The law of the sea

by George L. Canfield; J. Y. Brinton; George W. Dalzell

3. Seaworthiness.—

A warranty of seaworthiness underlies all the relations of ship and cargo. This means, primarily, that the vessel is responsible for loss or damage to the goods if she was not in a seaworthy condition when she commenced the voyage, and if the loss would not have arisen but for that unseaworthiness. This liability may frequently involve the owner personally, as when the defect is attributable to his own fault or want of care. He is held to warrant that she is fit to carry the cargo which she loads and with it to encounter safely whatever perils may be reasonably expected to ensue and assumes liability for any defects in hull, machinery or equipment, even if not discoverable by careful examination. The ship must be fit in design, structure, condition, and equipment to encounter the ordinary perils of the voyage. This includes a competent master and a sufficient crew. The test is, of course, a relative one and depends upon the facts and circumstances involved in each particular case. A ship may be perfectly seaworthy for a particular cargo and voyage and quite unseaworthy for another. It is frequently said that the warranty does not require an absolutely perfect ship and that the true criterion is that degree of fitness which the average prudent and careful owner requires of his vessel at the commencement of the voyage, having given due consideration to all the circumstances which may reasonably be anticipated to attend it.

In the case of the Caledonia, 157 U. S. 124, it appeared that the vessel was chartered to transport cattle from Boston to Deptford. Sufficient fodder was provided for fifteen days, a longer period than the usual length of the voyage, being all the fodder customarily provided for such voyages. When nine days out from Boston in smooth water, the propeller shaft broke straight across in the stern tube. The breakage was due to weakening of the shaft in heavy seas on previous voyages. Its weakened and unfit condition existed when the vessel put to sea on the voyage under consideration, but the defect was invisible and could not have been detected by usual and reasonable means if the shaft had been taken out and examined. No negligence on the part of the owners was proven. Because of the breakage the voyage lasted twenty-five days and the cattle were put on short allowance of food. In consequence they were landed at Deptford in emaciated condition. They were sold in London on the first market day following their arrival. The shipper of the cattle sustained a loss due to their shrinkage in weight and to a fall in the market which occurred during the period of delay. Chief Justice Fuller in the opinion of the court reviewed many of the leading English and American cases, and held:

The proposition that the warranty of seaworthiness exists by implication in all contracts for sea-carriage, we do not understand to be denied; but it is insisted that the warranty is not absolute, and does not cover latent defects not ordinarily susceptible of detection. If this were so, the obligation resting on the shipowner would be, not that the ship should be fit, but, that he had honestly done his best to make her so. We cannot concur in this view.

In our opinion, the shipowner's undertaking is not merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she must be exposed in the course of the voyage; and, this being so, that undertaking is not discharged because the want of fitness is the result of latent defects.

The warranty of seaworthiness implies that the vessel shall be fit for the particular service in which she is to engage. A vessel intended to be used in river navigation is not required to be made fit for ocean transportation. Taking into consideration the nature of the voyage, it has been said that:

She must be so tight that the water will not reach the cargo; so strong that these ordinary applications of external force will not spring a leak in her or sink her; so sound that she will safely carry the cargo in bulk through these ordinary shocks to which she must every day be subjected. If she is capable of this, she is seaworthy; if she is not, she is unfit for the navigation of the river. (The Keokuk, etc. v. Home Ins. Co., 9 Wall. 526.)

The opinion just quoted had reference to a barge in tow. The Court held that the barge was considered as belonging to the tug, which had her in tow, and that the warranty of seaworthiness extended to the barge equally with the tug.

While under the act of February 13, 1893, (27 St. at L. 445, supra) the owner is relieved of liability to the cargo by reason of faulty navigation, the employment of a competent master and crew is implied in a warranty of seaworthiness and the owner is liable under the warranty if he fail to employ a competent personnel. In other words the relief from liability occurs where the owner had employed competent men, but they negligently or faultily operated the ship. Thus Justice Clifford in Germania Ins. Co. v. Lady Pike, 21 Wall. 1, said:

(The vessel) must be provided with a crew adequate in number and competent for their duty with reference to all the exigencies of the intended route, and with a competent and skillful master, of sound judgment and discretion, and with sufficient knowledge of the route and experience in navigation to be able to perform in a proper manner all the ordinary duties required of him as master of the vessel.