Seaworthiness is a concept of vital importance to all those contracts related to vessels, for examples charter parties, Towing, transportation of goods. Under the Italian Doctrine developed by Crisafulli Buscemi, the concept of seaworthiness may vary depending on weather it is considered absolute, “In abstracto”, or relative “In concreto”.
The expression absolute seaworthiness marks the ability of a vessel to safely navigate the intended waters accomplishing a technical transportation. The “In concreto” concept relates to the capacity of the ship to successfully accomplish the agreed carriage. As an example we can say that a particular ship may be in perfect seaworthy conditions to safely navigate between American ports, but the same vessel wouldn’t safely operate in Arctic waters.
Seaworthiness and Cargoworthiness:
The first is the ability of the vessel to safely navigate the intended waters, meaning that its hull, engines and general instruments are in safe condition prior to and during the commencement of the intended voyage. Cargoworthiness means the suitability of the vessel to safely carry out the transportation of the intended cargo for a particular voyage. From the technical perspective, to determine cargoworthiness, it is very important to consider load distribution, cargo securing, type of cargo, machinery and equipment and good seamanship.
Seaworthiness is a relative term, and the ship only needs to be seaworthy for the purpose of the particular voyage. The vessel must be sufficiently seaworthy to meet the perils likely to be encountered on the intended voyage. Seaworthiness embraces not merely the condition of the ship generally but also the suitability and adequacy of her equipment, bunkers, etc., the sufficiency and competency of her master, officers and crew, and what has been described as cargoworthiness.
In Texaco Inc. vs Universal Marine the Court stated that “Since the term seaworthiness is a relative one, its meaning is dependent upon the vessel involved and the service in which it is to be employed. In general, a ship must be sufficiently strong and staunch and equipped with the appropriate appurtenances to allow it to safely engage in the trade for which it was intended. Put in another way, the ship must be fit for the use intended.” A vessel can be tight, staunch, strong and in every way prepared for safe navigation, but at the same time it may still be unseaworthy in relation to certain cargoes so that the ship-owner would be liable for the loss of or damage to cargo resulting from the absence of the attribute of cargoworhtiness necessary to the proper carriage of that particular cargo.
Unseaworthiness of a ship can result in the shippers not paying the freight (if the vessel was unseaworthy before the reception of the cargo on board), the cargo underwriter may void his policy, it may affect the responsibility of the vessel in a case of collision, the contract of affreightment can be void, it may modify the understanding of General Average to the executed sacrifices, it may eliminate the carrier limitation of liability.
We can now recognize that the concept of seaworthiness is very wide, not only in all that is related to the sailing attitude of the ship but also all that is related to the reception, custody, conservation and safe delivery of the cargo.
The carriage of Goods by Sea Act of 1924 modified the law regarding the obligation of the ship-owner to provide a seaworthy vessel for the carriage of goods by sea. Substituting the absolute warranty of seaworthiness, an undertaking that the ship-owner should exercise due diligence to make the ship seaworthy, performed it. This Act governs the contractual relationship of the ship-owner and cargo owner under the contract of affreightment, and the concession to ship-owners means that it is possible for the cargo owner to fall between two stools in the event of the unseaworthiness of the vessel.
Due to the absolute warranty in Marine Insurance the underwriters could void their policy if the ship was found to have been unseaworthy at the beginning of the voyage, and his claim for loss or damage to the cargo would be against the ship-owner. With the implementation of the Carriage of Goods by Sea Act, though the ship may admittedly be unseaworthy, the ship-owner may possibly establish that it was not discoverable by the exercise of due diligence and be able to refuse liability.
The meaning of due diligence is of key importance in the event of unseaworthiness. It means that reasonable conduct under time and place circumstances was exercised.
The Brussels 1967 Conference pointed out that due diligence shouldn’t be understood as the action of making all the best to make the vessel seaworthy, but exclusively what is adequate to the particular case. Such diligence must be exercised before and at the commencement of the voyage.
The due diligence is an exclusive responsibility of the ship-owner. This responsibility cannot be transferred to another party. Even when the ship-owner demonstrates due diligence in the employment of high quality and very professional providers, their failing in their responsibility would still fall onto the ship-owner’s shoulders. If they did not fail we may still face a case of unseaworthiness undiscovered under the exercise of due diligence the ship-owner may refuse liability.
Locus Classicus …”Cargo of steel Ingots shifted during the voyage; weather shifting due to improper stowage or heavy weather-carriers responsible for stowage claimed general average contribution from Bill of Lading holders in respect of re-stowage expenses at intermediate port: Held; that the shifting was due to improper stowage at the loading port and that the carriers being responsible for stowage were unable to recover the general average expenses”… ….”Placing forklift trucks on top of the lumber in the manner done here was a failure to exercise due care in stowage and rendered the Anthony ll unseaworthy.” Cargo owners commonly try to find evidence of unseaworthiness and lack of due diligence in cargo claims, especially in big bulk damages. By proving this, they try to break the liability limitations established by the convention which applies to that carriage. This is another reason why it is of high importance that the ship owner always has his vessel in a seaworthy condition as well as due diligence in making the vessel seaworthy. The implementation of the ISM Code and the Port State Control Convention is the advance from a “culture of blame” to a “culture of compliance.”
In the very near past the compliance with the International Safety Regulations was neither strongly implemented nor enforced, especially in developing countries. The implementation of the ISM Code and the Port State Control audits has helped Masters to keep vessels under their command in a seaworthy condition at all times.