Ship Seaworthiness

For a ship / vessel to be seaworthy, she and her equipment must be reasonably fit to withstand the perils which may be anticipated on the voyage and to keep the cargo reasonably safe from those perils. A practical test of seaworthiness was provided by McNair, J., in The WESTER- DOK [1962] where he said: ‘The test in a case of this kind, of course, is not absolute: you do not test it by absolute perfection or by absolute guarantee of successful carriage. It has to be looked at realistically and the most common test is: Would a prudent shipowner, if he had known of the defect, have sent the ship to sea in that condition?’ The leading case in English law on seaworthiness under a time charter is The ‘HONGKONG FIR’ [1961] which held that undertakings in the time charter as to the vessel’s seaworthiness both at the time the charter was negotiated and when the vessel was delivered were not ‘conditions’, but ‘intermediate terms’. Accordingly, whether a lack of seaworthiness allows charterers to treat the charter as cancelled depends on the seriousness and consequences of the breach. A breach of owners’ seaworthiness obligations can vary from the very minor to the extremely serious. If a small length of railing is defective or a gasket on a seldom-used piece of auxiliary machinery leaks small amounts of oil, the vessel would be technically ‘unseaworthy’. It would, however, be unreasonable to allow charterers to throw up the charter for such trifling reasons alone. The facts of The ‘HONGKONG FIR’ were as follows: The vessel was chartered on the Baltime form for 24 months, one month more or less. Her engines at the time of delivery were in a reasonable condition but, because of their age, required careful attention. The engineers employed by the owners on delivery were insufficient in number and also incompetent. Consequently, there was, on the very first charter voyage, a succession of serious engine failures. That voyage, from Liverpool to Osaka, included five weeks off-hire for repairs and was followed by 15 further weeks of repairs at Osaka. Before the ship was again ready for sea, charterers repudiated the charter and the owners claimed damage on the grounds that the repudiation was wrongful. It was held at first instance and by the Court of Appeal that: (1) Owners were in breach of the undertaking of seaworthiness having regard to the incompetence of the engine-room staff; (2) Seaworthiness was not a ‘condition’ and breach of the undertaking of sea- worthiness did not in itself give charterers the right to repudiate; (3) Charterers could justify their repudiation only if the breach of the under- taking of seaworthiness went to the root of the contract; (4) The breach of the undertaking had resulted in considerable delays, but this could not be regarded as going to the root of the charter or as depriving charterers of substantially the whole benefit of the contract, unless the delays were such as to frustrate the charter; (5) Having regard to the length of the charter (24 months) and to the fact that off-hire periods, under this particular charter, could be added to extend the charter period, the delays were not such as to frustrate the commercial purpose of the charter and therefore charterers’ repudiation was wrongful. The position is more straightforward if the vessel is unseaworthy upon delivery. charterers are not obliged to accept delivery and may require that the relevant defects be made good first. If this work is not done before the cancelling date, charterers may cancel. The reason why the vessel must be seaworthy on delivery is because both the Baltime and NYPE forms require the vessel on her delivery to be ‘in every way fitted for ordinary (cargo) service’. If, during the course of the charter, the vessel is found to be unseaworthy in some respect, which would not in itself be sufficiently serious to entitle charterers to terminate the charter, they may nonetheless still treat the owners as in repudiation, if owners refuse or fail to take reasonable steps to restore the vessel’s seaworthiness. This was expressed clearly by Sellers, L.J., in The HONGKONG FIR when he said: ‘If the shipowners had refused or failed to bring the engine-room staff into suitable strength and competency, their conduct and not the unseaworthiness would have amounted to a repudiation of the charter party and entitled the charterers to accept it and treat the contract as at an end.’ The above statement by Sellers, L.J., was concerned with a time charter between head owners and head time charterers. In the subsequent case of The HERMOSA [1982] 1 Lloyd’s Rep. 570 (C.A.) the sub-charterers claimed that the head charterers were in repudiation, because the latter had been unable to give any firm assurances that defects to the hatch covers would be dealt with by the head owners. It was held that the sub-charterers’ repudiation was wrongful on two grounds: (1) The defects which sub-charterers suspected were not being dealt with were capable of being put right within a relatively short time and thereafter the sub-charter would still have had 16 to 20 months to run; (2) There was no repudiation of the charter by the head charterers, because their conduct was not such as to lead a reasonable person to conclude that they did not intend to fulfil their part of the contract. In other words, where the question is whether the sub-charter party between head charterers and sub-charterers has been repudiated by conduct, it is necessary to consider the conduct of the head charterers and whether they themselves have demonstrated an intention no longer to be bound by the charter. The conduct of the owners (and, in particular, the underlying intention it objectively demonstrates) is not necessarily to be regarded as the conduct of the head charterers. Although most cases involving unseaworthiness are concerned with physical defects in the carrying vessel, it should be borne in mind that a vessel will also be unseaworthy if, by reason of her design or type of equipment, she is not suitably designed to carry the cargo in question. This principle was demonstrated by the following case. The ISLE OF WIGHT was chartered to load a cargo out of a number of options, which included wet sugar. She loaded wet sugar, from which there then drained a viscous liquid into the bilges while she was still at the loading port, at which point it was found that the vessel’s bilge pumps could not cope. The safety of the ship on the voyage was at risk if she could not pump the liquid and so the cargo was immediately discharged. The court held owners liable for failing to supply a vessel that was fit for the carriage of wet sugar. (Stanton v Richardson (1874). Definitions of seaworthiness are necessarily general, since the seaworthiness of a ship is judged by a variable standard. The standard required depends upon the vessel’s condition, the nature of the cargo, the manner in which it is stowed, the nature of the intended voyage and the nature of the obstacles to be encountered. In The STAR SEA [1997] it was held that the fact that an otherwise properly qualified and generally competent Master was ignorant of the proper method of using CO2 in fire-fighting operations was sufficient to render the vessel unseaworthy.