In every contract of affreightment there is an implied obligation to provide a seaworthy vessel ‘fit to meet and undergo the perils of the sea and other incidental risks to which of necessity she must be exposed in the course of a voyage’. In the majority of charterparties this implied undertaking is reinforced by an express term to the same effect, such as the requirement in the preamble to the NYPE form that the vessel be ‘tight, staunch, strong and in every way fitted for the service’. The obligation covers not only the physical state of the vessel but also the competence and adequacy of the crew, the sufficiency of fuel and other supplies, and
the facilities necessary and appropriate for the carriage of the cargo. At common law the obligation of the owner to provide a seaworthy ship is absolute and, in the event of breach, he will be liable irrespective of fault. It amounts to an undertaking ‘not merely that they should do their best to make the ship fit, but that the ship should really be fit’. On the other hand, the owner is not under a duty to provide a perfect ship but merely one which is reasonably fit for the purpose intended. The standard required ‘is not an accident-free ship, nor an obligation to provide ship or gear which might withstand all conceivable hazards. In the last analysis the obligation, although absolute, means nothing more or less than the duty to furnish a ship and equipment reasonably suitable for the intended
use or service.’ The test would appear to be objective in that ‘the vessel must have 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 possible circumstances of it’. The standard required will therefore be variable depending on the nature of the voyage, the type of cargo to be carried and the likely dangers to be encountered en route. This common law obligation can, however, be excluded by an appropriate clause in the contract of affreightment, although the courts are inclined to treat such clauses in the same way as all exceptions and apply a restrictive interpretation to them. Thus in Nelson Line v Nelson a clause exempting the shipowner from liability for any damage to goods ‘which is capable of being covered by insurance’ was held not to be effective in excluding liability for damage to cargo resulting from unseaworthiness. To be effective any such clause must be expressed in clear and unambiguous language. A rare example of a clause satisfying this test is to be found in The Irbenskiy Proliv where a bill of lading contained a provision excluding liability for loss or damage of
any kind ‘arising or resulting from: unseaworthiness (whether or not due diligence shall have been exercised by the carrier, his servants or agents or others to make the vessel seaworthy).’ The trial judge, in holding the clause sufficiently widely drafted to exclude all liability for unseaworthiness, rejected the claimant’s argument that it was repugnant to the main object of the contract by reducing the contract to a mere declaration of intent. Where the contract of affreightment is governed by the Hague or Hague/Visby Rules, the absolute obligation at common law is replaced by a duty to exercise due diligence to make the ship seaworthy. Accordingly, while the carrier will no longer be strictly liable in the absence of any fault, he will be liable not only for his own negligence but also for the negligence of any party, even including an independent contractor, to whom he has delegated responsibility for making the vessel seaworthy. This reduction in liability is, however, accompanied by a provision invalidating any attempt by the carrier further to reduce or
exclude his responsibility under the rules to provide a seaworthy ship. Many modern standard charter forms have now adopted the Hague Rules formula with regard to the requirement of seaworthiness. Thus the NYPE charter, by the use of a ‘clause paramount’, expressly incorporates into the charterparty the provisions of the US Carriage of Goods by Sea Act 1936, while the Baltime form excludes the liability of the shipowner for loss or damage to cargo unless such ‘loss has been caused by want of due diligence on the part of the Owners or their Manager in making the vessel seaworthy and fitted for the voyage’. In both of these cases it would appear that the common law absolute obligation to provide a seaworthy ship has been replaced by a duty to exercise due diligence.