Seaworthiness under Carriage of Goods by Sea - Essay Example

? Bill of Lading Introduction The bill of lading is an important document in shipment of cargo is a proof of quality and quantity of the good from the dispatch to the delivery. The ship owner or the carrier is the main player in this process as he has to co-ordinate with the shipper and the consignee. The bill of lading serves as a formal receipt ensuring the safe loading and unloading of the cargo. However, the ship owner has many rights and duties under bill of lading. The aim of this essay is to critically analyze the duty of seaworthiness of the vessel in detail Bill of Lading A Bill of Lading is a legal document between the shipper and the carrier in which the details of the carriage goods along with the quantity, quality and destination where the goods are to be carried. It is also used as a shipment receipt after the goods have been delivered. This receipt is mandatory for the shipment process and it is required that an authorized individual from all three parties, i.e. carries, shipper, and receiver, signs this document as it serves as an evidence of receipt of goods in the desired condition (Schmitz). This bill is very useful in situations where the good received are damaged while they were in good condition when loaded on to the vessel or when the receiver does not receive the goods at all. The process of carrying goods by the sea can be somewhat complicated with reference to defining the parties involved and their position in the entire process (Low). The contract begins between the shipper and the carrier who takes the responsibility of delivering the good from one port to another. Since the bill of lading receipt is issued by the carrier, the responsible party in case of any discrepancies in the quantity, quality, or condition of the good delivered would be the carrier. It must be noted that the receiver of good is in more cases not the shipper but the consignee. It can be said that the bill of lading is the prima facie evidence between the shipper and carrier and conclusive evidence between the carrier and the consignee (Andersson). In the entire process of shipment, the ship owner has certain obligations to the shipper and the consignee. These obligations can be divided in to three parts of before commencement of the voyage, during the voyage, and after the voyage has been completed (Baughen). These obligations include providing a vessel which seaworthy, a reasonable dispatch of cargo, protection of cargo, not deviating from the route and delivering the cargo in time, at the right destination, in the desired condition (Baughen). Providing a Seaworthy Vessel The obligation to provide a seaworthy ship for the voyage is understood between all parties even when it is not explicitly agreed upon. There has been much debate regarding the definition of the term “seaworthiness”. Though it generally implies that the carrier provides a ship which is physically fit to stand any perils of the sea and complete the journey. Not only is it settled that the ships provided by the carrier will be seaworthy in the general sense but it will also strong and sit enough to make it through any perils that might come across on the voyage along with strong furniture and other equipment in order to receive the cargo (Dockray and Thomas). Though different branches of Maritime law make use of the same definition of the term “seaworthiness”, this definition is little broad to explain the condition of the ship in this context. Seaworthiness under Carriage of Goods by Sea Even though the definition of seaworthiness has been changed a number of times under common law, Harter Act, and Hague/Hague-Visby rules, the term is still based on the same principles. It has been stated under common that the ship must be fit enough “to meet and undergo perils of the sea and other incidental risks which of necessity she must be exposed in the course of the voyage” (Kopitoff v. Wilson 380). Moreover, seaworthiness has been defined as “that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it” (McFadden v. Blue Star Line 706). The definition presented above takes in to consideration the “prudent” behavior of the owner which implies that if at the time of commencement of the voyage the ship is unfit for any reason, whether or not the ship owner is aware of this defect is irrelevant and is “no excuse for existence of such a defect that he used his best endeavors to make the ship as good as it could be made” (McFadden v. Blue Star Line 703). A test was introduced by Carver to identify whether or not the ship owner fulfilled his obligation to provide a seaworthy vessel. This test states: “would a prudent owner have required that it (the defect) should be made good before sending his ship to sea had he known of it? If he would, the ship was not seaworthy within the meaning of the undertaking” (Carver 180). This is a simple and objective test which has been applied to many relevant cases to determine whether or not the vessel was seaworthy. It implies that if the defect in the ship is one which the owner would repair before sending the ship out for voyage then the vessel may not be considered to be seaworthy but if the owner decides that the defect is not that big and it will not have any impact on the voyage, leaving it unrepaired, then the vessel is seaworthy. It can be said that the seaworthiness of a ship is determined in two ways. First, the carrier must provide a ship which it fit and properly built. Secondly, the ship must be worthy or carrying the cargo without any damage done to the goods. in this case the carrier must take in to consideration the proper equipment needed to carry the goods, for instance, in case of shipment of frozen food, it is necessary that the vessel has proper equipment to keep the meat frozen and in good condition throughout the voyage (Cargo per Maoriking v Hughes). Along with this, the ship must have sufficient crew to operate the ship and take care of the cargo if need be. The Hague-Visby Rules give more importance to due diligence in providing a seaworthy vessel instead of providing an absolute seaworthy vessel. That being said, the ship owner is held liable in case of any damage to the goods or delay in delivery. If any kind of damage is done to the good while they are still under the responsibility of the carrier or if the goods are not delivered on time resulting in any kind of loss, the carrier is liable. However, if the carrier is able to provide evidence that all measures were taken to keep any delay or damage from occurring, the carrier may not liable. Time of Seaworthiness of the Vessel It is important that the vessel is seaworthy at the beginning of the voyage. This implies that the ship owner is obligated to provide a seaworthy vessel only t the commencement of the voyage but is no responsible for seaworthiness once the voyage has begun. (Carver). The ship owner is liable for seaworthiness at the beginning and is required to make all efforts to ensure that the ship is seaworthy as it is absolute in common law. However, under the Hague-Visby Rules, this obligation is due diligence. One way the ship-owner can escape liability in this regard is by proving that damage done to the goods was not the fault or a result of negligence on part of the owner or the workers/crew. Negligence or Incompetence of the Crew The difference between the incompetence and negligence of the crew is very important as it can have a significant influence on the outcome of a case. In case the ship owner fails to oblige to the hiring a competent crew for the vessel, he will not have the option of using exemption of negligence of the crew. If the owner fulfills his obligation to provide a seaworthy vessel and competent crew but there is loss or damage to the goods due to the negligence of the crew, the ship owner will not be liable for the damage (Chambers). In order to be competent the crew member must have adequate knowledge, skills, and experience to operate the ship or at least the part that he is responsible for. In case of crew incompetence, they will lack the skills to perform his duties, making the ship unseaworthy. However, is the ship owner responsibly hires competent crew; he assures the seaworthiness of the ship. In such a situation if any damage is done to the goods or if there is any kind of loss due to the negligence of the crew or because they did not responsibly carry out the duties that they were supposed to, the ship owner will not be liable. (Steel et Al. v. The State Line Steamship Company 90). The case of Hedley v. The Pinkeye and Sons Steamship can be taken in to consideration here. The ship provided by the carrier was seaworthy in all aspects and was fit to stand the perils of the sea. However, there was an opening in the bulwark of the ship for gangway. This opening was designed to be closed by a movable railing in little time. One of the members of the crew informed the captain and another crew member about the opening and asked whether he should close the opening. He was told that there was no need for it. The ship encountered a storm on its way and one of the crew drowned after falling through the opening. The seaworthiness of the ship was questioned by the wife of the deceased but the court ruled otherwise as the ship owner fulfilled his duty of providing a seaworthy vessel. The accident was due to the negligence of the crew. Incompetence and Mismanagement A distinction must be made between the crew incompetency and vessel mismanagement. In case of an incompetent crew, it would not be possible to properly manage the ship while in case of mismanagement of the vessel the crew is competent but did not take due care of the vessel. This would not imply unworthiness of the vessel and thus the ship owner would not be held liable in case of damage or loss. In case of mismanagement of the vessel, a further distinction is to be made to identify why the vessel was not taken care of. In case the equipment for the management and service of the vessel was provided as whole but not of a given cargo, this would indicate mismanagement of the entire vessel (Rowson v. Atlantic transport). However, if the equipment for the service and management of a particular cargo was provided but the crew failed to manage it, then the mismanagement would be for only a given part and result in the negligence of the crew (Rowson v. Atlantic transport). However, in either of the cases, the ship owner would not be liable since it would not be breach of seaworthiness. The Burden of Proof The burden of proof lies on the party that seeks to assert the truth and thus it is required by the law that the ship owners fulfill their responsibility of providing the proof of their due diligence in providing a seaworthy vessel. In case of any loss the ship owner is required to provide all facts regarding the past and present condition of the vessel. However it has also been indicated in many cases that the claimant must prove how the good were damaged under the responsibility of the carrier. Both the parties may be required by the court to provide evidence of their claims and a decision may be reached based on the collective evidence provided (Wilson 188). Transfer of Responsibility of Cargo The time at which the responsibility of the cargo is passed on to the carrier may vary depending on the agreement between the shipper and the carrier. However, for the bill of lading, the responsibility is passed on at the time of loading of goods on to the vessel and end with the unloading. The carrier is responsible for the goods until the delivery is made on the predetermined port. However, in some cases the responsibility may be extended if the parties agree. For instance, in case of Pyrene Company Ltd. V. Schindia Steam Navigation Company Ltd, the cargo of six fire tenders was to be shipped from the dock side from where the carrier was responsible for loading them on board. In the process, one of the fire tenders fell in water resulting in damage. The shipper sued the carrier for damage for which the carrier accepted the responsibility. Conclusion The bill of lading puts many responsibilities and obligations on the carriers as they are required to fulfill their duty of due diligence to ensure a seaworthy ship. The two aspects covered in this obligation include the seaworthiness of the vessel and the cargo worthiness of the vessel. In the former aspect, the carrier is required to ensure a vessel which is physically fit to stand all perils of the sea that it might encounter, a proper navigation system so that the vessel reaches its destination on time, appropriate equipment to take care of the ship, manage cargo, and protect crew. Along with this the ship owner must also make sure that the hired crew is competent to take care of the cargo and the ship itself. Lastly, the ship owner must make sure that proper documents are on board that may be required to complete the voyage. The second aspect of cargo worthiness for the ship implies that the vessel must have the ability to properly stow cargo on board without putting the safety of the cargo or the vessel in danger. The International Safety Management Code (ISM) was recently introduced to the Safety of Life at Sea Convention but it has not yet been made a part of the Hague-Visby Rules. This code can serve as a framework for dealing with prudent carriers. The code implies that the carriers strictly follow the code and it will ensure seaworthiness of the vessel not only at the commencement of the voyage but at all times. Moreover, the documents of the ISM code would help in proving to the court the seaworthiness of the vessel. Though all of the obligations and liabilities of the ship owners mentioned under the seaworthiness are important to ensure safety of the cargo and crew, they can be misused by the shipper. For this reason, the carriers must take the responsibility of fully ensuring the seaworthiness of the vessel not only at the time of dispatch but throughout. The ISM code can be used to limit liabilities of the ship owners. Works Cited Andersson, Patrik G. "Delivery Clauses in Bills of Lading." 2005. Print. Baughen, Simon. Shipping Law. Routledge, 2009. Print. Cargo per Maoriking v Hughes. No. 2 QB. 550. 1895. Carver, Thomas Gilbert. Carver's carriage by sea. Stevens & Sons, 1982. Chambers, J. "Nature of owner's obligation as to seaworthiness under voyage charter." Journal of International Maritime Law, 7(4) (2000): 118-120. Print. Dockray, Martin and Katherine Reece Thomas. Cases and Materials on the Carriage of Goods by Sea. Routledge, 2004. Print. Hedley v. The Pinkney and Sons Steamship Company, Limited. No. 1 Q.B.58. 1892. Kopitoff v. Wilson. No. 1 Q.B.D. 377. 1876. Print. Low, Haylin. "Shipowners' Liabilities: Elder Dempster Revisited." 1997. The Maritime Law Association of Australia and New Zealand. 30 June 2013 . McFadden v. Blue Star Line. No. 1 K.B. 697. 1905. Pyrene Company, Ltd. v. Scindia Steam Navigation Company, Ltd. No. 1 Lloyd's Rep. 321. 1954. Rowson v. Atlantic transport. No. 2 K.B. 666. 1903. Schmitz, Torsten. "The Bill of Lading as a Document of Title." Journal of International Trade Law and Policy, 10(3) (2011): 255 - 280. Print. Steel et Al. v. The State Line Steamship Company. No. L.R. 3 App. Cas. 72. Lord Blackburn. 1877-88. Print. Wilson, John F. Carriage of Goods by Sea. Pitmans Publications, 1998. Print. Read More