John Habergham, Myton Law, Hull U.K.
This matter – all about passage planning and seaworthiness, has finally been decided by the Supreme Court.
I couldn’t help feeling, reading the case, that it provides one of those examples where you think to yourself “How on earth has it got this far?” – to me at any rate, the issue and the outcome was relatively clear. Before this case had even before arriving at the first instance court, arising out of my experience in arbitration, I had prepared a presentation the heading of which was “Passage Planning – an Incident of Seaworthiness or an Incident of Navigation?” and, although I had no binding precedent, I had a fairly clear idea of where the answer lay.
Well, based upon the Supreme Court decision, it is clearly an incident of unseaworthiness.
It decided this by rejecting the vessel owners “attribute” threshold test – that the defect has to be intrinsic to the vessel itself, “an attribute” of the ship. The Supreme Court dismissed the owner’s argument that a passage plan mainly records navigation decisions taken by the crew and was not, therefore, intrinsic to the vessel. It rejected the “attribute” threshold, stating that this approach would, at best, be illustrative only and that in most cases whether a vessel was seaworthy or not would be judged by the “prudent vessel owner” test – would such an owner, if it had knowledge of the issue, put to sea without making it good.
So far as the duty upon a vessel owner to exercise due diligence to ensure the vessel is seaworthy hr The Supreme Court also rejected the owner’s arguments that defects in passage planning were the responsibility of the master and deck officers, seeking to push this into “navigational” matters for which the owners have an exception from liability.
The Supreme Court emphasised the non-delegable nature of the carrier’s obligations under Article 3.1 of the Hague / Hague Visby Rules to exercise due diligence to make the ship seaworthy. It doesn’t matter who is engaged to carry out that task – shore side superintendents, independent contractors, masters and crew, all are swept up into the sphere of owner’s responsibility.
The court also provided a wonderfully clear concise exposition of the passage of the burden of proof in matters of the seaworthiness obligations and to the exceptions from liability contained in the Hague/Hague Visby Rules. For that alone, it is worth a read. The short message is if the vessel is unseaworthy, no owner can rely upon any exception from liability.
Maybe I should have been more bullish in arbitration.