4.4 The interrelation between nautical fault (mismanagement of the ship) and initial seaworthiness
It is important to note that the said functional approach to the question of navigational fault has no similar bearing on the nautical fault alternative of "act, neglect or default [...] in the management of the ship."(1) As expressed in MC s. 276 i.f. and in HVR art. IV 2 a).
Here a temporal dividing line would have to be drawn as to whether or not the ship has commenced the voyage, since these acts do not belong to the master's prerogative, as do the acts of navigation. Put differently, there is here no similar basis for adopting a functional approach to the act of mismanagement of the ship. The shipowner's obligation to make the ship seaworthy before departure under the HVR art. III 1 a) is non-delegable, in the sense that these acts may well be (and often are) delegated e.g. to the master and crew, but the due diligence obligation itself is non-delegable. In other words, these acts of making the ship seaworthy are considered to be within the shipowner's "direct control",(2) As expressed by the New Zealand Supreme Court in the Tasman Pioneer, above. while (at the same) acts concerning management of the ship made by the master or crew after embarking on the voyage, are not. Therefore, a temporal dividing line is needed here.
This type of question seems, again, not to have been up for judgment under Norwegian law, but the English case the Maurienne(3)Maxine Footwear Co. v. Canadian Governant Merchant Marine [1959] A.C. 589.from 1969 may serve as illustration. After completion of loading but before the ship set sail, some scupper pipes were found to be frozen and were negligently defrosted by a crewmember by the use of an acetylene torch, which set fire to the insulation of the pipes. The fire spread to the rest of the ship, causing her to sink. The shipowner tried to argue that the due diligence obligation under HVR art. III 1 only arose at the beginning of loading and at the beginning of the voyage, not during the stage inbetween.(4) As a semblance of the English doctrine of stages, which is set aside by the adoption of the HVR in the English COGSA and which we do not go further into here. Not surprisingly, the Court disagreed; the duty of due diligence to make the ship seaworthy was found to last from at least the beginning of the loading until the ship starts on her voyage, and in this case the voyage had not begun.
Applying these considerations to the Sunna may also be of interest. Since we concluded above that the master's conduct in failing to have in place a prudent bridge management plan, probably was not nautical in nature, that means that the task of ensuring such a plan would be of a kind which lay within the sphere of the shipowner's "direct control" (as put by the New Zealand Supreme Court). In that sense the master would be the shipowner's delegate, for the purpose of procuring this type of characteristic of the vessel to be in order at the time of departure. This kind of task would, according to this line of thinking, be open for the shipowner to have anyone perform on its behalf. It would not lie within the prerogative of the master as a navigational task. Hence, this angle to the topic seems to strengthen the correctness of the Supreme Court's finding of initial unseaworthiness through the fault of the master, although via a slightly different route than taken by the Court.
This, at the same time, illustrates that the approach taken by the City Court in the Sunna was slightly misconceived. The City Court found that the shipowner had not sufficiently demonstrated that, through its superintendent, sufficient steps had been taken to ensure that the master would comply with the safety rules. Hence the shipowner was found liable on the basis of privity with reference to MC s. 275. A contrario, this seems to imply that if sufficient evidence had been adduced to that effect, but the master had still not complied with the safety rules, then there would be no basis on which to hold the shipowner liable, as the shipowner would have fulfilled its due diligence obligation under s. 275. That would however not have been right, since it overlooks the role of the master as a delegate of the shipowner under MC s. 275. In other words, the approach by the City Court seems, on the one hand, to misconceive the concept of privity ('egenfeil')(5) See pp. 12 and 13 of the City Court's decision, also with unfortunate considerations about burdens of proof (p. 17) which, on this kind of matter, with the evidence so informative as to what happened, seems to be a way of "dodging" the determinative legal questions. As to such "dodging" of legal questions by hiding behind burden of proof rules, see examples in Solvang (2021) pp. 90-94. and, on the other hand, to misconceive who are delegates of the shipowner for the purpose of ensuring the ship's seaworthiness.
Aa stated earler, it seems that the way these points are structured in the MC, by having s. 275 as a kind of base rule with s. 276 as an "add-on", leads to this kind of confusion - more so than by reading HVR art. III 1 in conjunction with art. IV. Notably, HVR art. III 1 does not operate with any concept of "privity".(6) See Solvang (2021) on the discussion of the English case the Muncaster Castle in relation to identifying the class of delegates of the shipowner "back in time" (from long before the relevant cargo voyage commenced). Also in that respect English law, naturally, starts out from the wording of HVR. art. III, and also in that respect Norwegian law through the MC has "hidden" the relevant part of the Rules - Solvang (2021) pp. 38-39 and 65-67.