Seaworthiness

Some of the sources imposing this duty

• Civil law (art. 2008, 2015, 2022, and 2063 C.C.Q. (C.B. at p. 60)
• Common law Harter Act, 1893, 46 U.S. Code Appendix 190-196
• Steel v. State Line (1877-78) 3 App. Cas. 72 …..(H.L.) (C.B. at p. 56)
• Canadian Pacific Forest Products v. Belships [1999] 4 F.C. 330, (1999) 175 D.L.R. (4th) 449, 1999 AMC 2606 (Fed. Ct. of App.), leave to appeal denied, May 25, 2000, [1999] S.C.C.A. No. 421 ……(C.B. at p. 56)
• Hague Rules, 1924 art. 3(1) (C.B. at p. 22)
• Hague/Visby Rules, 1968/1979, art. 3(1) (C.B. at p. 2)
• Hamburg Rules 1978 art. 5(1) by implication (C.B. at p. 6)

Is seaworthiness in the common law a condition or a warranty or an indeterminate term?

• Hong Kong Fir v. K.K.K. ………(C.B. at p. 56)
• Bunge Corp. v. Tradax Export…(C.B.at p. 57)

Unseaworthiness

Unseaworthiness is not by itself such a breach of a charterparty as to entitle the charterers to treat the charterparty as thereby repudiated by the shipowners (HONG KONG FIR SHIPPING CO., LTD. v. KAWASAKI KISEN KAISHA, LTD, see below)

Statutory sources in relation to seaworthiness

England and Wales

MARINE INSURANCE ACT, 1906 (U.K.), c. 41

SECTION: 39 Warranty of seaworthiness of ship

(1) In a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose of the particular adventure insured.

(2) Where the policy attaches while the ship is in port, there is also an implied warranty that she shall, at the commencement of the risk, be reasonably fit to encounter the ordinary perils of the port.

(3) Where the policy relates to a voyage which is performed in different stages, during which the ship requires different kinds of or further preparation or equipment, there is an implied warranty that at the commencement of each stage the ship is seaworthy in respect of such preparation or equipment for the purposes of that stage.

(4) A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured.

(5) In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.

SECTION: 40 No implied warranty that goods are seaworthy

(1) In a policy on goods or other moveables there is no implied warranty that the goods or moveables are seaworthy.

(2) In a voyage policy on goods or other moveables there is an implied warranty that at the commencement of the voyage the ship is not only seaworthy as a ship, but also that she is reasonably fit to carry the goods or other moveables to the destination contemplated by the policy.

Canada

• Canada Shipping Act, R.S.C. 1985, c. S-9 (selected sections – C.B. at p. 61)
• Canada Shipping Act, 2001, S.C. 2001, c. 26 (selected sections – C.B at p. 62)
• Marine Insurance Act, 1906 U.K. 1906, c. 41 (selected sections – C.B. at p. 60)
• Marine Insurance Act (Canada), S.C. 1993, c. 22 (selected sections – C.B. at p. 60)

MARINE INSURANCE ACT, 1993 (Canada) S.C. 1993, c. 22, s. 37

37. (1) There is an implied warranty in every voyage policy that, at the commencement of the voyage, the ship will be seaworthy for the purpose of the particular marine adventure insured.

(2) Where a voyage policy attaches while the ship is in port, there is an implied warranty in the policy that the ship will, at the commencement of the risk, be reasonably fit to encounter the ordinary perils of the port.

(3) Where a voyage policy relates to a voyage performed in different stages during which the ship requires different or further preparation or equipment, there is an implied warranty in the policy that, at the commencement of each stage, the ship is seaworthy for the purposes of that stage.

(4) There is no implied warranty in any time policy that the ship will be seaworthy at any stage of the marine adventure, but where, with the privity of the insured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.

(5) A ship is deemed to be seaworthy if it is reasonably fit in all respects to encounter the ordinary perils of the seas of the marine adventure insured.

ARTICLES 2008 (re bareboat charters), 2015 (re time charter) and 2022 (re voyage charters) Québec Civil Code

[in force since 1994]

2008. The lessor delivers the ship in a seaworthy condition and fit for the service for which it is intended, at the agreed place and time.

2015. the lessor delivers the ship in a seaworthy conditon and properly manned and equipped for the service for which it is intened, at the agreed place and time.

2022. The lessor presents the ship in a seaworthy condition and properly manned and equipped for the voyage, at the agreed place and time. Moreover, he is bound to maintin the ship in a seaworthy condition and to use all diligence within his means to prosecute the voyage.

ARTICLES 2560 – 2563 of the Civil Code of Québec

[in force since 1994]

2560. In a voyage policy, there is an implied warranty that at the commencement of the voyage the ship will be seaworthy for the purpose of the particular adventure insured.

Where the risk attaches while the ship is in port, there is also an implied warranty that, at the commencement of the risk, she will be fit to encounter the ordinary perils of the port; where the different stages of a voyage require different kinds of or further preparation or equipment for the ship, there is an implied warranty that the ship will be seaworthy at the commencement of each stage.

2561. In a time policy there is no implied warranty that the ship is seaworthy.

Where, with the knowledge of the insured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to such unseaworthiness.

2562. A ship is deemed to be seaworthy when she is fit in all respects to encounter the ordinary perils of the seas of the adventure insured.

2563. In a contract of insurance on goods or other movables, there is no implied warranty that the goods or movables are seaworthy. In a voyage policy there is an implied warranty that, at the commencement of the voyage, the ship is seaworthy and that she is fit to carry the goods to the destination contemplated.

CANADA SHIPPING ACT, R.S.C. 1985, c. S-9

Part III : Seamen

Section 163

Agreement with crew

(1) The master of every Canadian ship, other than home-trade ships, inland waters ships and minor waters ships of less than fifty register tons, shall enter into an agreement, in this Act called the “agreement with the crew”, in accordance with this Act, with every seaman whom he engages in Canada and carries as one of his crew.

Carrying seamen without agreement

(2) If the master of a ship in respect of which an agreement with the crew is required fails to enter into an agreement or carries any seaman from any port in Canada without entering into an agreement with him in accordance with this Act, the master in the case of a seagoing ship, and the master or owner in the case of any other ship, is guilty of an offence and liable to a fine not exceeding twenty dollars.

Section 164

Form and contents outside of Canada

When agreements with seamen in respect of Canadian ships are first opened in any Commonwealth country outside of Canada, their form and contents shall be those prescribed by the law of that Commonwealth country and if opened elsewhere than within a Commonwealth country shall be those prescribed by the law of Canada. . . .

Part V : Safety

Section 301

Appointment of steamship inspectors

The Governor in Council may appoint at such places in Canada as he deems advisable, persons to inspect

(a) the machinery of steamships,

(b) the hulls of steamships,

(c) the equipment of steamships, and

(d) the electrical installations in steamships,

and a person so appointed shall be referred to in this Act as a “steamship inspector”.

. . . Section 317

Inspector’s report to the Chairman

A steamship inspector, if satisfied on inspection of a steamship, that he can with propriety do so, shall forward a report to the Chairman, which shall contain statements showing

(a) that the hull and machinery are sufficient for the service intended and in good condition;

(b) that the hull and machinery are constructed, arranged and fitted in accordance with the regulations made under this Part;

(c) that the equipment that is required under the regulations is on board and in good condition;

(d) that the master, mates and engineers are persons duly certificated as required under this Act, and that the crew is sufficient and efficient;

(e) the class of voyage on which the steamship is fit to ply, and the time, if less than one year, for which the hull, equipment and machinery will be sufficient;

(f) if the steamship is a passenger steamship, the number of passengers that it may carry; and

(g) the steam pressure that may be carried on the boilers.

Section 391

Ships Alleged to be Unseaworthy

(1) In every contract of service, express or implied, between the owner of a ship and the master or any seaman thereof, and in every instrument of apprenticeship whereby any person is bound to serve as an apprentice on board any ship, there shall be implied, notwithstanding any agreement to the contrary, an obligation on the owner of the ship, that the owner, the master and every agent charged with the loading of the ship, the preparing of the ship for sea or the sending of the ship to sea shall use all reasonable means to ensure the seaworthiness of the ship for the voyage at the time when the voyage commences and to keep the ship in a seaworthy condition during the voyage.

Case Law

STEEL v. STATE LINE STEAMSHIP CO. (1877), 3 App. Cas. 72 (H.L.)

The shipowner’s duty to provide a seaworthy ship is an absolute one.

Lord Blackburn (at Page 86): “I take it … to be quite clear … that where there is a contract to carry goods in a ship, whether that contract is in the shape of a bill of lading or any other form, there is a duty on the part of the person who furnishes or supplies that ship … unless something be stipulated which should prevent it, that the ship shall be fit for its purpose … That is generally expressed by saying that it shall be seaworthy; and I think also that in … contracts for sea-carriage, … not merely … [should they] … do their best to make the ship fit … but the ship should really be fit. I think it is impossible to read the opinion of Lord Tenterden, as early as the first edition of Abbott on Shipping, at the very beginning of this century, of Lord Ellenborough, following him, of Baron Parke, also, in the case of Gibson v. Small, without seeing that these three great masters of marine law all concurred in that; and their opinions are spread over a period of forty or fifty years … In the case of Kopitoff v. Wilson where I had directed the jury that there was an obligation, I did certainly conceive the law to be, that the shipowner in such a case warranted the fitness of his ship when she sailed, and not merely that he had loyally, honestly, and bona fide endeavoured to make her fit … ”

BELSHIPS (FAR EAST) SHIPPING (PTE.) LTD., ET AL. v. CANADIAN PACIFIC FOREST PRODUCTS LIMITED-TAHSIS PACIFIC REGION, ET AL.

1999 AMC 2606, Canada, Federal Court of Appeal, June 10, 1999 A-406-96. Before: A.J. Stone, Allen M. Linden and Gilles Létourneau, JJA.

When vessel’s negligence caused loss of lumber cargo laden on deck, a B/L clause stating “on deck at shipper’s risk” and providing that the carrier would not be liable in any “circumstances whatsoever” does not exonerate the carrier under English and Canadian decisions on exculpatory clauses. The clause does not mention negligence, and, since another possible head of liability for a carrier by sea exists, namely unseaworthiness, the clause is not to be taken as including negligent losses.

HONG KONG FIR SHIPPING CO., LTD. v. KAWASAKI KISEN KAISHA, LTD.

COURT OF APPEAL [1962] 2 QB 26, [1962] 1 All ER 474, [1962] 2 WLR 474, [1961] 2 Lloyd’s Rep 478. HEARING-DATES: 30, 31 October, 1, 2, 6 November, 20 December 1961

DIPLOCK, L.J. … (at page 487)

No doubt there are many simple contractual undertakings, sometimes express, but more often because of their very simplicity (“It goes without saying”) to be implied, of which it can be predicated that every breach of such an undertaking must give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract. And such a stipulation, unless the parties have agreed that breach of it shall not entitle the non-defaulting party to treat the contract as repudiated, is a “condition”. So, too, there may be other simple contractual undertakings of which it can be predicated that no breach can give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and such a stipulation, unless the parties have agreed that breach of it shall entitle the non-defaulting party to treat the contract as repudiated, is a “warranty”. There are, however, many contractual undertakings of a more complex character which cannot be categorised as being “conditions” or “warranties” if the late nineteenth century meaning adopted in the Sale of Goods Act, 1893, and used by BOWEN, L.J., in Bentsen v. Taylor, Sons & Co. (2), n(47), be given to those terms. Of such undertakings, all that can be predicated is that some breaches will, and others will not, give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and the legal consequences of a breach of such an undertaking, unless provided for expressly in the contract, depend on the nature of the event to which the breach gives rise and do not follow automatically from a prior classification of the undertaking as a “condition” or a “warranty” …

The shipowner’s undertaking to tender a seaworthy ship has, as a result of numerous decisions as to what can amount to “unseaworthiness”, become one of the most complex of contractual undertakings. It embraces obligations with respect to every part of the hull and machinery, stores and equipment and the crew itself. It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which must inevitably result in a total loss of the vessel. Consequently, the problem in this case is, in my view, neither solved nor soluble by debating whether the owners’ express or implied undertaking to tender a seaworthy ship is a “condition” or a “warranty”. It is, like so many other contractual terms, an undertaking one breach of which may give rise to an event which relieves the charterer of further performance of his undertakings if he so elects, and another breach of which may not give rise to such an event but entitle him only to monetary compensation in the form of damages. [Upjohn, L.J. gave a second judgment.]

BUNGE CORPORATION, NEW YORK v. TRADAX EXPORT S.A., PANAMA

See BUNGE CORPORATION, NEW YORK v. TRADAX EXPORT S.A., PANAMA.

Resources

See Also

• Common Venture
• Charterparty
• Unseaworthiness
• Bills of Lading
• Exculpatory Clauses
• Negligence
• Contractual Provisions
• Contract Condition
• Contract warranty
• Mercantile contract
• Sale of Goods (f.o.b.)
• Damages
• Construction of Contract
• F.o.b. Contract