2.1 Policy considerations
The problem to be discussed can be formulated thus: If matters relating to initial seaworthiness can be remedied after the ship’s departure from the load port (e.g. while the vessel still sails in sheltered waters) but such subsequent remedial acts fail and lead to cargo damage, should such failure then be categorized as nautical fault (failure in management of the ship) exempting the shipowner from liability – or should it be deemed part of the initial seaworthiness obligation attaching (as it were) retroactively, thus leading to liability for the shipowner?
The following main considerations are here at play:
On the one hand, being too lenient in allowing such subsequent failure to be deemed nautical fault, would have the undesired effect of removing important incentives for the shipowner to ensure that the ship is made seaworthy before departure. To put it to the extreme, a shipowner’s thinking could go: “Acts of seaworthiness can wait, since if the crew fails in rectifying them after departure, I as shipowner am exempt from liability”.
On the other hand, it would in many instances be impractical to have all matters relating to seaworthiness attended to before or at the very moment of departure. Some leeway is obviously needed, and in many instances it would be considered entirely safe to perform certain tasks subsequently. But the legal question then becomes: if such subsequent tasks nevertheless fail, who should bear the risk? It would not be commercially unjust or in any way illogical to say that the shipowner should bear the risk of such subsequent failure, since such tasks belong to the sphere of making the ship seaworthy before departure, rather than to the sphere of nautical faults occurring during the voyage.
In the following we look at some examples of this type of questioning under Nordic law. Before doing so, it is however worth recalling some points from the wording and scheme of the HVR, which in the writer’s view have been ignored and/or misconceived in the Nordic discussion, due to the way the Maritime Code (MC) has been drafted.(1)See Solvang (2021) ch. 3.4.
In the HVR, art. III 1 is considered as “the merchant’s” provision: matters of initial seaworthiness are not to be eclipsed by the liability exceptions in art. IV.(2)That does not mean that a matter falling outside of art. III cannot exist as a latent deficiency before departure, see .Solvang (2021) p. 75.Moreover, matters of initial seaworthiness are deemed to be within the shipowner’s “direct control”,(3)See the Tasman Pioneer, discussed in Solvang (2021) ch. 3.2.hence it should clearly not be open to the shipowner to render the performance of it “outside of his control”, by delegating the task to be performed by the crew at a later stage. The system of the HVR therefore points in the direction that if such seaworthiness tasks are performed subsequently, and fail, such failure remains part of the shipowner’s initial seaworthiness obligation pursuant to HVR art. III 1.
Based on mere policy considerations, one could probably go one step further and say that if such subsequent failure were to be considered nautical fault, the shipowner should at least be required to demonstrate that there was a prudent system already in place at the time of departure to ensure that performance of the subsequent tasks did not entail any risk of something going wrong. Such a requirement would follow from the very concept of seaworthiness itself: that there are no foreseeable circumstances leading to an increased risk of something going wrong during the voyage – as e.g. adopted by the Supreme Court in the Sunna.(4)Solvang (2021) ch. 2.