3.1 The wording and structure of the two sets of rules
A premise in common to the above stated questions concerns the relevant provisions of the MC and their relationship to those of the HVR. This area of the law - the relationship between nautical fault and initial unseaworthiness - may appear obscure, as also reflected in parts of the Supreme Court's decision in the Sunna. This obscurity is in turn an aspect of the MC having been detached from the original wording of the HVR.(1) It does not help that the HVR themselves are partly piecemeal, not being made out in a traditional Norwegian/civil law way of drafting legislation, see also Solvang, Shipowners' vicarious liability under English and Norwegian law, MarIus 541, 2021, pp. 57-58, and Solvang, Choice of law vs. scope of application - the Rome I Regulation and the Hague-Visby Rules contrasted, MarIus/SIMPLY 535, 2020, chapter 2.3.
It may therefore be of value to review the above questions in a broader legislative context, by giving an account of the relationship between the HVR and the legislative product of the MC, while also giving an example of how foreign courts may approach some core elements of the topic being discussed.
The structure of the HVR is straightforward. Art. III 1 sets out the shipowner's(2) I use the term 'shipowner' while the HVR use the term 'carrier', primarily intended for liner service and carriage of general cargo, as well as under tramp bills of lading where the term 'shipowner' would normally be used. obligations before and at the beginning of the voyage. This entails a due diligence obligation divided into three separate points: i) to make the ship itself seaworthy, ii) to properly man the ship, and iii) to make the ship cargoworthy.
Apart from these obligations attaching at the time of commencement of the voyage, there is a separate obligation in art. III 2 to care properly for the cargo during the various operations while in the shipowner's custody.
Art. III states:
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"The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:
Make the ship seaworthy;
Properly man, equip and supply the ship;
Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit for their reception, carriage and preservation.
Subject to the provisions of Article IV, the carrier shall properly and carefully load [...] carry [...] and discharge the goods carried"
Art. IV then sets out the relevant exceptions from liability, the so-called Catalogue, where we shall restrict ourselves to the nautical fault exception. Article IV opens by rephrasing the shipowner's due diligence obligations under art. III, and then goes on to state the events for which the shipowner is not liable, among them the nautical fault exception.
Art. IV states in its main parts:
"Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy and to secure that the ship is properly manned, equipped and supplied, and to make the holds [...] and all other parts of the ship in which goods are carried fit and safe for [...] carriage [...] in accordance with the provisions of paragraph 1 of Article 3 [...].
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Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:
a) Act, neglect or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.
b) Fire, unless caused by the actual fault or privity of the carrier
[…]p) Latent defects not discoverable by due diligence
q) Any other cause arising without actual fault or privity of the carrier, or without default or neglect of the agents or servants of the carrier, [...]."
The structure of the MC differs from that of the HVR.
Article III is reflected in MC s. 262 with the slight difference that art. III 1 and 2 when reproduced in MC s. 262 have changed places. Moreover, the point in art. III about the obligation of seaworthiness being restricted to the time of commencement of the voyage, is left out in MC s. 262 (which merely includes it as part of the shipowner's general duty of care) and instead appears in the exemption from liability in MC s. 275, by way of MC s. 276.
MC s. 262 reads:
"The carrier shall perform the carriage with due care and dispatch, take care of the goods and in other respects protect the interests of the owner from the reception and to the delivery of the goods. The carrier shall ensure that the ship used for the carriage is seaworthy, including it being properly manned and equipped and that the holds […] are in proper condition for receiving, carrying and preserving the goods. [...]."
MC s. 275 sets out the basis of liability by providing the general rule that the shipowner is liable for cargo damage if caused by negligence by the shipowner or anyone for whom he is responsible, reflecting the shipowner's obligation as set out in HVR art. III 2, as mirrored by the liability scheme in art. IV 1 and 2 (q).
MC s. 276 then sets out the shipowner's exemption from liability, stating that the shipowner is not liable for nautical fault nor for fire unless caused by privity of the shipowner - as taken from HVR art. IV 2 (a) and (b). MC s. 276 then sets out the reservation of these exemptions with respect to initial unseaworthiness, for which the shipowner will be liable if caused by negligence by him or by anyone for whom he is responsible.
MC s. 276 states:
"The carrier is not liable if the carrier can show that the loss resulted from:
Fault or neglect in the navigation or management of the ship, on the part of the master, crew, pilot or tug or others performing work in the service of the ship, or
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Fire, unless caused by the fault or neglect of the carrier personally.
The carrier is nevertheless liable for losses in consequence of unseaworthiness which is caused by the carrier personally(3) I.e. privity, a term which due to its brevity in that context has led to considerable confusion, which does not arise under the HVR wording. or a person for whom the carrier is responsible failing to take proper care to make the ship seaworthy at the commencement of the voyage.[…]"
This latter part concerning initial seaworthiness is adopted from HVR art. III 1 (as rephrased in art. IV 1) although slightly rewritten and structurally rearranged. It is rewritten in the sense that the MC reference to the liability of the shipowners' servants, is not similarly expressed in art. III 1 (for the significance of which, see below). It is rearranged, in that the shipowner's obligation in respect of initial seaworthiness (art. III 1), is instead put as an exemption to the shipowner's exemption from liability by reason of nautical fault or fire - while the art. III 1 obligation concerning initial seaworthiness is in a "diluted" sense reproduced in MC s. 262.
In summary: There are differences, both in the structure and in the wording of the two sets of rules. Although the MC is intended to reflect the content of the HVR, it is doubtful whether this is in fact achieved on important points of construction.