Implied obligation of seaworthiness. In. Kopitoff v. Wilson, 1876, it was said that under any contract of carriage of goods by sea the vessel must be: “ . . .fit to meet and undergo the perils of the sea and other incidental risks to which . . .she must be exposed in the course of a voyage”.
The fitness is required to be reasonable for the intended service and is related not only to the physical condition of the vessel but also to the efficiency and sufficiency of the crew and the ability of the vessel to carry the contractual cargo. The obligation implied by the common law is “absolute” and the cargo owner does not have to prove fault of the carrier. This is more of a burden on the earner than “strict”, which may allow some exception or defence to liability for breach of the obligation. The effect of a breach of this obligation or undertaking can be so severe for the carrier that section 3 of the U.K. Carriage of Goods by Sea Act 1971 provides that:
“There shall not be implied in any contract for the carriage of goods by sea to which the Rules apply by virtue of this Act any absolute undertaking by the carrier of the goods to provide a seaworthy
ship.” It must be realised that the Rules may not apply for certain voyages, for example, voyages into a country which implements the Rules for outward voyages only and voyages within the country. While the Hague-Visby Rules apply to every bill of lading issued in certain “contracting” countries (that is countries which have agreed to the Rules) or to carriage of goods between ports in these countries or if a “Paramount clause” is incorporated in the bill of lading giving effect to the Rules, there may be situations where the Rules do not apply, for example, if the carriage is between ports, one or both of which may not be “contracting states”. Even if the bill of lading contains a Paramount clause, this may incorporate the earlier Hague Rules which apply only “. . . to all bills of lading issued in any of the Contracting States”. In these situations, the cargo owner may be able to claim that the carrier is a common carrier and have the common law implied obligations. That of seaworthiness is absolute. The implied obligation of seaworthiness commences at the time of departing on the voyage under the contract of carriage. The absolute obligation is not a continuing one during the voyage. During the voyage, the carrier acts like an “insurer” of the goods, becoming liable for any damage or loss, unless he is protected by an exception to liability (McFadden v. Blue Star Line, 1905). In an early case, Davis v. Garrett, 1830, relating to a case on “deviation” (see below), an unjustified deviation caused the cargo owner to become uninsured. The carrier then became the “insurer” of the cargo and could not raise any defence or limit his liability.