The requirement for the shipowner to provide a seaworthy vessel comprises a twofold obligation. On the one hand, the vessel must be suitably manned and equipped to meet the ordinary perils likely to be encountered while performing the services required of it, while at the same time it must be cargoworthy in the sense that it is in a fit state to receive the specified cargo. So far as the first aspect of the seaworthiness concept is concerned, the implied undertaking at common law covers not only the physical condition of the vessel and its equipment, but also extends to the competence of the crew and the adequacy of stores and documentation. Thus a vessel will clearly be unseaworthy where it has defective engines or a defective compass, where deck cargo is stowed in such a way as to render the vessel unstable. But the shipowner will be equally in breach where he employs an incompetent engineer or other officer, where inadequate bunkers are taken on board for the voyage, or even where the documentation for the voyage is inadequate. Once these legal requirements are satisfied, however, the implied undertaking does not extend to cover such matters as recommended manning levels and conditions of employment formulated by extra-legal organisations such as trade unions. In the case of a voyage charter the obligation to provide a seaworthy vessel in the above sense attaches at the time of sailing on the charter voyage. It is immaterial that defects exist rendering the vessel unseaworthy during the preliminary voyage to the loading port, or even during the loading operation, provided that they can be rectified by the time of sailing. Similarly the obligation is discharged if the vessel is seaworthy at the time of sailing, irrespective of what happens afterwards either during the voyage or at an intermediate port. ‘The
warranty . . . is a warranty only as to the condition of a vessel at a particular time, namely, the time of sailing; it is not a continuing warranty in the sense of a warranty that she shall continue fit during the voyage. If anything happens whereby the goods are damaged during the voyage, the shipowner is liable because he is an insurer, except in the event of the damage happening from some cause in respect of which he is protected by the exceptions . . .’ It follows that, in the case of a consecutive voyage charter, the obligation arises at the beginning of each voyage undertaken in performance of the charter. Again, in the case where a voyage
charter is divided into stages by agreement between the parties, there will be a duty to make the vessel seaworthy at the commencement of each stage of the voyage. The position is, however, different in respect of the time charter where the obligation attaches only at the time of delivery of the vessel under the charterparty. In this case the initial seaworthiness undertaking is normally supplemented by some form of maintenance clause under which the shipowner is required to ‘keep the vessel in a thoroughly efficient state in hull, machinery and equipment for and during the service’. But this express undertaking to maintain the vessel
throughout the charter is entirely distinct from any obligation as to seaworthiness. The second aspect of the common law undertaking as to seaworthiness relates to the cargoworthiness of the vessel. The shipowner is under an obligation to ensure that his ship is in a fit state to receive the contractual cargo. This requirement would not be satisfied where the vessel’s holds needed fumigating or cleaning before being in a fit state to receive cargo, where frozen meat was to be shipped and there was a defect in the vessel’s refrigeration
plant, or where the pumps were inadequate to drain surplus water from the cargo. In each case the implied undertaking as to cargoworthiness is operative as from the commencement of loading. ‘The warranty is that, at the time the goods are put on board, she is fit to receive them and encounter the ordinary perils that are likely to arise during the loading stage; but. . . there is no continuing warranty after the goods are once on board that the ship shall continue fit to hold the goods during that stage and until she is ready to go to sea, notwithstanding any accident that may happen to her in the meantime.’ So in McFadden v Blue Star Line, after cargo had been safely loaded, the ship’s engineer opened a sluice door on a watertight bulkhead and on closing it, failed to secure it properly with the result that water percolated through and damaged the claimant’s cargo. It was held that, since the defective closure of the sluice door occurred after the cargo had been loaded, it did not constitute a breach of the cargoworthiness undertaking. It has already been noted that many modern charter forms expressly include the provisions of either the Hague or Hague/Visby Rules and this practice may affect the operation of the implied seaworthiness obligation. Thus in the case of Adamastos Shipping Co v AngloSaxon Petroleum the voyage charter involved included a clause paramount incorporating the provisions of the US Carriage of Goods by Sea Act 1936 which were treated by the court as if written verbatim into the charter. In these circumstances a majority of the House of Lords was prepared to give full effect to the provisions of the Hague Rules in respect of all voyages under the charter irrespective of whether they were to or from ports in the United States, or whether they were in ballast or with cargo. Some writers have been prepared to go further by suggesting that, as the seaworthiness provisions of the Hague Rules are applicable ‘before and at the beginning of the voyage’, the obligation to exercise due diligence to provide a seaworthy ship would arise in respect of each voyage under the time charter.
A note of caution has, however, been sounded by Mustill J in The Hermosa where he pointed out that ‘there are in most time charters express terms as regards initial seaworthiness and subsequent maintenance which are not easily reconciled with the scheme of the Hague Rules, which create an obligation as to due diligence attaching voyage by voyage. It cannot be taken for granted that the
interpretation adopted in [the Adamastos case] in relation to voyage charters applies in all respects to time charters incorporating the Hague Rules.’