Seaworthiness

The difficulties of service of a writ out of the jurisdiction. Service out of the jurisdiction is governed by rules which are dependent upon whether the defendant is or is not a member of a ‘Contracting State’ under the 1968 Brussels Convention. (The convention on jurisdiction and enforcement of judgements in civil and commercial matters) The Convention is given the force of law in England by virtue of the Civil Jurisdiction and Judgements Act 1982. The scope of the Convention is governed by Article I which provides that the Convention shall apply ‘in civil and commercial matters’. Basically, if a dispute is within the scope of the Convention, and the intended defendant is ‘domiciled’ in a Contracting State, the rule is that he must be sued in the Courts of the state of his domicile, (unless there is some specific provision of the Convention which allows him to be sued elsewhere). Article I, however, specifically excludes certain matters from the ambit of the Convention. Arbitration is one of the excluded matters. In respect of the duty to provide a seaworthy ship one must be careful to keep the distinction between the absolute warranty at common law distinct from the duty to act with due diligence under the Hague-Visby Rules. It is also necessary to distinguish between the obligation of the shipowner to provide a ship which is seaworthy at the beginning of the voyage, from the obligation to stow the cargo and care for the cargo after the voyage has commenced. The seaworthiness obligation also encompasses a strict duty to ensure that the vessel is able to carry the cargo provided by the charterer: Stanton v Richardson (1874).