Seaworthiness of cargo ship - time charter party clause

Seaworthiness of cargo ship - time charter party clause

Contract between shipowner and cargo owner

The obligation to provide a seaworthy vessel is absolute, i.e. there are no exceptions from the rule. At the time the contract is made the vessel must be fit to encounter the “ordinary perils of the sea” (e.g. bad weather) and other incidental risks to which she will be exposed on the voyage. However, the common law recognises that owners cannot guarantee their vessels’ seaworthiness once they have left port, so the obligation is only imposed at the start of the voyage, i.e. when the vessel leaves the berth either under her own power or under tow.

Seaworthiness has three aspects:

1. technical seaworthiness, relating to the vessel’s design, condition of her hull and machinery, and her stability, etc.;

2. “cargoworthiness”, relating to her suitability for the intended cargo and the condition of her cargo spaces; and

3. fittedness for the intended voyage, relating to her equipment (including charts), manning, bunkering and stores for the voyage.

The ship may be held to be unseaworthy, therefore, if she sails without:

• statutory certificates in force;

• certificate (or interim certificate) of class in force;

• holds properly fitted for the cargo (e.g. ventilation system working, dunnage, fire-fighting agent);

• cargo properly stowed or secured;

• a properly qualified master or officers;

• appropriate (and corrected) charts for the voyage; or

• sufficient bunkers for the voyage.

Under the doctrine of stages, seaworthiness at each stage of the voyage, e.g. in dock, in a river, in an estuary, must be considered separately.

Warranty of seaworthiness

A general purpose dry cargo voyage charter party will usually incorporate clauses covering warranty of seaworthiness . The provisions may be expressed in different charter parties by clauses bearing different names, or by numbered clauses with no names.

Unless a contract of carriage by sea has an express provision concerning seaworthiness, the absolute (common law) obligation, known as the warranty of seaworthiness, is implied in the contract.

In a charter party the absolute warranty of seaworthiness is usually moderated, however, to an undertaking that the shipowner or carrier will only exercise due diligence to make the vessel seaworthy before sailing.

For a shipowner or carrier to exercise due diligence he must:

1. make a reasonable and careful inspection and perform maintenance of the vessel in accordance with the custom of the trade; and
2. do this before the commencement of the voyage.

Exercising due diligence to ensure that a vessel is seaworthy would therefore mean, for example, ensuring that:

• class surveys and statutory safety construction, equipment and loadline surveys are carried out and passed in accordance with current requirements (i.e. the vessel is technically seaworthy);

• the cargo spaces are fit for the reception and carriage of the cargo and that the cargo is properly loaded and stowed taking into account the expected perils of the voyage (the vessel is “cargoworthy”);

• the vessel is properly equipped and supplied for the expected duration of the voyage in terms of sufficient competent crew, navigational equipment and supplies, stores, provisions and spares, bunker fuel, fresh water, etc. (“fittedness for the voyage”).

“In all respects ready to load”

Means the vessel is seaworthy and in every way fit to carry the particular cargo on the voyage contemplated by the charterer. The vessel must be fully at the charterer’s disposal, i.e. with derricks or cranes ready for operation, holds or tanks cleaned, prepared and surveyed, free pratique and customs clearance granted, etc. - unless the charter party allows otherwise, which it may do by the inclusion of a protecting phrase as outlined above.

At common law the duty to provide a seaworthy ship on presentation was absolute, i.e. no exceptions were allowed. However, most modern charter party forms have reduced the absolute obligation to a duty of “exercising due diligence”, i.e. doing everything which a prudent shipowner can reasonably do to make the vessel seaworthy without actually guaranteeing her seaworthiness.

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