2.2 A preliminary look at Nordic case law
From these introductory considerations, we take a look at three different Nordic Supreme Court cases which all involve this topic of subsequent rectification of aspects of seaworthiness.
The first is the Swedish Supreme Court decision, the Pagensand(1)ND 1956.175.from 1956.
In this case a gauging pipe had not been sufficiently locked (a cover not being put on at the end of the pipe) at the time of departure. During the voyage, sea spray entered the pipe and caused damage to the cargo, consisting of paper. The shipowner was held liable for the cargo damage by reason of initial unseaworthiness. The Court discussed questions of causation concerning whether a prudent plan for remedial acts was in existence at the time of departure. In that respect the Court stated that initial unseaworthiness would be found to exist (with ensuing liability for the shipowner) “unless it appears likely that the defect would be remedied before the peril was encountered. Since the evidence in the present case […] justifies the conclusion that there was no established practice of performing gauging by the use of the gauging pipe [at load port], there is no basis for concluding that the defect would be remedied before the peril was encountered.”(2)My translation.
In other words, since there was no such remedial plan in place, there was an inherent risk that the prima facie state of unseaworthiness would materialize into cargo damage, and the subsequent failure to remedy the prima facie defect was not considered a nautical fault. In principle the approach is similar to that of the Norwegian Supreme Court’s assessment of the situation in the Sunna: there was no indication that the failing state of affairs (lack of a prudent bridge management plan) would be remedied subsequent to departure.(3)Solvang (2021) ch. 2.
A second case to be mentioned is the Norwegian Supreme Court case the URD II(4) ND 1919.364.from 1919.
That case is mentioned in legal literature on a par with e.g. the Pagensand in terms of the said topic of considering allowance for subsequent rectification of seaworthiness defects,(5) Falkanger/Bull, Sjørett, 2016, p. 295.but cannot in my view be considered as authority in that respect. The case concerned a claim by a shipowner for recovery under its H&M policy after the ship had sunk. Admittedly, the policy contained a condition for cover that the ship was seaworthy upon departure from port, but such a condition in an H&M policy still does not resemble the risk allocation system of the HVR, nor are the wordings the same. There is e.g. no parallel provision in an H&M policy to that of the relationship between initial unseaworthiness and subsequent nautical fault liability exceptions as in the HVR. Moreover, policy considerations by the courts are clearly different depending on whether there is a question of depriving the shipowner of insurance cover for a lost ship, or instead of imposing liability for (in principle, minor) cargo damage.
The facts of the case were that coal used for fuel was loaded on deck, which prevented the cargo hatch covers from being closed at the time of departure from load port. There would have been plenty of time to have this remedied (coal removed and hatch covers closed) before the ship, after some hours of sailing time, reached open waters. Those acts were however neglected and when the ship encountered open waters, being deeply loaded with minimum freeboard, swell washed over the decks, entered the cargo holds, and the ship eventually sank.
As mentioned, the case concerned recovery under an H&M policy. The Supreme Court found that the ship was (sufficiently) seaworthy upon departure from load port, since as a matter of course the hatches could have been closed in time. There is however no inquiry as to whether the shipowner had in place a prudent plan for this to be performed, as one would expect in the context of the HVR. Moreover, a concurring view by the Court, dissented on the reasoning, held that it would be sufficient in the context of seaworthiness for the shipowner to establish that the ship in itself was seaworthy, including being competently manned – thus without adopting any consideration of the risk assessment of the upcoming voyage, which clearly forms part of the seaworthiness test under the HVR.
The third case to be mentioned is the Norwegian Supreme Court case the Sunny Lady(6) ND 1975.85.from 1975.
During an intermediate call into port a crew member intended to replenish domestic water to the ship but mistook the gauging pipes intended to be used, and instead filled water into the pipe for the cargo hold, damaging part of the cargo. The flanges of the respective pipes were overpainted as part of maintenance of the ship so that the correct pipes were hard to identify. However, there were drawings on board showing the pipes’ identity, and there were other crewmembers than the one making the mistake (he was new on the ship) who could have instructed him, if asked. The Supreme Court found the ship not to have been initially unseaworthy, and the shipowner was entitled to invoke the nautical fault exemption.
As part of its reasoning relating to the seaworthiness test, the Court put the question: “whether at the beginning of the voyage it could be seen as highly likely that the defect which here existed would be remedied or neutralised during the voyage by the means available on board the vessel.”(7) Page 92-93 of the decision (my translation).On the facts of the case, the Court answered this in the affirmative: there was reason to believe that during the course of the voyage the new crewmember would acquaint himself with the piping system, or at least ask someone before filling water.
The case is therefore not direct authority on the question of whether prima facie seaworthiness deficiencies may be remedied after departure, since the ship was not found to be unseaworthy, even without the (minor) deficiency in terms of overpainted flanges not being rectified. The case is however of interest since the Court of Appeal in the Sunna used the reasoning in the Sunny Lady in support of the view that whatever unseaworthiness existed in the Sunna (the master not having in place a bridge management plan),it could have been rectified subsequently. That kind of use of the findings from the Sunny Lady in the Sunna, seems to be flawed.(8) Solvang (2021) pp. 95-97.