You are on page 1of 3

contact: steve@findlaymarine.


The following article discusses the various issues surrounding the terms 'seaworthy' and 'unseaworthy'. It is important for
a Marine Engineer or mariner to avoid getting into the realms of legal issues, but this particular article has helped me to
understand the matter, and has been particularly helpful when instructed on matters involving the seaworthiness of

Unseaworthy – at the Commencement of the Voyage

The legal definition of a seaworthy ship is, "one which is in a fit state as to repairs, equipment, crew, and in all other
respects, to encounter the ordinary perils of the sea". It is the perils of the sea, and not the perils on the sea, which have to
be considered.

If the defect existed, would a prudent owner have required that it should be made good before sending his ship to sea, had
he known of it?

Another aspect of the notion of seaworthiness, which has to be considered, is its flexible characteristic. Various factors
have to be taken into account when measuring the seaworthiness of a ship. That its import varies with the place, voyage
and the class of ship and even the nature of the cargo is clear. Seaworthiness is a relative term and, thus, cannot be
determined or measured in the abstract.

It is also necessary to note that the law does not require a shipowner to provide an immaculate or a perfect ship: the
standard of seaworthiness is only one of reasonable fitness. The law does not expect a ship to "weather every conceivable
storm or withstand every imaginable peril of the sea, but only a vessel reasonably suitable for the particular service".

Seaworthiness and Safety

The terms "safety of ships" and "ship safety" are often used as though they are synonymous with the 'seaworthiness' of
ships. However, it is observed that 'unsafe' ships may be divided into two categories. One category relates to her
'seaworthiness', which, strictly speaking, should only concern matters impinging upon her ability to encounter the ordinary
perils of the sea, as earlier described. The other category is concerned with conditions on board a ship which affect the
health, safety and welfare of human lives. Thus, it would not be inaccurate to say that the word 'unsafe' is a wider concept,
and seaworthiness is only one aspect of safety.

It is interesting to note that the warranty which is implied in maritime commercial contracts is one of 'seaworthiness' and
not one of 'safety'. On the other hand, in maritime criminal law, the term 'safety' is used to describe some of the statutory
offences. This distinction could perhaps be best illustrated with the case of a ship having inadequate medical supplies;
such a deficiency would probably render a ship unsafe, but not unseaworthy in its strict legal sense. Similarly, the absence
of a fire extinguisher on board was held to be a matter which could not affect the seaworthiness of a ship.

Fitness to Carry Cargo

Seaworthiness involves fitness to carry cargo of any description which the shipper had a right to offer. It is not enough
that at the beginning of the loading the ship was fit to receive the cargo; it is necessary that at the time of sailing she
should be fit to carry the cargo on the agreed voyage.

If she is seaworthy at that time. is prima facie evidence of unseaworthiness. Similarly. The fact that the ship becomes leaky or goes to the bottom shortly after putting to sea. however. the shipowner cannot escape the consequence of the breach of the undertaking by subsequent repair. The undertaking is an undertaking one breach of which may give rise to an event which relieves the charterer of further performance of his part of the contact if he so elects. Burden of Proof The burden of proving unseaworthiness rests upon the shipper. On the other hand. although not endangering the safety of the ship herself. Consequently the problem is not soluble by considering whether the undertaking is a condition or a warranty. it is immaterial that there are contributory causes for which the shipowner is not liable. If. he remains covered where the loss or damage complained of is unconnected with the initial unseaworthiness. as it is no part of the contract that she is to continue to be seaworthy. although the damage would have been less if proper steps had been taken to reduce it. preclude the shipowner in every case of loss or damage from relying on an exception. that where there is an exception of negligence. stores. but this must be done in clear and unambiguous terms. Thus. If the unseaworthiness is a real cause of loss or damage. Time when Seaworthiness is Necessary The time at which the undertaking of seaworthiness must be fulfilled is at the commencement of the voyage. to provide a ship equipped with refrigerating machinery for a cargo of frozen meat. however. the shipowner proves that the damage was caused by some matter falling within the exceptions. that is when the ship leaves her moorings without the intention of returning to them. Effect of Unseaworthiness If the shipowner is in breach of the implied undertaking of seaworthiness. The undertaking to provide a seaworthy vessel is one of a complex character which cannot be categorised as being "a condition" or "a warranty". It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which must inevitably result in a total loss of the vessel. he is not excused by an exception against perils of the sea. the ship must be free from defects which. he is liable for any loss or damage caused by it. Moreover. It seems. The failure to provide a seaworthy ship does not. yet endanger the safety of the cargo by permitting the sea to have access to the cargo or otherwise. the shipowner is liable for the whole of any damage caused by water which enters the ship owing to unseaworthiness. At the same time it is always competent to the shipowner at common law to qualify or exclude the implied undertaking as to seaworthiness. equipment and crew. and it is immaterial that the ship may in fact have been made thoroughly seaworthy before the loss or damage takes place. if she is unseaworthy at the time of her departure. the shipowner cannot rely on a negligence clause in the contract and escape responsibility on the ground that it was through the negligence of his employees that the fuel was insufficient at starting. because protective clauses in the contract of carriage do not cover loss or damage occasioned by the initial unseaworthiness of the ship.Where there is an obligation. and shifts to the shipowner the burden of proving that she was in fact seaworthy at the time of her departure. where a port-hole has been left open or insecurely fastened in circumstances amounting to unseaworthiness. express or implied. the machinery must be fit at the time of shipment to carry the frozen cargo on the contract voyage made under ordinary conditions. without there being any storm or other external factor to account for her condition or loss. It embraces obligations with respect to every part of the hull and machinery. . the fact that she subsequently becomes unseaworthy is no breach of the undertaking. and another breach of which entitles him to monetary compensation in the form of damages. nor by an exception against negligence. then the cargo owner must prove affirmatively that the ship was unseaworthy and that that unseaworthiness caused the damage. if the ship was unseaworthy owing to the fact that she started with an insufficient supply of fuel. the shipowner is responsible if sea water gains access to the cargo and damages it. however. but no exception of unseaworthiness.

except insofar as he may be excused by the terms of the contract. He must therefore. or by returning to the port of loading or proceeding to a port of refuge for the purpose of executing the necessary repairs. Obligation to Repair the Ship Even where the ship is damaged by an excepted peril. not by his failure to repair. and if she becomes unseaworthy he must execute any repairs which may be necessary. which is a breach of his duty towards the owner of the cargo. and consequently of the cargo. it is the shipowner's duty to continue the voyage if he has in fact repaired the ship. it is the Master's duty to remedy it by every reasonable means in his power. the ship cannot be regarded as having been rendered incapable of performing her voyage merely because she needs repairing and cannot continue her voyage until she is repaired. in a business sense. and the shipowner is therefore prevented from completing the voyage. since the Master. is not a prevention by an excepted peril. for example by stopping up a leak. if possible. otherwise he is guilty of negligence. or where. However. to save his ship by removing the cause of danger. by which she is prevented from continuing her voyage. it is the Master's duty.Keeping the Ship Seaworthy It is the Master's duty. and the shipowner is not excused. against the consequences of the Master's negligence. or keeping down the water in the holds by pumping. and. he cannot be called on to do so. but by an excepted peril. It therefore becomes important to consider how far the shipowner is bound to repair his ship. whether the original cause of her unseaworthiness is covered by an exception or not. to carry the goods to the port of discharge in the same bottom. There is clearly a prevention by an excepted peril where the ship is so damaged by it that she cannot be repaired. although. be unreasonable. provided that he has a reasonable opportunity of doing so without unreasonable delay or expense to the various interests involved. In any case. the shipowner is bound to repair the ship if it is reasonably possible for him to do so. however. the shipowner is not excused for a failure because the Master believed that the repairs could not be executed at a reasonable cost. although she is capable of being repaired. it may be that the undertaking of seaworthiness must be satisfied when the ship resumes her voyage. the shipowner is not necessarily absolved. she must not proceed to sea again in an unseaworthy condition. Hence. but to his failure to repair. is guilty of negligence. maintain the ship in a seaworthy condition throughout the voyage. . it is impossible. if he does not repair her and abandons the voyage. the Master is not guilty of negligence in continuing his voyage without putting into a port for repairs if he honestly and reasonably believes that. otherwise the shipowner is responsible. once she has reached a port of refuge. where the actual safety of the ship. in leaving the port of refuge without repairing. the question may arise whether his inability to carry the cargo to its destination is to be attributed not to prevention by an excepted peril for which he is not responsible. When. and a failure to repair her. he must consider the interests of all persons concerned in the adventure. If the Master fails to perform his duty in this respect. the repairs are commercially impossible. On the other hand. If the cost of the repairs necessary to enable the ship to complete her voyage is out of all proportion to the benefit which the shipowner will derive from them. the cost of repairs falls on the shipowner unless the need for repairs is occasioned by a general average loss. the ship is capable of reaching her destination. as far as possible. as mere error of judgement it is not necessarily equivalent to negligence. unless he is protected by the terms of his contract. is endangered. as he represents the shipowner. The cost of repairs must. if the port of refuge marks the commencement of a new stage. However. in the execution of this duty. Even where the unseaworthiness is caused by an excepted peril. if the cost is so prohibitive that he cannot prudently and reasonably repair. whatever may be the cost of repairs. whatever may be the cause of her unseaworthiness. the shipowner is responsible to the owners of the goods on board his ship for any damage resulting. since. in spite of her condition. nevertheless. as he is bound to fulfil his engagement by every reasonable and practicable method. Thus. and it is not conclusive against him that she in fact founders before she does so. Even if the shipowner is protected by an exception against such negligence. to repair her.