6 Causation and its relation to a wide or narrow concept of seaworthiness
The question of causation between initial unseaworthiness and subsequnt faults (possibly) being of nautical nature, may furthermore be seen as a question of adopting a “narrow” or a “wide” concept of seaworthiness. The very notion of unseaworthiness entails aspects of foreseeable risks during the upcoming voyage, hence within such a context, intrinsic questions of causation.
We may again take the Sunna as an example. The Supreme Court found as a matter of fact and evidence that the absence of a prudent bridge management plan at the time of departure, meant that there was an increased risk of something going wrong during the voyage, and that this increased risk as a matter of causation materialized during the voyage. This type of risk-assessment approach could be called a “wide” concept of seaworthiness.
The Court of Appeal, on the other hand, essentially confined its assessment of seaworthiness to a finding that a) the ship was furnished with a competent crew, and b) there was a safety manual onboard which was easily accessible to the master (and the Court found that the shipowner’s representatives had reason to believe the master would make use of it).(1) See Solvang (2021) ch. 2.Hence, what subsequently happened during the voyage would, according to the Court of Appeal, be assessed within the scope of nautical fault. This tendency of applying a seaworthiness test without emphasis on the risk aspect of something going wrong, could be called a “narrow” concept of seaworthiness.
These differing approaches have their parallels in foreign law. An example can be taken from U.S. law and the case of Mahnic v. Southern S. S. Co.(2) 1944 A.M.C. 1.from 1944. That case concerned seaworthiness in the context of personal injury suffered by a crewmember.(3) See also Solvang (2021) ch. 5 with similar discussion of the U.S. case the Racer.During the voyage a crewmember was doing maintenance work (by being hauled fifteen feet over the deck) by the use of ropes. The rope broke, turning out to be decayed, and the seaman fell onto the deck. The rope was selected by the claimant (the injured seaman) from a box placed onboard the ship, which contained unused ropes, being a few years old. All the ropes looked fine from appearance but some turned out to be decayed.
On the question of whether the ship was unseaworthy due to being equipped with decayed ropes, the District Court held that it was seaworthy since there were other ropes on board of sound quality which could have been selected. The Court of Appeal held likewise. The Supreme Court reversed, on the basis that there was an increased risk of something going wrong with the mixture of sound and decayed ropes, hence the ship was found to be unseaworthy.
The case provides a simple illustration of the point at hand, also appearing in the Sunna. Should one look at the mere existence of good working condition of the ship and crew at any given time (in our con at the commencement of the voyage), or should one look at the combination of potential risk factors and the likelihood of something going wrong during the voyage – in other words, considerations of foreseeable risks and causation?
Somewhat simplified, one could say that the Supreme Court in the Sunna and the Supreme Court of the U.S. both took the latter approach, that is, they adopted a “wide” concept of unseaworthiness. The same point is reflected in the URD II (above) where the concurring vote of the Supreme Court expressed a “narrow” perception of seaworthiness: that it sufficed to look to the formal-technical status of the ship and crew at the time of departure, without considering the likely further events, namely whether the combination of risk factors already in place might lead to an increased likelihood of a later casualty.
The same type of question came up in the Sunny Lady (above). Here the Supreme Court did consider the question of the likelihood of something going wrong in view of the prima facie deficiency at the time of departure: the flanges of the gauging pipes being overpainted, combined with a crew which at that time was inexperienced in the peculiarities of the ship. In that case, the subsequent mistake (filling of domestic water into the wrong pipe) was found to be an incident of nautical fault, and – notably – the ship was not considered to be initially unseaworthy. This latter position was reached through a combination of factors: the overpainted flanges constituted a kind of de-minimis defect, combined with the fact that the crewmembers were competent as such, and that there were reasons to expect that the crewmembers would be trained during the course of voyage and thereby learn the correct identity of the pipes. In other words, through a combination of such factors there was no sufficient foreseeable risk that something might go wrong (through the wrong use of the pipes) for saying that the ship was initially unseaworthy. In that sense, the Supreme Court, again, adopted a “wide” concept of seaworthiness.
It may be asked whether, at least in theory, a contrary view might have been taken in the Sunny Lady, in line with the causative approach taken by the Supreme Court in the Sunna. One could say that the facts as they materialized during the voyage in the Sunny Lady (the combination of overpainted pipe flanges with an inexperienced crew), would shed retroactive light on an increased risk already in existence at the commencement of the voyage, hence meaning that the ship was initially unseaworthy.(4) And thus to require that the shipowner adduce evidence to the effect that there were proper procedures in place to cater for a proper training etc. of the new crewmembers so as to avoid the mishap that later ensued – along the line of prudent rectification of initial seaworthiness defects as discussed in chapter 2 above.In other words, one could “count backwards” from the ensuing damage through the factors leading up to it, with these factors being traceable back to the initial condition of the ship (and crew), and possibly end up with a conclusion of initial unseaworthiness. However, such “counting backwards” based on a mere causative approach, loses sight of the discretionary assessment of foreseeable risk at the time of commencement: would a prudent shipowner with knowledge of the relevant facts (overpainted flanges and inexperienced crew) have allowed the ship to sail? This concept, entailing notions of (reasonably) foreseeable risks, was applied in the Sunny Lady and answered by the Supreme Court in favour of the shipowner – and that conclusion hardly invites criticism.