3 Causation and evidentiary aspects – nautical fault pointing retroactively towards initial unseaworthiness
In the Sunna, the conduct of the master was evidentially substantiated by the fact that he had on a prior occasion been sanctioned by the Dutch Port State control for having defied the safety rules.(1) See the detailed account given in Solvang (2021) ch. 2.This, combined with the later grounding when there was no double watch on the bridge, bore out the fact that the master at the time of departure from load port, had the mindset of defying the rules and that there was no prudent bridge management system in place – hence the vessel was initially unseaworthy.
If one were to disregard the fact of the prior Port State control, the result in the Sunna should be no different, apart from the evidentiary aspect: It might have been more difficult to establish that the rule-defying mindset of the master was already in existence at the time of departure. It might for example have been easier for him (if wishing to do so) to fabricate a version that this was a one-off instance of deciding that there was no need for double watch keeping. It should in this respect be recalled that the master’s explanation for only deploying a single watch on the night of the incidence, was that the weather was calm, and that the crew needed rest to do maintenance work on the ship during daytime. It might in this respect not have been straightforward to establish initial unseaworthiness if, ex hypothesis, the only available evidence had been the version given by the master and crew.
By altering the facts in this way, it may perhaps be asked whether, so to speak, any incident of nautical fault of some gravity, may not shed retrospective light on what may be considered intrinsic causes already in existence at the time of departure, hence constituting initial unseaworthiness. If a master makes a grave navigational mistake, would that not mean that this was part of his character, which materialised during the voyage but existed latently back in time?(2) See also the discussion about ‘latent human defects’ in Solvang (2021) ch. 4.6.Clearly, such questioning involves complicated issues at the intersection between evidentiary aspects and evaluation of legal principles of causation. Some reflections may be made in that respect.
There is clearly a difference between the Sunna where the rule defying mindset of the master was the cause of a later incident, and a case where an incident happens which leads the master or crew to make a bad nautical decision. To again use the Sunna as an example: in theory it might perhaps be the case that since the second mate fell asleep on watch, he might already have had this character of being prone to falling asleep at the earlier time of departure. It seems however to be an unrealistic approach to say that the vessel must therefore have been initially unseaworthy; there would be a multitude of potential causes which might occur after departure which could, in the legal sense, be viewed as the proximate cause of the nautical fault of falling asleep.(3) Similar considerations may arise in respect of one-man shipowning companies where the master is at the same time the owner/manager of the ship and where intricate situations of nautical fault (by the ‘master-ego’) and commercial faults (by the ‘managerego’) of one and the same person – see Solvang, Rederiorganisering og ansvar – rettslige utviklingsrett (‘organisation of shipowing companies – legal developments’), MarIus no. 484, 2017, pp. 31 et seq, with comments on the case Vågland, ND 1954.56. See also Solvang (2021) ch. 4.7.This, at the same time, illustrates the important distinction between incompetence of crewmembers (constituting initial unseaworthiness) and singular instances of negligence (constituting nautical fault), which forms part of several English law decisions.(4) See e.g.the Eurasian Dream, Lloyd’s Rep. 2002, 1, 719, discussing aspects of incompetence vs. negligence in relation to the fire exception of the HVR. The master was found to be incompetent and the shipowner was held liable in negligence for not having detected it and for not having provided him with proper fire fighting training.
On the other hand, there might well be grave incidents of nautical fault which could constitute at least prima facie evidence of initial seaworthiness, and perhaps also prima facie evidence of the shipowner being at fault in not detecting incompetence by the master or the crew.
An instance of grave misconduct by the master follows from the New Zealand case, the Tasman Pioneer(5) Lloyd’s Rep. 2010, 2, 13.from 2010. During the voyage of a liner service ship, the master decided to alter the normal route by deviating east of an island (the Japanese island Okino Shima) to shorten the sailing distance and thus bring the ship back on time schedule. While deviating, the vessel touched bottom, which led to seawater ingress.(6) It transpired that the deviation was in itself unproblematic; the master had sailed that route before, however on the present occasion he discovered that the radar did not work properly, hence he decided to abort the deviation, and as part of this abortion (turning in a narrow straight) the ship touched bottom. See also the account given in Solvang (2021) ch. 3.2.The master decided to conceal this navigational error by proceeding for about two hours until reaching a geographical point compatible with the original sailing route. From here he called the Coast Guard and the offices of the shipowner, and gave a forged story of having struck an unidentified submerged object. He also instructed the crew to lie to the Coast Guard when later interviewed about the incident.
The water ingress stemming from the extra time taken before the master called for assistance, caused (additional) damage to the cargo, and when learning the true facts, the cargo owners rejected the shipowner’s purported invocation of the HVR exception for nautical fault relating to the (additional) cargo damage – that the initial grounding constituted nautical fault was not in dispute.
According to the cargo owners, the scope of the exception for nautical fault (negligent navigation) of the HVR could not reasonably encompass this type of wilful misconduct by the master. However, with differing results among the various court instances, the New Zealand Supreme Court held that the nautical fault exception did apply. It is important to note that the Supreme Court emphasised the need to go to the roots of the HVR as drafted, and not let that intended risk allocation system be influenced by national law principles, e.g. concerning censoring of contractual (here: legislated) terms on the basis of principles of loyalty, etc. – as the lower courts had held.
Moreover, the master of the Tasman Pioneer was found to be competent as a seaman, hence there was no issue raised concerning negligence on the shipowner’s part in not providing a competent crew – as obliged by HVR art. III 1). There was also no assertion made by the cargo side to the effect that the master had (perhaps) a mindset already in existence at the time of departure, which posed a general risk of something like this happening during the voyage, thus making the ship initially unseaworthy. Hence, the thinking must have been that as a matter of causation it was the prior grounding (being of a “plain” nautical fault nature) which brought about the master’s wholly unacceptable conduct.
We leave the topic here – with the Sunna as an example of the evidentiary importance of being able to establish the true facts in this interface between initial unseaworthiness and nautical fault, in that case with the prior Port State control as important evidentiary means of shedding light on the true circumstances of what later happened.
It is, moreover, worth pointing to a slight paradox that may ensue in some of these cases, namely that it is in the general interest of the shipowner to argue, and adduce evidence to the effect, that it was the master’s decision making that failed, not what lay within the shipowner’s “direct control”(7) As that term was used in the Tasman Pioneer, see Solvang (2021) ch. 3.2..and thus within the sphere of responsibility of the shipowner.
This possible inclination of highlighting the fault of the master is particularly clear from the City Court’s decision in the Sunna. The shipowner introduced evidence to the effect that the shipowner’s superintendent acted prudently in instructing the master to comply with the safety rules; it was the master who failed by not being amenable to taking them seriously. One could then speculate: if the master had been called as witness, hence been given the opportunity of speaking his case, his inclination would probably have been to counter the version given by the superintendent, thus potentially weakening the shipowner’s case. These reflections concerning evidentiary aspects of important questions of causation, which in turn are decisive to the question of liability of the defendants to a legal dispute, may be said to be general in nature. However, the importance of such reflections is enhanced in this type of cases which involve liability exceptions for something as central as the conduct of a contracting party’s main servant: the shipowner’s master.