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The following article discusses the various issues surrounding the terms 'seaworthy' and 'unseaworthy'. It is important for
a Marine Engineer or mariner to avoid getting into the realms of legal issues, but this particular article has helped me to
understand the matter, and has been particularly helpful when instructed on matters involving the seaworthiness of
vessels.

Unseaworthy – at the Commencement of the Voyage

The legal definition of a seaworthy ship is, "one which is in a fit state as to repairs, equipment, crew, and in all other
respects, to encounter the ordinary perils of the sea". It is the perils of the sea, and not the perils on the sea, which have to
be considered.

If the defect existed, would a prudent owner have required that it should be made good before sending his ship to sea, had
he known of it?

Another aspect of the notion of seaworthiness, which has to be considered, is its flexible characteristic. Various factors
have to be taken into account when measuring the seaworthiness of a ship. That its import varies with the place, voyage
and the class of ship and even the nature of the cargo is clear. Seaworthiness is a relative term and, thus, cannot be
determined or measured in the abstract.

It is also necessary to note that the law does not require a shipowner to provide an immaculate or a perfect ship: the
standard of seaworthiness is only one of reasonable fitness. The law does not expect a ship to "weather every conceivable
storm or withstand every imaginable peril of the sea, but only a vessel reasonably suitable for the particular service".

Seaworthiness and Safety

The terms "safety of ships" and "ship safety" are often used as though they are synonymous with the 'seaworthiness' of
ships. However, it is observed that 'unsafe' ships may be divided into two categories. One category relates to her
'seaworthiness', which, strictly speaking, should only concern matters impinging upon her ability to encounter the ordinary
perils of the sea, as earlier described. The other category is concerned with conditions on board a ship which affect the
health, safety and welfare of human lives. Thus, it would not be inaccurate to say that the word 'unsafe' is a wider concept,
and seaworthiness is only one aspect of safety.

It is interesting to note that the warranty which is implied in maritime commercial contracts is one of 'seaworthiness' and
not one of 'safety'. On the other hand, in maritime criminal law, the term 'safety' is used to describe some of the statutory
offences. This distinction could perhaps be best illustrated with the case of a ship having inadequate medical supplies;
such a deficiency would probably render a ship unsafe, but not unseaworthy in its strict legal sense. Similarly, the absence
of a fire extinguisher on board was held to be a matter which could not affect the seaworthiness of a ship.

Fitness to Carry Cargo

Seaworthiness involves fitness to carry cargo of any description which the shipper had a right to offer. It is not enough
that at the beginning of the loading the ship was fit to receive the cargo; it is necessary that at the time of sailing she
should be fit to carry the cargo on the agreed voyage.
Where there is an obligation, express or implied, to provide a ship equipped with refrigerating machinery for a cargo of
frozen meat, the machinery must be fit at the time of shipment to carry the frozen cargo on the contract voyage made
under ordinary conditions. Moreover, the ship must be free from defects which, although not endangering the safety of the
ship herself, yet endanger the safety of the cargo by permitting the sea to have access to the cargo or otherwise.

Time when Seaworthiness is Necessary

The time at which the undertaking of seaworthiness must be fulfilled is at the commencement of the voyage, that is when
the ship leaves her moorings without the intention of returning to them. If she is seaworthy at that time, the fact that she
subsequently becomes unseaworthy is no breach of the undertaking, as it is no part of the contract that she is to continue
to be seaworthy. On the other hand, if she is unseaworthy at the time of her departure, the shipowner cannot escape the
consequence of the breach of the undertaking by subsequent repair, and it is immaterial that the ship may in fact have
been made thoroughly seaworthy before the loss or damage takes place.

Effect of Unseaworthiness

If the shipowner is in breach of the implied undertaking of seaworthiness, he is liable for any loss or damage caused by it,
because protective clauses in the contract of carriage do not cover loss or damage occasioned by the initial
unseaworthiness of the ship. If the unseaworthiness is a real cause of loss or damage, it is immaterial that there are
contributory causes for which the shipowner is not liable. At the same time it is always competent to the shipowner at
common law to qualify or exclude the implied undertaking as to seaworthiness, but this must be done in clear and
unambiguous terms.

Thus, if the ship was unseaworthy owing to the fact that she started with an insufficient supply of fuel, the shipowner
cannot rely on a negligence clause in the contract and escape responsibility on the ground that it was through the
negligence of his employees that the fuel was insufficient at starting.

Similarly, where a port-hole has been left open or insecurely fastened in circumstances amounting to unseaworthiness, the
shipowner is responsible if sea water gains access to the cargo and damages it; he is not excused by an exception against
perils of the sea, nor by an exception against negligence.

The failure to provide a seaworthy ship does not, however, preclude the shipowner in every case of loss or damage from
relying on an exception; he remains covered where the loss or damage complained of is unconnected with the initial
unseaworthiness. It seems, however, that where there is an exception of negligence, but no exception of unseaworthiness,
the shipowner is liable for the whole of any damage caused by water which enters the ship owing to unseaworthiness,
although the damage would have been less if proper steps had been taken to reduce it.

The undertaking to provide a seaworthy vessel is one of a complex character which cannot be categorised as being "a
condition" or "a warranty". It embraces obligations with respect to every part of the hull and machinery, stores, equipment
and crew. It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which
must inevitably result in a total loss of the vessel. Consequently the problem is not soluble by considering whether the
undertaking is a condition or a warranty. The undertaking is an undertaking one breach of which may give rise to an event
which relieves the charterer of further performance of his part of the contact if he so elects, and another breach of which
entitles him to monetary compensation in the form of damages.

Burden of Proof

The burden of proving unseaworthiness rests upon the shipper. The fact that the ship becomes leaky or goes to the bottom
shortly after putting to sea, without there being any storm or other external factor to account for her condition or loss, is
prima facie evidence of unseaworthiness, and shifts to the shipowner the burden of proving that she was in fact seaworthy
at the time of her departure. If, however, the shipowner proves that the damage was caused by some matter falling within
the exceptions, then the cargo owner must prove affirmatively that the ship was unseaworthy and that that
unseaworthiness caused the damage.
Keeping the Ship Seaworthy

It is the Master's duty, as he represents the shipowner, to carry the goods to the port of discharge in the same bottom,
although, in the execution of this duty, he must consider the interests of all persons concerned in the adventure. He must
therefore, as far as possible, maintain the ship in a seaworthy condition throughout the voyage, and if she becomes
unseaworthy he must execute any repairs which may be necessary, provided that he has a reasonable opportunity of doing
so without unreasonable delay or expense to the various interests involved.

If the Master fails to perform his duty in this respect, the shipowner is responsible to the owners of the goods on board his
ship for any damage resulting, except insofar as he may be excused by the terms of the contract. Even where the
unseaworthiness is caused by an excepted peril, it is the Master's duty to remedy it by every reasonable means in his
power, otherwise he is guilty of negligence, and the shipowner is not excused, unless he is protected by the terms of his
contract, against the consequences of the Master's negligence.

Thus, where the actual safety of the ship, and consequently of the cargo, is endangered, it is the Master's duty, if possible,
to save his ship by removing the cause of danger, for example by stopping up a leak, or keeping down the water in the
holds by pumping, or by returning to the port of loading or proceeding to a port of refuge for the purpose of executing the
necessary repairs. However, as mere error of judgement it is not necessarily equivalent to negligence, the Master is not
guilty of negligence in continuing his voyage without putting into a port for repairs if he honestly and reasonably believes
that, in spite of her condition, the ship is capable of reaching her destination, and it is not conclusive against him that she
in fact founders before she does so.

When, once she has reached a port of refuge, whatever may be the cause of her unseaworthiness, she must not proceed to
sea again in an unseaworthy condition, otherwise the shipowner is responsible, whether the original cause of her
unseaworthiness is covered by an exception or not, since the Master, in leaving the port of refuge without repairing, is
guilty of negligence.

Even if the shipowner is protected by an exception against such negligence, nevertheless, if the port of refuge marks the
commencement of a new stage, it may be that the undertaking of seaworthiness must be satisfied when the ship resumes
her voyage.

Obligation to Repair the Ship

Even where the ship is damaged by an excepted peril, the shipowner is not necessarily absolved, as he is bound to fulfil
his engagement by every reasonable and practicable method. Hence, the ship cannot be regarded as having been rendered
incapable of performing her voyage merely because she needs repairing and cannot continue her voyage until she is
repaired.

It therefore becomes important to consider how far the shipowner is bound to repair his ship, since, if he does not repair
her and abandons the voyage, the question may arise whether his inability to carry the cargo to its destination is to be
attributed not to prevention by an excepted peril for which he is not responsible, but to his failure to repair, which is a
breach of his duty towards the owner of the cargo. There is clearly a prevention by an excepted peril where the ship is so
damaged by it that she cannot be repaired, or where, although she is capable of being repaired, the repairs are
commercially impossible.

On the other hand, the shipowner is bound to repair the ship if it is reasonably possible for him to do so, and a failure to
repair her, by which she is prevented from continuing her voyage, is not a prevention by an excepted peril. However, the
cost of repairs falls on the shipowner unless the need for repairs is occasioned by a general average loss, and, if the cost is
so prohibitive that he cannot prudently and reasonably repair, he cannot be called on to do so. If the cost of the repairs
necessary to enable the ship to complete her voyage is out of all proportion to the benefit which the shipowner will derive
from them, it is impossible, in a business sense, to repair her, and the shipowner is therefore prevented from completing
the voyage, not by his failure to repair, but by an excepted peril. The cost of repairs must, however, be unreasonable; the
shipowner is not excused for a failure because the Master believed that the repairs could not be executed at a reasonable
cost. In any case, whatever may be the cost of repairs, it is the shipowner's duty to continue the voyage if he has in fact
repaired the ship.