4 Causation “the other way around” – initial unseaworthiness not causative of nautical fault
The previous chapter concerned situations of nautical fault which could throw retrospective light on what might constitute initial unseaworthiness – or to put it the other way around; possible instances of initial unseaworthiness which materialize into, and thus cause, what would otherwise be seen as nautical fault. There are also, however, other possible constellations in play: that instances of initial unseaworthiness are considered not to be the proximate cause of subsequent nautical fault. One example is the English case, the Isla Fernandina.(1) Lloyd’s Rep. 2000, 2, 15.
The ship sailed on a cargo voyage from Puerto Bolivar to Libya. Upon passing the Panama Canal, the bosun was seriously injured from an accident onboard, and the ship had to deviate to the nearest port for medical assistance (the bosun died in the meantime). During such deviation to port, the master and the third officer misread the navigational lights, leading to the ship grounding (near the Salmedina Bank). The cargo, consisting of fresh bananas, was damaged by the ensuing delay. In the subsequent proceedings it transpired that the ship did not have on board charts of the area with a suitable scale for navigating in close waters; it only carried a small scale chart as the plan was merely to transit the area.
The Court found that the lack of proper charts constituted initial unseaworthiness, since a possible need to deviate to shore should form part of prudent voyage planning. However, the Court found on the evidence that the master and third officer would have relied on the navigational marks as the only means of navigating to the port, even if proper charts had been on board, and that therefore there was no causation between the initial unseaworthiness and the later grounding. Hence, the shipowner was held entitled to invoke the liability exception of nautical fault. Moreover, the master and the third officer were considered to be competent as seamen, hence there was no basis for holding the shipowner liable for unseaworthiness in terms of incompetence by officers and crew.
This case, therefore, on a par with the Sunna, has the strange effect of giving incentive for the shipowner to argue that the master or crew onboard acted negligently, thereby escaping the consequences of liability for initial unseaworthiness. In other words, a cargo claimant may succeed in showing initial unseaworthiness stemming from negligence (that of not procuring a complete set of charts), while the shipowner successfully counters by submitting that even if the ship had been seaworthy, this would not have led to a different outcome, as the master would have run the ship aground anyway. But with the constellation as in the Isla Fernandina, there may be a further twist, in that the master as part of his evidence would perhaps not have had an incentive to argue otherwise. He would risk being at fault on either alternative: not procuring the necessary charts at commencement of the voyage and/or failing in navigation by relying on insufficient navigational marks.