This concerns with the physical preparedness of the ship to endure the ordinary challenges that it might face at sea during the voyage.
It considers:
(a) Season of the trip
(b) Type of navigational water which the ship will sail upon
(c) Suitability of the vessel for the purpose of the contract
(d) Parts and equipment of the ship
(a) Physical seaworthiness and the season of the trip
Do you know that a vessel physically prepared to sail in summer might not be so prepared to sail during winter? This is because with winter comes hazards such as heavy storms and poor visibility. Additionally, sea spray icing poses grave threats to ships, while sea ice does severe damage to regular hulls not built to withstand it.
Therefore, if the vessel is fit for a trip in summer, but not capable to withstand the ordinary perils of a voyage during winter, then as far as a trip during winter goes, the vessel is not seaworthy.
(b) Physical seaworthiness and the type of navigational water
To determine seaworthiness, the court pays attention to the waters concerned. This is because different waters pose different challenges.
A ship that can comfortably sail in seas and oceans might not be fit to sail on a river. Such inland waterways might pose the problem of shallowness which disturbs a vessel’s maneuverability. Seas and oceans pose threats of heavy storms and swells which a vessel suitable for rivers and canals might not withstand.
Therefore, if the ship is unsuitable to withstand the ordinary perils of the waterbody to be navigated, then it is unseaworthy.
If the voyage contains different stages (different kinds of waters), the vessel should be fit for the various stages at the initial stage. Alternatively, there could be stops after each stage for the ship to be made seaworthy for the next stage.
(c) Physical seaworthiness and the suitability of the vessel for the purpose of the contract
In determining whether a vessel is seaworthy, attention must be paid to the kind of vessel in question and the intended purpose of the contract. Actually, different ships are built for different purposes. If the vessel is not built for the purpose of the contract, then it is not seaworthy.
(d) Physical seaworthiness and the ship’s parts and equipment
A discussion about a ship’s physical seaworthiness is never complete without a mention of the ship’s equipment. For a ship to be truly seaworthy, its parts and equipment must be in good working condition.
Before the voyage commences, it is appropriate to conduct an examination to ensure that the parts of the ship are working properly and that the necessary equipment is fitted. If any is found to be in a state of disrepair, then they must be fixed by an expert before the journey begins.
The propellers and engines must be working well, while the hull must be sealed tight and water-proof.
Equipment necessary for safe navigation must be available and in good working condition as well. Some of them are echo sounding, gyrocompass, magnetic compass, automatic radar plotting aid, and much more.
If the ship has faulty parts or is without good equipment before or at the beginning of the voyage, then the ship is unseaworthy.
The vessels used more than a century ago will not be termed unseaworthy then simply because they lacked technological inventions of today. However, if a ship used today lacks the inventions which have been embraced by the shipping industry currently, then it is unseaworthy.
Case Study: The Quebec Marine Insurance Company v. The Commercial Bank of Canada
In The Quebec Marine Insurance Company v. The Commercial Bank of Canada, the vessel was insured for a trip from Montreal to Halifax, which included
navigation in a river and the sea. The boiler of the vessel had a defect which was not apparent in the river leg of the voyage, but as soon as the vessel touched salt water the defect became apparent and she had to put in for repair.
The court decision was that the ship was not seaworthy because she was not fit to embark on the sea leg of the voyage.
Consequently, the underwriter was not liable to pay the assured when the vessel became a wreck because the shipowner was in breach of his implied obligation, by virtue of S39 of the Marine Insurance Act, to make his vessel seaworthy.
Case Study: Burges v. Wickham
In Burges v. Wickham, the Ganges, a steamer, was built in the UK in order to navigate the river Indus. She was supposed to sail from Liverpool to Karachi or Calcutta where she was supposed to be delivered.
An insurance policy was issued to cover the ocean journey of the steamer. Due to the construction and character of the steamer as a river steamer, she was modified in order to be able to withstand the peril of her ocean journey to her final destination. The builder did everything that can be done to a vessel of this type to strengthen it in order to be able to encounter the ordinary perils of its journey.
The assured paid an extra premium due to the extra risk the insurers were taking and they were informed about the modification that had been done. During the voyage, the steamer met with heavy gales and subsequently was lost. The insurers contended that the steamer was not seaworthy because she was designed to navigate in rivers rather than ocean trip.
But the court refused and held that:
“The warranty of seaworthiness must be taken to be limited to the capacity of the vessel, and therefore, was satisfied if, at the commencement of the risk, the vessel was made as seaworthy as she was capable of being made: though it might not make her as fit for the voyage as would have been usual and proper if the adventure had been that of sending out an ordinary sea-going vessel.”
Consequently, if the vessel was not designed to navigate in certain type of waters, but the carrier did everything that could be possibly done in order to make her able to undertake the required trip, the vessel will still be unseaworthy because she is not designed for that purpose. However, if the other party - in the above case the insurer - accepts the risk then the carrier has done his duty by making the vessel as fit as possible and the other party has accepted the risk involved in using this vessel.
[Article compiled and contributed by Adv. (Capt.) Ashwani Jhingan, Director of Malaxar ShpgLogistix Law & Solutions Pvt. Ltd. He is an Advocate at Mumbai High Court and Member of Supreme Court Bar Association. Adv. (Capt.) Jhingan can be contacted at legal@malaxar.com. You can visit www.malaxar.com. Views expressed are his own.]