4.2 The nature and scope of nautical fault
As a starting point it is worth highlighting the twofold nature of the fault in question. To simplify: if emphasis is placed on the master's mindset in relation to the upcoming voyage, that may point in the direction of a traditional situation of nautical fault. An isolated instance of not deploying double watch during the course of a voyage, would typically be categorized as a nautical fault, as it would be the result of the master prerogative and decision making. On the other hand, if emphasis is placed on a deficient bridge management system as a permanent state of affairs, the topic takes on the appearance of a traditional unseaworthiness defect, on a par with other systemic failures, which would typically be categorized as initial seaworthiness defects lying within the shipowner's "direct control" (as the point was formulated by the New Zealand Supreme Court). The facts of the Sunna seem to consist of a combination of both (above).
From this brief account of the complex nature of the factual aspects of the relevant fault, we turn to some central aspects of how the nautical fault exception is regulated in the HVR.
The system of the HVR may be recalled whereby under art. III the shipowner is, first, obliged to exercise due diligence to provide a seaworthy ship and, second, to properly care for the cargo while in his custody during the voyage - and with the basis of, and exceptions from, liability set out in art. IV, including that of the nautical fault exception, in terms of "act, neglect or default [...] in the navigation or in the management of the ship."
It is worth noticing that this combination of setting out the obligations of the shipowner (in art. III) and immunities and exceptions from liability (in art. IV) does not explicitly regulate situations of overlap; e.g. whether nautical faults could be said to exist already at a time before the ship departs from load port.
Moreover, under the HVR, one delineation to be made has to do with whether the relevant fault primarily concerned management of the ship (for which liability is excepted in art. IV), or instead management of the cargo (constituting breach of art. III 2 with no exceptions applicable).
This delineation is of no direct concern for the present inquiry but it is worth noticing that on this point Norwegian and English case law seems to be well aligned.(1) The English Commercial Court decision, the Hector, Lloyd's Rep. 1995, 2, 218 (pp. 234-235), concerned failure to properly tighten wedges for the purpose of holding the hatch covers in place. Such failure was found to constitute nautical fault as it primarily concerned safety of the ship. The case has its direct parallel in the Norwegian Court of Appeal decision, the Ulla Dorte, ND 1987.229.
Another delineation concerns the nature of navigational fault itself. Under English law there is a fair number of cases dealing with this topic while under Norwegian law there seems to be none. Essentially, the point under English law is that in order to qualify as a navigational fault, the fault has to deal with seafaring aspects in a fairly narrow sense; it must involve matters of "seamanship". This kind of narrow construction should be seen in the light of general rules of construction pertaining to contractual exclusion clauses, which have their parallel under Norwegian law.
Moreover, these cases concerning the nature of navigational fault under English law, involve a different delineation from the one above concerning nautical mismanagement of the ship, as opposed to mismanagement of the cargo. If a fault is not sufficiently "seamanship-like" to qualify as a navigational fault, the shipowner is rendered liable by virtue of the fact that there is no exception from liability applicable to an act of negligence committed by the shipowner or his servants. It is, therefore, not so much that a non-qualifying navigational fault necessarily means that the fault relates to (mismanagement of) the cargo. The point is rather that within the context of the HVR, there will be liability if such non-qualifying navigational fault leads to damage or delay to cargo.
Not all the English cases of relevance in this respect deal with cargo damage. They may instead deal with claims for mere financial losses under charterparties incorporating the HVR through paramount clauses, or otherwise containing similarly worded liability exceptions for nautical fault as that of the HVR. These cases are however generally viewed as being of relevance to the navigational fault exception also within the context of cargo damage and the HVR proper.(2) See e.g. Cooke et al (2007) pp. 1022-1024: It is a fact that the HVR is essentially based on such contract provisions predating the H/HVR. Hence, a separate point of construction of the HVR concerns whether case law relating to such pre-dated clauses, should be considered (binding) authority also when construing the HVR. That is a question we shall not go into. The point is merely to illustrate the scope of nautical fault through case law shedding light on it.
The House of Lords case, the Keifuku Maru(3)Suzuki & Co. v. T. Beynon & Co., Lloyd's Rep. 1926 Vol. 24, 29.from 1925, illustrates the point that the concept of navigational fault may have a narrower meaning than encompassing any decision making by the master while sailing en-route. In that case the master did not keep the required speed, due to failing to feed the machinery with sufficient bunkers coal. This failure was held to be of a general managerial nature, not sufficiently seamanship-like to qualify as an exception for navigational fault, hence the shipowner was held liable for the extra time spent under a time charter.(4) The case concerned appeal of an arbitration award and the facts as to the specific nature of the master's fault is somewhat obscure from that award. This led Justice Viscount Dunedin to the fairly harsh statement that the arbitration award was "couched in language which has all the appearance of stultification of expression resulting from confusion of thought." In that case terminology was used by the Court to the effect that the master's failure amounted to "general slackness" and did not relate to "acts of seamanship".
Another example is the Renee Bayffil(5) 1916 32 T.L.R 660.from 1916, holding that a master's decision to remain in port for a few extra days for no apparent reason relating to weather conditions or similar, did not qualify as a navigational fault, hence the shipowner was held liable for breach of a due dispatch provision of a voyage charter.
Still another example is the Knutsfjord v. Tilmans(6) 1908, A.C. 406.from 1908, where the master misconstrued the way the destination port was formulated in the charter, thereby causing delay by sailing in the wrong direction. This type of fault was, understandably, not held to be of a navigational nature, hence the shipowner was held liable for the delay.
The most prominent and authoritative case dealing with the topic, is the House of Lords case the Hill Harmony(7) Lloyd's Rep. 2001, 1, 147.from 2001.
This concerned the HVR (art. IV, including the nautical fault exception) as incorporated as a rider clause in a time charter. The question concerned the relationship between the time charterer's right to give orders as to employment of the ship, and the master's prerogative of navigational decision making. In disregard of the charterer's sailing orders, the master took the longer route in crossing the Pacific from Canada to Japan. The charterer claimed damages for the extra time taken and bunkers consumed, alleging breach of contract in that the master had failed to prosecute the voyage with due dispatch. The shipowner put up as a defence that whatever the breach, it was covered by the HVR exception from liability for navigational fault.(8) I use that term here rather than 'nautical fault' since the master's conduct in that case related to navigation proper, not the alternative of management of the ship.
The House of Lords however disagreed. In order for a master's decision to be covered by the exception for nautical fault, it would have to involve some kind of seamanship aspects. A general decision, made before the commencement of the voyage, to take a longer route - not related to concrete safety considerations etc. - did not meet that requirement. The Court stated i.a.:
"What is clear is that to use the word 'navigation' in this context as if it includes everything which involves the vessel proceeding through the water is both mistaken and unhelpful. As Lord Summer pointed out, 'where seamanship is in question, choices as to speed or steering of the vessel are matters of navigation, as will be the exercise of laying off a course on a chart. But it is erroneous to reason [...] that what route to follow are questions of navigation.'"(9) P. 159-160 of the decision.
The Hill Harmony did not directly involve the question of nautical fault and its relationship to the HVR obligation of initial unseaworthiness. It may in that respect be said that there are different considerations in play:
the scope vis-à-vis a time charterer having to pay extra hire and bunkers consumed by reason of the master's conduct, and the delineation relating to cargo damage and obligations of seaworthiness under the HVR. Nevertheless, the finding in the Hill Harmony has in legal literature been held also to provide an answer to the scope of navigational fault under English law relating to the HVR as incorporated into the English COGSA,(10) Cooke et al (2007) pp. 1022-1024. and the case is referred to as authority to that effect by the New Zealand Supreme Court in the Tasman Pioneer (above) relating to the HVR as incorporated into the New Zealand Maritime Transport Act 1994.
If these considerations are applied to the Sunna, there is reason to go back to the previous analysis of the twofold nature of the relevant fault. Since, as emphasised by the Supreme Court, there was a general failure to have in place a prudent bridge management plan due to the rule-defying attitude of the master, such failure would, under the English law way of thinking, clearly not be of a navigational nature. There is little difference from the Hill Harmony where the master generally ignored the time charterer's orders as to sailing routes, and a similar general attitude of ignoring night time safety regulations. Such conduct would not involve "acts of seamanship".
If, on the other hand, we take the approach as adopted by the Court of Appeal, and look to the master's decision making on the night of the incident, this would probably be nautical in nature in the above sense. There was a concrete evaluation, taking into account the weather and the assessment of the crew's need for rest, etc., hence such considerations would probably involve "acts of seamanship". However, that approach taken by the Court of Appeal seems to miss the complicating factor, that had a prudent bridge management plan been in place, there would have been no room for such ad-hoc decision making.