5 The concept of seaworthiness and Norwegian courts' use of foreign law definitions - the Sunny Lady
In the Sunna, the Supreme Court did not attempt to formulate any definition of unseaworthiness - and in the writer's view, rightly so.(1)The seaworthiness test is complex, in many ways reflecting that of a general test of negligence, and one finds – understandably – no attempts by the Supreme Court to “define” the concept of negligence. Rather the essential point was put in terms of whether a prudent shipowner would have allowed the ship to sail with knowledge of the relevant deficiency - something which, on the relevant facts, was answered in the negative.
The Court of Appeal took a different approach to this question of assessing the foreseeable risk during the upcoming voyage, i.a. by adopting the approach taken by the Supreme Court in the Sunny Lady from 1975.(2)ND 1975.85=Rt. 1975.61. See the extensive quote from the Sunny Lady on p. 11 of the Court of Appeal’s decision. What in the Sunna may be seen as a prima facie deficiency of seaworthiness in terms of the master's lack of implementation of a proper bridge management system, could, according the Court of Appeal, have been rectified during the course of the voyage, in the same way that a prima facie deficiency in the Sunny Lady could have been rectified.(3)After the quote from the Sunny Lady, the Court of Appeal in the Sunna states (ibid): “Transferred to our case, it must be considered as a fact [‘legges til grunn’] that the master could have easily provided for outlook while sailing in the dark by utilizing the crew as envisaged in the plan for manning.” (my translation) Hence, the requirement for seaworthiness was, according to the Court of Appeal with reference to the Sunny Lady, "not perfection, but reasonable fitness".(4)As quoted from the Sunny Lady, ibid.
This phrase - that the requirement for seaworthiness is "not perfection, but reasonable fitness" - as used by the Supreme Court in the Sunny Lady was, in turn, taken by the Supreme Court from the U.S. Supreme Court's decision in the Racer.(5)Mitchell vs. Trawler Racer Inc., 1960 A.M.C. 1503. We shall return to the Racer but first set out the essential facts of Sunny Lady.
The facts were that during an intermediate call of port a crew member intended to replenish domestic water to the ship but mistook the gauging pipes intended to be used, and instead filled water into the pipe for the cargo hold, damaging part of the cargo. The flanges of the respective pipes were overpainted as part of maintenance of the ship, so that the correct pipes were hard to identify. However, there were drawings on board showing their identity, and there were other crewmembers than the one making the mistake (who was new on the ship) that could have instructed him if asked to. The Supreme Court found the ship not to have been initially unseaworthy and the shipowner was held entitled to invoke the nautical fault exception through error in management of the ship during the voyage, HVR art. IV 2 a).
As part of its reasoning relating to the seaworthiness test, the Supreme Court put the question of "whether at the beginning of the voyage it could be seen as highly likely that the defect which here existed would be remedied or neutralised during the voyage by the means available on board the vessel."(6)Page 92–93 of the decision – my translation. On the facts of the case, the Court answered this in the affirmative: there was reason to believe that that during the course of the voyage the new crewmember would acquaint himself with the piping system, or at least ask someone before filling water. Moreover, the Supreme Court adopted the phrase from the Racer in relation to the initial deficiency of the flanges being painted over: seaworthiness "is not perfection, but reasonable fitness".(7)Rt. 1975.61 (p. 65).
As mentioned, the Court of Appeal in the Sunna adopted that very phrase from the Sunny Lady in support for its finding that the Sunna was not initially unseaworthy. This type of reasoning and use of legal sources by the Court of Appeal, invites criticism.
A first point concerns the Court's adaptation of the considerations in the Sunny Lady, which is hardly appropriate to cover the situation in the Sunna. In the Sunny Lady there was a question of fairly minor shortcomings (overpainted flanges of gauging pipes) combined with a crew expected to learn about this characteristic during the upcoming voyage - while in the Sunna a deficiency in terms of lack of implementation of safety rules, could hardly be considered minor; it was no lack of "perfection" as this phrase was put in the Sunny Lady.
A second point, which will be addressed in some detail, concerns the very use of phrases (or definitions) like the one used by the Supreme Court in the Sunny Lady - that the test of seaworthiness is "not perfection, but reasonable fitness" - as taken from U.S. law and the Racer.
This taking of singular quotes from foreign law decisions is unfortunate because it is wholly inapt as a stand-alone quote. Looking to e.g. U.S. or English courts' use of previous cases (precedents), one hardly ever finds this type of stand-alone quote, lacking any reference to the facts of the case from which the quotes are taken, hence also lacking any discussion as to whether such facts - combined with statements of the law - may be used as guidance to the case at hand.(8)See the Racer decision itself, containing extensive discussion of prior cases, and no stand-alone quotes. Nor is it generally in line with Norwegian methodology to use such stand-alone quotes; one hardly sees the Norwegian Supreme Court using quotes from its own prior decisions in such a way, with no guidance as to the factual context in which the quoted passage is made.(9)One may find it as a mere guidance to certain legal topics, such as that of gross negligence: “a marked departure from what is considered prudent”, as quoted by the Supreme Court in the Nordland case, ND 1995.238, from their earlier case in Rt. 1989.1318, see Falkanger/Bull (2016) p. 155. It is in respect worth noticing that the stand-alone quote - that the standard of seaworthiness "is not perfection, but reasonable fitness" - has found its way into standard volumes of Norwegian maritime law.(10)The English version of the volume, Falkanger/Bull, Scandinavian maritime law, 2017,p. 350 states: “An American decision regarding the duty of seaworthiness stated: ‘the standard of seaworthiness is not perfection, but reasonable fitness.’ This principle has been adopted by the Norwegian Supreme Court, see ND 1975.85 SUNNY LADY […].” (my emphasis of ‘principle’). As an aside: it is remarkable how often students at the Institute of Maritime Law adopt this very phrase when resolving case-based exams involving unseaworthiness.
Moreover, such use of singular quotes is unfortunate because when looking at the context of the Racer, it becomes apparent that the quote is hardly adequate to the context of the Sunny Lady (and even less so of the Sunna). The Racer did not concern a due diligence obligation to make the ship seaworthy as in the Sunny Lady. It concerned the U.S. common law strict seaworthiness obligation in relation to personal injury suffered by crewmembers. Likewise, the Racer did not concern questions of initial unseaworthiness - as in the Sunny Lady - but instances of subsequent unseaworthiness arising during the course of a voyage, which in the Racer concerned the task of landing a catch of fish from a fishing vessel. This discussion has in that sense no parallel to Norwegian law, nor to the HVR, but must be seen as a peculiar feature of U.S. law.
It is in that respect worth noticing that in the Racer the ship was found to be initially seaworthy and that the incident leading to the personal injury was considered an unavoidable consequence of the normal use of a ship being in itself seaworthy.
The injury happened in the following way: As part of ordinary discharge of a catch of fish, slime and spawn had dripped and accumulated onto the ship's rail. After having taken part in the discharge, the claimant changed clothes to go ashore. "He made his way to the side of the vessel which abutted the dock, and in accord with recognized custom stepped onto the ship's rail in order to reach a ladder attached to the pier. He was injured when his foot slipped off the rail as he grasped the ladder."(11)P. 1504 of the decision.
Hence, there was nothing to criticize the shipowner for not having removed the spawn and slime from the rail when the incident happened, and there was nothing untoward about the condition of the ship or the way the catch had been handled during discharge. The question of the case concerned the extent of a shipowner's absolute and continuous obligation of seaworthiness at common law, relating to personal injury suffered by seamen.
This leads to a further point, namely that the quote itself - that the seaworthiness test is "not perfection, but reasonable fitness" - is made by the majority of the U.S. Supreme Court in defence to criticism of their view by dissenting opinions. The point by the minority was essentially that a state of law imposing a continuous and absolute obligation of seaworthiness would serve no deterring purposes, as illustrated by the facts of the Racer, and that such an absolute obligation was scarcely supported by prior case law. Hence, the minority disagreed that liability should ensue in the present case, and pointed to:
"the unfairness of holding the vessel accountable for losses resulting from damage, detectible or otherwise, caused, without fault of the vessel, by perils of the sea; the likelihood that those whose safety depends on the vessel [...] in any event use every reasonable precaution to preserve it, and that in the circumstances of operation of the vessel no additional care could be exacted by the imposition of absolute liability; and determination that to impose absolute liability for injuries caused by defects arising without fault in the complex operation of a vessel would be, in all the circumstances, unduly burdensome."(12)Page 527.
Moreover, the minority pointed to the difference between this type of unreasonable application of strict liability rules in respect of unseaworthiness, and the more sensible due diligence obligation of seaworthiness in the context of carriage of goods by sea, including the Hague Rules as adopted in U.S. law. The minority stated in this respect:
"As to the cases decided, however, we are told that even though there is no claim that the vessel should have made different provisions for the unloading of its catch or the debarking of its crew, the shipowner is liable for an injury caused by a temporary unsafe condition and arising from the normal operation of the vessel, not the result of fault or mismanagement of anyone onboard, and which no one had a reasonable opportunity to remedy. Had there been negligence, either in permitting the spawn to accumulate or in failing to remove it, the admiralty principles developed in the cargo cases, and taken over into personal injury cases, would warrant an imposition of liability, although as to cargo damage the Harter Act and the Carriage of Goods by Sea Act [i.e. the Hague Rules], of course, bar recovery."(13)Page 529.
In other words, the minority highlighted the more sensible approach of due diligence obligation of seaworthiness in the cargo carriage regimes, while pointing to the fact that nautical fault during the course of the voyage under such regimes would exempt the shipowner from such liability.
As an answer to this criticism by the minority, the majority toned down in general terms the requirement for seaworthiness. What the majority stated in this respect was more extensive than the stand-alone quote used by the Norwegian Supreme Court in the Sunny Lady (and with unfortunate knock-on effects by the Court of Appeal in the Sunna). The entire statement by the majority starts by giving an account of the U.S. common law position:
"There is ample room for argument, in the light of history, as to how the law of unseaworthiness should have or could have developed. Such theories might be made to fill a volume of logic. But, in view of the decisions in this court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history."(14)Page 512 – my emphasis.
From these general remarks - emphasizing the separation of the common law position from concepts of negligence - the majority then continuous with the following passage from which the quote in the Sunny Lady is taken:
"What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a ship and impertinences reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service."(15)Page 512–513
That is the context of the quote from the Racer. The reservation made that the ship may not withstand "every conceivable storm or withstand every imaginable peril of the sea", is hardly apt in relation to the facts of the Sunny Lady, and even less so in relation to the facts of the Sunna (as the quote was used by the Court of Appeal in that case).
This leads to still another point concerning the unfortunate use by the Norwegian Supreme Court (with a knock-on effect to the Court of Appeal in the Sunna - and in standard volumes on maritime law)(16)See the reference to Falkanger/Bull, above. of such stand-alone quotes from foreign law. It must be seen as questionable indeed whether the U.S. Supreme Court would hold that the facts of the Sunny Lady would not lead to a finding of unseaworthiness - if in the U.S. context such deficiencies would, hypothetically, lead to personal injury by crewmembers. Rather, based on the facts of the Racer, the matter of unseaworthiness would be close to "perfection": there was nothing wrong with the ship as such, and the accumulation of spawn and slime on its rail was part of ordinary cargo handling. When despite this fact that there was nothing wrong with the ship as such, the vessel was still found to be unseaworthy, how should the Sunny Lady (with its overpainted flanges of gauging pipes and inexperienced crew) survive such a test?(17)This is not to say that the Supreme Court meant to deduce that kind of findings from the stand-alone quote. Rather the Supreme Court referred to other U.S. law cases in support for its concrete finding, but, again, with no reference to the context of such other cases, see Rt. 1975.61 (pp. 66–67).
To the writer it is therefore close to a mystery why and how a quote from the U.S. Racer found its way into the Norwegian Supreme Court's reasoning in the Sunny Lady. The Racer is, for natural reasons, not referred to in any U.S. (or English) authorities on the concept of seaworthiness in the context of carriage of goods, so why should the Norwegian Supreme Court find reasons to refer to it? Clearly, formulations of the seaworthiness concept within the context of carriage of goods and the HVR, can be found, both under U.S. and English law, in plenty of cases much more apposite than the Racer - if one sees a need for a "definition" of unseaworthiness.
Furthermore, this uninformed use of foreign law in the Sunny Lady is accompanied by an unfortunate statement by the Supreme Court, as follows:
"I add that the United States of America have not ratified the Hague Rules but it is clear that the country has in place corresponding legislation."(18)Rt. 1976.61 (p. 65) – my translation.
That is incorrect, since the U.S. had ratified the Hague Rules long before the Sunny Lady case. The Hague Rules were incorporated into the U.S. COGSA of 1936. This incorrect statement yields a kind of double irony - first, that since the U.S. had ratified the Hague Rules, reference to U.S. cases under these Rules would be of relevance to Norwegian law, rather than reference to the common law position relating to personal injury to seamen, being a peculiarity of U.S law - second, that the U.S. Supreme Court stated in the Racer that this seaworthiness obligation at common law was entirely detached from the negligence-based seaworthiness obligation in the U.S. COGSA, corresponding to the HVR-implementation into the Norwegian MC.