TRANSPORTATION BY SEA SEAWORTHYNESS

JAY SINGH

B.C.A. LL.B

DIFINITION

• Indian merchant shipping Act

• Sec 334

• Hague rules

• Visby rules

• Hamberg rules

• Indian carriage of goods by sea act

• Marine insurance

Hamberg rules

• It does not say about sea worthyness• It make liable the carrer lible for loss when the goods is within its

charge including fire and delay• Carrer is not liable when it proves that he adopted every measure to

protect the goods but loss occurred• Article 12• General rule• The shipper is not liable for loss sustained by the carrier or the actual

carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents. Nor is any servant or agent of the shipper liable for such loss or damage unless the loss or damage was caused by fault or neglect on his part.

Liability under hamberg rule• 4. (a) The carrier is liable• (i) for loss of or damage to the goods or delay in delivery caused by fire, if the claimant proves that the fire arose from

fault or neglect on the part of the carrier, his servants or agents;• (ii) for such loss, damage or delay in delivery which is proved by the claimant to have resulted from the fault or

neglect of the carrier, his servants or agents, in taking all measures that could reasonably be required to put out the fire and avoid or mitigate its consequences.

• (b) In case of fire on board the ship affecting the goods, if the claimant or the carrier so desires, a survey in accordance with shipping practices must be held into the cause and circumstances of the fire, and a copy of the surveyor's report shall be made available on demand to the carrier and the claimant.

• 5. With respect to live animals, the carrier is not liable for loss, damage or delay in delivery resulting from any special risks inherent in that kind of carriage. If the carrier proves that he has complied with any special instructions given to him by the shipper respecting the animals and that, in the circumstances of the case, the loss, damage or delay in delivery could be attributed to such risks, it is presumed that the loss, damage or delay in delivery was so caused, unless there is proof that all or a part of the loss, damage or delay in delivery resulted from fault or neglect on the part of the carrier, his servants or agents.

• 6. The carrier is not liable, except in general average, where loss, damage or delay in delivery resulted from measures to save life or from reasonable measures to save property at sea.

• 7. Where fault or neglect on the part of the carrier, his servants or agents combines with another cause to produce loss, damage or delay in delivery the carrier is liable only to the extent that the loss, damage or delay in delivery is attributable to such fault or neglect, provided that the carrier proves the amount of the loss, damage or delay in delivery not attributable thereto.

Indian merchant shipping Actnegative definition unseaworthy

• Sec 334(5)• A ship is unseaworthy within the meaning of this

Act when the material of which sea is made, her construction, qualification of the master, the number, description and qualification of the crew including officer, the weight, description and stowage of the cargo and ballast, the condition of her hull and equipment, boilers and machinery are not such as to render her in every respect fit for the proposed voyag or service.

• Central government may frame rules

Hague rulesTerm Due deligence is most

importentart 3 over ride art 4• Art 3(2)

• 1. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to

• (a) make the ship seaworthy;• (b) properly man, equip and supply the ship;• (c) make the holds, refrigerating and cool chambers, and

all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

• 2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.

From the beginning to the discharge

• Classic definition of seaworthiness was stated in questionable form by Field J. in Kopitoff v Wilson and Others (1875-76) L.R. 1 Q.B.D. 377:

• Was the vessel at the time of her sailing in a state, as regards the stowing and receiving of these plates, reasonably fit to encounter the ordinary perils that might be expected on a voyage at that season…?

• Per Channell J. citing Carver on Carriage by Sea in McFadden v Blue Star Line [1905] 1 KB 697, at p.607:

• To that extent the shipowner, as we have seen, undertakes absolutely that she is fit, and ignorance is no excuse. If the defect existed question to be put is, Would a prudent owner have required that it should be made good before sending his ship to sea had he known of it? If he would, the ship was not seaworthy within meaning of the undertaking.

• Maxine Footwear Co Ltd v Canadian Government Merchant Marine Ltd [1959] AC 589, per Lord Somervell of Harrow at p.603:

• In their Lordships' opinion "before and at the beginning of the voyage" means the period from at least the beginning of the loading until the vessel starts on her voyage. The word "before" cannot in their opinion be read as meaning "at the commencement of the loading." If this had been intended it would have been said. The question when precisely the period begins does not arise in this case, hence the insertion above of the words "at least."

• On that view the obligation to exercise due diligence to make the ship seaworthy continued over the whole of the period from the beginning of loading until the ship sank.

Proof for damage

• Shipper proves that the loss occurred

• Then carrier may take recourses of immunities provided under the Art 4

• Then the shipper has to prove that due diligence has not been utilized in

• In seaworthyness of ship

• Proper load and stowage

Perils of navigationFIRE

• loss or damage to the cargo, as opposed to merely limiting that liability to the quantum of the package or package/kilo limitation.

• 1) Two methods of limiting or avoiding liability• There are two The first way is by invoking the package or package-and-kilo limitations and the

"exceptions" of Art 4• The second method of limitation and exemption is traditionally called the "limitation of shipowners'

liability• 2) "Fire exceptions" and "fire statutes"• Under Hague, Hague/Visby and Hamburg, the carrier and the ship may be totally exonerated from

any liability whatever for cargo loss or damage caused by fire, under certain conditions specified in those Rules. Fire is therefore referred to as one of the "excepted perils" or "exceptions" under those rules where they apply, also exonerate their beneficiaries totally from liability for cargo loss or damage resulting from fire, just as the "fire exceptions

• Thus in summary, one may say that there are two methods of limiting or avoiding liability — package/kilo and shipowners' limitation. This second method of limitati0n

• 3) The fire exception• Under the Hague and Hague/Visby Rules art. 4(2) reads:• "Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from: ...• (b) Fire, unless caused by the actual fault or privity of the carrier;"

Prils of the seamanagement of ship v. management

of cargo• In The Muncaster Castle [1961] 1 Lloyd’s Rep.57 per Lord Keith of Avonholm at pp.86-87

clarified the scope of the carrier’s duty under article III, rule 1, to exercise due diligence to make the ship seaworthy as below:

• [The shipowner] cannot … be liable for unseaworthiness in a ship which results from lack of due diligence at a time when the ship was not his to possess and control and which could not be detected by due diligence after the ship came into his possession… Where due diligence of a carrier is concerned there can be no liability for anterior failure of diligence by a previous owner or by someone with whom the carrier had no previous concern.

• The Hague Rules abolished the absolute warranty of seaworthiness. They substituted a lower measure of obligation. The old law no doubt worked hardly on shipowners and charterers, in the absence of exception or exclusion. The change in the law, not confined entirely to England, operated to afford relief to shipowners, as well as some protection to shippers. It would, however, be a most sweeping change if it had the result of providing carriers with a simple escape from their new obligation to exercise due diligence to make a ship seaworthy. … The carrier will have some relief which, weighed in the scales, is not inconsiderable when contrasted with his previous common-law position. He will be protected against latent defects, in the strict sense, in work done on his ship, that is to say, defects not due to any negligent workmanship of repairers or others employed by the repairers and, as I see it, against defects making for unseaworthiness in the ship, however caused, before it became his ship, if these could not be discovered by him, or competent experts employed by him, by the exercise of due diligence.

Leading cases

• Liberty shiping-duty to store the goods properly• Pyrene Co v. scindia steam navigation-rules applicable to

loading and discharging process• Leesh river tea company-seaworthyness at the beginning

of the voyage.• Silversandal case- standard should maintained vile due

diligence• Goosmillerd case- negligence in removing the cover

during repair of tail shaft and not recovering properly is a negligence about cargo and is not towards ship

• Pendal and rever- carrier should disclose how the goods disappeared.

General Average and dangerous Cargo

• Art 5• To save the ship and cargo• Loss divided over all cargo• Helentic line v. Embasy of pakistan• Dengerous cargo• With Knowledge• Without Knowledge• In case with knowledge- Could not dispose before

dangerous position• In case without knowledge may dispose at any time.

• END