4.1 The problem
Returning again to the Sunna, the Supreme Court there held that there was no need to go into the nature and scope of nautical fault exceptions since there was in any event initial unseaworthiness for which the shipowner was liable - through the mistakes made by the master.
These topics are potentially complex and will be reviewed in the following. It is worth setting out the essence of the Court's reasoning on this point.
"A prudent shipowner would not - had been aware of the subject matter [that a rule compliant bridge management system had not been implemented] - have allowed the ship to commence the voyage with a system of watch keeping which exposes the cargo to a significantly increased risk."(1) Para. 48 - my translation.
This involves the test of seaworthiness and the due diligence obligation imposed on the shipowner. The Court then goes on to state:
"It is obvious that the master has not exercised due diligence in ensuring seaworthiness of the vessel. [The shipowner] is in this respect vicariously responsible for its captain so that his mistake is considered the mistake of the shipowner [reference to legal commentary and also Rt. 1993.965 Faste Jarl]. When a disposition by the master has led to unseaworthiness of the vessel at the beginning of the voyage it is, as stated, of no relevance whether his mistake also might be seen as a nautical fault covered by section 276 first paragraph. Accordingly it seems clear to me that the shipowner cannot relieve itself of liability on that basis. Since the shipowner is vicariously responsible for the mistakes of the master, it is not necessary for me to render a decision on whether or not there is privity on the shipowner's part."(2) Paras 52-53 - my translation.
These statements are at the core of what will be discussed below. For the purpose of such discussion it is of interest to look at how the shipowner argued its case, contrary to the Court's finding as quoted above. The shipowner's arguments are summarised by the Court as follows:
"Both the direct mistake leading to the grounding - the falling asleep of the second mate - and the master's decision not to keep double watch during night time sailing, are nautical faults for which the shipowner is not liable [...]. Even if the master should have decided not to comply with the regulation about double watch keeping already before the vessel departed, it still constitutes part of his nautical management of the vessel which falls outside the scope of commercial fault for which the shipowner is responsible. The provision in section 276 second paragraph of the Maritime Code which imposes liability on the shipowner for unseaworthiness at the beginning of the voyage, is not applicable. The same condition cannot constitute both a nautical fault [...] and entail initial unseaworthiness. If so, there will have to be a different, contributory [medvirkende] cause to the incident. It would lead to erosion of the exception for nautical fault if one and the same mistake, committed by one and the same person, could also lead to liability under the provision for initial unseaworthiness."(3) Paras 22 and 23.
These remarks are interesting. They comprise the essence of the potential complexity of the matter when seen in the context of what may be called international sources related to the HVR, although, surprisingly, the views of the shipowner seem not to have been substantiated by such international sources.
As part of the above position taken by the shipowner it may be worth recalling that the City Court did seemingly not consider the master to be the shipowner's servant for purposes of making the ship seaworthy. If it had done so, it would be unnecessary to find privity(4) A separate point is that the use of the term privity is misconceived, as earlier explained. on the shipowner's part in not sufficiently ensuring that the master complied with the safety rules. It would have sufficed merely to refer to the master's mistake, just as the Supreme Court found it unnecessary to form a view on the question of privity.
Moreover, it is worth recalling the still differing view taken by the Court of Appeal; that the master was as such competent; that there was in place on board a manual, easily accessible, containing the safety rules; that the shipowner's inspectors had every reason to believe that the master knew about the rules - and that whatever happened during the voyage was a matter to be assessed by the nautical fault exception which the Court of Appeal found applicable.
For the purpose of our discussion the problem can therefore be summarized: What is nautical fault? What is the relationship between it and the shipowner's obligation of initial unseaworthiness? What are the duties delegable to the master as part of the shipowner's obligation of initial seaworthiness? In this latter respect, the problem in the Sunna was in a sense that the master himself was the cause of the unseaworthiness, and in that respect: can the master be the shipowner's delegate for the purpose of "rectifying himself" as a seaworthiness deficiency?