Seaworthiness of Vessel: Private Legal Aspects

'Seaworthiness of Vessel within International Maritime Law'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.

Seaworthiness of Vessel: Public Legal Aspects

'Seaworthiness of Vessel within International Maritime Law'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

Author of ‘Seaworthiness of Vessel within International Maritime Law’

EU Maritime Law Directives and Regulations

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  • Seaworthiness and unseaworthiness of vessels within Maritime Shipping Law (Latent defects and fitness of vessels: seaworthiness, cargoworthiness and human factor)
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