made the “perils of the sea” defence increasingly more difficult for carriers as technology has developed. For general weather conditions throughout the voyage, carriers will usually be expected to have the necessary equipment to avoid the peril. However, the defence remains possible. For example, unusually high or challenging waves may be considered unforeseeable and exempt the carrier from liability. Experts have debated whether parametric rolling or resonance, which can occur in even moderate weather conditions, is foreseeable. The forces on container stacks may for example be considerably higher if the vessel experiences resonant rolling in moderate weather than in more usual rolling and pitching in exceptional extreme conditions. The legal landscape is yet to be completely clarified.
3. No fault or privity of the carrier
Hague/Visby Rules, Article 4, rule 2 (q) exempts the carrier form liability for damage occurring “without the actual fault or privity of the carrier, or without the actual fault or neglect of the agents or servants of the carrier.” This is usually referred to as the “catch all exception” and, crucially, carriers can rely on this exception if they are able to prove that there was no fault on their part. In container stack collapse cases, the carrier may typically argue there is no fault on his part if the fundamental duties to care for the cargo is fulfilled, and thereby refute liability under the contract of carriage. The “non fault” exception is extended to fault by the carriers’ servants.
Bill of Lading claims and seaworthiness
The Hague/Visby Rules, Article 3, rule I (a) sets out one of the fundamental duties of the carrier: “The carrier shall be bound before and at the commencement of the voyage to exercise due diligence to make the ship seaworthy.” The Hague-Visby Convention governs carriage of goods under contracts of carriage but is often incorporated in charter contracts by way of “paramount clauses”. A question of seaworthiness may, however, differ from Bill of Lading claims and charter party disputes.
An important point for claims under Bills of Lading is that “seaworthy” will also mean “cargoworthy” under English law. See for instance Bills of Lading, Sir Richard Aikens, Richard Lord and Michael Bools ch. 10.99. This means that the carrier’s obligations as to seaworthiness may vary in respect of different cargo consignments under different contracts of carriage: the containers, storage and stowage must be fit for purpose. If not, the carrier may be in breach of the Hague/Visby Rules, Article 3, rule I (a).
Charterparty claims and seaworthiness
Ultimate liability for damages and liabilities arising out of a container stack collapse case will often end up as a discussion regarding seaworthiness between (contractual) carriers of cargo and the actual carrier (the shipowner) under charterparty contracts. The shipowner’s fundamental duty to
76 | The Report • September 2020 • Issue 93
exercise due diligence to make the ship seaworthy may follow by both terms of contract and background/ case law. This was discussed in FC Bradley & Sons Ltd. v. Federal Steam Navigation Co. (1926) 24, LLOYD’S REP 446.
The classic definition of seaworthiness is that “the ship must have the degree of fitness which an ordinary careful owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it”.
A question which often arises in container stack collapse cases is to what extent the ship and equipment was sound and correctly applied upon departure and whether it was fit to withstand the ordinary perils of the sea. Hence, seaworthiness will be considered in context with what the owner could reasonably foresee in terms of occurring sea perils. For instance, inadequacies with regard to the vessel’s lashing and securing equipment in a stack collapse case could be enough to render the vessel unseaworthy. In the Moore case it was held that “if cargo, whilst properly stowed, is not properly lashed and in consequence shifts so as to undermine the vessel’s stability, the vessel will be unseaworthy at the outset” (Moore v. Lunn (1922) 11 L1. L. Rep. 86,92).
Furthermore, if there is an excessive top heavy stow on departure which compromises the stability of the container stack itself, the vessel may arguably be in unseaworthy condition due to the error in stowage.
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