contracts, the carrier is obliged to exercise due diligence to provide a seaworthy ship
at the commencement of the voyage. In this obligation is included, the notion of
cargoworthiness. English jurisprudence relating to this provision is plentiful. Two
classic cases are Riverstone Meat Company Pty Ltd. v. Lancashire Shipping Company Ltd. (The Muncaster Castle)
59 and Maxine Footwear Company Ltd.
v. Canadian Government Merchant Marine.
60 Added to this is the requirement
that for a ship to be seaworthy, it must be properly manned and equipped for the
voyage.
61 In this regard it must be noted that failure to comply with a vessel’s safe
manning document issued pursuant to convention and statutory requirements, will
render the vessel unseaworthy.
Under marine insurance law, a contract of marine insurance may be vitiated if the
insured ship is found to be unseaworthy.
62
In terms of U.K. legislation, there is also the notion of statutory seaworthiness.
Section 457 of the Merchant Shipping Act 1894 states that sending an unseaworthy
ship to sea is a misdemeanor. Under s. 459 of that Act, an “unsafe ship” is described
by reference to “the defective condition of her hull, equipment, or machinery, or by
reason of undermanning, overloading or improper loading, unfit to proceed at sea
without serious danger to human life.” The degree of danger in connection with the
offence of sending a ship to sea in an “unseaworthy state” (s. 457) appears to be less
than that required to make a vessel an “unsafe ship” within the meaning of s. 459. It
is not thought, however, that this has any practical importance except in so far as it
lightens the burden of the prosecution under s. 457.
63 Following the Herald of Free
Enterprise disaster, the concept of “dangerously unsafe ship” was introduced in the
Merchant Shipping Act 1995
64 but other common law jurisdictions have not
embraced this superlative description. The distinction between an unsafe ship and
an unseaworthy ship is rather innocuous at best. The difference is simply a matter of
a higher or lower threshold of the burden of proof.
65
Statutory seaworthiness is a public law matter; a violation of the requirements
inevitably leads to penal sanctions. Being a public policy issue, a member of the
59 [1969] 1 All E.R. p. 495.
60 [1959] A.C. 589.
61 The Roberta, (1938), 60 Ll. L.R. 85, 58 Ll. L.R. 159, 177.
62 See Gaskell et al. (1987), p. 186, in particular, footnote 13 at that page.
63 Thomas and Steel (1976), p. 130.
64 In s. 94 as the meaning of “dangerously unsafe” is elaborated as follows:
(1)... a ship is “dangerously unsafe” if, having regard to the nature of the service for which it
is intended, the ship is, by reason of the matters mentioned in subsection (2) below, unfit to
go to sea without serious danger to human life. (2) Those matters - (a) the condition, or the
unsuitability for its purpose, o f- (i) the ship or its machinery or equipment; or (ii) any part of
the ship or its machinery or equipment; (b) undermanning; (c) overloading or unsafe or
improper loading; (d) any other matter relevant to the safety of the ship; and are referred to in
those sections, in relation to any ship, as “the matters relevant to its safety”. Section 95
explains the circumstances in which a dangerously unsafe ship can be detained.
65 See Thomas and Steel (1976), p. 130.
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
593
at the commencement of the voyage. In this obligation is included, the notion of
cargoworthiness. English jurisprudence relating to this provision is plentiful. Two
classic cases are Riverstone Meat Company Pty Ltd. v. Lancashire Shipping Company Ltd. (The Muncaster Castle)
59 and Maxine Footwear Company Ltd.
v. Canadian Government Merchant Marine.
60 Added to this is the requirement
that for a ship to be seaworthy, it must be properly manned and equipped for the
voyage.
61 In this regard it must be noted that failure to comply with a vessel’s safe
manning document issued pursuant to convention and statutory requirements, will
render the vessel unseaworthy.
Under marine insurance law, a contract of marine insurance may be vitiated if the
insured ship is found to be unseaworthy.
62
In terms of U.K. legislation, there is also the notion of statutory seaworthiness.
Section 457 of the Merchant Shipping Act 1894 states that sending an unseaworthy
ship to sea is a misdemeanor. Under s. 459 of that Act, an “unsafe ship” is described
by reference to “the defective condition of her hull, equipment, or machinery, or by
reason of undermanning, overloading or improper loading, unfit to proceed at sea
without serious danger to human life.” The degree of danger in connection with the
offence of sending a ship to sea in an “unseaworthy state” (s. 457) appears to be less
than that required to make a vessel an “unsafe ship” within the meaning of s. 459. It
is not thought, however, that this has any practical importance except in so far as it
lightens the burden of the prosecution under s. 457.
63 Following the Herald of Free
Enterprise disaster, the concept of “dangerously unsafe ship” was introduced in the
Merchant Shipping Act 1995
64 but other common law jurisdictions have not
embraced this superlative description. The distinction between an unsafe ship and
an unseaworthy ship is rather innocuous at best. The difference is simply a matter of
a higher or lower threshold of the burden of proof.
65
Statutory seaworthiness is a public law matter; a violation of the requirements
inevitably leads to penal sanctions. Being a public policy issue, a member of the
59 [1969] 1 All E.R. p. 495.
60 [1959] A.C. 589.
61 The Roberta, (1938), 60 Ll. L.R. 85, 58 Ll. L.R. 159, 177.
62 See Gaskell et al. (1987), p. 186, in particular, footnote 13 at that page.
63 Thomas and Steel (1976), p. 130.
64 In s. 94 as the meaning of “dangerously unsafe” is elaborated as follows:
(1)... a ship is “dangerously unsafe” if, having regard to the nature of the service for which it
is intended, the ship is, by reason of the matters mentioned in subsection (2) below, unfit to
go to sea without serious danger to human life. (2) Those matters - (a) the condition, or the
unsuitability for its purpose, o f- (i) the ship or its machinery or equipment; or (ii) any part of
the ship or its machinery or equipment; (b) undermanning; (c) overloading or unsafe or
improper loading; (d) any other matter relevant to the safety of the ship; and are referred to in
those sections, in relation to any ship, as “the matters relevant to its safety”. Section 95
explains the circumstances in which a dangerously unsafe ship can be detained.
65 See Thomas and Steel (1976), p. 130.
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
593