A Brief Analysis of the Obligation of Seaworthiness of the Ship Prescribed in the Maritime Code

Abstract: Seaworthiness of the ship is an old concept. As early as the 14th century, Article 68 of the Code of Lex Consolato in Barcelona, Spain, recorded that cats should be equipped on board, otherwise the owner should be responsible for damage caused by rats. However, if cats were already on board at the time of loading and died while sailing, the owner should not be responsible for damage to the ship until the ship arrives at the next port of call where cats can be purchased. At that time, the owner should not be responsible for damage, for no negligence on the part of the ship, as long as he buys cats and places them on board at the first port of call where cats can be purchased. Thus, equipping cats on board is a manifestation of the carrier's responsibility for seaworthiness.

Obviously, with the development of modern science and technology and the continuous progress of industry practice, it is no longer necessary to equip modern ships with seaworthiness, but the carrier's seaworthiness obligation has been clearly stipulated in the law. This article will mainly analyze and discuss the issue of seaworthiness of the carrier's ship based on the relevant provisions of the Maritime Code of our country.

Keywords: seaworthiness | Before departure | When departure | Be careful

I. What is "seaworthiness of the ship"?

The term "seaworthiness of the ship" means that the ship with cargo can resist the usual and reasonably foreseen risks of the intended voyage in every respect, and is suitable for carrying the agreed cargo, properly and safely carrying it to the port of destination, and completing the transport task of the intended voyage. According to Article 47 of the Maritime Code of our country, the carrier shall, before and at the beginning of the voyage, exercise due diligence to make the ship seaworthy, properly man, equip and supply the ship and 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. As can be seen from the above provisions, the seaworthiness of the ship shall be judged from three aspects.

A. Requirements for the ship itself

The term "requirements for the ship" generally refers to being capable of withstanding the usual or reasonably foreseen risks in the voyage agreed upon in the contract with respect to the designed structure, performance and condition of the ship's hull, machinery and machinery; properly equipping the ship as well as equipping the ship as communication, navigation equipment, mooring equipment, navigation materials, etc.; and properly equipping the ship with supplies including adequate fuel, stores, fresh water and foodstuffs.

In the movie "Titanic," the ship sank in water after hitting an iceberg when the ship's hull was torn apart. In later analysis, it was found that the ship was built with too much hull rigidity that led to the reduction of the hull's toughness and vulnerability to strong forces. So it can be inferred that the Titanic had problems at the beginning of its design and was therefore unseaworthy.

Because of the different marine risks faced by the ship in order to complete a particular voyage, the carrier should provide different types of ships, so the determination of seaworthiness is different. The unseaworthiness of the ship, for example, the strength of the ship's hull is insufficient to withstand the usual risks during the voyage; or the tonnage of the ship being too small for the voyage in the ocean navigation area, etc.

(II) Requirements for Seafarers

The term "requirements for seafarers" refers to the quantity meeting the requirements for the normal voyage, watch or operation of the ship and the quantity requirements specified in the certificate of minimum safe manning for a ship as issued by the competent maritime authority of the state. As to quality, the seafarers shall also be competent for their own jobs, have the necessary knowledge and skills for their corresponding functions and levels of responsibility, and hold the corresponding certificates issued by the maritime authority of the state.

(III) Requirements for the Places Where the Ship Carries Goods

The term "properly equipped" refers to that the ship is equipped in all respects with perfect navigation aids such as radar compass, mooring equipment such as anchor cables, etc., navigation materials such as charts and navigational guides and various ship certificates are complete and properly equipped with supplies. It mainly refers to that the ship shall be equipped with sufficient fuel, lubricating oil, timber, fresh water and food for the use before addition at the port of call, and that the holds are seaworthy to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried are fit and safe for their reception, carriage and preservation. The holds and its equipment are complete to meet the requirements for the goods to be carried, which usually include that the holds are clean and dry, no sewers, unobstructed ventilation drums and encrypted hatch covers. The derricks or cranes, cranes, cranes, hoisting lines and other goods loading and unloading equipments are complete and in a fully efficient state.

It is worth noting that the requirements for seaworthiness of a ship are not invariable, but need to be taken into account in combination with the scheduled voyage, routes and the nature of the cargo to be loaded. There are no established legal rules to define the scope of the obligation of seaworthiness in a particular case, because the changes and improvements of navigation patterns and methods often put forward new requirements for the obligation of seaworthiness or give old requirements new forms.

II、 Definition of Time of Airworthiness

The time requirements for the time of seaworthiness of a ship are different in different international conventions and international laws. In the "Hague Visby Rules", the time requirements for the time of seaworthiness of a ship are before and at the time of sailing. The same time limit is stipulated in Article 47 of the "Maritime Code" of our country. The "Hamburg Rules" on the carrier's seaworthiness requirements are more strict, the corresponding time of seaworthiness is also correspondingly extended to the entire voyage. The "Rotterdam Rules" aim to find a balance. The requirements for seaworthiness are more lenient than the "Hamburg Rules", but are longer than the "Hague Visby Rules" and many domestic laws. The requirements for the time of seaworthiness of a ship refer to the "Hamburg Rules" to extend the time of seaworthiness of a ship to the entire voyage.

What are "before" and "at the time of sailing"?

Before a ship sails, it is generally that the ship is anchored in the port and in the stage of loading. In practice, in order to sail, the ship needs to take a series of measures, such as cable recovery, main engine preheating start. Under the action of pilot and tugboat, the ship starts to navigate out of the berth or wharf in this continuous process, all belong to the scope of sailing. In addition, it can be said that the carrier's obligation to seaworthiness of the ship is a continuing obligation, that is, the carrier shall at least continue to make the ship seaworthy from the time of loading until the time of sailing.

It should also be emphasized that the requirements for seaworthiness at the time of loading are not the same as those at the time of sailing. At the time of commencement of loading, the ship must be fit to receive its cargo as a ship capable of withstanding the general risks of being anchored in the port to receive its cargo, but need not be fit to sail. For example, the main engine of the ship has not been repaired at the time of loading, but is still considered seaworthy as long as the safe receipt of the cargo is not hindered.

How to understand "prudent handling"?

The standard of seaworthiness of the ship is that the carrier shall exercise due diligence to make the ship seaworthy. As a modern, large-scale, intelligent and centralized ship, it is unrealistic to require absolute seaworthiness, so the law is not absolute to the carrier's obligation to make the ship seaworthy. If there are latent defects or defects in the ship that the carrier has failed to discover despite the exercise of due diligence, even if the ship is in fact unseaworthy, it does not constitute a breach of the carrier's obligation to seaworthiness. The carrier shall not be liable for damage or loss of the goods resulting therefrom.

(a) How can it be determined that the carrier has exercised due diligence?

It is generally understood that due diligence requires the carrier to exercise due diligence with such knowledge as is provided by law or normally required and to exercise due diligence in taking all measures and methods reasonably required to enable the safe carriage of the agreed goods along the agreed route and during the agreed period. This is a requirement for an objective and qualified carrier's subjective state, requiring real, appropriate and reasonable efforts by the carrier. As to how this can be counted towards prudence, it must be analysed in the light of the circumstances of the particular case.

(b) The non-delegation of the obligation of "prudence"

Sometimes the carrier may entrust its servants, agents or other third parties to complete the obligation of seaworthiness of the ship, but the person entrusted must exercise due diligence in so doing, otherwise the carrier shall remain liable for negligence of the principal even if it was prudent in the selection of the principal. For example, if a carrier entrusts a surveyor to inspect the ship's conditions, the carrier's obligation to exercise seaworthiness shall not be relieved if the ship is unseaworthy due to the surveyor's negligence. That is, although the obligation of seaworthiness of the ship may be delegated, "due diligence" is personal to the carrier, is of an irrevocable nature and cannot be substituted by others.

This principle is established in the famous English case Riverstone Meat Co. v. Lancashire Shipping Company (Castle Manchester), where the Court held that "Due diligence to make the ship seaworthy is an irreplaceable obligation on the carrier and that the carrier, irrespective of whom it employs for the performance of such obligations, shall exercise due diligence to make the ship seaworthy. The surveyor's certificates shall not be conclusive evidence of due diligence; it is not sufficient for the carriers to state that they have been selected due diligence. Because if the carrier is not responsible for the acts of an independent contractor, he may well have avoided his entire obligation of seaworthiness by delegating all of his obligations of seaworthiness to an independent contractor. "

Conclusion