaworthiness of the vessel, unless it was caused by a lack of initial due diligence by him. In regards to the burden of proving, the exercise of this reasonable diligence is on the carrier (reversing the burden of proof).
Article IV. 1. Neither the carrier nor the vessel shall be liable for loss or damage resulting from unseaworthiness that arises, unless caused by want of due diligence on the part of the carrier to make the vessel seaworthy, and to secure that the vessel is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the vessel in which goods are carried are prepared and safe for reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person denying they exemption under this article.
The special qualified due diligence of the carrier to make the vessel seaworthy covers all aspects of the vessel and cargo (the nautical and commercial ones). The Article III uses the expression “before and at the beginning of the voyage”. It must be admitted, at first, the demand for the vessel’s ability to be loaded (cargoworthiness) and then, while the vessel stays afloat alongside the dock until the time of departure, the carrier shall be bound to make the ship seaworthy in all aspects. The doctrine used to discuss at this point the differences between bad stowage and uncargoworthiness.
In the Hamburg Rules (UN Convention), the seaworthiness obligation has disappeared and is required as a part of the general regime of liability of the carrier (presumption of negligence), again reversing the burden of proof.
As set forth in the Rotterdam Rules (Article 14. Specific Obligations applicable to the voyage by sea): “The carrier is bound before, at the beginning of, and during the voyage by sea to exercise due diligence to: (a) Make and keep the vessel seaworthy; (b) Properly crew, equip and supply the vessel and keep the vessel so crewed, equipped and supplied throughout the voyage; and (c) Make and keep the holds and all other parts of the vessel in which the goods are carried, and any containers supplied by the carrier in or upon which the goods are carried, their fit and safe for reception, carriage and preservation”.
Regarding of Contract of Affreightment (COA) in RR, any cargoworthiness obligation tends to disappear due to the parties ability to voluntarily dispose of their application in this type of contract.
Moreover, despite the previously stated presumptions, the carrier is allowed to go on to discuss some aspects of the initial seaworthiness during the exceptions discussion, something that could never happen in the HVR.
Secc. 17 (Basis of liability) 3. Also the carrier is relieved of all or part of its liability (…) if, alternatively proving the absence of fault as provided in paragraph 2 of this article, it proves that one or more of the following events or circumstances caused or contributed to the loss, damage, or delay: (and the secc. continues with the long list of exceptions, brought from the angloxanson legal systems).
However, it appears from the RR that the obligation of seaworthiness has been, in a way and in certain circumstances, objectified, even when the text prevents the carrier from excluding all or part of his liability. So long as the claimant proves the loss, damage or delay was or was probably caused by unseaworthiness of the vessel, it will be created the presumption of fault of the carrier with reversed burden of proof.
Secc.17.5. The carrier is liable also, notwithstanding paragraph 3 of this article, for all or part of the loss, damage, or delay if:
(A) The claimant proves that the loss, damage, or delay was or was probably caused by or contributed to by (i) the unseaworthiness of the vessel, (ii) the improper crewing, equipping, and supplying of the vessel, or ( iii) the fact that the holds or other parts of the vessel in which carried the goods are, or any containers supplied by the carrier in or upon which the goods are carried, were not fit and safe for reception, carriage, and preservation of the goods, (…)
Although the Convention establishes an alternative proof of compliance with his obligation to exercise due diligence, we understand that the carrier must prove it fully, in particular whether the claimant alert to the Court about a carrier’s negligent conduct (proximate or not to the effective cause of the alleged unseaworthiness, as in the USA is said, for example in The Pennsylvania precedent).
I finished my post with the idea that the deliberate and comprehensive study of the seaworthiness obligation (given that it is the backbone or axis which all shipping contracts revolve around) would serve us to make a legal and intellectual effort concerning these matters and come to other extrapolating findings in other areas as Transport Law (for instance, to determine the content and define the juridical figure of roadworthiness).
In short, we as lawyers should be as prudent as possible and let ourselves freely investigate matters concerning the law and expose our conclusions, whatever they may be. In my case, as a Maritime Solicitor and Seafarer, I have tried to raise the standards of seaworthiness and the standards of Maritime Law.