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Fitted for the Service, in Every Way

Necessity Caused by Unseaworthiness


Law and Sea.

Foundation of the carrier’s liability to provide seaworthy vessel originated, so far as the earlier evidence goes, from the law of bailment where the duties of a common carrier were equal to those of bailees in general, i.e. to return the goods entrusted to him in same condition as they were initially delivered under implied absolute responsibility for loss, even when happening without fault on the part of the person intrusted.

Last updated: 21-Jun-2015

J. & E. Kish v Charles Taylor, Sons & Co [1912] AC 604 per Lord Atkinson at p.618:

The case of The Europa [1908] P. 84 is, I think, an authority against the respondents' contention. There the action was brought by the charterer against the shipowner in respect of goods damaged by one of the perils of the sea excepted by the charterparty, not by the unseaworthiness of the ship, which was admitted.  It was held by Bucknill and  Bargrave  Deane JJ., on a  line reasoning  which appears to me convincing, that the charterparty, notwithstanding unseaworthiness, was not displaced, that, on the contrary, the clause excepting perils of the sea  was alive and  operative,  and  that the shipowner,  despite  his  breach  of warranty,  was protected under it from liability for the injury done to the goods.

In Baumvoll Manufactur von Scheibler v Gilchrest & Co. [1892] 1 Q. B. 253, at p. 257 Lord Esher is reported to have used these words:

The first cause of action that they allege is for breach of bills of lading, and   secondly,   they allege   negligence in sending the ship to sea from New Orleans in unseaworthy condition. It is not sufficient breach of a bill of lading that the ship went to sea in an unseaworthy condition; but it must also be shewn that the unseaworthiness was the cause of loss.

The fact that a ship is not in a fit condition to receive her cargo, or is from any cause unseaworthy when about to start on her voyage, will justify the charterer or holder of the bill of lading in repudiating his contract and refusing to be bound by it, and, of course, the parties can, by mutual consent, rescind their contract of affreightment; but repudiation and rescission are questions of fact.

Per Lord Wright in Monarch Steamship Company Ltd v A/B Karlshamns Oljefabriker [1949] 1 All ER 1 at p.15:

To satisfy the definition of unseaworthiness it must exist at the commencement of the voyage. It must, however, still be in effective operation at the time of the casualty if it is to be a cause of the casualty, and from its very nature it must always, or almost always, operate by means of and along with the specific immediate peril. That is because the essence of unseaworthiness as a cause of loss or damage is that the unseaworthy ship is unfit to meet the peril.

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