THE MARITIME LABOUR CONVENTION (MLC, 2006) AND ITS CONCEPT ON

SEAWORTHINESS

Name: ONAKOYA RASHEED

Student ID Number: 4242225

Dissertation Submitted to

The University of Nottingham For the Degree of Master of Laws (LLM),

LLM in Maritime Law

" I Hereby declare that I have read and understood the regulations governing the

submission of postgraduate dissertation, including those relating to length and plagiarism,

as contained in the LLM Manual, and that this dissertation conforms to those regulation"

i
 ABSTRACT

An effort to maintain a cleaner and safer shipping environment has been the concern of

the United Nations, whose regulations aim to ensure a universal standard in the shipping

industry towards the reduction of most of the accidents caused by human errors in

shipping. Via their agency, The International Labour organisation (ILO), they drafted a

convention known as the Maritime Labour Convention which was adopted by the

International Maritime Community to complement older existing conventions, specifically

the STCW convention, with the aim to globally ensure that all ship-owners maintain a

proper standard in the operation, management and crew manning of ships. However, the

provision of the adopted MLC instrument is directly connected to vessel seaworthiness.

This study considers the relevance of the MLC instrument in Marine insurance and carriage

of good by sea contract.

ii
 ACKNOWLEDGEMENT

The dissertation would not have been completed without the support and guidance

provided by some people during the process. I will like to express my grateful thanks to

God almighty and wish to use this medium to express my sincere gratitude to the following

people

• Prof. HOWARD BENNETTE, who impacted on my knowledge of maritime law and marine

insurance and was my supervisor for this dissertation. I am grateful for his invaluable

support and guidance.

• My family for their encouragement and moral support.

iii
 TABLE OF CONTENTS

Abstract ………………………………………………………………………………....………….ii

Acknowledgement …………………………………………………………………….....……..iii

Table of Contents……………………………………………………………………….....……..iv

Chapter 1. OVERVIEW OF THE MARITIME LABOUR (MLC, 2006) AND STCW

CONVENTION

1.0 Introduction………………………………………………………………………………………………….....……...1

1.1 The MLC (2006) Convention ……………………………………………………………………….....……….2

1.1.1 The MLC Convention and UK Legislation …………………………………….......…….…4

1.1.2 Structure of the MLC Convention ………………………………………………………....……….5

1.2 Scope and structure of the STCW Convention ………………………………………………....…….5

1.3 Enforcement of MLC and STCW instruments …………………………………………………....…….8

1.3.1 Flag state responsibilities………………………………………………………………………...……..8

1.3.2 Port state responsibility ……………………………………………………………………………...….9

1.4 Critics of the MLC Instrument …………………………………………………………………………..…….10

Chapter 2. SEAWORTHINESS, CREW COMPETENCE AND SHIP DOCUMENTS

2.0 Seaworthiness ………………………………………………………………………………………………..………..13

2.1 Crew Negligence/ Incompetence …………………………………………............…………….……..13

2.2 Crew competency ………………………..............................………………….……………….…….14

2.2.1 A form of crew incompetence ……………………………………………..……………………….15

2.3 Ship Trading documents ……………………………………………………………………….………………...18

2.4 The MLC instruments and Unseaworthiness claim……………………………………………………21

iv
Chapter 3: The Marine insurance contract and the Conventions

3.1 Marine insurance contract ………………………………………………………………………………………..23

3.1.1 Seaworthiness in insurance policies ………………………………………………………………23

3.1.2 The Assured ………………………………………………………………………………………………….24

3.1.3 Causation Test ……………………………………………………………………………………………….24

3.2 Privity of the Assured ……………………………………………………………………………………………….25

3.2.1 The MLC instruments and Privity……………………………………………………………………27

3.3 Other Provisions under the insurance Contract……………………………………………………….28

3.3.1 Objectives of the ISM code …………………………………………………………………………….29

3.3.2 Comparative Approach of the ISM code and the MLC instrument …………….…30

Chapter 4: The Conventions and the Carriage of goods by sea contract

4.0 The Carriage of Goods by Sea contract and The Hague Visby Rule………………………….33

4.1 General Scheme of The Hague-Visby Rule …………………………………………………………….33

4.2 Due Diligence Proviso……………………………………………………………………………………………….34

4.2.1 Due Diligence in the selection of vessel crew …………………………………………….37

4.2.2 Due diligence in supervision of ship crew after employment ……………………….38

4.2.3 Due diligence in ensuring employed crew get familiarized with onboard

duties……………………………………………………………………………………………………………………………….40

Conclusion........................................................................................................43

Bibliography......................................................................................................44

v
 CHAPTER 1

OVERVIEW OF THE MARITIME LABOUR (MLC, 2006) AND STCW CONVENTION

1.0 INTRODUCTION

The United Nations (UN) established that majority of casualties in maritime commerce are

directly related to the drawbacks of many substandard vessels used in international

maritime transport1. Safety of these ships has been questioned with regards to crew

competencies, experiences and on-board living conditions2. In an attempt to make

shipping a safer industry and reduce the huge portion of maritime accidents caused by

human error; The United Nations (UN) used their specialised agencies, the International

Maritime Organisation (IMO) and International Labour Organisation (ILO), to set up an

instrument adopted by the United Kingdom (UK) government with respect to maritime

safety. The ILO introduced the Maritime labour convention (MLC, 2006) connected with the

industry’s existing Standard for Training, Certification and Watch-keeping for seafarers

(STCW convention) to ensure that all officers and crew employed to work on- board a

merchant vessel are trained and possess paper certificate of competence as evidence of

their efficient capacity to perform their duties on board ship after recruitment, hence an

essential element connected with vessel seaworthiness. This study critically analyses the

legal ramifications of the MLC instrument with the aim to determine if a ship owner’s mere

compliance with its provision is relevant in a seaworthiness defense claim in marine

insurance and carriage of good by sea contract.

1
Jimenez F.A, 'The human factor in maritime safety compliance with international standards MLC 2006 and STCW

2010 by Columbia' [2014] Vol XI (3) Journal of maritime research 59

2
ILO, 'Report of the Director-General: Developments in the maritime sector' maritime labour convention ,2006,

as amended adopted by the International Labor Conference at its 94th (Maritime) session, (2006). Amendment

approved by the International Labour Conference at its 103rd session (2014).

Available at http://www.ilo.org/public/english/standards/relm/ilc/ilc94/rep-i-1b.pdf accessed 17th of January,

2018.

1
1.1 THE MLC (2006) CONVENTION

The MLC (2006) convention originated after the resolution3 which reviewed the relevant

maritime instruments that was unanimously adopted to deal with the industry’s concern

on the existing maritime labour and shipping standards. At the session, " after highly

intensive and extensive consultation, a preferred solution, which was supported by all the

participants, were put forward on how the minimum requirements for working and living

conditions of seafarers could be ascertained. The process culminated in a recommended

draft for the maritime labour convention"4. The MLC (2006) convention was designed as a

global instrument known as the "fourth Pillar" of international maritime regulatory rule for

quality shipping, with its provision complementing the key conventions of the International

Maritime Organisation (IMO) such as the STCW 1978 convention, as amended. 5

The MLC

(2006) instrument is an international treaty whose provision contains a comprehensive set

of global standards that contribute to the achievement of seafarer employment throughout

the maritime industry. The instruments came into force internationally on 20th august,

20136 imposing duties and requirements for the protection of seafarers on ships in relation

to "minimum age for crew employment; training and certificates to be considered during

crew recruitment and placement services; seafarer employment agreements; seafarer

wages standards; seafarer's right to repatriation on completion of their shipboard's

3
A maritime session of the international labour conference (ILC) held in Geneva on 23rd February (2006), with

over one thousand one hundred accredited participants from one hundred and sixty countries, including

government officials, Non-governmental organizations (NGOs), ship-owners and seafarer's unions, under a

principle of global tripartite were present at the introduction of effective enforcement of international labour

standards.

4
ILO (n2)

5
ibid

6
The Merchant Shipping (Maritime Labour Convention) ( Minimum Requirements for Seafarer ) Regulation 2014,

SI 2014/1613

2
assignment; crew's on-board accommodation, food and standard of catering services;

Crew’s medical care; and the ship owner’s liability toward seafarers."7

Hence to ensure global continuity of compliance, the convention obligates all its ratifying

countries to ensure seafarers’ employment and social rights as laid down within the

provisions of the instrument, are fully implemented within limit of their jurisdiction. Thus,

all registered flagged ship-owners in a ratifying country are required to develop a plan and

measures stating how they will implement and comply with the provisions of the

instrument. Such plans are to be reviewed, verified and certified to be in compliance with

applicable national laws by the ratifying countries.8 A copy of the plan is required to be

carried on-board each registered ship, and the master of the ship is imposed with the

responsibility to maintain on-board evidence of implementation and compliance, giving

every seafarer on-board the ship the opportunity to complain either at shipboard level or

at the level of international supervisory scrutiny. The process is reinforced by voluntary

measures of vessel inspection by the flag state or port state officials in foreign ports; by

investigating any complaint made by seafarers on-board; undertaking detailed vessel

inspection,9 with the possibility of getting ships allegedly non- compliant with requirement

of the instrument arrested.10The achievement of the instrument’s objectives depend wholly

on majority of the ratifying flag states active involvement in maritime business e.g. United

Kingdom, thus enforcing all member states to implement its "requirement through their

national law or regulation and where its requirement do not require legislation, allow it to

be dealt with via other legal measures such as a collective bargaining agreements."11

7
ibid.

8 Maritime Labor Convention (MLC) 2006, (adopted 23 Feb 2006 entered into force 13 October 2014), art. v

Available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:91:0::NO::P91_ILO_CODE:C186 accessed

18 January 2018.
9
ILO (n2)

10
McConnell, M., Devlin, D., Doumbia, Henry,: The Maritime Labour Convention, 2006, A Legal Primer to an

Emerging International Regime, Martinus Nijhoff, (Leiden ,Boston, 2011)

11
MLC (n8) Art iv. para 5

3
1.1.1 The MLC Convention and UK Legislation

The United kingdom (UK) government supported the development of the instrument and

ratified the MLC (2006) convention on 7 August 2013. Although the United kingdom had

significant legislations in place that were already in compliance with the provision of the

instruments, in some cases where UK legislations are not in line, the UK government made

necessary amendments to its legislation via the power under the Merchant Shipping Act

1995.This ensures all UK law meets the requirement of the instruments such as The

Merchant Shipping ( Maritime Labour Convention ) ( Medical Certification ) 12

The Merchant

Shipping ( Maritime Labour Convention ) ( Surveying and Certification ) 13

The Merchant

Shipping ( Maritime Labour Convention ) ( hours of work ) (amendment ) 14

and the

Merchant Shipping (Maritime Labour Convention)(Recruitment and Placement ) 15 .These

are examples of some of the amended UK legislation, in order to comply with the

provision of the instrument.

The MLC instrument entered into force in the UK on 13 October,2014. Thus, compliance is

now mandatory for all " UK sea-going registered vessels (excluding pleasure vessels;

fishing vessels; war ships; and vessels that are not engaged in commercial activities).

Compliance with the instrument is also mandatory for all non- UK registered vessels

engaging in commercial activities within the UK waters 16

.

12
The Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulation 2010, SI 2010/ 737

13
The Merchant Shipping (Maritime Labour Convention) (Survey and Certification) Regulation 2013,

SI 2013 /1785

14
The Merchant Shipping (Maritime Labour Convention) (Hours of Work) (Amendment) Regulation 2014,

SI 2014/308

15
The Merchant Shipping (Maritime Labour Convention) (Recruitment and Placement) Regulation 2014,

SI 2014 /1615

16
The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarer) Regulation 2014,

SI 2014/1613

4
1.1.2 Structure of the MLC Convention

The context of the instrument is categorised into three different parts: Articles; Regulation;

and Code.17 The articles “reflect the broad principles and obligations; the regulation set

the main mandatory requirements for the ratifying country; the code comprises both

mandatory standards (code A) and non- Mandatory Guidelines (code B), that allows the

ratifying country a degree of flexibility to implement their rights and enforce

compliance.”18

The provisions of the MLC instrument are arranged in five titles, and each title contains its

regulation, code, and guidelines.19

Title 1 -minimum requirements for seafarers to work on the ship covering age, medical

certification and recruitment.

Title II -conditions of their employment; covering employment agreement, wages, hours

of work and annual leave.

Title III- Accommodation, recreation facilities, food and catering;

Title IV - Health protection, medical care, welfare and social security protection;

Title V - compliances and enforcement covering flag state and port state responsibilities.

1.2 Scope and structure of the STCW Convention

International Convention on Standards of Training, Certification, and Watch Keeping for

Seafarers,(STCW) 1978 as amended, is an "international instrument that sets forth the

basic minimum requirements for issuing certificates to individuals who serve as master,

17
Christodoulou-Varotsi, Iliana. 'a critical review of the consolidated maritime labor convention (2006) of the

international maritime labor organization: Limitation and perspectives' [2012] Vol 43(4) Journal of Maritime Law
and Commerce, 467.
18
Explanatory Memorandum to the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements

for Seafarer) Regulation 2014, para 7

19
ibid

5
Deck or Engine officer in charge of navigational watch on a seagoing ship 20
In 1971 IMO

Maritime safety committee, began the draft of the convention and in July 1978, it was

adopted at the IMO conference with conditions that the convention shall be enforced twelve

months after the date at which at least twenty-five IMO member states having a minimum

of total gross tonnage of one-hundred feet tons of merchant vessels but less than fifty

percent of the world tonnage agreed to the convention. Five years later the condition was

fulfilled and the convention entered into force on the 28th of April, 198421, with the aim of

promoting the safety of life, protection of marine property and the environment.22 By virtue

of reg. 1/14 and A-1/14 of the STCW, the convention imposes direct responsibility on the

ship-owner to ensure "all employed seafarers working on board their ships are trained and

certified in accordance with the provision of the convention.23 However, the STCW (1978)

Convention was criticized by the international shipping industry for lacking clear and quality

standards, thus creating a difference in the way individual member states interpret and

enforce the requirements of the convention24 following the Braer Tanker grounding incident

off the Shetland isle and other marine casualties.25

20
International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978

(adopted 7 July 1978 and entered into force 28 April, 1984)

21
Meybodi, Seyyedeh Hoda Emami. 'Legal Aspects of Seaworthiness in the International Maritime Law based on

the Iranian Judicial Precedent.'[2016] Vol 1 International Journal of Humanities and Cultural Studies (IJHCS)

1493 p. 1495.

22
Sperling, G. Hans. 'The New Convention on Standards of Training, Certification, and Watch keeping: What, If

Anything, Does It Mean.' [1997] Vol .22 Tulane maritime law journal 595.

23
STCW (n 20) Reg. 1/14 and Section A-1/14

24
Fink, E.J, 'Point of view' [2001] Vol 58(4) Proceedings of the Marine Safety Council 4-5.

25
Young, Christopher. 'Comprehensive Revision of the STCW convention: an overview' [1995] Vol 26 Journal of

maritime law and commerce 1

6
In 1993, the 1978 STCW Convention was reviewed and reformed by the IMO using a

tactical approval system,26 to "provide an effective mechanism for the enforcement of

provisions and allow greater flexibility in the assignment of on board ship duties.”27 The

amendments of the International Convention and Standard Training, Certification and

Watch Keeping (STCW 95) focused on competence based training of personnel responsible

in operating ships, such as ensuring parties maintained a database of documents and

compliance reports which served as an international watch dog guarantee of compliance

with its standard.28 The contents of the STCW 95 convention are structured into the various

sets of interacting components: " The text of the convention, its annex, The STCW code

(part A and Part B) and the eleven resolutions, which are all mandatory except the

resolution ,"29 thus allowing a uniform model of certification among state officials and

maritime institutions.30 Hence the STCW(1995) convention by virtue of reg. 1/14 and A-

1/14, imposes a direct responsibility on the ship-owner to ensure "each seafarer they

assigned on board their ships meet up with the minimum standard of training in

accordance with its provision.31

Furthermore, in 2010, the text of the STCW (1995) convention was amended and

modernised to bring it in line with the new technologies of maritime transport, thus

incorporating the provisions of MLC (2006) convention. The new STCW 2010 (Manila) as

amended requires all ship owners to provide the vessel with qualified and well catered crew

to "guarantee ship safety, efficiency, and proper realisation of shipping operations"32.

26
Sperling (n 22) Tactic Approval system "is defined as a simple mechanism that allowed for reform of initial

convention to make a technical adjustment by taking into account a new circumstances"

27
ibid. p.601

28
Jimenez (n 1) p. 63.

29
Sperling ( n 22 ) p 603

30
ibid.

31
International convention on the standard of training, certification and watch keeping for seafarer 1978 ( STCW

1995 ) Reg. 1/14 and Section A-1/14'

32
Jimenez (n1) p 64

7
The STCW (2010) as amended entered into force 1st of January 2017, 33
and was

incorporated into the United Kingdom (UK) legislation via the Merchant Shipping (standard

of training, certificate and watch keeping) Regulation34, which served as the basis for

issuing a certificate to UK seafarer who met" the requirement for age, medical, training,

and qualification to work on-board the vessel.

1.3 Enforcement of MLC and STCW instruments

The instruments are enforced via inspection and certification35 and the responsibility of

implementing global compliance are shared between the flag state and port state of the

ratifying state. 36

1.3.1 Flag state responsibilities

All Merchant vessels while navigating in international waters are required to be registered

under the flag of a state.37 By virtue of art 94 of UNCLOS, the flag state has the onus of

exercising jurisdiction and control over its flagged vessel in the administrative, technical,

and social matters38. Hence the MLC convention placed the responsibility on the flag state

to “establishe a system for inspection and certification of maritime labor condition on their

33
STCW, 'Final act of the Conference of Parties to the international convention on standards of

training, certification and watch keeping, for seafarers (STCW) 1978'. (Manila, Philippine, 2010) available at

http://www.imo.org/en/OurWork/HumanElement/TrainingCertification/Documents/32.pdf. accessed 18 January

2018.

34
The Merchant Shipping (Standard of Training Certificate and Watchkeeping ) Regulation 2015, SI 2015 /782

35
John Isaac black jr. 'Reflection on the negotiation of the maritime labour convention 2006 at the international

labour organization' [2007] Vol 31 Tulane Maritime Law Journal 35-45

36
ILO (n 2) p. 78

37
United Nation Convention on the condition for registration of ships, (adopted 13 march 1986),TD /RS /Conf/23,

art.4 available http://unctad.org/en/PublicationsLibrary/tdrsconf23_en.pdf accessed 10th August 2017.

38
United Nation Convention on the Law of the Sea (UNCLOS) 1982, Art.94

Available http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf accessed 28 July,

2017

8
flagged ships."39 In the united kingdom, via the Maritime and Coast Guard Agency (MCA)40,

the government carried out its inspection of all UK flagged registered vessels to ensure

that working and living conditions onboard UK registered vessels comply with the provision

of the instrument as implemented in the UK legislation. The MCA surveyor inspects and

issues a ship owner that complies with the requirement of the convention the Maritime

Labor Certificate (MLC certificate), complimented with a Declaration of Maritime Labor

Compliance (DMLC) certificate, as evidence after inspection of their compliance with the

requirements of the instrument. Copies of the certificates are to be kept on the vessel.41

Furthermore the MCA verifys a shipowner’s continuous compliance with the provision of

the instrument by randomly sending their surveyors on board vessels visiting the UK ports

to carry out checks, inspect the ship’s operational practices, review the ship’s documents,

crew certificates, have a general discussion and interview with the seafarer. Any ship found

in breach of the provisions of the instrument are barred from leaving the UK port until

necessary actions are taken. 42

1.3.2 Port state responsibility

Via the “port state”43 , all ships that are registered in a state that haven't ratified the

convention are monitored, so that their owner does not receive favorable treatments and

in other to ensure universal compliances with all ships.44 The instrument obliges all port

states to carry out inspection of all the foreign ships visiting their port and ensure they

operate in line with the provisions of the instruments.45 Thus, all foreign vessels visiting

39
MLC (n 8) Reg. 5.1 para 2

40
MCA - An agency under the United Kingdom Department of Transport

41
NAO (National Audit Office) ‘Ships Survey and Inspection: report by the comptroller and auditor general. HC

338 session 2000-2001’ 23 March 2001

available at https://www.nao.org.uk/wp-content/uploads/2001/03/0001338es.pdf accessed on 19January, 2019.

42
ibid

43
Port State is the state where the ship calls for its operation, other than its flagged state

44
Christodoulou-Varotsi (n17)

45
MLC (n 8) Reg 5.2

9
UK ports are randomly examined by the MCA surveyor to determine their compliance with

the provisions of the instrument46 Any vessel found in breached of the provisions of the

instrument are considered a threat to the safety and protection of the UK marine

environment and such vessels are detained until their deficiencies are rectified before they

are allowed to leave UK Ports 47

. e.g. The detentions of India flagged vessel (the Malaviva

Seven S/A); and the Panama flagged vessel (Sea Trident S/A) by the UK MCA for non-

compliance with the MLC provision.48

1.4 Critics of the MLC Instrument

The MLC (2006) is an international instrument implemented into the UK legislation. Sub-

Sections of its provision deal with crew training and certification and ship owner compliance

certificate. –the purpose is to make sure all crew employed on-board a merchant vessel

is trained and certified in accordance with the provision of STCW convention to carry out

their duties and a ship owner that fully complies with the MLC instrument are issue with

compliance certificate, carry on-board as part of vessel trading documents.49

However, reported evidence shows that despite the IMO and ILO’s effort to promote safety

and ensure all merchant vessels are manned with certified personnel, the fact that a ship

owner employs a crew that is in possession of STCW certificates and the ship owner is

issued with a compliance document might not prevent the occurrence of marine accidents

46
Theotokas, I., and A. Alexopoulos. 'Safety and Quality in the Shipping Industry: A Legal Analysis of the ISM

Code’s Principles and Applications.' [1998] Vol 1(3) European Research Studies Journal 1

47
ibid

48
Maritime and Coastguard Agency 'Foreign flagged ships under detention in the UK during June 2016' (July

2016) available at https://www.gov.uk/government/news/foreign-flagged-ships-under-detention-in-the-uk-

during-june-2016. accessed 5 December 2017

49
MLC (n 8) Reg 1.3

10
caused by human elements on merchant ships,50 because possession of these certificates

are only a preliminary factor. They do not automatically prove an employed crew is

competent or could be relied upon to apply possessed skill and knowledge if circumstances

dictate, neither will a vessel be considered "fit in all aspects to encounter the ordinary

perils of the voyage by mere possession of documents"51.

This argument is reinforced by evidence that: firstly there are various anti- technicalities

with the provision in the instruments with regards to crew training such as " lack of uniform

training standards among the maritime institutions."52 Most training institutions cut corners

in their methods of assessing competency by focusing on "teaching crew the kind of

trickery to get through and be successful in the certification examination rather than a

focus on the job-related competency knowledge"53 Secondly, the theoretical knowledge

designed by the maritime institution toward certification assessment for the crew " does

not coincide with what is required practically on board the ships, enabling a crew learn to

pass a test rather than learn for on-board work."54It results in crew not receiving the

required skills needed for the job and perhaps hold a certificate for employment without

real competence, as explained in the court decision in "The Patraikos 2 " a case where a

vessel ran aground while sailing in the Singapore strait in clear daylight without any

traffic, with a certified second officer and AB on her bridge. Although there was no real

explanation from the ship-owner about what happened on the bridge before the grounding,

the judge remarked, based to the second officer reports; the court explained that the

second officer’s reports were highly unsatisfactory and his testimony struck as someone

who was slow of intellect and poorly trained. The court found the second officer to be

50
Wilson. T, 'STCW review: why tweaking isn’t enough.' [2007] The International Journal of The Nautical Institute,

SEAWAYS: pp. 7-8.

51
The Makedonia [1962] 1 Lloyd's Rep. 316
52
Theotokas and Alexopoulos (n46) p.4

53
Emad G and Roth W.M, 'contradiction in the practices and training for and assessment of competency' [2008,]

Vol 50 (30) Journal of Education and Training, 260- 272.

54
Ibid p265

11
incompetent in his navigational skills, as he was unable to perform simple navigational

tasks, hence his nautical institute provided sub-standard education and produced an

inferior certified graduate.55 In contrast, some crew might have attended a good maritime

institution, have perfect training and hold a certificate of competency for employment, but

they might still "have a disabling lack of will and inclination through laziness to use such

skills and knowledge"56 to perform their job properly while on board, resulting in the vessel

they are employed on to be unfit for her adventure.

However a ship owner who engages her ship in a contract" to carry goods on a voyage

from one port to another, in the absence of the express term in the contract, has an

obligation to provide a seaworthy ship,"57 Hence proper ‘manning of a vessel is directly

connected to her seaworthiness’, 58

as explained by Justice Hewson. The concept of

seaworthiness embraces not only the physical, equipment, and structural condition of the

ship, but also includes the adequacy of the vessel in terms of crew competence and all her

trading documents.59 The question that arises is: what relevance is the compliance with

the provision of the instruments be in unseaworthiness defense claim?

The study addresses the question from two sections within the provisions of the

instruments. Thus, Reg.1.3 (Training and certificate): requires every crew employed to

work onboard a vessel to be trained and certified, and their paper certificate of competency

should evidence their employment; and Reg.5.1.4 requires a ship owner who complies with

the provisions of the instrument is issued with MLC and DMLC certificate, thus forming

part of vessel trading documents.

55
The Patraikos 2 [2002] 4 SLR 232
56
The Makedonia (n 50)

57
Theotokas and Alexopoulos (n46) p 6
58
Konstantinos Bachxevanis, 'Crew negligence and 'crew incompetence: their distinction and its consequence’
[2009] Vol 16(2) The Journal of International Maritime Law, p 102-131
59
Howard Bennett: The law of marine insurance (2nd edn, oxford,2006) p.567

12
 CHAPTER 2

SEAWORTHINESS, CREW COMPETENCE AND SHIP DOCUMENT

2.0 Seaworthiness

The concept of seaworthiness has different meanings in different maritime law

jurisprudence areas.60 According to Soyer (2006), "seaworthiness is a relative term whose

definition extends to "all aspects of the ship, including her physical structural state, her

construction, equipment and being fit for her adventure."61 Hence, when an accident

happens onboard the vessel due to human error, an employed crew’s action or lack of

action which resulted in the vessel’s unfit for her adventure might be as a result of either

negligence or incompetence, regardless of their paper certificates. 62

2.1 Crew Negligence/ Incompetence

An employed crew can be said to be negligent when he/she fails below the expected

professional standard of care required by a reasonable ordinary crew with the same job

role on board.63 An employed crew is said to be incompetent "if he does not poses the

level of capability or skill to be reasonably expected to an ordinary crew of his rank."64

Thus, crew negligence and incompetence are distinguished by the inability of an employed

crew to perform a particular task and the failure of an employed crew to carry out task

properly in a particular occasion as required by the ordinary seaman of their peer.65

Similarly, a competent crew sometimes make error and such error as explained by Lord

Atkinson “should not be a conclusion of crew’s disability or want of skill or a disabling lack

60
Zhang, Pengfei, and Edward Phillips. 'Safety first: Reconstructing the concept of seaworthiness under the

maritime labour convention 2006' [2016] Vol 67 Marine Policy 54-59

61
Soyer, Baris. Warranties in marine insurance. (2nd edn Cavendish London, 2006)

62
ibid
63
ibid
64
Roger White, The human factor in unseaworthiness claims. 1995 LMCLQ 221

65
Konstantinos Bachxevanis (n57)

13
of knowledge." 66
Hence, employed crew with paper certificate might either be competent

and possess the necessary skill but negligently fail to carry it out, or an employed crew

with paper certificate might be incompetent because he doesn't possess the necessary skill

to carry out his job. A negligent crew may not render a vessel unseaworthy, but an

incompetent crew almost certainly will67,

2.2 Crew Competency

According to Lord Winn J " a crew is considered trained and competent, "if on a fair

assessment of the requirements, have the knowledge and skills of the task they are

employed to perform, including knowledge in dealing with emergencies the vessel might

encounter." 68
On the contrary, an employed crew might be qualified and well-trained to

perform onboard duties but still "have a disabling lack of will and inclination to use the

skil,"69 to perform their job properly while on board, making the vessel unfit for her

adventure as a result of crew inefficiency.

Hence, with the provisions of the instrument, that obliges a ship-owner to rely on paper

certificate for crew employment; Crew possession of paper certificate doesn't mean they

are competent and efficient to prevent unseaworthiness loss, as explained in the below

court judgement, where incompetency of crew renders the vessel unseaworthy.

2.2.1 A form of crew incompetence

Firstly, A ship’s crew might lack the skill that is expected of an ordinary seaman in rank to

perform his job, resulting to vessel being unseaworthy as held in ‘The Makedonia case’,

where the vessel was unable to continue her voyage under her own power in the mid-

66
Standard oil co of New York v Clan line steamer ltd [ 1923] 19 Lloyds’s Rep 120

67
Konstantinos Bachxevanis (n57)

68
Brazier v Skipton Co Lt [ 1962] WLR 471

69
The Makedonia (n 50)

14
Atlantic owing to contamination of fuel and insufficient supply of fresh water to feed the

ship’s boilers. The contamination was caused by the incompetence and inefficiency of the

ship engineers. The court held that the vessel was unseaworthy because she was

improperly manned.70 Thus, the owner of The Makedonia would have employed the ship’s

engineers with a certificate to prove they were competent but still, the ship engineers

lacked knowledge of the vessel’s pumping and piping system, they lacked the ability to

secure the vessel properly to receive her bunker fuel oil without intermingling with salt

water stored onboard, they also lacked the knowledge needed in planning and arranging

the quantity of fuel oil that would be sufficient for the vessel’s voyage, hence such

engineers inefficient knowledge led to the breaking-down and disability of the vessel in the

Atlantic ocean. The "Makedonia" incident supports the fact that an employed crew’s mere

possession of paper certificates is not enough to satisfy the manning requirement as

connected to vessel seaworthiness, because the paper certificate itself in this case didn't

prove that the ship’s engineers had physical knowledge of the vessel, with regards to how

the vessel’s ballast water should be completely drained before using such tank to retain

bunker oil nor does it prove their physical knowledge on how sufficient fresh water should

be fed into the ship boilers.

Similarly, in the “The farrandoc" , a case where cargo of grain was carried onboard a motor

vessel and due to the employed second engineer’s lack of specific knowledge of the ship's

valve, he wrongly opened the wrong valve during the ship’s operation, thereby allowing

ingress of water into the cargo hold, thus damaging the cargo. The vessel was held

unseaworthy in that the employed engineer didn't have sufficient knowledge to oversee

the ship’s engine room.71

70
The Makedonia (n 50)

71
The farrandoc [1967]2 Lloyds Rep 267

15
Secondly, A certified employed crew can be incompetent due to his lack of general

operational knowledge with the equipment of the ship he is employed on, making the

posed skill ineffective thus rendering a ship unseaworthy as explained in the "Sabro

Valour", a case where a vessel suffered fire loss because the vessel’s master and crew

lacked knowledge of the location and physical method of closing the ship’s ventilation flaps

that could have cut- off the supply of air in the engine room where the fire began. Such

action could have probably prevented the fire from spreading and minimized the damage

suffered by the vessel. Regardless of the master and crew’s paper certificate, the court

held the vessel was unseaworthy because of crew’s inability to close the engine room

ventilation flaps; an important facet of the fire -fighting capacity of the vessel, thus the

vessel was unfit to carry her cargo safely to her destination having regard to the ordinary

peril which she might encounter on her voyage so far as the ship firefighting capabilities

are concerned72.

The court adopted the same approach in the "Clan Gordon" a case of a torrent built ship

that capsized and sank on her sea voyage to china due to her master’s lack of knowledge

of the vessel’s stability criteria at different sea conditions. The court held that the vessel

was unseaworthy due to her master’s ignorance, and lack of practical knowledge on the

special precaution needed to maintain the stability of the vessel during her voyage73. The

court admitted that though the master was trained and certified, he was ignorant of the

specific knowledge of the vessel’s stability criteria, owing to peculiarities of her

construction.

Similarly, in the " Eurasian Dream" a case where an employed crew were unable to

extinguish the fire that started on the ship deck during her voyage and ended up destroying

the cargo and rendering her vessel a constructive total loss , the court held the vessel was

72
The Subro Valour [1995] 1 Lloyds Rep 509

73
The Clan Gordon [1923] 1 Lloyds Rep 120

16
unseaworthy on the ground that crew employed were unfit for any foreseeable

eventualities that might occur to the vessel during her voyage; although the crew were

employed certified, still they were ignorant of the vessel’s fire-fighting equipment; hazards

associated with her cargo; and the safety precautions associated with the vessel .74

Furthermore, the court adopted a similar approach in the “Star Sea”, a case where the

vessel was held to be unseaworthy because of her master’s incompetence. The master

lacked knowledge and awareness of operating the ship’s fixed fire- fighting equipment, the

inefficiency resulted in the ship’s fire not being extinguished at an early stage which could

have reduced the loss of the vessel and damage75. The master would have been employed

with his paper certificates of competence, but he was still incompetent as he lacked the

knowledge and training on the particular vessel’s fixed fire -fighting system. This signifies

that there is always ship specific knowledge that extends beyond crew paper certificates.

Thirdly, an employed certified crew might be inefficient due to casualness, lack of effort or

habit and fail to perform his duties with the skills he possesses, such a behavioral act has

been held to render a vessel unseaworthy as decided in the “Moore V Lunn” case, when

the court held the vessel was unseaworthy due to the nervous breakdown of the master

and chief engineer’s maudlin condition caused from drinking that lead to their improper

lashing of the hardwood of logs cargoes loaded on deck before the vessel commenced on

her voyage. Here, the master and the chief engineer were experienced senior employed

crew on board a ship, with highest grade of certificate but their behavioral attitude

rendered the vessel unseaworthy regardless of their paper certificates.76

74
The Eurasian Dream [ 2002] 1 Lloyds rep 719.

75
[1997]1 Lloyds Rep 360

76
[1923] 15 Ll.l. Rep 155

17
Similarly, in the case between Hongkong Fir Shipping co ltd v Kawasaki Kisen ltd, the court

held the vessel to be unseaworthy by reason of inefficient and incompetent engine room

staff that were addicted to alcohol drinking and habits that led to serious breakdown of

ship engine machineries,77 despite the fact that the ship engineers were employed with

highest grade of certificates.78

Furthermore, from the author’s practical work experience, it is observed that there are

situations where by an employed certified crew could also be inefficient in carrying out

their onboard duties, for example : where an employed crew lacks the ability to speak the

common working language used on board the ship, such could hinder the crew’s ability to

communicate with the other crew member, thereby reducing his work efficiency onboard

the ship. Secondly, in a situation whereby a certified employed crew does not possess the

skills and knowledge required for the next job rank but is promoted due to nepotism or

shortage of crew, making the crew to take over responsibility that is beyond his abilities;

and lastly, in a situation whereby a certified employed crew working on a container vessel

is employed to work in a similar role on a tanker vessel.

Hence employing a crew on the basis of paper certificate as the MLC instrument stipulates

is not an indication that such crew will possess the attributes or the seamanship skills to

handle the vessel. 79

Therefore, a ship owner who relies only on paper certificates for his

vessel’s onboard operations, risks her vessel being held unseaworthy and unfit for her

adventure by reason of crew’s inability or poor knowledge of the behavioral characteristics

of the vessel and its equipment80

77
[1962] 2 Q.B 26

78
ibid p 27

79
Bennett (n58) p. 567

80
ibid

18
2.3 Ship’s Trading documents

Looking at the dimension of the notion of seaworthiness in terms of ship’s trading

documents, it is submitted that a vessel that started her voyage without her proper trading

documents risks being sanctioned by the port state official during ship port visit. The

instrument makes provision for the issuance of certificate (MLC and DMLC) to a ship owner

that complies with its requirement. By virtue of reg. 5.1.4 of the instrument, a ship owner

must carry and maintain the MLC and DMLC certificates on board as part of her trading

documents which could be demanded by port state control officials during port visits. 81

Such international practice and port inspection regime allows port officials to verify that

ships visiting their port comply with the international standard, and are manned and

operated in accordance with international regulations.82 Hence the MLC and DMLC

certificates, together with all other certificates are summed up as a ship’s trading

documents imposed by law of her flag state and port state to be carried and maintained

on- board,83 a ship owner whose vessel is not in possession of the MLC and DMLC

certificates as the instruments requires would have committed a breach of the instruments

and would have been penalized by the port state or flag state during ship’s port visit or

official inspection, however such vessel might be held to lack her trading documents

required for the voyage as illustrated in " The Madeleine" case where a vessel was

chattered to the respondent charterers for a period of three months, with a contract clause

stating that if vessel couldn’t be delivered by the cancelling date, the charterer if required;

to declare whether they will cancel or take delivery. However before the cancellation date,

the vessel’s derating exemption certificate was refused and fumigation couldn’t be

completed, the charterer refused delivery and canceled the charter. Judge Roskill held that

as long as the vessel had not been fumigated and issued with relevant certificate she

81
MLC (n 8) Reg 5.1.4

82
International Maritime Organisation, (IMO), ‘member State Audit Scheme and Implementation Support: port

state control, inspection’. available http://www.imo.org/en/ourwork/msas/pages/portstatecontrol.aspx accessed

30th July 2017.

83
MLC (n8) Reg 5.1.4

19
couldn’t trade, and as at her delivery date she was in an unfit condition as the charter

party provided for.84 Similarly in ‘Levy v Casterton’ a case where the ship-owner was held

liable for failure to furnish her vessel with the required bill of health certificate which is

necessary for the vessel to perform her voyage. The failure caused undue delay to the

vessel before entering into port.85

Although documentation compliance stipulated in the provision of the instrument will form

part of a ship trading documents, and non-possession can have a legal and practical

consequence from port denial to delay and additional port charges to a ship-owner. 86

However, it doesn't mean the face of the document would render a vessel seaworthy or

unseaworthy because a ship owner can operate and safely manage a ship with or without

a paper documents.87 Hence a ship owner can hold an instrument document of compliance

certificate, but that alone is not an evidential proof that her ship will be safely managed,

or will be fit to encounter the ordinary perils of the sea, as explained in the court’s decision

in 'Studebaker Baker Distribution ltd v Charlton Steam Shipping Company Ltd,"88 a case

where a vessel, after her loading, was issued a survey inspection certificate certifying that

the vessel had conformed with the rule of the board, and that the vessel and her cargoes

had been properly prepared stored and dunnage, however by reason of improper stowage

the cargo was damaged. The court held that certificate was not conclusive evidence that

the cargo on board the vessel has been properly stowed, thus the vessel was not fit in all

aspects to receive and carry cargo for her intended voyage, and that the issuance of the

certificate confirming the vessel’s load cannot be used to plead allegation for her

84
[1967] 2 Lloyd's Rep. 224

85
Levy v Costerton 171 E.R. 124

86
Soyer, Baris, and Richard Williams. ‘Potential legal ramifications of the International Ship and Port Facility

Security (ISPS) Code on Maritime Law’ 2005 LMCLQ 515

87
Hodges S; The Ism Code and Law of Marine Insurance (2000)

< http://www.nadr.co.uk/articles/published/shipping/ISMMarineInsurance.pdf> accessed 10 January 2018

88
[1937] 2 Lloyds Rep.59

20
unseaworthiness because the load certificate couldn’t cut down the ship owner’s obligation

to safely stow her cargoes properly. 89

Similarly, the court took a similar approach in "The Toledo, " a case of a vessel loaded with

muricate of potash cargoes in bulk on a voyage to Frederician in Denmark. During her

voyage a crack was developed in the cargo hold shell plating that allowed water to get into

the hold, causing cargo damage. Because of the damage, the cargo was pumped into the

sea, and the vessel was ultimately scuttled. The Court held the incident was caused by

unseaworthiness, and that the vessel was not in a condition to be "reasonably fit to

encounter ordinary perils expected on the voyage"90, and the fact that a classification

surveyor inspected the vessel from time to time and issued a class certificate did not

automatically render her vessel seaworthy.91

Thus, as illustrated in the "The Toledo, " and 'Studebaker Baker Distribution ltd v Charlton

Steam Shipping Company Ltd," court decision, it is obvious that the provision of the MLC

instrument regarding certificates as further explained below could not be used to plead

allegations in an unseaworthiness claim.

2.4 The MLC instruments and Unseaworthiness claim

Although the ‘manning of a vessel is directly connected to her seaworthiness, 92

,however

as discussed above, a crew’s possession of paper certificate does not actually mean they

are competent to carry out their duties onboard, and a ship-owner in possession of paper

document of compliance is not evidence that the ship-owner’s vessel will be safely

managed. Thus, compliance with the provision of the instrument with regards to possession

of certificates and documents are just preliminary factors, and not adequate to establish a

89
ibid.

90
The Toledo [1995] 1 Lloyds Rep 40
91
ibid
92
Konstantinos Bachxevanis (n57)

21
seaworthy vessel, nor can it offer protection to the ship owner whose vessel was involved

in an accident, as demonstrated in the "Star sea case."93 It was clear from the court’s

statement that even as the ship was in possession of her cargo’s ship safety certificate

certifying the safety of her fire -fighting equipment, a reasonable ship owner can’t rely

such certificate, to evidence his own responsibility for the safety of the vessel.94

On the contrary these certificates, in compliance with the provision of the instruments,

might be an indication that crew employed are trained with a general working knowledge

of the ship, thereby reducing the problem associated with sub- standard shipping

companies; but in addressing the question of seaworthiness defense claim, compliance

with the provision of the instrument is irrelevant because, unseaworthiness is a "condition

of the vessel, and such condition will not be equated with the occurrence of one or more

acts of poor seamanship or a mere possession of certificates. 95

The inability of the

employed crew to carry out their job, as a result of incompetency or a ship owner in

possession of documents that evidence compliance with the provisions of the instruments

are abstract qualities because seaworthiness of a vessel is a "question of fact, which varies

depending on the situation in which it is being applied, and nothing in the provision of an

instrument will prevent a court from exercising their power and authority to do their proper

investigation and findings to determine what will or will not constitute a seaworthy vessel.96

Although, failure to comply with the provision of the instrument could ‘constitute or support

an action in negligence and/or breach of a statutory duty of care’,97 a distinct fact that is

relevant in an unseaworthiness defense claim in a general maritime contract namely

insurance and carriage of good by sea contract, as discussed in the following chapters.

93
[1997] 1 Lloyds Rep 360

94
ibid

95
ibid 567
96
Sam Minall: ‘Seaworthiness’ 2018 <www.mytonlaw.ac.uk> accessed 10 February 2018
97
Safe Carrier [1994]1 Lloyds Rep 589 HL

22
 Chapter 3:

The Marine insurance contract and the Conventions

3.1 Marine insurance contract

"A Marine Insurance Contract is a contract whereby an insurer undertakes to indemnify

the assured, in the manner and to the extent thereby agreed against marine losses, for

losses incidental to marine adventure."98 A ship-owner that incurred Marine loss, or

established liability with his ships, will tend to seek indemnity from the insurer under the

insurance policy, and if the claim is made under a time policy of insurance, s. 39(5) of the

marine insurance act (MIA) 1906 kicks in which state that; " in a time policy of insurance,

there is no implied warranty that the ship shall be seaworthy at any stage of the adventure,

but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state,

the insurer is not liable for any loss attributable to unseaworthiness."99

This signifies that the provision of the insurance act allows an insurer under a time policy

to escape liability in an unseaworthiness claim if they can established first; that the vessel

was sent to sea in an unseaworthy state; secondly, that the assured was privy to that

unseaworthiness; and that the loss in respect of the assured claim was attributable to the

unseaworthiness. The question which will arise is: will the provision of the MLC instruments

be relevant to the underwriter’s defense to unseaworthiness claim under the time policy of

insurance?

98
Marine Insurance Act(MIA) 1906, s1

99
ibid s 39(5)

23
3.1.1 Seaworthiness in insurance policies

By virtue of S.39(4) of the Marine Insurance Act (MIA) 1906 " A ship is deemed to be

seaworthy when she is reasonably fit in all aspects to encounter the ordinary perils of the

seas of the adventure insured."100 The insurance act defines seaworthiness in a broader

term. However as discussed in chapter two, the decision weather a vessel is seaworthy or

unseaworthy lies with the court to investigate and determine for itself based on the facts

and circumstances of the case.

3.1.2 The Assured

S.39(5) of the MIA 1906 requires the determination of who is the assured that was involved

in the decision to send the insured vessel to sea, because the underwriter could only deny

a ship-owner the right to indemnity under the policy if the ‘assured is privy to such

unseaworthiness to which the loss is attributable’.101 Hence in identifying who is the

assured, the principle that is applied is the law of attribution as stated by Lord Justice

Leggatt in The Star sea' as follows: "for an individual assured who ran his own affairs, the

section would not be trying to except unseaworthiness to which that individual was not

privy, the fact that an employee (e.g. The master) had knowledge would not for example

be the point; secondly for a co-operation who own a ship, which by itself alone is

responsible for putting the ship to sea, the assured will be the person having direct mind

and will of the co-operation responsible for monitoring the condition and operation of the

ship; and lastly for a cooperation who own a ship, but placed the management and

responsibility of the ship in the hand of another co-operation, the assured will be the

company’s alter ego."102

100
ibid s 39(4)

101
Ibid s 39(5)
102
The Star Sea [1997 1 Lloyds Rep 360

24
3.1.3 Causation Test

As per Lord Wright, "Unseaworthiness as a cause cannot from its only nature operate by

itself, it needs the peril in order to convince that the vessel or some part or quality of it

was less fit than it should have been, and would have been fit , if it had been seaworthy,

hence the casualty ensued."103 The context of s. 39(5) of the MIA, 1906 affords the insurer

no defense unless unseaworthiness is causally linked to the loss104 i.e unseaworthiness

must be attributable to the loss. However, due to the concept of proximate cause of loss

s.39(5) has been partly overtaken by the 'transformation of unseaworthiness from remote

to proximate cause, Hence if the proximately caused of the loss is an insured peril as

determined by policy construction the assured can recover from the loss,105 but if

unseaworthiness was the sole cause of the loss thus the insurer do not need

unseaworthiness defense, because "the assured claim will fail for want of an operative

covered peril,"106 However where a covered peril and question of unseaworthiness

constitute a joint cause, since there is no warranty against unseaworthiness in a time

policy , there won't be a concurrent cause of loss, and the insurer might be liable because

the covered peril of the sea might be treated as the sole cause, 107
hence insurer will be

liable unless they can establish unseaworthiness defense which ‘lies in its requirement of

Privity'108.

3.2 Privity of the Assured

"Privity," according to Murray in A New English Dictionary, is an act of "privy to something,

participation in the knowledge of something private or secrets, usually implying

concurrence or consent private knowledge or cognizance."109 Thus a ship-owner will be

103
Monarch Steamship Co .Ltd V Karlshamns Olje Fabriker [ 1949] AC 196
104
Bennett (n58) p 580
105
Rose F.D, Marine Insurance: Law and practice (2nd edn, Informa London 2012)
106
ibid
107
Global Process Systems Inc v Syarikat Takaful Malaysia Bhd, (The Cendor Mopu)[2011] 1 Lloyd's Rep 560.

108
Bennett (n 58) p 583
109
Murray.A, New English Dictionary [Oxford 1909] Vol vii, p.1393

25
privy to unseaworthy ship, or an act of unseaworthy ship that is within his knowledge if he

personally knows that her ship was sent to sea in an unseaworthiness state. 110
A ship

owner doesn't have privity just because he had a blind eye knowledge in sending her ship

to sea in unseaworthy state, i.e. "he has refrained from discovery the truth, unless he is

shown to have had suspicion of or belief in the vessel unseaworthiness, but deliberately

refrained from making relevant enquiries, hence negligence is insufficient "111 . This was

illustrated in the court’s decision in "The Star Sea,"112 a case where " the ship had some

history of deficiencies with her emergency fire pump not working. The pump’s deficiency

was found by a surveyor during a ship inspection and he instructed the shipmaster to

rectify before departure. The chief engineer tried to repair the default pump but failed,

and in the course of his effort, he cut the suction pipe passing through the forepeak ballast

tank to the no- return valve of the ship’s side. The ship sailed in that condition to her next

voyage fully loaded. During the voyage a fire stated in the engine room spreading to other

part of the ship, which wasn’t extinguished for several days. The vessel was damaged and

presented a Constructive Total Loss (CTL) i.e. the cost of her repair is more than the vessel

current value. Although two other vessels owned by the ship owner had previously

presented as a CTL due to a similar fire incident, thus the court held that the star sea

was unseaworthy on the fact that she had defective engine room dampers rendering it

impossible to seal her engine room during the fire incident; and the fact that she had an

incompetent master who lacked the operating knowledge of the fixed CO2 fire extinguisher,

the most potent firefighting equipment to deal with the onboard fire incident that rendered

her a constructive total loss. On the issue of privity of assured knowledge, with a fact that

that when the incident occured on the company sister's ship that previously presented a

CTL the assured didn't take effective steps to ensure that such an incident wouldn't re-

occur, and that the incompetence of the master and state of the vessel’s safety equipment

in sealing her engine room, showed ineffective steps taken by the ship-owner on the

110
Continental Ins. Co v Sabine Towing CO 117 f.2d 694
111
Rose (n 101) p 204
112
The Star Sea [1997 1 Lloyds Rep 360

26
vessel’s safety equipment.113 indeed the court of appeal came down to findings of

negligence, on the ground that the ship owner had responded, by replacing the crew, but

negligently failed in learning from the previous fire incident that occurred on the sister

ships, and also failed to give training and instruction to the newly recruited officers on the

effective use of the ship fire -fighting equipment. The court explained that the ship-owner’s

negligence is insufficient, because the fact to be proved is the privity of the assured and

not how the assured came to be privy.114

The court of appeal’s decision in The Star Sea case illustrates a fact that in establishing

privity of assured knowledge the court is more concerned with the frame of mind of the

assured and his actual knowledge with regards to unseaworthiness. 115

It will only be

sufficient if an underwriter can prove that vessel’s unseaworthiness must have been with

the personal knowledge of the assured or in case of a company someone who could be

regarded as its alter ego116

3.2.1 The MLC instruments and Privity

The court’s explanation in the Eurysthenes117 calls into question the validity of the provision

of the MLC instrument with regards to the privity of the assured in an insurance policy. In

the Eurysthenes case, a cargo owner made a heavy claim against a shipowner whose

vessel was stranded on her voyage while carrying the cargo owner's cargo, the stranding

caused loss and damage to the cargoes, although the ship-owner settled the claim with

the cargo owner, but later issued a writ against the insurer claiming they were entitled to

be indemnified in respect of their liability to the cargo-owner’s loss and damages. The

underwriter resisted the claim on the ground that the ship was sent to sea in an

113
The Star Sea [1995] 1Lloyd’s Rep 651

114
The Star Sea [1997 1 Lloyds Rep 360

115
[2001] UKHL 1 [2003] I AC 469

116
Rose (n 101) p 202
117
[1977] QB 49

27
unseaworthy condition with the knowledge of the ship-owner, thus relying on s.39(5) of

MIA 1906. The court explained that the "assured will have relevant privity if the underwriter

can prove that the assured had knowledge both on the fact constituting unseaworthiness

and fact rendering the ship unseaworthy, or as a result of reckless conduct on the part of

the assured personally or his alter ego in deliberately refraining from receiving or seeking

better knowledge of fact of the unseaworthiness."118. Similarly, as Lord Denning said, there

will be privity of the assured if an underwriter can prove that unseaworthiness must have

been with the "knowledge or concurrence of the assured personally or his alter ego, such

imputation of knowledge requires an amalgamation of suspicions that certain facts may

exist, but the decision is taken to refrain on the steps to confirm to such existence." 119

Hence with the MLC instrument, its provision had no ties with the insurance contract

because there was nothing laid down in the instrument that could indicate that a ship

owner or his alter ego had knowledge in sending the ship to sea in an unseaworthy state,120

and nothing is laid down in the provision of the instrument that can be used to specify the

thought or suspicious state of mind of a ship-owner for the purpose intended by the court

as far as privity of knowledge of an assured in an unseaworthiness claim is concerned. 121

Furthermore, the fact that the provision of the instrument, allows a ship-owner to rely on

paper certificate for crew employment, such requirement make it extremely difficult for an

underwriter to prove whether ship owner had positive knowledge of the fact constituting

crew incompetency or not in an unseaworthiness claim.

118
ibid p. 81
119
[2001] 1 Lloyd's Rep .389 at 413 HL
120
Hodges (n86)
121
ibid

28
3.3 Other Provisions under the insurance Contract

An underwriter who fails to discharge the burden under s.39(5), can still use an alternative

way to support their defense to claim made by the assured under the insurance policy by

their introduction of specific clauses requiring an assured strict compliance on matter

relating to safety during the duration of insurance policy.122 Thus the inclusion of ISM

code clause in insurance policies, 123

whose provision prevails, no matter any written

section of the insurance act, to impose continuous obligation on a ship owner at the

inception of and throughout the period of insurance cover, toward ensuring improved

standards of seaworthiness.124 For a better analysis of how the provision of the ISM code

functions in the insurance policy in lieu of the provision of the MLC instruments, the

objectives of ISM code is briefly explained.

3.3.1 Objectives of the ISM code

The ISM code’s “objectives is to ensure safety at sea, protection of human injury or loss of

life and avoidance of damage to the environment”125. The provision of the code applies to

all ocean -going vessels greater than 500 gross tonnage. The code provides for a company

to develop and maintain a comprehensive safety management system that state the

company’s " safety and environmental protection policy; instructions and procedures to

ensure safe operation of the ship and protection of the environment in compliance with

international and flag state legislation; defined levels of authority and communication

between ship and shore personnel; procedure for reporting accidents, procedures for

correcting the non-conformity; procedures for prevention of and response to emergencies;

122
Aleka Mandaraka- Sheppard: Modern Maritime Law, Managing risks and liabilities, Vol 2 (3rd ed. Routledge -

Cavendish, 2014). p 113

123
International Hull clauses (01/11/03) cl 13.1.4 - 13.1.5
124
Rose (n 101) p 207
125
International Maritime Organisation (IMO), International Safety Management (ISM) code and guidelines for

its Implementation ( UK ed.Edn, IMO , 2014)

29
and procedures for internal audits and management reviews."126 The code gives

responsibility to the company to ensure that his personnel are properly qualified, trained,

and fit to undertake the particular task assigned to them and all new recruits have a clear

understanding of the relevant rules and procedures; under the code the company is

obliged to establish a checklists for key shipboard duties, as well as procedures to identify

and respond to potential emergencies on board.127 The ISM code also provides that

‘company must designate at least one person ashore to have a direct access to the highest

level of management, and responsible for monitoring the safety and pollution-prevention

aspects of the operation of each ship assigned and ensures that adequate resources and

shore-based support are in place’128. A ship owner that complies and operate in accordance

with the provisions of the code is issued with a “Document of Compliance” and a safety

management certificate which are enforced by the port state control official129.

3.3.2 Comparative Approach of the ISM code and the MLC instrument

The provision of the ISM code is incorporated into the insurance contract via the

international hull clauses"130. This allows a ship owner to bear in mind his obligation in

relation to the safety of the vessel with a careful monitoring and control of the ship safety

management system. The ISM code set good governance a ship owner must adopt by

ensuring they provide for safe practises via procedure and record keeping; ensure crew

are well trained on how to use the ship equipment; and they understand the company’s

126
International Maritime Organisation (IMO), International Safety Management (ISM) code and guidelines for

its Implementation ( UK ed.Edn, IMO , 2014)

127
Panayiotis Neocleous and Costas Stamatiou, ‘Legal Aspect of ISM Code’ (2006) International Company and

Commercial Law Review 215

128
International Maritime Organisation (IMO), International Safety Management (ISM) code and guidelines for

its Implementation ( UK ed.Edn, IMO , 2014)

129
ibid

130
International hull clause 01/11/03 cl.13

30
procedure to risk prevention and protection of the environment.131 The code requires the

ship owner to provide comprehensive documentation of procedure, and maintain a safety

management system, and keep records of all incidents happening on-board the ship.

These records create traceable evidence from which inference can be drawn when

accidents occur or claim is made under the policy. 132

The fact that the provision of the code mandates the company to appoint a designated

person whose job is to link all happenings between the company management and vessel,

report non-conformities, make a risk analysis on previous incidents to prevent re-

occurrence, and ensure all incidents are reported and recorded in the company

management system, make it extremely difficult for a ship owner to claim they had no

knowledge of all that was happening to the vessel if they were complying with the provision

of the ISM code.133 This offers the underwriter valuable and relevant evidence to obviate

an illegal defence made by the ship owner,134 because the information a ship owner holds

in his management system can be useful to the court while cross -examining ship owner

reactions and determining their knowledge of the loss135 as established in The “DC

Merwestone case” where a vessel’s engine was damaged due to flooding in her engine

room during the voyage. Following the judicial decision in determining the cause of the

incident, information regarding the company’s safety management system were dealt with

as important evidence used by the court.136

131
Aleka Mandaraka-Sheppard, Modern Maritime Law, (2nd edn, Routledge-Cavendish: London, 2007) p 90

132
Ibid p 105

133
Martyr P., (1998), "Two-Tier Threat from the ISM Code", Maritime Law and Arbitration, special issue, 9-11.

134
Alexopoulos A.B. and Theotokas I.N., "Shipping Management in the post-ISM Code Period. The Case of Dry
Bulk Shipping Companies", (1998) 4th International Symposium in Quantitative Analysis, University of the
Aegean, 7-9.
135
Aleka Mandaraka-Sheppard (n 124) p 110.
136
[2013] 2 Lloyds Rep 131

31
Hence, the provision of the MLC instruments does not have such requirement, for a ship

owner to maintain a safety management system, or to have a procedure to maintain

records of incidents, thoughts, and implications of an incident that could lead to

unseaworthiness claim, which can be used in future as a fact , whether the ship owner

blandly ignored or refrained from asking questions about any recorded incidents.137

Furthermore, the underwriter did not make provisions for the MLC instrument as a special

clause in insurance contract, as they did with the ISM code, thus it signifies that the

insurance market renders the instrument irrelevant to insurance policies.

In Contrast, as the provision of the ISM code allows an underwriter to be restricted to

documentary compliance alone. This is illustrated in "The Nancy " A case where a ship

owner and manager made a claim against the insurer following an onboard fire incident

that presented a constructive total loss of the vessel on a policy stating the vessel was ISM

compliant. The court held that with the construction and the legitimacy issue to the breath

of ISM warranty, "it may be difficult to prove non- compliance, unless it has happened that

an auditor via inspection raised a major non- conformity and recommended suspension

or withdrawal of the ISM compliance certificates, as the provision of the ISM code only

requires a documentary compliance."138 Hence, it make the provision of the ISM code as

incorporated into insurance policy to be of great challenged.

However since onset there had be no reported situation, whereby an underwriter had

succeeded with unseaworthiness defend claims attributed to non- compliance with the

ISM code, because underwriters are not enquiring into the reality behind compliance

documents of the ISM Code, 139 making it more easier for sub-standard shipping company,

137
Thomas, D. Rhidian, The Modern Law of Marine Insurance, Vol. 1 (London, New York, Hong Kong: LLP, 1996)
p 219
138
The Nancy [ 2013 ] 2 CLC 114

139
Bennett (n 58) p595

32
in possession of ISM compliance certificates, but running ships below standards, to succeed

with claim under the insurance policy. Hence, if with the incorporation of ISM code clause

in insurance policy doesn't prove it, thus incorporation of MLC instrument as a clause in

insurance policy will be irrelevant, because compliance with the MLC instrument also

depend on possession of paper certificate , making it extremely difficult for the instrument

to be relied upon in unseaworthiness defence claim.

33
 Chapter 4:

The Conventions and the Carriage of goods by sea contract

4.0 The carriage of Good by sea contract and The Hague Visby Rule

4.1 General Scheme of Hague-Visby Rule

The contract for the carriage of goods by sea is covered by a bill of lading which is subject

to regulation by mandatory rules140. In the United Kingdom, The Hague Visby rule is the

mandatory rule made compulsorily applicable by the carriage of Good by Sea Act 1971141.

The Hague Visby rule provides that “in every contract of carriage of goods the carrier shall

be subject to the responsibilities and liability and also entitled to the right and

immunities."142

By virtue of Art iii rule 1 of the Hague -Visby rules, a "carrier"143 is bound to exercise

due diligence before and at the beginning of the voyage to : "make the ship seaworthy;

properly man, equip and supply the ship; make the hold ,refrigerating and cool chambers

and all part of the ship in which goods are carried, fit and safe for their reception ,carriage

and preservation. "144 The responsibility also extends to careful loading, handling

,stowing, keeping, and caring for and the discharging of goods carried.145 Thus a ship can

be unseaworthy at the start of the voyage if her cargo is loaded in such a way as to

endanger the safety of the ship, as illustrated in the ‘kopittoff v Wilsons and other case’

where the ship "was loaded with an armored steel plate , placed on the top of a railway

iron and secured by wooden shores. The ship, on getting out to sea, encountered bad

140
John Robb:’ Bill of lading and The Hague Visby Rule’ (2016)
< http://www.essexcourt.net/members/1009/john-robb> accessed 10 February
141
The Hague Visby rule " a short hand title for an international convention for the unification of certain rules of
law relating to bill of lading signed at Brussels on the 25th of August, 1924 , as amended by the protocol signed
at Brussels on the 23rd February 1968 and by the protocol signed at Brussel on 21st of December,1979.
142
The Hague- Visby Rules Art ii
143
Ccarrier ‘includes a ship-owner or charterer who enter into a contract of carriage with a shipper’. The Hague-
Visby Rules art 1
144
The Hague- Visby Rules Art iii r. 1
145
The Hague- Visby Rules Art iii r. 2

34
weather and one of the plates broke free, crashed through the side and the ship sunk. The

jury held that the vessel at the time of her sailing, with regard to her cargo stowage, was

reasonably unfit to encounter the ordinary perils expected on her voyage"146 Thus, a

vessel’s poor cargo stowage will render her unseaworthy where it affects her fitness for an

adventure.147

The Hague-Visby rules, by virtue of Art. IV, also confer on the carrier maximum permissible

exemption from liability, in so far that a carrier is not " liable for the act or omission of the

master or crew in the navigation or management of the vessel; peril, danger and accident

at sea; unseaworthiness of the vessel unless caused by want of due diligence on the part

of the carrier.148 Hence the rule defines vessel seaworthiness in its ordinary meaning, i.e.

" a vessel master and crew must be fit to encounter the perils of the voyage and also be

fit to carry her cargo safely on that voyage. "149 These signify that a carrier has the

obligation at the commencement of vessel’s voyage to man the vessel with an efficient

crew having regard to all probable circumstances.150

The Hague Visby rule provides that "whenever loss or damage results from

unseaworthiness, the burden of proving the exercising of due diligence shall be on the

carrier”.151 The question that arises is can a carrier rely on mere compliance with the

provision of the MLC instruments to succeed in a due diligence defense in unseaworthiness

claim that result from human element at the commencement of ship voyage in a carriage

of good by sea contract?

146
[ 1876] 1 QBD.377,
147
Bennett (n 58) p 570
148
The Hague- Visby Rules art iv
149
The Good Friend [ 1984] 2 Lloyds 's Rep 586
150
Mc Fadden v Blue star line [1905] 1 KB 697
151
The Hague- Visby Rules art iv r. 1

35
4.2 Due Diligence Proviso

A carrier's obligation of due diligence is to be exercised before and at the beginning of

ship’s voyage. A concept confirmed to be equivalent to common law duty of reasonable

care, as explained in "The Eurasian dream" a case where a claim was made against the

carrier in respect of destruction and damage to cargo caused by fire that wasn’t

extinguished by the master and crew. The court held that the loss was due to an

unseaworthy ship because the fire would not had broken out if the master and crew had

been properly instructed and trained. Thus, the ship-owner failed to exercise due diligence

firstly by not ensuring that his crew were fit for the foreseeable eventualities of the voyage,

secondly by not supplying the vessel with specific documentation that would be needed to

deal with the danger of fire and the precautions to be taken to avoid such fires.152 The

court further explained that exercising due diligence is equivalent to the exercising of

reasonable care and skill and the lack of due diligence is negligence."153

Similarly, as explained in the "The Muncaster castle.' A carrier’s obligation to exercise due

diligence is a personal duty and not a delegable duty,'154 in this case " the vessel’s cargo

was damaged by ingress of sea- water. Prior to her outward voyage to load port, the

carrier’s marine superintendent had employed a reputable firm of ship repairers to open

up all storm valves and inspection covers, but due to the filter negligence and not securing

the valve nuts sufficiently, they were loosened by the ship’s movement during rough

weather, allowing seawater to pass through. The House of Lords held that the owner was

liable for a breach of the obligation to exercise due diligence, in that the owners obligation

of due diligence demands due diligence in the work of repair carried out by independent

contractor ,hence the carrier was found to be in breach of duty, a duty that couldn’t be

152
The Eurasian Dream [2002] 1 Lloyd's rep 719
153
ibid
154
The Muncaster Castle [1961] AC 807, 844

36
delegated and be discharged by merely exercising reasonable care in selecting independent

contractor to whom the seaworthiness of the vessel was entrusted. " 155

The Hague-Visby Rules allows a carrier’s immunities in the loss or damage resulting from

the "act, neglect or default of the master, or his servant in the navigation, manning or

management of the ship "156 once the carrier can prove genuinely that due diligence has

been reasonably exercised. 157

This was explained by the court in "The Antigoni, case "

where a vessel broke down on her voyage and was towed into port. Although the vessel

was held to be unseaworthy due to her engine failure, the carrier could prove that the

failure of the engine was caused by a latent defect which the engine builder gave evidence

that such latent defect was theoretically possible on the fact that the defect could not have

been detected with due diligence. The court gave judgment in favor of the carrier on the

fact that there had not been a lack of due diligence.158

Similarly in "The Admiral Zmajevic" case, the vessel suffered a breakdown in her main

engine which necessitated her being towed for repair, it was alleged that the vessel was

unseaworthy at the commencement of her voyage due to contamination of the main engine

crankcase lubricating oil with acid, the carrier could prove to the court that the

contamination of the oil was not such as to be discoverable by reasonable diligence , that

they had exercised due diligence by submitting oil sample for periodic analysis, receiving

satisfactory reports on the oil , and having a procedure on board the vessel for the chief

engineer to carry out inspections prior to the vessel sailing.159

155
ibid
156
The Hague- Visby Rules art iv, r 2

157
Roger White, The human factor in unseaworthiness claims. 1995 LMCLQ 221

158
[1991] 1 Lloyds Rep 209
159
[1983] 2 Lloyds Rep 86

37
The court’s decision in the Admiral Zmajevic" case signifies that mere compliance with the

provision of the instrument is not enough to establish the exercise of due diligence. The

carrier needs to exercise a higher standard of care beyond paper certificate of competency

when engaging the vessel crew as discussed below.

4.2.1 Due Diligence in the selection of vessel crew

Regarding a ship’s manning, the provisions of the MLC instrument allow a carrier to rely

on paper certificates as a documentary evidence in the selection of crew seeking

employment onboard the vessel. 160

Hence it will be difficult for a carrier to rely only on

an employed crew’s paper certificate in compliance with the provision of the instrument to

establish that due diligence has been exercised in the selection of crew that will man the

vessel at the beginning of her voyage. This is supported by the court’s statement in "The

Makedonia, " A case where casualty was caused by the inefficiency of an employed chief

engineer who was engaged within five minutes by a port’s captain on behalf of the carrier

on board the vessel because of his possession of paper certificate.161 The carrier was found

wanting on his failure to exercise due diligence as they had the whole responsibility of

providing the vessel with a competent crew. The court held that the carrier had failed to

exercise proper care with the chief engineer’s appointment, in that the process of selection

of an engineer whose responsibility involves the efficient working of very valuable

machinery that is essential to the successful completion of vessel’s voyage was

unsatisfactory by merely relying on paper documents as a conclusive evidence of crew

competence."162 The court held that paper certificates are not to be taken as conclusive

evidence while selecting the crew to work onboard.

Although, the chief engineer selection in the Makedonia case, was based on his possessed

seaman book: A book where seafarer continuous sea service history and experience were

recorded, the court statement shows that crew seaman book , was the documentary prove

160
MLC (n 8) Reg 1.3

161
The Makedonia (n50) p 316
162
ibid

38
used in determining crew competence during recruitment, before the adoption of the

STCW certificate, Hence the court decision upon the case fact was that to established

the exercised of due diligence , a ship owner must careful inspect the crew competency

document, and in addition carried out a proper interview and proper inquiries on the crew

before engaging them on-board.

The court took a similar approach in the "The Garden City," - The case involving a collision

between the Garden city and the Zaglebie Dabrowski vessel that resulted in the sinking of

the Garden city and her cargo in deep-water. The incident occured due to the failure of

the crew to discharge their responsibility correctly in the navigation of the vessel. 163

Although the garden city was a limitation case, the statement of the court is relevant to

the study, as the court emphasized that it would have been "foolish of a carrier to entrust

the safety of their ship to an officer who produced only certificate of competence, and that

a responsible carrier would have made further enquiries about the officer."164 Hence, for a

carrier to exercise reasonable standard of care in providing an efficient crew to man the

vessel at the commencement of her voyage, the carrier must not rely on paper certificate

of competency at face value during the crew’s initial selection, they must dig into the

crew’s career history behind his certificate, by inspecting their seaman's book, followed by

inquiry from their previous employer, questioning why they left their former employer ,

to determine if the crew and officers are reasonably fit to occupy the role they will be

appointed for.165

4.2.2 Due diligence in supervision of ship crew after employment

A carrier under The Hague-Visby rule is obliged to exercise due diligence in providing a

seaworthy vessel with a competent crew at the commencement of the voyage. As

163
[1982] 2 Lloyds Rep 382

164
ibid

165
The Makedonia (n 50) p 337

39
discussed in chapter two, an employed crew might be trained and certified but still have a

disabling lack of will to carry out his duties efficiently due to his behavioral altitude to work

or due to a slack habit. Hence, to establish the exercise of due diligence, a reasonable

carrier must ensure good standard in supervising and monitoring performance of any

employed crew engaged onboard after recruitment as explained in the court’s decision in

"The Marion" case where a vessel caused severe damage to an oil pipeline on her arrival

to the entrance of the Teesside because of the unavailability of berth. The vessel was

obliged to anchor and wait, and during her anchoring operation she fouled an oil pipeline

on the seabed due to negligence of the master navigating with an obsolete chart on which

the position of the pipeline was not marked, although the ship’s owner had delegated the

management and operation of the vessel to a company whose managing director had made

the master solely responsible for ensuring that the chart for the voyage was onboard and

kept up to date. The court opined that the ship-owner had failed to exercise the standard

of care required in relation to the chart, on the practice of leaving the chart’s correction

wholly to an employed master without supervision.166 The court further illustrated that the

appointment of a competent master is not sufficient to discharge a ship-owner’s

responsibility in relation to safe navigation, and that failure of a ship owner to provide an

adequate degree of supervision by ensuring that a proper system is in place for keeping

and maintaining the chart up-to date will amount to an action of fault167.

Following the court decision in the Mario case, it was established that a carrier cannot rely

on paper certificate as a conclusive evidence that due diligence had been exercised, 168
a

reasonable carrier would have a procedure manual in place that ensures that after

recruitment, all employed crew are supervised and adequately trained with respect to

the operations of the particular ship they will be carrying out their duties.169 This

166
The Mario [1984] AC 563

167
ibid

168
The Makedonia (n 50) p 337

169
The farrandoc [1967] 2 Lloyds Rep 267

40
requirement was demonstrated in the court’s decision in "The Torepo." The vessel 'Torepo'

was grounded in the Patagonian channel near the wellington island in Chile while carrying

tons of gasoline as cargo. The incident was caused by the isolated act of negligence of the

officer in charge of navigating the vessel. The court decided in favour of the carrier because

the carrier was able to prove he had established a reasonable standard of care by providing

the vessel with a navigation procedure manual and having procedures in place to guide

and instruct the junior officers in their operational duties170 The MLC instrument does not

require a carrier to have a supervisory procedure on board to monitor the performance of

crew on a regular basis after recruitment but rather limits the carrier to rely on paper

certificate for crew engagement.

4.2.3 Due diligence in ensuring employed crew get familiarized with onboard

duties.

As explained in chapter two, an employed crew that lacks the operating knowledge of a

particular vessel, regardless of his paper qualifications, could render a vessel unseaworthy

by his inefficiency in relation to the vessel’s operation.171 Thus, a carrier will fail in his

obligation of reasonable care if he fails to ensure that operating procedures are provided

on board ship for the newly recruited crew to get acquainted with the particular vessel’s

operation. These requirements was the conclusion made by the House of Lords in the

"safe carrier”, a case where the company’s manager was charged for engaging the ship

engineer and giving him less than three hours to familiarised himself with the vessel’s

machinery before sailing. Incompetence of the chief engineer caused the breakdown of the

ship’s engine which resulted in her drifting and becoming stranded at sea. The court held

that the carrier had failed to take reasonable steps to ensure that the chief engineer was

acquainted with his duties in relation to the vessel.172 The MLC instrument did not make

provision for such a requirement, however a carrier employing a new crew must ensure

170
[2002] EWHC 1481
171
The farrandoc [1967]2 Lloyds Rep 267
172
Seaboard Offshore Ltd. V Secretary of State For transport (The "Safe Carrier") [1994] 1 Lloyds Rep 589 HL

41
they provide sufficient information and training to crew after recruitment and have

processed in place to ensure crew do not lapse into a slack habits.173

In summary, compliance with the provision of the instrument, by checking that crew

possess certificate before engaging them on-board is necessary to established the

exercising of due diligence , but that alone is not sufficient, a carrier needs to demonstrate

that in addition to checking crew’s paper certificates during recruitment, crew are properly

interview; checks and reference are obtain from their previous employers and adequate

supervision are provided on board the ship. However, this is in variance with the provision

of the MLC instrument, making it difficult for a carrier to just rely on compliance in

establishing that due diligence has been exercised while selecting crew to manned the

vessel at commencement of her voyage.

173
Roger (n52)

42
5.0 Conclusion

The MLC instruments was developed with the aim to ensure a safer shipping industry. The

instrument creates a global standard, to ensure that crew engaged on ships are trained

and certified to carry out their jobs, in other to reduce the huge portion of accident caused

by human error, It is submitted that globally in the maritime industry, there is no uniform

standard to evaluate efficacy, and accident caused by human error in shipping cannot be

inevitable, although with the adoption of the instrument, there might be a reduction in

the numbers of sub-standard ship- owner in the maritime industry. It is submitted that

the provision of the instrument is connected with vessel seaworthiness, hence its mere

compliance in terms of engaging crew on the basis of paper qualification certificate, or a

carrying of compliance document on-board as the instrument stipulates is not sufficient to

establish a seaworthy ship.

It is also submitted that the provision of the instrument had no ties in an insurance

contract, and it mere compliance is irrelevant to the underwriter in unseaworthy defence

claim, in proving privity of the assured knowledge, under a time policy and also in a

carriage of good by sea contract, compliance with the provision of the instrument alone is

not enough for the carrier to established the exercised of due diligence, a carrier still need

to demonstrate that in addition of checking crew paper certificate as the instrument obliges

during recruitment, employed crew are properly interviewed, by obtaining checks and

references from their previous employer, and while they are engaged on-board, adequate

ship specific training and supervision are provided to the crew to prove their worth with

on board duties.

43
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