The Duties to Provide a Seaworthy Ship - Essay Example

Rights and Duties of the Ship-owner Rights and Duties of the Ship-owner Introduction A bill of lading (BOL) refers to a document used in the movement of goods by sea. The document serves several functions in international trade. It is issued by a hauler and entails a consignment of merchandise, gives identify to the goods, and urges the transporter to deliver the goods to the right party. The bill of lading came forward with the development of international trade in the medieval world (Al Tamimi & Company, n.d). International traders needed a way of recognising what had been loaded onto the vessels, and started to give signed receipts to confirm the loading of their merchandise on to the ships and to confirm the state of the merchandise at the time of loading. With the development of mercantilism, these bills started to be used as the label to the products, and the bill of lading was developed in much the same form as we recognise today (Wilson, 2010). The up to date rules on bills of lading were codified by the Hague Statue in 1924. Ship-owners have had and still have huge obligations with regard to this bill (Al Tamimi & Company, n.d). In order to ensure that the goods people are protected when in voyage, the bill of lading set certain rights and duties of ship-owners that should be followed. This paper will critically assess the rights and duties of ship-owners under this bill. When merchandise is transported under the bill of lading, the rights and duties of a ship-owner are recognised by fast clauses in the deed (Australian Government n.d). These are known as "express obligations". The text can also include a Paramount clause confirming that the ship-owner is subject to legislation, for instance, the United Kingdom Carriage of Goods by the Sea Act of 1971 and/or the U.S. Carriage of Goods by the Sea Act of 1936, which impose The Hague-Visby Regulations of 1968 and The Hague Regulations of 1924 respectively. In any scenario, the bill of lading itself might not be liable to legislation, but be affirmed to be liable to The Hague-Visby Regulations and/or The Hague Regulations (Wilson, 2010). The Hamburg Regulations of 1978 are not applicable to the 1991 regulations, but there is nothing to stop a nation, which has accepted these, from passing legislation requiring carriage to and/or from that nation and under bills of lading to be liable to the Hamburg Rules. The duties and responsibilities of ship-owners were put into effect internationally on November 1st, 1992. Various obligations of the ship-owner under these rules are understandable and need not be considered in any depth, for instance the duty to sign, print and issue bills of lading (Carr & Kidner, 2009). The giving of bills of lading is enclosed by the rules and will be critically discussed. The rights and duties of the ship-owners will be assessed, taking the Hague Rules as a preliminary model and too much weight will be laid on multifaceted legal issues (Ship Inspection, n.d). A contrast will be attempted between the rights and duties specified in the three sets of global rules. The central reason for this manner of treatment is that ship-owners (and holders of bills of lading) might wish to know their rights and duties under the rules applied by diverse legislations in the different countries in which the vessels might call. It is vital to note primarily that the ship-owners rights and duties are the Charterers’ Rights (Ship Inspection, n.d). The diverse rights and duties of the ship-owners can be summed up as follows: to grant a seaworthy ship that complies with the bills of lading; carefully and properly to handle, load, stow, keep, carry, care for, deliver and discharge the cargo; to abide by the bill’s lawful employment instructions; to take legal action on voyages with logical dispatch. The Duty to Provide a Seaworthy Ship: A majority of contracts of carriage “particularly bills of lading” state expressly that the ship ought to be seaworthy (Chuah, 2009). For example, clause 1 of ASBATANKVOY states that a ship should be seaworthy, having all pumps, pipes and heater coils in proper working conditions and being, in every respect, suited for the voyage. In spite of that, other clauses in the bills of lading might not talk about the seaworthiness explicitly but have a similar effect (Carr & Kidner, 2009). For instance, clause 2.1 of BPTIME confirms that, during delivery, the ship shall be staunch, tight and sturdy and, in every manner, fit for its service. Even though, an express seaworthiness clause is not present, the duty to provide a seaworthy ship is, nonetheless, implied at law. It was stated in Kopitoff v Wilson, [(1876) 1 QBD 602 ] that a ship-owner is, in relation to the contract, necessarily and impliedly held to guarantee that the ship is well and is, in a state, to carry out its duties, or, in everyday language, is seaworthy. This means that the ship-owner, under the bill of lading, should make sure that the ship is fit to meet and experience the perils of the sea, as well as other subsidiary risks, to which it will essentially be exposed in the course of the expedition (Todd, 2002). The bill of lading believes that the ship-owner is obliged to put the ship in question at the disposal of the charterer at the place and time agreed in a seaworthy state and appropriately equipped in such a condition as to accomplish the voyage or voyages stated in the charter-party. Also, the ship-owner must maintain the vessel in such a state all through the voyage or voyages in agreement with the charterparty (Dockray, 2004). In addition, Article 245 Section 3 of the bill of lading titled Time Charter, as well as Article 253 section 4, titled Bareboat Charter of the same bill, provides a similar wording of the abovementioned article. Nevertheless, the same responsibility to provide a seaworthy ship was lessened for the ship-owner, simply to offer a seaworthy ship prior to and at the start of each and every journey, as per Article 272 (1) of the said bill which stated that: 1. A ship-owner must, prior to setting sail and upon the start of a trip, use the essential care to put the ship in a seaworthy state, as well as to fit it out, and man it properly (Carr & Kidner, 2009). The ship-owner should prepare the cold rooms, as well as the holds, and other parts of the ship to receive, preserve and ferry the goods (Chuah, 2009). It is vital, after this, to ask ourselves what is seaworthiness. It was affirmed by Channell J in Blue Star Line v McFadden, [(1905) 1 KB 697] that a ship or any water vessel should have a level of fitness, which a normal, prudent and cautious owner would want his ship to have at the start of its voyage having regard to every probable circumstances of it…Would a cautious holder have required that it (i.e. the imperfection) should be made good prior to sending his vessel to the deep, had he acknowledged of it? If he would, then the vessel was not seaworthy. Accordingly, the necessary normal of seaworthiness relies not just upon physical fitness, but also to the age and nature of the ship, the manner of voyage envisaged, the type of the carried cargo, as well as all other comparative conditions (Todd, 2002). It is worth remembering that the following examples would lead to unseaworthiness breach of duty; An unskilled crew A team which is inadequately instructed or inadequate in numbers Outdated charts Inadequate bunkers for the journey (relies on the form of charterparty). Goods which affects the wellbeing of the vessel. Poor systems on board or ashore. The lack of documents needed by law (including local law) for the reasonable examination of the contemplated journey for instance a deratting permit. ISPS or SMS certificates are prone to be treated in a similar manner, but certificates, which are not essential, (for instance ITF Blue Cards) might not render the ship unseaworthy [The Derby (1985) 2 Ll. Rep 325]. It is also vital to consider what uncargoworthiness is in order to understand the duties and rights of ship-owners under this law (Carr & Kidner, 2009). Cargoworthiness is classified under the seaworthiness necessities of the bill of lading. The ship-owner must ensure that the vessel is, in every manner, practically fit to carry and receive the contemplated freight so as to be regarded as a seaworthy ship (Todd, 2002). It was affirmed in The Good Friend [(1984) 2 Ll. Rep 586] that the vessel would be regarded as uncargoworthy because of the presence on board of other cargoes that might affect the latent cargo, as well. A similar notion was set impliedly under Art II of The Hague Rules, as well as The Hague-Visby Rules, which states that it shall not be permitted for the ship-owner to pack the ship or any part thereof which is chartered merchandise that are not the charterers devoid of the charterers approval. If not, the shipment for the goods loaded without approval shall be passed to the charterer who shall also have the lawful right to declare reimbursement for damages if suitable (Chuah, 2009). Pertaining to the terms of Article VI, under each contract of the voyage of goods by sea, the ship-owner, in relation to the handling, loading, carriage, custody, storage, care and release of such goods, shall be liable to the liabilities and responsibilities and unrestricted to the rights and protections hereinafter set forth. The carriage of merchandise is the period from when the goods are packed to the instant they are released from the vessel (Carr & Kidner, 2009). Hence, the responsibilities start when supplies are loaded to the time they are released, i.e., this most likely takes in the actual discharging and loading operation (Ship Inspection, n.d). Article VI of the bill of lading states that the ship-owner can enter into any agreement given that the terms and conditions are contained in the receipt that is an invariable document marked and no bill of lading are issued as such. Such agreements are "waybills". Article VI of the bill of lading does not pertain to normal commercial shipments made in the normal course of trade, but to merchandise which need to be carried under a special accord. Article VII allows a ship-owner to agree to liability and responsibility related to the merchandise prior to loading on and after releasing from the ship (Carr & Kidner, 2009). While the bill of lading identifies the application of the regulations they do not include a general and far-reaching statement that covers the gist and scope of the rules (Bennett, 2006). These regulations do make universal statements concerning responsibilities and liabilities, such as that the duty of the ship-owner of the goods covers the transit period. This is a statement of the length of the liability, but nothing is said as to what exact activities or duties are incorporated in the "responsibility" (Bennett, 2006). The bill of lading also relates responsibility more to accountability where, in Art. 5, the grounds of accountability are specified and it is affirmed that the accountability will not be that of the ship-owner if he can demonstrate "that he, his agents or servants took all actions that could practically be required to evade" the damage, delay or loss. This means that the ship-owner or his agents or servants should take sound measures to avoid loss, damage, as well as delay. This is as close to specific accountability of the ship-owner and approximates the responsibility under The Hague-Visby Rules/Hague Rules for the ship-owner to exercise due diligence (Carr & Kidner, 2009). It is also vital to look into the security plans that the bill of lading advises ship-owners to undertake. Ship security plans must include the following: A safety assessment for the vessel The safety measures or activities to be applied at each security level Contact information for the vessel’s security officer Conditions for declarations of security How the plan will contribute to sea security outcomes A declaration of the authority of the owner of the ship Ship-owners should ensure that ship safety plans are in writing and accompanied by appropriate supporting credentials as approved in the bill of lading (Australian Government, n.d). The ship-owner also has duty under the bill of lading to make sure that the security plan for the vessel is protected against unauthorised amendment, access and disclosure. The bill also has regulations covering the variation, approval and cancellation, and revision of ship safety plans. The bill might direct variants of ship safety plans if there is an alteration in offshore facility security or maritime transport (Australian Government, n.d). A ship-owner should ensure that a safety plan used for international voyages includes measures for giving pre-entry information (Bennett, 2006). Pre-entry information contains, among other matters, particulars of the ships global Ship Security Certificate, the vessel’s marine security level, as well as the last 10 ports of call. Ship safety plans should also tackle a wide range of other prescribed procedures and measures, which are intended to stop, or respond to, breaches of security or threats against the vessel operator covered by the plan. Security plans should include details of safety equipment on the ship and measures for testing and protection of this equipment (Australian Government, n.d). Ship-owners should also ensure that security plans address obligations concerning ship security proceedings, as well as provide information on how the measures will be reviewed, when and how it will be audited and who will assist in the auditing. Conclusion Responsibility for making sure that a ship is built and designed in a way that does not expose both goods and crew to improper risks rest within the ship-owner. The layout and construction of the ship should be appropriate for its planned purposes once operational. This necessitates attention to vital details of construction and design, which affect sanitation on vessel. This paper made references to design concerns and noted the urge to ensure acquiescence with design standards, which support liable ship operations. Examples comprised the need to ensure that safety measures are guaranteed and that the ship is in proper condition. Ship-owners should take note of this and ensure that their vessels are in the best conditions to grant proper services. References Al Tamimi & Company n.d, A shipowners duty to provide a seaworthy ship under the charterparty, viewed March 15, 2013, http://www.tamimi.com/en/publication/publications/section-3/september/a-shipowners-duty-to-provide-a-seaworthy-ship-under-the-charterparty.html Australian Government n.d, Ship ownersand operatorsresponsibilities and obligations, viewed March 14, 2013, http://www.infrastructure.gov.au/transport/security/maritime/security_plans/ship_owners.aspx Bennett, H 2006, Law of marine insurance, Oxford University Press, New York. Carr, I & Kidner, R 2009, International Trade Law Statutes and Conventions 2009/2010 4th ed, Cavendish, Singapore. Chuah, J 2009, Law of international trade: Cross border commercial transactions 4th ed, Sweet & Maxwell, London. Dockray, M 2004, Cases and materials on the carriage of goods by sea 3rd ed, Cavendish, Singapore. Ship Inspection n.d, Maritime guide, viewed March 13, 2013, http://www.shipinspection.eu/index.php?action=page_display&PageID=246 Ship Inspection n.d, Maritime guide, viewed March 14, 2013, http://www.shipinspection.eu/index.php?action=page_display&PageID=124 Todd, P 2002, Cases and materials on international trade law, Sweet and Maxwell, London. Wilson, J 2010, Carriage of goods by sea 7th ed, Longman, London. Read More