Seaworthiness obligations. Under a contract to carry goods by sea, a shipowner has the obligation to provide a seaworthy ship.
Under the common law this implied obligation is very strict (“absolute”) and can exist not only at the time the charter is made and commences but also during the service provided by the owner. (See Implied terms.)
An express clause in a contract such as in a charterparty can modify this obligation. If international “rules” such as the “Hague Rules” or the “Hague-Visby Rules” are incorporated by a Paramount clause into the contract of carriage, the obligation is modified and somewhat reduced in its severity. The above Rules can also be incorporated into a contract of carriage by legislation such as the U.K.’s Carriage of Goods by Sea Act 1971.This Act makes it certain that the carrier of goods is not bound by’ an absolute warranty (or obligation) of seaworthiness. Section 3 of the Act states:
“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.”
The Rules require the carrier who issues a bill of lading to exercise “due diligence” before and at the beginning of the voyage to make the ship seaworthy. After this time, the carrier may not become liable if the ship becomes unseaworthy.
In a voyage charter the ship is required to be “tight, staunch and strong and in every way fit for the voyage”. on its approach voyage to its port of loading. If nothing more is said the implied obligations of seaworthiness come-into effect and the ship must be seaworthy throughout the chartered voyage. However if, as in MULTIFORM the Paramount clause states that the Hague Visby Rules apply to the charterparty perhaps the obligation is for seaworthiness only on the approach voyage and before and at the beginning of the voyage.
Under a time charter the ship must be seaworthy:
(a) when the charter is made (this appears in the description of the ship in the Preamble, “. . . and with hull, machinery and equipment in a thoroughly efficient state . ..”),
(b) on delivery (“Vessel on her delivery to be ready to receive cargo with clean-swept holds and tight, staunch, strong and in every way fitted for the service . . .” also in the Preamble) and
(c) during the period of the charter “. . . owners shall provide . . . and keep the vessel in a thoroughly efficient state in hull, machinery and equipment for and during the service.”
If the shipowner has obligations concerning seaworthiness, so does the charterer but in a different way. In a voyage charterparty a clause dealing with responsibility and procedures in the case of stevedore damage may place responsibility on the charterers if the stevedores are appointed and paid by the charterers and cause damage to the vessel. Such a clause could state:
“Stevedore damage affecting the seaworthiness of the vessel shall be repaired by the Charterers at their expense in the port where the damage occurs and they are to compensate Owners at the demurrage rate for any time so used, over and above that required for cargo handling purposes.
Damage not affecting vessel’s seaworthiness shall be for Charterers’ account when actually repaired, but no compensation is to be paid to Owners for any time so used.” (MULTIFORM)
Charterers have yet another obligation connected with the seaworthiness of the vessel. This is contained in the “Seaworthy trim clause”.
Seaworthy trim clause. If charterers have the option of discharging at two or more ports an appropriate clause in the charterparty can state:
“If ordered to load or discharge at two berths and/or ports, the vessel is to be left in seaworthy trim to the Master’s satisfaction for the passage between such berths and/or ports at Charterers’ expense. Time used for placing the vessel in seaworthy trim shall count as laytime or time on demurrage.” (MULTIFORM)
If the charterers intend to send the ship to more than one port of discharge, the master must be appropriately advised before or at the time of loading so that he can arrange the stowage of cargo in such a way as to maintain seaworthiness after discharging at the first port without having to take any risks.
The “expense” for the charterers includes expenses incurred by the owner to shift transfer or secure the cargo within the ship. However, the charterer is not normally liable for any delay. It may also include the requirement to secure part of the ship’s cargo, for example, by loaded bags, if the cargo is grain, to prevent the cargo from shifting while the ship is at sea and causing the ship to be placed in danger.
The word “trim” refers to the difference in draughts at the forward and after ends of the vessel. Normally, ships can navigate safely and efficiently with a slight “trim by the stern” (“after draught” greater than the “forward draught”) or on “even keel” (same forward and after draughts.) The expression “seaworthy trim” means that the ship must be in suitable trim to meet navigational perils between ports.
