Merchant Ship Seaworthiness: Theory and Practice

Xiankai Zhan, Pengfei Zhang

Research output: Book/ReportBookpeer-review

Abstract

The seaworthiness of merchant ships plays a critical role in ensuring the safety of life and property and the prevention of marine pollution. It deals with the fitness and readiness of a ship and its fundamental ability to sail safely to its destination. The standards of seaworthiness extend to literally all aspects of a ship, including the human element, physical structure, documentation, cargo worthiness and so on. It is one of the most complicated concepts in the maritime regulatory regime, and it takes many forms. For instance, Article 94(1) of UNCLOS (1982) requires that flag states are under a categorical duty to exercise jurisdiction and control in relation to ‘administrative, technical and social matters’ over ships that are permitted to fly its flag. Seaworthiness is a crucial element concerning this duty, and this is further set out in the remainder of the article, particularly in Article 94(3) and (4).
Similarly, in the commercial context of the carriage of goods by sea, the Hague/Hague–Visby Rules state that the carrier has the obligation to exercise due diligence to make the ship seaworthy before and at the beginning of the voyage. In marine insurance law, seaworthiness is an implied warranty of the ship owner, the breach of which results in the loss of insurance coverage, even though there is no causal relationship between the breach and the loss (Soyer, 2001). In the law relating to seafarers’ employment contract, seafarers are guaranteed the protection that originates from the legal implication that the ship on which they are employed to work is, in fact and law, seaworthy. For instance, the UK Merchant Shipping Act confers upon seafarers a statutory right to an implied term of seaworthiness, which cannot be displaced or exempted by contractual agreement (MSA, 1995). However, as one of the most important terms in maritime transportation and ship management, seaworthiness is not an absolute concept, but a relative one, dependent on the particular environment, context and facts. In the meantime, the standards of seaworthiness have changed greatly with the introduction of new maritime regulations, such as the ISM Code, the ISPS Code, the MLC, 2006 and so on. This is primarily dependent on and determined by a variety of different contractual purposes and perspectives. A ship might be seaworthy as between the insurer and the ship owner, though unseaworthy as between the ship owner and the shipper of a particular cargo (Hodges, 1999). For instance, frozen cargo requires a special freezing apparatus, though that does not affect the safety of the ship, although it may impair seaworthiness under a marine insurance policy (Mitra, 1993).This was made clear in The Eurasian Dream (2002), where it was held that sea- worthiness is relative to ‘the nature of the ship, to the particular voyage, or even to the particular stage of the voyage on which the ship is engaged’.
This book has been written in a format which meets the needs of lawyers, academics and maritime professionals, to explain the concept of seaworthiness and relevant legal issues. We gain an understanding of the constituent features which colour its application in sovereign jurisdictions, where each have their own, often conflicting, social or geopolitical priorities to meet. Each chapter relies heavily on case studies to illustrate how the laws which reflect private laws and national policy underpinning those priorities - are applied in practice. This structure then enables us to understand the problems in the carriage of goods by sea, with a view to offering options for solutions.
Original languageEnglish
PublisherRoutledge
Publication statusIn preparation - 2021

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