4.3 The interrelation between nautical fault (navigational fault) and initial unseaworthiness
As already mentioned, in the Sunna the Supreme Court makes the general statement that whatever the nautical fault, it would be overridden by the shipowner's liability for initial unseaworthiness. In other words: if whatever nautical fault occurred before the ship's departure from load port, that nautical fault would at the same time constitute initial unseaworthiness, and the "exception to the exception" in MC s. 276 second paragraph, would apply. The shipowner in the Sunna, on the other hand, argued that one and the same fault (if assumed to be nautical in nature) cannot both be exempted from liability and also lead to liability (by reason of initial unseaworthiness).
Furthermore, and as matter of policy considerations, if one takes a functional view on the risk allocation embedded in the HVR, as e.g. expressed by the New Zealand Supreme Court in the Tasman Pioneer, the statement by the Norwegian Supreme Court becomes problematic. If one accepts as a premise for the risk allocation of the HVR that decision making involving navigation (in its narrow sense, as held above) forms part of the master's prerogative and thus falls outside of the shipowner's "direct control", it does not make good sense to let a mere temporal demarcation line decide whether or not the shipowner becomes liable. A functional approach, which as such is well recognized in Norwegian law, should instead lead to the nature of the fault being considered decisive.
This topic seems not to be addressed in either Norwegian legal literature or in case law, but it is addressed in English case law. In an earlier line of cases, English law took the view as expressed by the Norwegian Supreme Court in the Sunna, but that line of cases was criticized and overturned by the English House of Lords in the Hill Harmony (above).
In the Hill Harmony, the decision by the master to take the longer sailing route was made before departure, and the charterer in that case argued, supported by the earlier line of cases, that in order to qualify as a navigational fault exception, the relevant decision would have to be made after the ship had embarked on its voyage. On this point, the House of Lords stated:
"The character of the [navigational] decision cannot be determined by where the decision is made. A master, while his vessel is still at the berth, may, on the one hand, decide whether he needs the assistance of a tug to manæuvre while leaving or whether the vessel's draft will permit safe departure on a certain state of the tide and, on the other hand, what ocean route is consistent with his owners' obligation to execute the coming voyage with the utmost dispatch. The former come within the exception; the latter does not."(1) P. 159 of the decision.
Elsewhere the example is given that the nautical act of plotting of a course is navigational in nature, regardless of whether it is made before or after the time of departure.
It may be objected that these remarks are made in the context of what constitutes navigational fault, rather than whether such fault (being made before departure) curtails the shipowner's liability for initial unseaworthiness under the HVR, which was not up for decision in the Hill Harmony. Nevertheless, and as stated in the previous chapter, the statements by the House of Lords are submitted in legal literature as also forming the governing law in the context of the HVR and the shipowner's liability for initial unseaworthiness.(2) Cooke et al (2007) p. 1023. Such a position also makes good sense from a functional perspective: it would be inconvenient to operate with different concepts for the liability exclusion for navigational fault, depending on whether one deals with the HVR in the context of paramount clauses in charterparties, or in the context of the HVR applied "directly" under bills of lading.
Moreover, such a functional view accords with the general risk allocation of the HVR, whereby navigational decisions are viewed as falling within the master's prerogative and are as such considered to lie outside of the shipowner's "direct control".(3) As expressed by the New Zealand Supreme Court in the Tasman Pioneer, above Viewed in that way, such navigational decisions will not really form part of the shipowner's obligation to procure a seaworthy ship under HVR art. III 1 - see, however, the recent English case the Libra (below).
If these considerations are applied to the Sunna, it follows that they would not affect the result but they would affect part of the reasoning by the Supreme Court. If the facts are changed to the effect that the master made detailed planning as to whether to deploy single or double watch keeping during the upcoming nights, depending on the weather forecast, etc., it might well be that the shipowner's argument would be meritorious. Such evaluations might be considered as sufficient "acts of seamanship" to qualify as nautical fault, and as argued by the shipowner: one and the same fault committed by one and the same person cannot both constitute a nautical fault, not being imputed to the shipowner, and constitute initial unseaworthiness, being imputed to the shipowner.