Applying the above decision to a vessel that commenced its voyage with the two known defects, such a vessel could be considered unseaworthy for breaching:
i. the provisions of Article 3.1 (extracted above; including Hague- Visby); and
ii. the General Principles of the Code of Safe Practice for Cargo Stowage and Securing (Code), two of those principles being: (i) Personnel planning and supervising the stowage and securing of cargo should have a sound practical knowledge of the application and content of the Cargo Securing Manual; and (ii) Decisions taken for measures of stowage and securing cargo should be based on the most severe weather conditions which may be expected by experience for the intended voyage. (Interestingly, the Code does not refer to stevedores who are known to ignore the loading plan as earlier described).
Regarding the first principle above: if the shore planners had sound practical knowledge of the application and content of the CSM, and if they had always acted with such knowledge, the loading plans would have always complied with the CSM and fail-safe mechanisms would probably not be necessary. Concerning the second principle: if the vessel had a safe and proper container securing system, then, there would be no container stack collapses when a vessel encountered heavy or severe weather conditions during the voyage.
In any proceeding against a shipowner following container stack collapses, a court could also decide that the shipowner had failed the prudent owner test, articulated by T Carver in Carver’s Carriage by Sea, and quoted with approval by Channell J, in McFadden v Blue Star Line [1905] 1 KB 697, at 706:
A vessel must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it…Would a prudent owner have required that it (i.e. the defect) should be made good before sending his ship to sea, had he known of it? If he would, the ship was not seaworthy…
The critical factor against the shipowner would be their prior knowledge of the two known defects before and at the commencement of the voyage. The shipowner would probably raise the defence of industry practice in terms of (i) the loading plan being prepared by shore planners for the majority, if not all shipowners; and (ii) the existing container securing system being used by all shipowners.
Courts have been known to disregard industry practices, holding that courts are the ultimate arbiters of what is required by the law. In the US case The TJ HOOPER 60 F. 2d 737 (1932), the court was required to consider whether the owner of tugs towing coal-laden barges, should have provided radio receiving sets to the tugs’ masters that would have provided early warning of a storm, enabling them to seek shelter and prevent the eventual sinking of both barges. The tug owner followed industry practice that did not require owners to supply radio sets to their tugs; and the law did not mandate such supply. Justice Learned Hand (one of the smartest judges not to sit on the US Supreme Court) delivered judgement for his two fellow judges and rejected this industry practice:
They can have at hand protection against dangers of which they can learn in no other way. Is it then a final answer that the business had not yet generally adopted receiving sets? There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. … Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.
The High Court of Australia, in Rogers v Whitaker [1992] HCA 85, delivered a joint judgment by five of the six judges, with the sixth judge delivering a separate but concurring judgment. The court had to consider whether the ophthalmologist, Dr
Rogers, before operating on Mrs Whitaker’s right eye, ought to have informed her that she could develop sympathetic ophthalmia in her good left eye post operation, resulting in the loss of sight in that eye; and obtained her informed consent (to the operation). He did not so inform her and, post-operation, she lost her sight in her previously good left eye. Dr Rogers relied upon the Bolam principle as his defence in not so advising her:
“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.” [7]
Put simply, the principle is: if a doctor follows a practice that is accepted as proper by a responsible body of medical opinion, then, even if the practice results in injury to a patient, the doctor cannot be considered to have been negligent. The Court referred with approval to the decision of King J, regarding a woman who became pregnant after a failed tubal ligation (F v. R. ((26) (1983) 33 SASR 189, 194):
The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.
In rejecting Dr Rogers’ defence (that his failure to advise Mrs Whitaker was consistent with the standard practice of his profession), the Court relied upon King J’s remarks in F v R viz that it was for the court to decide whether the conduct conformed to the standard of reasonable care demanded by the law; such standard was not the duty of a profession or group in the community.
Returning now to the shipowner whose vessel commenced its voyage with the two known defects, resulting in container stack collapses during heavy weather, a court in 2022, could expect the shipowner to have
The Report • September 2022 • Issue 101 | 109
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128
