Seaworthiness (law)

Seaworthiness is a concept that runs through maritime law in at least four contractual relationships. In a marine insurance voyage policy, the assured warrants that the vessel is seaworthy. A carrier of goods by sea owes a duty to a shipper of cargo that the vessel is seaworthy at the start of the voyage. A shipowner warrants to a charterer that the vessel under charter is seaworthy; and similarly, a shipbuilder warrants that the vessel under construction will be seaworthy.

The Merchant Shipping Act 1995 makes it a criminal offence to send or attempt to send an unseaworthy ship to sea. Seaworthiness in this context relates to defective structures, equipment, under-manning, overloading etc. and the vessel may be detained. In every contract of employment at sea there is an implied obligation on the owner to ensure the seaworthiness of the ship and an allegation of unseaworthiness may be brought by the crew, though at least five members of the crew are required to bring the action,

Under Section 39 of the Marine Insurance Act 1906, in a voyage policy there is an implied warranty that the vessel is "reasonably seaworthy in all respects":

S. 39 (1) In a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose of the particular adventure insured. (2 )Where the policy attaches while the ship is in port, there is also an implied warranty that she shall, at the commencement of the risk, be reasonably fit to encounter the ordinary perils of the port. (3) Where the policy relates to a voyage which is performed in different stages, during which the ship requires different kinds of or further preparation or equipment, there is an implied warranty that at the commencement of each stage the ship is seaworthy in respect of such preparation or equipment for the purposes of that stage. (4) A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured. (5) In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.

At common law, when goods are carried by sea by a “common carrier” (a public carrier), then, if the contract of carriage does not contain an exception clause relating to seaworthiness, there is an absolute undertaking that the vessel is seaworthy. Liability is “strict”**, meaning the carrier is liable even in the absence of negligence, as in Liver Alkali v Johnson. This does not mean the vessel need be capable of encountering any peril. The test of seaworthiness may be "that the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in the voyage to be performed". However, the strict liability at common law is invariably modified in contracts of affreightment. In charter parties the shipowner may negotiate an express clause excluding his liability for unseaworthiness or he may, as it more usual, agree to incorporate the provisions of the Carriage of Goods by Sea Act 1971 into the charter.

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