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126.96.36.199 SEAWORTHINESS – SAFETY
Seaworthiness and safety are terms widely used where vessels are concerned, and it is important to understand and appreciate their meaning, relevance and importance. Additionally, security has become an important aspect as it involves the operational and structural integrity of the vessel and the personal integrity of the crew.
In its broadest sense seaworthiness means the fitness of the vessel to encounter the ordinary perils contemplated for the voyage. The term is mainly used in the legal context and is often found in contracts entered into by the Company, e.g. charterparties and bills of lading. It is generally interpreted to mean that, to be seaworthy, the vessel “must have that degree of fitness which an ordinary, careful and prudent owner would require his vessel to have, having regard to all the probable circumstances of the voyage”. Fitness covers not only the physical condition of the vessel, e.g. stability and construction, and its equipment, but also the competence of the crew and adequacy of her stores and fuel. It also extends to having the proper documents required for the vessel to be able to complete the voyage.
The obligation to provide a seaworthy vessel may be supplemented by an express term in a charterparty, e.g. the NYPE form charterparty requires that the vessel be “tight, staunch, strong and in every way fitted for the service”. The time at which the obligation of the shipowner to provide a seaworthy vessel starts, depends on the terms of the charterparty, e.g. it may start from the commencement of the ballast voyage under a time charterparty, or from delivery of the vessel at a certain geographical position etc.
The Hague/Hague-Visby Rules, which apply either by law or by agreement, to the majority of contracts for the carriage of goods by sea also contain an obligation as to seaworthiness. Article 3.1 of these Rules provides that:
“The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to make the ship seaworthy, properly man, equip, and supply the ship, make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.”
This obligation of seaworthiness also extends to the fitness of the vessel to receive, carry and care for the intended cargo. This fitness is generally referred to as cargoworthiness. Claimants frequently try to argue breach of the seaworthiness obligation in claims against the Company, e.g. for damage/loss of cargo or in general average contribution. If there is evidence to support such an argument, liability for these claims may be unavoidable. The seaworthiness obligation cannot be delegated to another person. Under the above article of the Hague/Hague-Visby Rules, the carrier is responsible for exercising the due diligence of, e.g. the Master, a ship repairer and a classification society.
The Master should be aware that documents which may be produced as part of the SMS may provide claimants with a good basis on which they can pursue their argument of unseaworthiness in a court case.
Seaworthiness also comprises the state and working condition of the vessel’s
entire propulsion system. Lack of proper maintenance may lead to engine failure,
either of the main or auxiliary engines or both. Insufficient fuel and lubrication
may also cause the vessel to be unseaworthy and the cargo interests may refuse
to pay their share in a general average.
Finally, seaworthiness includes the state and condition of the vessel’s superstructure. Although the vessel’s structure may be surveyed during the required classification surveys, deficiencies may nevertheless arise during the interim period. There may also be failures of the vessel’s internal piping system, all of which need to be reported and repaired without undue delay to avoid providing third parties with evidence should a claim arise, as well as to avoid prejudicing the vessel’s Hull and Machinery insurance cover.
Some countries may make seaworthiness a statutory obligation – the degree of fitness of the vessel being used as a measure of safety. However, it is more common for matters of safety to be governed by laws that establish minimum requirements. Most minimum safety requirements have been agreed at an international level through the IMO and incorporated in the national laws of individual states. For example, the SOLAS, MARPOL and STCW Conventions are incorporated into the laws of the majority of maritime states. To supplement these conventions, there are a number of IMO codes, recommendations, guidelines and circulars that the Master should familiarise him/herself with, depending upon the relevance of that information to the type of vessel, cargo and trade concerned. Whilst these codes may or may not be law in certain states, all efforts should be made to comply with these standards of practice.
The Master should be aware that the vessel’s flag State and/or port States between which the vessel is trading may have different and/or additional requirements which need to be complied with.
Whilst safety is in many cases evidenced by a certificate, a certificate is only a record of facts apparent to the certifying body on a particular date. Actual and continuing compliance with the minimum requirements of the certificate is therefore very important. Non-compliance can, at the very least, result in disruption of the vessel’s trading by the flag and port State authorities, and, in more serious cases, it may even have the potential of criminal sanctions being imposed. Non-compliance may also prejudice the insurance covers if the cause falls within the insured risks. What is more dangerous is the fact that it can put the safety of the vessel, crew, other persons and the environment at risk. The Master should also remember that, although the vessel complies in excess of the minimum safety requirements, this does not necessarily ensure full safety. What is thought to be adequate may turn out not to be the case when put to the real test. The Master is well placed to advise his/her Company in this regard, particularly through training and drills which need to be properly documented.
Whilst seaworthiness and safety overlap, compliance with one does not necessarily mean compliance with the other. For example, the vessel’s hatch covers may be sufficiently watertight to be safe, but may not be seaworthy, and a vessel with oil on the deck, which presents a hazard, may well be seaworthy but will not be safe. It is therefore important to treat these two terms separately but in parallel to each other. With an understanding of their meaning, relevance and importance, the Master can take the steps necessary to ensure that the vessel is both seaworthy and safe at all times.