A Vessel Being Unseaworthy - Report Example

WHEN DO THE HAGUE – VISBY RULES APPLY? Introduction The Hague – Visby rule is a set of international rules that governs the carriage of goods by sea.These rules were initially drafted in the year 1924 in Brussels and were more popularly known as the “International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading”. However, they were amended in the year 1968 by the Visby Amendments and hence it is now known as The Hague – Visby Rule. Obligation of the carrier to provide a seaworthy ship The obligation of the carrier to provide a seaworthy ship under the Hague and Visby Rules encompasses a wide range of clauses which includes, apart from several other aspects, the physical state of the vessel, the competency as well as adequacy of the crew, the adequacy of fuel as well as other sundry supplies which may include the facilities that are necessary as well as appropriate in accordance with the requirements of the carrier. The carrier must fulfill the following two conditions in order to be defined as “seaworthy”: a. The vessel must have suitable and sufficient manpower, as well as adequate equipments to combat and survive the ordinary perils of the sea that could be encountered during the voyage, and that are deemed necessary for performing the services required of it b. The vessel should be “cargo worthy”, i.e., it should be in a state that could be deemed fit for receiving and carrying the specified cargo. Under The Hague – Visby Rules, the ship owner is under a continuous obligation to exercise due diligence to provide a sea worthy vessel which includes providing of a competent crew, at the commencement of each voyage. Moreover, such an obligation also extends to the shore staff of the company, where the ship owner could well be held responsible in the event of loss or damage caused to the carrier / goods of the company. (source: G.P. Pamborides, International Shipping Law: Legislation and Enforcement, page – 156) The Types of Deficiencies that will result in a vessel being unseaworthy: Examples The types of deficiencies that could lead a vessel to be deemed as unseaworthy include, Defective Engines, Defective Compass, Incompetency of the personnel hired to man the vessel – such as employing of incompetent engineers as well as other officers, the stowing of the Deck cargo in a way that has the effect of rendering the vessel unstable. In general, The Hague – Visby Rules, entrusts the ship owner with an additional liability of exercising due diligence and care in providing a seaworthy ship which must “have the 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” (source: G.P. Pamborides, International Shipping Law: Legislation and Enforcement,page-154) The failure of the crew to adhere to the established procedures of the company and the subsequent casualty arising out of such negligence, leads to an impending liability on the company, either because of its failure in training its crew or because of negligence in motivating their crew to follow its safety policies. In other words, the failure of the crew to carry out orders of the company may well indicate that the crew was incompetent and therefore the vessel was unseaworthy. (page 156) Examples: Obligation of a sea carrier to provide a seaworthy ship (Art. 3.1) Australia Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp.–The “Bunga Seroja” (High Court, 22 October 1998, 1999 AMC 427): A consignment of 40 cases of aluminium can body in coils loaded in Sydney on board the m/v Bunga Seroja was partly damaged during the passage from Sydney to Keelung, Taiwan on account of heavy weather. Great China Metal Industries Co. Ltd., to which the property in the goods had passed, claimed damages from the carrier, Malaysian International Shipping Corp. Berhad but the claim was rejected by the trial Judge whose decision was affirmed by the New South Wales Court of Appeal. The claimant appealed to the High Court of Australia contending that the exception of perils of the sea did not apply because damage to the cargo resulted from sea weather conditions which could reasonably be foreseen and guarded against. The question to which the submission primarily was directed was the meaning and effect of art. IV r. 2(c) of the Hague Rules. Held, by the High Court of Australia, that: (1) Seaworthiness must be judged having regard to the conditions the vessel will encounter. The standard of fitness rises with improved knowledge of shipbuilding and navigation. In Art. 3 r. 1 the term “seaworthiness” should be given its common law meaning; nothing in the Rules generally or in the travaux préparatoires suggests otherwise. England Papera Traders Co. Ltd. and Others v. Hyundai Merchant Marine Co. Ltd. and Another – The “Eurasian Dream” [2002] 1 Lloyd’s Rep. 719. On July 23, 1998, a fire started on deck 4 of the pure car carrier Eurasian Dream while in port at Sharjah. The fire, which was not contained or extinguished by the master and crew, eventually destroyed or damaged the vessel’s cargo of new and second-hand vehicles and rendered the vessel itself a constructive total loss. The relevant cargo interests commenced proceedings in London against the carrier before the Queen’s Bench Division (Commercial Court). Held, by the Queen’s Bench Division (Commercial Court), that: (1) Seaworthiness is not an absolute concept; it is relative to the nature of the ship, to the particular voyage and even to the particular stage of the voyage on which the ship is engaged and must be judged by the standards and practices of the industry at the relevant time, at least so long as those standards and practices are reasonable. (2) The components of the duty (as illustrated by the case law) are as follows: (a) The vessel must be in a suitable condition and suitably manned and equipped to meet the ordinary perils likely to be encountered while performing the services required of it. This aspect of the duty relates to the following matters: (i) The physical condition of the vessel and its equipment; (ii) The competence/efficiency of the master and crew; (iii) The adequacy of stores and documentation. (b) The vessel must be cargoworthy in the sense that it is in a fit state to receive the specified cargo. (3) Incompetence or inefficiency of the master and crew may consist of a “disabling want of skill” or a “disabling want of knowledge”. (4) Incompetence is to be distinguished from negligence and may derive from: (a) an inherent lack of ability; (b) a lack of adequate training or instruction: e.g. lack of adequate fire-fighting training; (c) a lack of knowledge about a particular vessel and/or its systems; (d) a disinclination to perform the job properly; (e) physical or mental disability or incapacity (e.g. drunkenness, illness). (5) The test as to whether the incompetence or inefficiency of the master and crew has rendered the vessel unseaworthy is as follows: Would a reasonably prudent owner, knowing the relevant facts, have allowed this vessel to put to sea with this master and crew, with their state of knowledge, training and instruction? (6) The duty of “due diligence” is an “inescapable personal obligation”: it is non-delegable. The carrier will therefore be responsible for negligence of those to whom it delegates due diligence. The question is whether unseaworthiness is due to any lack of diligence in those who have been implicated by the carrier in the work of keeping or making the vessel seaworthy. Such persons are the carriers’ agents whose diligence or lack of it is attributable to the carrier. This principle is relevant in two respects: (1) the carrier under the bills of lading is liable for the want of due diligence by the owners or managers; (2) the carrier is liable for the want of due diligence of the master insofar as the carrier or the owners or managers have delegated to him their duties as to seaworthiness. France Cour d’Appel of Versailles 20 December 2001, S.A. CGM Antilles Guyane v. Les Mutuelles du Mans Assurances IARD and Others – The “Fort Fleur d’Epée” (2002 DMF 251) Various refrigerated containers were loaded on the m.v. Fort Fleur d’Epée of CGM Antille Guyane at Havre and Montoir. During loading operations at Montoir the officer in charge ordered the filling of ballast tank no. 8 in order to prevent a list of the ship and seawater entered into the hold through a port hole improperly closed, flooding the containers. Upon arrival of the ship at destination it was found that the poultry loaded in the containers was lost. The cargo insurers commenced proceedings against the carrier before the Tribunal de Commerce of Nanterre which by judgment of 13 October 1998 allowed their claim. The carrier appealed against such judgment to the Cour d’Appel of Versailles alleging that the loss had been caused by a fault in the management of the ship. Held, by the Cour d’Appel of Versailles, that: (1) The carrier is exonerated from liability for loss of or damage to the goods due to the unseaworthiness of the vessel only if it proves that it has complied with the obligations set out in article 21 of law 18 June 1966, namely that it has put the vessel in the condition to perform the service it has undertaken to do, account being taken of the voyage the vessel must carry out and of the goods to be carried. (2) Nautical fault includes, in addition to the fault in the navigation, the fault in the management of the vessel that adversely affect the safety of the vessel and of the maritime adventure; while a fault that endangers the cargo is a commercial fault for which the carrier is responsible. A ballasting operation carried out during loading that, owing to a defective closing of an inspection port, causes the flooding of containers stowed in the hold is not a nautical fault. REFERENCES P.G. Pamborides, International Shipping Law: Legislation and Enforcement, Martinus Nijhoff Publishers, 1999. A Typical Cargo Claim in relation to a Charter party: Case Study, June 16, 2008 Available from: < http://www.fedcourt.gov.au/pdfsrtfs_a/admiralty_papersandpublications13.pdf> Hague – Visby Rules, Wikipedia, June 16, 2008. Available from: < http://en.wikipedia.org/wiki/Hague-Visby_Rules> Jurisprudence on Interpretation of Maritime Conventions, June 16, 2008. Available from: < http://www.comitemaritime.org/jurisp/ju_billading.html#Anchor-Obligation-57540> Read More