CHAPTER 15

DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY

INDEX

I. Introduction

1) Due diligence
2) Definition of due diligence
3) Definition of seaworthiness
4) Due diligence and seaworthiness the apparent dilemma

II. Burden of Proof

1) Introduction
2) Carrier must first prove due diligence
3) American decisions on burden of proof
4) Proving due diligence and seaworthiness
5) Burden of proof and incompetence of crew

III. Before and at the Beginning of the Voyage

1) The basic principle
2) The theory of stages
3) Different cargoes may have different voyages

IV. Due Diligence in Respect of the Loss

V. Due Diligence in Respect of the Voyage and the Cargo

VI. Seaworthiness and Cause of the Loss

1) Carrier must prove the cause
2) When the cause is unknown
3) When the cause is uncertain or complex
4) Lack of due diligence and another cause

VII. Seaworthiness and Fundamental Breach

1) The Hague Rules
2) The Hague/Visby Rules

VIII. Examples of Seaworthiness

2
1) The hull - seaworthiness
2) Hatches and vents seaworthiness
3) Ships generators and engines seaworthiness
4) Pumps, pipes and lines seaworthiness
5) Navigational equipment seaworthiness
6) Radar seaworthiness
7) Seaworthiness and competent crew
8) Stowage and seaworthiness
a) Poor stowage and instability of the ship
b) Poor stowage and direct damage to cargo
9) Improper ballasting, cleaning of holds, refrigeration and heating
10) Lighters and seaworthiness
11) Containers and seaworthiness
12) Ships subject to arrest seaworthiness

IX. Examples of Due Diligence

X. Due Diligence and Delegation

XI. Diligence of the Delegate

XII. Modern Methods of Seaworthiness and Due Diligence

1) The advances of science
2) Every dog is allowed one bite theory

XIII. Due Diligence and France

1) The former Law of April 2, 1936
2) The domestic Law of June 18, 1966
3) Burden of proof due diligence domestic Law
4) International carriage - France

XIV. The Hamburg Rules

XV. The International Safe Management (I.S.M.) Code and Seaworthiness

1) The I.S.M. Code adoption and implementation
2) I.S.M. Code summary
3) I.S.M. Code relevance to seaworthiness
4) I.S.M. Code and seaworthiness conclusion
3

CHAPTER 15

DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY


I. Introduction

1) Due diligence

Due diligence to make a vessel seaworthy in respect of a loss is one of the most
controversial concepts in the Hague or Hague/Visby Rules.

Before the advent of the Rules, the obligation of the carrier to make the vessel seaworthy
was absolute; it was not sufficient to exercise due diligence.
1


Art. 3(1) of the Hague and Hague/Visby Rules reads:

"The carrier shall be bound before and at the beginning of the
voyage to exercise due diligence to:

"a) Make the ship seaworthy;

"b) Properly man, equip and supply the ship;

"c) Make the holds, refrigerating and cool chambers, and all other
parts of the ship in which goods are carried, fit and safe for their
reception, carriage and preservation."

The due diligence provision of art. 3(1) is of public order, in virtue of art. 3(8) and cannot
be contracted out of.
2


Due diligence under art. 3(1) is similar, but not identical, to the exculpatory exception at
art. 4(2)(p) "Latent defects not discoverable by due diligence."
3


2) Definition of due diligence

Due diligence to make the vessel seaworthy may be defined as a genuine, competent and
reasonable effort of the carrier
4
to fulfill the obligations set out in subparagraphs (a), (b) and (c)

1
Riverstone Meat Co Pty. Ltd. v. Lancashire Shipping Co. Ltd. (The Muncaster Castle) [1961] A.C. 807 at pp. 871-
872, [1961] 1 Lloyd's Rep. 57 at p. 87 (H.L.); The Torenia [1983] 2 Lloyd's Rep. 210 at p. 217.
2
Bundesgerichtshof, February 28, 1983, [1984] ETL 342.
3
See Chap. 22, "Latent Defects", infra.
4
The carrier who owes the duty of due diligence has been held, in the United States, to include the non vessel-
owning common carrier (NVOCC) who issues the bill of lading, without there being any requirement for the vessel
4
of art. 3(1) of the Hague or Hague/Visby Rules.
5
It is the diligence of the "reasonably prudent"
carrier, as at the time of the relevant acts or omissions, and not in hindsight.
6
The English Court
of Appeal has held that the test of due diligence is whether the carrier, its servants, agents and
independent contractors have exercised all reasonable skill and care to ensure that the vessel
was seaworthy at the commencement of its voyage, namely, reasonably fit to encounter the
ordinary incidents of the voyage....
7


The French version of the Hague Rules (which is the official version) uses the words
"diligence raisonnable". This illustrates that the diligence required is not absolute, but only
reasonable.
8


The French domestic Law of April 2, 1936
9
had no due diligence provision, while the
Law of June 18, 1966,
10
which replaced it, uses only the world "diligence", considering
"diligence raisonnable" as an anglicism and redundant.

3) Definition of seaworthiness

Seaworthiness may be defined as the state of a vessel in such a condition, with such
equipment, and manned by such a master and crew, that normally the cargo will be loaded,
carried, cared for and discharged properly and safely on the contemplated voyage.
11

Seaworthiness therefore has two aspects: 1) the ship, crew and equipment must be sound and
capable of withstanding the ordinary perils of the voyage;
12
and 2) the ship must be fit to carry

operating carrier to ratify the bill. See All Pacific Trading v. Hanjin Lines 1991 AMC 2860 at p. 2861 (C.D. Cal.
1991), affd 7 F.3d 1427, 1994 AMC 365 (9 Cir. 1993), cert. denied 510 U.S. 1194, 1994 AMC 2997 (1994).
5
Grain Growers Export Co. v. Canada Steamship Lines Ltd. (1918) 43 O.L.R. 330 at pp. 344-345 (Ont. S.C. App.
Div.), upheld (1919) 59 S.C.R. 643 (Supr. C. of Can.), defined due diligence as "not merely a praiseworthy or
sincere, though unsuccessful, effort, but such an intelligent and efficient attempt as shall make it so [i.e. seaworthy],
as far as diligence can secure it." See also C. Itoh & Co. (America) Inc. v. M/V Hans Leonhardt 719 F. Supp. 479 at
p. 504, 1990 AMC 733 at p. 743 (E.D. La. 1989): such a measure of prudence, activity, or assiduity, as is
properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular
circumstances; not measured by any absolute standard, but depending on the relative facts of the special case. See
also Tuxpan Lim. Procs. 765 F. Supp. 1150 at p. 1179, 1991 AMC 2432 at p. 2445 (S.D. N.Y. 1991): whatever a
reasonably competent vessel owner would do under the circumstances.
6
The Subro Valour [1995] 1 Lloyd's Rep. 509 at p. 516.
7
The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at p. 266 (C.A.). See also The Eurasian Dream [2002] 1 Lloyds
Rep. 719 at pp. 737 and 744: The exercise of due diligence is equivalent to the exercise of reasonable care and
skill. Lack of due diligence is negligence.
8
See also Rechtbank van Koophandel te Antwerpen, October 17, 1995, [1995] ETL 130, defining reasonable
diligence as normal care expected of the good father of a family and not exception care. See also Rechtbank van
Koophandel te Gent, May 21, 1996 (The Adriano), [1996] ETL 688.
9
Journal officiel du 11 avril 1936. See Marine Cargo Claims, 1 Ed., 1965, at Appendix "E" for the text.
10
Law No. 66-420 of June 18, 1966 at arts. 21 and 27.
11
A similar definition of seaworthiness is to be found at art. 2063 c.c. (Qubec 1994): "At the beginning of the
voyage and even before, the carrier is bound to exercise diligence to make the ship seaworthy, properly man, equip
and supply it, and make fit and safe all parts of the ship where property is to be loaded and kept during the voyage."
See also Canada Steamship Lines Ltd. v. Desgagn [1967] 2 Ex C.R. 234 at p. 244, which discusses art. 1675 of the
former Qubec Civil Code (the Civil Code of Lower Canada of 1866) and the duties of the carrier under it.
12
F.C. Bradley & Sons. V. Federal Steam Navigation Co. (1926) 24 Ll. L. Rep. 446 at p. 454 (C.A. per Scrutton
L.J.): The ship must have that degree of fitness which an ordinary owner would require his vessel to have at the
commencement of the voyage having regard to all the probable circumstances of it., cited with approval in The
5
the contract cargo.
13
The Australian High Court has summarized seaworthiness as follows in
Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corporation Berhad
(The Bunga Seroja):
14


"Article III, r. 1 therefore effectively imposes an obligation on the carrier to carry
the goods in a ship which is adequate in terms of her structure, manning,
equipment and facilities having regard to the voyage and the nature of the cargo."

Seaworthiness means many things -- a tight hull and hatches, a proper system of pumps,
valves and boilers, and engines, generators and refrigeration equipment in good order. A
seaworthy vessel must be equipped with up-to-date charts, notices to mariners and navigating
equipment and the crew must be properly trained and instructed in the ship's operation and
idiosyncrasies. Equipment must be properly labeled and diagrams must be available and posted.
The ship must be bunkered and supplied for the voyage or diligent preparations must have been
made in advance to obtain bunkers and supplies conveniently along the route.

Seaworthiness is concerned with the fitness of the vessel, rather than with the conduct of
the shipowner. In The Fjord Wind, Clarke L.J. made the point clearly:
15


...seaworthiness is concerned with the state of the vessel rather than with whether
the owners acted prudently or with due diligence. The only relevance of the
standard of the reasonably prudent owner is to ask whether, if he had known of the
defect (my emphasis), he would have taken steps to rectify it.

4) Due diligence and seaworthiness - the apparent dilemma

A seeming dilemma arises from the obligation to provide only due diligence to make the
ship seaworthy. If due diligence has been exercised, it has been asked, how can there be
unseaworthiness?

MacKinnon L.J. put the question in Smith, Hogg & Co. v. Black Sea & Baltic General
Insurance Co. Ltd.:
16


Fjord Wind [2000] 2 Lloyds Rep. 191 at p. 197 (C.A. per Clarke L.J.); The Lendoudis Evangelos [2001] 2 Lloyds
Rep. 304 at p. 306 (per Cresswell, J.), and The Eurasian Dream [2002] 1 Lloyds Rep. 719 at p. 736 (per Cresswell,
J.) (enumerating the following aspects of seaworthiness: physical condition of the vessel and equipment;
competence/efficiency of the master and crew; adequacy of stores and documentation; and cargoworthiness).
13
The Aquacharm [1982] 1 Lloyd's Rep. 7 at p. 11, cited with approval in The Good Friend [1984] 2 Lloyd's Rep.
586 at p. 593. See also The Kriti Rex [1996] 2 Lloyds Rep. 171 at p. 184.
14
(1998) 158 A.L.R. 1 at p. 25, [1999] 1 Lloyd's Rep. 512 at p. 527, 1999 AMC 427 at p. 459 (High C. of Aust. per
McHugh J.). N.B. The Bunga Seroja must be read with caution, however, because the decision is flawed in
concluding that a peril of the sea may exculpate the carrier even if it is expected. The judgment also ignores the
delicate balance between due diligence, peril of the seas and care of the cargo under the Hague and Hague/Visby
Rules. Finally, the High Court passed over the argument that once a peril has been determined to exist before and at
the commencement of the voyage, the carrier is only duly diligent in preparing for that peril if it takes various
measures, including, inter alia, avoiding the peril by a change of course, staying in port until the expected storm
abates, etc. (This latter argument may not have been properly pleaded, however.)
15
[2000] 2 Lloyds Rep. 191 at p. 199 (C.A.).
6

"The limitation and qualification of the implied warranty of
seaworthiness, by cutting it down to use 'due diligence on the part
of the shipowner to make the ship seaworthy,' is a limitation or
qualification more apparent than real, because the exercise of
due diligence involves, not merely that the shipowner personally
shall exercise due diligence, but that all his servants and agents
shall exercise due diligence..." (Emphasis added).



MacKinnon L.J. relied on and cited Scrutton on Charterparties:
17


"[This variation will not be] of much practical value in face of the
dilemma that must constantly arise on the facts. In most cases if
the vessel is unseaworthy due diligence cannot have been used
by the owner, his servant or agents; if due diligence has been used
the vessel will in fact be seaworthy. The circumstances in which
the dilemma does not arise (e.g. a defect causing unseaworthiness
but of so latent a nature that due diligence could not have
discovered it) are not likely to occur often." (Emphasis added).

The Court of Appeal, in The Fjord Wind,
18
phrased the same idea very succinctly:
Putting the matter in simple terms, a ship should not be unseaworthy if proper care is taken;...

Is there really a dilemma? Have the Hague and Hague/Visby Rules modified the pre-
Hague Rules obligation of absolute seaworthiness?

The answer is that there has been been a change, a lessening of the obligation, but that
there really is no dilemma. Under the Hague and Hague/Visby Rules, the ship need not be
seaworthy at all. There is no obligation of seaworthiness, absolute or otherwise.
19
Nor is there
an obligation to be absolutely diligent to make the ship seaworthy. There is only an obligation to
a) exercise due diligence to make the ship seaworthy; b) before and at the beginning of the
voyage; c) having regard to the voyage contemplated and the cargo carried; d) in respect of the
loss; e) and the exercise of due diligence is also a pre-condition to proving one of the exculpatory
exceptions of art. 4(2)(a) to (q). Absolute diligence, however, is not required, nor is absolute
seaworthiness
20
or (in fact) any seaworthiness.
21


16
(1939) 64 Ll. L. Rep. 87 at p. 89 (C.A.), aff'd [1940] A.C. 997 at p. 1001, (1940) 67 Ll. L. Rep. 253 at p. 257
(H.L. per Lord Wright); cited in Riverstone Meat Co. Pty Ltd. v. Lancashire Shipping Co. Ltd. (The Muncaster
Castle) [1961] A.C. 807 at pp. 839, 852 and 873, 1 Lloyd's Rep. 57 at pp. 69, 76 and 88 (H.L.).
17
14 Ed., 1939 at p. 110, cited in Smith, Hogg & Co. Ltd,, supra, at p. 89 in Riverstone Meat, supra, A.C. at p. 873,
Lloyd's Rep. at p. 88.
18
[2000] 2 Lloyds Rep. 191 at p.205 (C.A. per Sir Murray Stuart-Smith), cited with approval by Cresswell, J in The
Eurasian Dream [2002] 1 Lloyds Rep. 719 at p. 735, together with The Amstelslot [1963] 2 Lloyds Rep. 223 at p.
235 (H.L.).
19
C. Itoh & Co. (America) Inc. v. M/V Hans Leonhardt 719 F. Supp. 479 at p 504, 1990 AMC 733 at p. 743 (E.D.
La. 1989), citing the third edition of this book at p. 371.
20
See., e.g., the United Kingdom's Carriage of Goods by Sea Act 1971, U.K. 1971, c. 19, sect. 3: "There shall not be
implied in any contract for the carriage of goods by sea to which the [Hague/Visby] Rules apply by virtue of this Act
7

On the other hand, it is correct that only a defect that is latent will relieve the carrier of
liability, and such a defect is usually in the construction of the ship.
22



II. Burden of Proof

1) Introduction

There are five particularities with respect to the proving of due diligence. First, it is the
carrier who has the burden of proving due diligence to make the vessel seaworthy; secondly, due
diligence must be exercised only before and at the beginning of the voyage; thirdly, due
diligence and seaworthiness are relevant only in respect of the loss; fourthly, seaworthiness is
considered in relation to the voyage and the cargo concerned; and finally, the carriers obligation
is not to exercise absolute diligence but merely reasonable diligence.

2) Carrier must first prove due diligence
Art. 4(1) in fine of the Hague and Hague/Visby Rules provides:
"Whenever loss or damage has resulted from unseaworthiness the burden of
proving the exercise of due diligence shall be on the carrier or other person
claiming exemption under this article."
More specifically, due diligence to make the vessel seaworthy in respect of the loss must
be proven by the carrier before he may exculpate himself under art. 4(2) of the Hague and
Hague/Visby Rules. This was clearly pointed out by the Privy Council, in Maxine Footwear
Co., Ltd. v. Can. Government Merchant Marine,
23
where Lord Somervell declared:

any absolute undertaking by the carrier of the goods to provide a seaworthy ship." See also The Eurasian Dream
[2002] 1 Lloyds Rep. 719 at p. 736.
21
See The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at pp. 272-273 (C.A.), where although the ship was clearly
unseaworthy because of the carriage of undeclared and dangerous cargo on deck, the carrier was found not liable for
any lack of due diligence in respect of that carriage because it had no notice of it and no reasonable means of
detecting the presence of the cargo in the container, which had been stuffed and sealed by the shipper.
22
Riverstone Meat Co. Pty. Ltd. v. Lancashire Shipping Co. Ltd. (The Muncaster Castle) [1961] A.C. 807 at p. 872,
[1961] 1 Lloyd's Rep. 57 at p. 87 (H.L. per Lord Keith), holding that the carrier "...will be protected against latent
defects, in the strict sense, in work done on his ship, that is to say, defects not due to any negligent workmanship of
repairers or others employed by the repairers, and, as I see it, against defects making for unseaworthiness in the ship,
however, caused, before it became his ship, if these could not be discovered by him, or competent experts employed
by him, by the exercise of due diligence". See also The Torenia [1983] 2 Lloyd's Rep. 210 at p. 230: "This
unseaworthiness was not latent nor was it undiscoverable by due diligence. Due diligence was not exercised. It
follows that the defendants are liable."; BHP Trading Asia Ltd. v. Oceaname Shipping Ltd. (1996) 67 F.C.R. 211 at
p. 229 (Fed. C. Aust.) See also Scrutton, 20 Ed., 1996 at p. 430.
23
[1959] A.C. 589 at pp. 602-603, [1959] 2 Lloyd's Rep. 105 at p. 113 (P.C.), relied on by Thurlow J. in N.M.
Paterson & Sons v. Robin Hood Flour Mills Ltd.(The Farrandoc) [1968] 1 Ex. C.R. 175 at p. 183 (Ex. Ct. of Can.)
and by the New Brunswick Court of Queens Bench in Beattie (R.K.) Ltd. v. CN Marine Inc. (1986) 74 N.B.R.(2d)
221 at p. 229, 183 A.P.R. 221 at p. 229 (N.B. Q.B.). See also The Good Friend [1984] 2 Lloyd's Rep. 586 at pp. 588
and 593; The Happy Ranger [2002] 2 Lloyds Rep. 357 at p. 364 (C.A.).
8
"Article III, rule 1, is an overriding obligation. If it is not fulfilled and the non-
fulfilment causes the damage the immunities of articles IV cannot be relied on.
This is the natural construction apart from the opening words of article III, rule 2.
The fact that that rule is made subject to the provisions of article IV and rule 1 is
not so conditioned makes the point clear beyond argument."
The same position was reiterated in Great China Metal Industries Co. Ltd. v. Malaysian
International Shipping Corporation Berhad (The Bunga Seroja):
24

"Article III imposes a positive obligation on the carrier to exercise due diligence
to make the ship seaworthy. This obligation is an overriding obligation which is
not subject to the exceptions to liability listed in Art. IV r. 2."
Besides the very strong dictum of Lord Somervell in Maxine Footwear and the opening
words of art. 3(2) of the Rules, there is a general rule of proof that the person who has the
evidence available to it should make that proof. It is the carrier who knows the condition of the
ship before and at the beginning of the voyage and should make that proof.
The overriding nature of the carrier's due diligence obligation was reaffirmed in The
Fiona, where a shipowner sought to recover from a shipper the indemnity contemplated by art.
4(6) of the Rules, in respect of expenses and damages arising from the shipment by the shipper
of dangerous cargo which had caused an explosion on the vessel just prior to discharge. In first
instance, Judge Diamond, Q.C. held:
25

"It would be wholly contrary to the scheme of the rules and likewise inconsistent
with equity and commercial common sense that a carrier should be entitled to
destroy dangerous goods without compensation and without liability except to
general average if the cause of the goods having to be destroyed was a breach by
the carrier of his obligations as to seaworthiness. The exceptions in art. IV, r. 6
are clearly in my judgment subject to the performance by the carrier of his
overriding obligation set out in art. III, r. 1. So also in my judgment is the right
to an indemnity conferred by the first paragraph of the rule." (Emphasis added)

On appeal, Hirst L.J. upheld the trial judge, stating that he had rightly relied on Maxine
Footwear and adding:
26


"...art. III, r. 1 is the overriding article, and ... seeing that the shipowners were in
breach of their obligations under art. III, r. 1 to exercise due diligence to make the

24
(1998) 158 A.L.R. 1 at p. 24, [1999] 1 Lloyd's Rep. 512 at p. 526, 1999 AMC 427 at p. 458 (High C. of Aust. per
McHugh J.), citing both Maxine Footwear Co. Ltd. v. Can. Government Merchant Marine Ltd., supra, and Paterson
Steamships Ltd. v. Canadian Co-operative Wheat Producers Ltd. [1934] A.C. 538 at p. 548, (1934) 49 Ll. L. Rep.
421 at p. 428 (P.C.). See also The Bunga Seroja, ibid., 158 A.L.R. at p. 43, Lloyd's Rep. at p. 537, 1999 AMC at p.
484 (per Kirby J.), citing Shipping Corp. of India Ltd. v. Gamlen Chemical Co. (Australasia) Pty. Ltd. (1980) 147
CLR 142 at p. 152 (High C. of Aust.).
25
[1993] 1 Lloyd's Rep. 257 at p. 286.
26
[1994] 2 Lloyd's Rep. 506 at p. 519 (C.A.). See also The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at p. 270
(C.A.), cited with approval in The Happy Ranger [2002] 2 Lloyds Rep. 357 at p. 364 (C.A.).
9
ship seaworthy, they are not entitled to invoke the indemnity under art. IV, r. 6."
(Emphasis added).
In general it has been held in England and other British Commonwealth countries that the
carrier must first prove the exercise of due diligence before proving one of the exculpatory
exceptions.
27
In fact, nine years before the decision of the Privy Council in Maxine Footwear,
Angers J. said in Toronto Elevators, Ltd. v. Colonial Steamships Ltd.:
28

"The primary obligation placed upon the carrier before he can take advantage of
one of the exceptions provided by article IV, rule 2 is the exercise of due
diligence."

The principle was reiterated by the Supreme Court of Israel in 1998 in Zim Israel
Navigation Ltd. v. The Israeli Phoenix Assurance Company Ltd. (The Zim-Marseilles),
29
where
Matza J., citing with approval the Supreme Court of Canadas decision in Goodfellow Lumber
Sales Ltd. V. Verreault,
30
held:

...It should be noted that in the Charles Goodfellow case, which was mentioned
above, it was expressly held that a carrier which seeks to be exempted from
liability by contending that the loss was caused by reason of perils of the sea must
prove that prior to the voyage it was seaworthy, or at the least that he acted with
due diligence to prepare it for the voyage. This means that the defence of the
perils of the sea may be relied on by a carrier only if he showed that the loss was
in fact caused as a result of the materialisation of the perils of the sea. The burden
to prove the causal connection between the peril of the sea and the damage
includes also the negation of the nearest alternative reason for the damage being
caused, which is the carriers breach of his obligation to prepare the ship for the
voyage.

Nevertheless, some English and Commonwealth courts have put the burden of proving
unseaworthiness on the cargo claimant. This theory is expressed by Nol J. in N.M. Paterson &
Sons Ltd. v. Robin Hood Flour Mills, Ltd. (The Farrandoc).
31
Nol J. suggests the following as
the proper order of proof in a cargo case:
32


a) The cargo claimant proves his loss or damage in the hands of the carrier (equivalent to
Chaps. 8 to 13 of this text).


27
Smith, Hogg & Co. Ltd. v. Black Sea & Baltic General Ins. Co. Ltd. [1940] A.C. 997 at p. 1007, (1940) 67 Ll. L.
Rep. 253 at p. 260 (H.L. per Lord Wright): "... the right to rely on the exception of negligence was conditional on
due diligence on the part of the owners to make the ship seaworthy, which the owners had failed to exercise."
Carver, 13 Ed., 1982, at para. 499, also considers due diligence as a prerequisite, as does Scrutton, 20 Ed., 1996 at p.
443. See also The Eurasian Dream [2002] 1 Lloyds Rep. 719 at pp. 736 and 738-739.
28
[1950] Ex. C.R. 371 at p. 375. See also Thurlow J. in N.M. Paterson & Sons. v. Robin Hood Flour Mills Ltd (The
Farrandoc). [1968] 1 Ex. C.R. 175 at p. 183.
29
[1999] ETL 535 at p. 549.
30
[1971] S.C.R. 522, [1971] 1 Lloyds Rep. 185.
31
[1968] 1 Ex. C.R. 175 at p. 188.
32
Ibid. at pp. 188-189.
10
b) The carrier must prove the cause of the loss (equivalent to Chap. 14 of this text).

c) The carrier must prove one of the exculpatory exceptions of art. 4(2)(a) to (q) (Chaps.
16 to 23 of this text).

d) Then the cargo claimant must prove unseaworthiness and the carrier, presumably, must
then prove due diligence to make the vessel seaworthy before and at the beginning of the
voyage.
33


My order of proof
34
is as follows:
1) The cargo claimant proves his loss and damage in the hands of the carrier (see Chaps.
8 to 13 of this text).



2) The carrier must prove the cause of the loss (see Chap. 14 of this text).

3) The carrier must prove due diligence to make the ship seaworthy before and at the
beginning of the voyage in respect of the loss (this Chapter).

4) The carrier must prove one of the exculpatory exceptions (see Chaps. 16 to 23 of this
text).

5) The cargo claimant then attempts to prove lack of care of cargo (see Chaps. 24 to 27 of
this text) or attempts to disprove the above evidence of the carrier, including lack of
seaworthiness and lack of due diligence.

33
In The Bunga Seroja (1998) 158 A.L.R. 1 at p. 25, [1999] 1 Lloyd's Rep. 512 at p. 527, 1999 AMC 427 at pp. 459,
McHugh J. of the High Court of Australia held: "If unseaworthiness is relied on, the cargo owner must prove that the
loss or damage resulted from that unseaworthiness. Once that is proved the burden is on the carrier to prove that it
exercised due diligence to make the ship seaworthy." This is also the approach also taken in Hiram Walker & Sons,
Ltd. v. Dover Navigation Co., Ltd. (1950) 83 Ll. L. Rep. 84 at p. 89; Minister of Food v. Reardon Smith Line [1951]
2 Lloyd's Rep. 265 at p. 272; The Hellenic Dolphin [1978] 2 Lloyd's Rep. 336 at pp. 339 and 340; The Good Friend
[1984] 2 Lloyd's Rep. 586 at p. 588; The Theodegmon [1990] 1 Lloyd's Rep. 52 at p. 54; The Fiona [1993] 1 Lloyd's
Rep. 257 at p. 288, upheld without discussion of this point, [1994] 2 Lloyd's Rep. 506 (C.A.); The Toledo 1995] 1
Lloyds Rep. 40 at p. 50; The Apostolis [1997] 2 Lloyd's Rep. 241 at pp. 244 and 257 (C.A.); The Eurasian Dream
[2002] 1 Lloyds Rep. 719 at p. 735. See also Scrutton, 20 Ed., 1996 at p. 442. For Canada, see also N.M. Paterson
& Sons v. Robin Hood Flour Mills Ltd. (The Farrandoc) [1968] 1 Ex. C.R. 175 at p. 189, where, however, Nol J.'s
order of proof seems unclear and where he seems to confuse burden of proof with order of proof.; A.R. Kitson
Trucking Ltd. v. Rivtow Straits Ltd. (1975) 55 D.L.R. (3d) 462 at p. 466, [1975] 4 W.W.R. 1 at p. 6 (B.C. S.C.); and
Kruger Inc. v. Baltic Shipping Co. (1989) 57 D.L.R. (4
th
) 493 at p. 502 (Fed. C.A.).
34
See Chap. 6, "The Burden and Order of Proof". See Paterson Steamships, Ltd. v. Canadian Co-operative Wheat
Producers [1934] A.C. 538 at p. 545, (1934) 49 Ll. L. Rep. 421 at p. 427 (P.C.), a case involving the Canadian
forerunner to the Hague Rules, where Lord Wright adopted the statement by Lord Sumner in F.C. Bradley & Sons,
Ltd. v. Federal Steam Navigation Co. Ltd. (1927) 27 Ll. L. Rep. 395 at p. 396 (H.L.), a case involving the Australian
forerunner to the Rules, that: "in strict law, on proof being given of their damaged condition on arrival, the burden of
proof passed from the consignees to the shipowner to prove some excepted peril which relieved them from liability,
and further, as a condition of being allowed the benefit of that exception, to prove seaworthiness at Hobart, the port
of shipment, and to negative negligence or misconduct of the master, officers and crew with regard to the apples
during the voyage and the discharge in this country." See also Hobhouse J. in The Torenia [1983] 2 Lloyd's Rep.
210 at p. 218: "If... in all cases where a structural defect in the ship has contributed to the loss, the carrier has in
effect to prove that he had exercised due diligence to make the ship seaworthy, I find nothing surprising about that
conclusion. Indeed, it suggests that common sense and the law are proceeding in step."
11

6) Both parties then have various arguments available to them (see Chaps. 28 to 45).

It is noteworthy that Thurlow J., in N.M. Paterson & Sons Ltd. v. Robin Hood Flour
Mills, Ltd. (The Farrandoc),
35
disagrees with Nol J. and would seem to follow my order of
proof, because he cites Lord Somervell in Maxine Footwear Co.
36
as to art. 3(1) being an
overriding obligation.
37
More recent Canadian decisions have also applied my order of proof,
particularly in respect of the carriers being required to prove the cause of the loss, due diligence
and then one or more exculpatory perils.
38


3) American decisions on burden of proof

Some American cases on due diligence and the burden of proof seem confused and
contradictory. It should first be noted that the American COGSA 1936, at sect. 3(2) does not
contain the words "subject to the provisions of art. 4..." of which Lord Somervell spoke in
Maxine Footwear. But the confusion seems to arise from the difference between the Harter Act
and the COGSA. Under the Harter Act, due diligence to make the vessel seaworthy had to be
proved in every respect,
39
so that any failure in respect of due diligence precluded the carrier
from invoking the Harter Acts exceptions.
40
By comparison, under COGSA, which is the
American version of the Hague Rules, due diligence need only be proved in respect of the loss, a
causal link being required between the lack of due diligence and the cargo loss or damage.
41
The
Second Circuit, in Firestone Syn. Fibers Co. v. Black Heron,
42
held that:

" the defense of error in the management of the ship is not conditioned, as it is
under the Harter Act,..., on a showing of seaworthiness or due diligence to make
the vessel seaworthy."

The Court relied on Clancy D.J. in Isbrandtsen Co. v. Federal Ins. Co.,
43
but a study of
this latter judgment indicates that Clancy D.J. really meant that due diligence need not be proved
in every respect, but only in respect of the loss.
44


35
[1968] 1 Ex. C.R. 175 at p. 183.
36
[1959] A.C. 589 at pp. 602-603. [1959] 2 Lloyd's Rep. 105 at p. 113 (P.C.).
37
[1968] 1 Ex. C.R. 175 at p. 183.
38
Canfor Ltd. v. The Federal Saguenay (1990) 32 F.T.R. 158 at p. 160 (Fed. C. Can. per Denault J.); Canastrand
Industries Ltd. v. The Lara S [1993] 2 F.C. 553 at p. 575, (1993) 60 F.T.R. 1 at p. 16 (Fed. C. Can. per Reed J.),
upheld without discussion of the question, (1994) 176 N.R. 31 (Fed. C.A.). See also Voest-Alpine Stahl Linz GmbH
v. Federal Pacific Ltd. (1999) 174 F.T.R. 69 at pp. 74-75 (Fed. C. Can. per Bais J.).
39
46 U.S.C. Appx. 192: due diligence to make said vessel in all respects seaworthy.. (emphasis added).
40
The Isis 290 U.S. 333 at p. 351, 1933 AMC 1565 at p. 1577 (1933); U.S. v. Ultramar Shipping 685 F. Supp. 887
at p. 894, 1988 AMC 527 at p. 536 (S.D. N.Y. 1987), affd without opinion, 854 F.2d 1315, 1988 AMC 2408 (2 Cir.
1988).
41
46 U.S. Code Appx. 1304(1). See also U.S. v. Ultramar Shipping, supra, 685 F. Supp. at p. 894, 1988 AMC at p.
537.
42
324 F.2d 835 at p. 837, 1964 AMC 42 at p. 44 (2 Cir. 1963).
43
113 F. Supp. 357, 1952 AMC 1945 (S.D. N.Y. 1952), affirmed 205 F.2d 679, 1953 AMC 1033 (2 Cir. 1953).
44
Ibid., 113 F. Supp. at pp. 358-359, 1952 AMC at pp. 1946-1947, where it is stated that COGSA "does bind the
carrier to exercise due diligence to make the ship seaworthy but the enjoyment of the stipulated exceptions to its
liability is not conditioned on a breach of that duty except where breach of it is the cause of the loss."
12

On the other hand, the Fifth Circuit, in L. Dreyfus Corp. v. 27,946 Long Tons of Corn,
held that error of management of the ship was not a defence under COGSA where the vessels
engineer had lacked due diligence before the voyage commenced.
45


The Ninth Circuit has also required the carrier to prove due diligence before permitting
them to invoke the fire defence of sect. 4(2)(b) of COGSA.
46
On the other hand, the Second,
Fifth and Eleventh Circuits have concluded that proof of due diligence is not a condition
precedent to the application of the fire exception.
47
The Eastern District of Louisiana, in a
Harter Act case, citing the third edition of this book, affirmed that the carrier may rebut the
shippers prima facie case by proving that it used due diligence to make the vessel seaworthy and
that the damage was due to an exception recognized by the Act.
48


The result of the latter view on the order of proof is that after the cargo claimant proves
his loss, the carrier must next prove either that due diligence was exercised before and at the
commencement of the voyage or that the harm was caused by one of the exculpatory perils of
sect. 4(2)(a) to (q).
49


It is submitted that English and Canadian jurisprudence
50
on due diligence as an
overriding obligation should be followed as being clearer.
51


45
830 F.2d 1321 at pp. 1327-1328, 1988 AMC 1053 at p. 1062 (5 Cir. 1987), invoking as authority a Harter Act
decision, International Navigation Co. v. Farr & Bailey Mfg. Co. 181 U.S. 218 at p. 226 (1901). See also another
Harter Act judgment, C. Itoh & Co. (America) Inc. v. M/V Hans Leonhardt 719 F. Supp. 479 at p. 503, 1990 AMC
733 at p. 743 note 27 (E.D. La. 1989), invoking the third edition of this book at p. 372, as well as The Wildcroft 201
U.S. 378 at p. 386 (1906).
46
Sunkist Growers, Inc. v. Adelaide Shipping Lines 603 F.2d 1327 at pp. 1335-1336 (9 Cir. 1979), cert. denied 444
U.S. 1012, 1980 AMC 2102 (1980). See, however, Complaint of Damodar Bulk Carriers 903 F.2d 675 at pp. 686-
687, 1990 AMC 1544 at pp. 1560-1562 (9 Cir. 1990), limiting the application of Sunkist Growers in a manner
bringing Ninth Circuit law closer to that of the Second and Fifth Circuits.
47
Complaint of Ta Chi Navigation (Panama) Corp., S.A. 677 F.2d 225 at p. 229, 1982 AMC 1710 at p. 1715 (2 Cir.
1982); Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at p. 206, 1985 AMC 247 at pp. 255-256 (5
Cir. 1985); Banana Services, Inc. v. M/V Tasman Star 68 F.3d 418 at p. 421, 1996 AMC 260 at p. 264 (11 Cir.
1995).
48
C. Itoh & Co. (America) Inc. v. M/V Hans Leonhardt 719 F. Supp. 479 at p. 502, 1990 AMC 733 at p. 739 (E.D.
La. 1989).
49
See, e.g., Sony Magnetic Products Inc. of America v. Merivienti O/Y 863 F.2d 1537 at p. 1539, 1989 AMC 1259
at p. 1262 (11 Cir. 1989); Tenneco Resins, Inc. v. Davy International AG 886 F. 2d 211 at p. 213, 1990 AMC 401
at p. 405 (5 Cir. 1989); Sun Company Inc. v. S.S. Overseas Arctic 27 F.3d 1104 at p. 1109, 1995 AMC 57 at p. 62 (5
Cir. 1994); Pacific Employers Insurance Co. v. M/T Iver Champion 1996 AMC 2535 at p. 2556 (E.D. La. 1996);
Hale Container Line, Inc. v. Houston Sea Packing Co., Inc. 137 F. 3d 1455 at p. 1468, 1999 AMC 607 (summ.) (11
Cir. 1998).
50
Maxine Footwear Co., Ltd. v. Can. Government Merchant Marine [1959] 2 Lloyd's Rep. 105, [1959] A.C. 589
(H.L.); Toronto Elevators Ltd. v. Colonial Steamship Ltd. [1950] Ex. C.R. 371.
51
Bernstein Co. v. MS Titania 1955 AMC 2040 at pp. 2043-2044 (E.D. La. 1955) is another example of a confused
American decision on due diligence. The reasoning is based on the difference between the Harter Act and the
Hague Rules. Under the Harter Act, due diligence has to be proved in every respect, whether causally connected
with the loss or not. Under the Hague Rules, due diligence has to be proved only the extent that the unseaworthiness
causes the loss. In Judge Christenberry's words; "The carrier's burden does not extend to proving diligence to make
the vessel seaworthy 'in all respects' not causally connected with the ensuing damage, as under the Harter Act."
Having made this distinction, the judge seems to go further than he needs by stating that "the exemption of the
carrier for an error of management in sect. 4(2) [of COGSA] is not conditioned on its first establishing due diligence
13

In Mimi Limitation Procs.,
52
the question of who has the burden of proving due diligence
to make the vessel seaworthy was considered in the light of the two theories enunciated above.
The Court stated:

"Under either view it is clear... a carrier must at least establish one of the
exculpating causes of sect. 4(2)."

This was not done and the Court added: "we need not explore here the further
ramifications of that scheme..."
53


4) Proving due diligence and seaworthiness

Much of the confusion over the burden of proof with respect to due diligence arises from
art. 4(1) which at its last sentence states:

"Whenever loss or damage has resulted from unseaworthiness the burden of
proving the exercise of due diligence shall be on the carrier."

It has been argued that this means that the cargo claimant must first prove
unseaworthiness in order to shift the burden to the carrier.
54




It is submitted that the foregoing is incorrect for the following reasons:

a) The rules are not silent. Art. 3(1), the first article on the duties of the parties under the
Rules was termed by Lord Somervell "an overriding obligation".
55


b) Art. 3(2), which deals with caring for cargo, makes these duties subject to art. 4, but
art. 3(1) is not so subject.
56


to make the vessel seaworthy at the beginning of the voyage." He refers to authorities: San Guiseppe 1941 AMC
315 at p. 319 (E.D. Va. 1941), Knauth, Ocean Bills of Lading, 4 Ed., 1953 at p. 168, and others, which support the
contention that under COGSA, due diligence need not be proved in every respect. The authorities do not go as fas
as Christenberrry D.J., however, and are not authority for his dictum. The U.S. Court of Appeals, 232 F.2d 771,
1956 AMC 754 (5 Cir. 1956) upheld the judgment, but on other grounds and did not discuss due diligence.
52
604 F.2d 254 at p. 262, 1979 AMC 1680 at p. 1690 (4 Cir. 1979). See also Northeast Petroleum v. Kyriakou
Shipping 478 F. Supp. 558, 1982 AMC 1196 (D. Mass. 1979), which seems to suggest that the carrier has the burden
of proving due diligence and an exculpatory exception.
53
The two theories reviewed in Mimi Lim Procs, ibid., are the one proposed in Marine Cargo Claims, 2 Ed., 1978 at
pp. 153-154, the 3 Ed., 1988 at pp. 374-375, and this text and the theory that emerges from some American
decisions.
54
See supra, section II(2), discussion surrounding Nol J.'s order of proof and other decisions cited there. For the
United States, see Director General of India Supply Mission v. S.S. Maru 459 F.2d 1370 at p. 1372, 1972 AMC
1694 at p. 1697 (2 Cir. 1972), cert. denied 409 U.S. 1115, 1973 AMC 357 (1973); Quigley Co., Inc. v. M/V Safir
750 F. Supp. 790 at p. 792, 1990 AMC 2104 at p. 2107 (S.D. Tex. 1989); Tuxpan Lim. Procs 765 F. Supp. 1150 at
p. 1175, 1991 AMC 2432 at p. 2437 (S.D. N.Y. 1991); Ballard Shipping, Lim. Procs 823 F. Supp. 68 at pp. 71-72,
1993 AMC 1428 atp. 1432 (D. R.I. 1993); Thyssen, Inc. v. S/S Eurounity 1994 AMC 393 at pp. 399 and 400 (S.D.
N.Y. 1993), affd 21 F.3d 533, 1994 AMC 1638 (2 Cir. 1994).
55
Maxine Footwear [1959] 2 Lloyd's Rep. 105 at p. 113, [1959] A.C. 589 at pp. 602-603 (P.C.).
56
See discussion on Maxine Footwear relating to art. III, supra.
14

c) The carrier has all the facts available to him to prove seaworthiness and due diligence
while the cargo claimant has few, if any.
57


It is agreed that the Rules are far from clear in this respect, but to put the burden first on
the cargo claimant to prove unseaworthiness in virtue of art. 4(1), last sentence, is to ignore the
construction of the Rules and the text of art. 3(1) and art. 3(2).
58


Most courts solve the problem by calling on both parties to make what proof is available
to them. Moreover, they usually consider (by inference) any incursion of seawater as prima
facie evidence of unseaworthiness, thereby putting the burden of proving that due diligence was
nevertheless exercised on the carrier by art. 4(1).
59
Should the carrier fail to rebut the inference
of unseaworthiness, liability will attach.
60


To impose on the cargo claimant the initial burden of proving unseaworthiness is not
logical because:
a) The facts are not available to the cargo claimant;

b) The carrier must prove the cause of the loss, which will entail proving the
unseaworthiness if it was the cause;

c) The carrier has the burden of proving due diligence to make the vessel seaworthy (see
above) which entails evidence as to the seaworthiness.

5) Burden of proof and incompetence of crew

Incompetence on the part of the master or crew can consist of various shortcomings,
including a disabling want of skill, a disabling want of knowledge, an inherent lack of
ability, a lack of adequate training or instruction, a lack of knowledge about a particular vessel
and/or its systems, a disinclination to perform the job properly, or a physical or mental
disability or incapacity (e.g. drunkenness or illness) all of which matters are questions of fact,
and which may be proved by only one incident. Nevertheless, one mistake does not necessarily
render a crew member incompetent, and incompetence must be distinguished from negligence.
61



57
See Wilson, 2 Ed., 1993 at p. 190, supporting this position. See also Metropolitan Coal Co. v. Howard 155 F.2d
780 at p. 783, 1946 AMC 1154 at p. 1158 (2 Cir. 1946 per Learned Hand C.J.); GTS Industries S.A. v. S/S Havtjeld
68 F.3d 1531 at p. 1535, 1996 AMC 232 at p. 236 (2 Cir. 1995).
58
See GTS Industries S.A. v. S/S Havtjeld 68 F.3d 1531 at p. 1535, 1996 AMC 232 at p. 237 (2 Cir. 1995), stressing
the two hundred year old distinction which imposes the burden of proof of seaworthiness on the carrier in
common carriage and on the shipper in private carriage (chartering).
59
BHP Trading Asia Ltd. v. Oceaname Shipping Ltd. (1996) 67 FCR 211 at p. 229 (Fed. C. Aust.); Wilson, 2 Ed.,
193 at p. 190.
60
See, for example, The Torenia [1983] 2 Lloyd's Rep. 210 at p. 225.
61
See The Eurasian Dream [2002] 1 Lloyds Rep. 719 at pp. 736-737. See also The Star Sea [1997] 1 Lloyds Rep.
360 at p. 374 (C.A.), upheld [2001] 1 Lloyds Rep. 389 (H.L.) (a marine insurance decision on unseaworthiness).
15
When a crewmember is incompetent and commits a negligent act, such as the master
navigating erroneously
62
or a second engineer opening the wrong valve and flooding the cargo
instead of a ballast tank,
63
the proof follows the same order as in any other claim. The carrier
proves the cause of the loss and then proves that due diligence was exercised in the employment
and training of the party concerned (e.g. that the master (or the second engineer) was carefully
selected at the time of hiring and properly trained in the performance of his duties). The cargo
claimant then attempts to prove that the officer in question was incompetent and that due
diligence was not exercised in his employment and/or training.

Thus in effect, both parties make proof on seaworthiness and due diligence to the best of
their ability, but the initial and major burden or proof is on the carrier. That burden was
described by Cresswell, J. in The Eurasian Dream,
64
Cresswell, J. as obliging the carrier to show
that it has exercised proper care in relation to: 1) the appointment of a generally competent
master/crew (e.g. by inspecting the seamans documents, interviews and inquiries from previous
employers to ensure that the person is reasonably fit to occupy the post to which he is
appointed); and 2) the specific competence of the master in relation to the vessel and voyage in
question. In this latter regard, mere reliance on certificates of competence is inadequate. Rather,
the owners/managers must provide the master and crew with specific instruction and supervision,
on an ongoing basis, in relation to the vessel and the voyage(s).


III. Before and at the Beginning of the Voyage

1) The basic principle

Due diligence need only be exercised "before and at the beginning of the voyage" (art.
3(1)). This is another way in which the obligation is not absolute. Maxine Footwear
65
is the
leading decision and is to the effect that due diligence must be exercised before loading of cargo
has commenced and until the vessel weighs anchor or slips. In The Makedonia,
66
"voyage" was
held to mean the contractual voyage from the port of loading to the port of discharge, as declared
in the appropriate bill of lading.

The exact moment of the beginning of the voyage is difficult to determine. One gathers
from the case law that it is when all hatches are battened down, visitors are ashore and orders

62
Ta Chi Lim. Procs. (Eurybates) 513 F. Supp. 155, 1981 AMC 2350 at p. 2358 (E.D. La. 1981). Gross error in
navigation raised a presumption of incompetency which the shipowner had to rebut by showing due diligence in
manning the ship.
63
N.M. Paterson & Sons Ltd. v. Robin Hood Flour Mills Ltd. (The Farrandoc) [1968] 1 Ex. C.R. 175, [1967] 2
Lloyd's Rep. 276, 1967 AMC 1451.
64
[2002] 1 Lloyd Rep. 719 at p. 738 per Cresswell, J., citing The Makedonia [1962] 1 Lloyds Rep. 316 at pp. 337-
338; N.M. Paterson & Sons Ltd. v. Robin Hood Flour Mills, Ltd. (The Farrandoc) [1968] 1 Ex. C.R. 175, [1967] 2
Lloyds Rep. 276, 1967 AMC 1451, and Scrutton, 20 Ed., 1996 at p. 430.
65
Maxine Footwear Co., Ltd. v. Can. Government Merchant Marine [1959] 2 Lloyd's Rep. 105 at p. 113, [1959]
A.C. 589 at p. 603; the Privy Council clearly indicates that the obligation is not merely to exercise due diligence at
the beginning of the loading and at the beginning of the voyage, but during the whole period from the beginning of
loading until sailing.
66
[1962] 1 Lloyd's Rep. 316 at pp. 329-330. See also The Anders Maersk [1986] 1 Lloyd's Rep. 483 at p. 486
(Hong Kong High Ct.).
16
from the bridge are given so that the ship actually moves under its own power or by tugs or both.
Thus it is submitted that the controversial decision in S.S.Del Sud.
67
is correct. There the vessel,
while leaving a dock with the assistance of a tug, was swung around and struck the dock. It was
held that the voyage had commenced.

When some act to make a vessel seaworthy, which can be done at sea or before the vessel
sails, is properly planned to be done at sea, the vessel is not unseaworthy when she sails.
68


When one vessel is substituted for another, due diligence must be exercised to make the
substituted vessel seaworthy.
69


Where the carrier purchases the ship from a former owner or a shipbuilder, the carrier is
not liable for their lack of due diligence,
70
but is liable for defects which it ought to have
discovered by the exercise of due diligence, either personally or through competent experts, on
or after the transfer of possession.
71


2) The theory of stages

The theory that the vessel must be seaworthy at each stage of the voyage for that stage of
the voyage, is a pre-Hague Rules principle
72
which surfaces from time to time, but which no
longer applies, as art. 3(1) makes abundantly clear. In consequence, the carrier need only
exercise due diligence to make the vessel seaworthy at the port where the cargo is loaded. Thus
in Leesh River Tea Co. v. British India Steam Navigation Co. (The Chyebassa),
73
storm valve
cover plates were stolen at an intermediary port, and the Court of Appeal properly held that the
vessel was seaworthy at the beginning of the voyage.

A ship should have sufficient bunkers on board at the loading port for the whole voyage,
unless proper arrangements have been diligently made at the loading port for bunkers at various
ports along the planned and advertised route.
74
It is only the arrangements which have to be

67
270 F.2d 345, 1959 AMC 2143 (5 Cir. 1959)
68
Orient Ins. Co. v. United S.S. Co. 1961 AMC 1228 (S.D. N.Y. 1961): a vessel may be seaworthy although
ballasting is not complete by the time of sailing, if ballasting is planned to be done at sea.
69
Tex-O-Kan Mills Co. v. Higgins, Inc. 1959 AMC 1822, 174 F. Supp. 198 (E.D. La. 1959). The original carrier
was held responsible for damage to cargo because due diligence was not exercised to make the substituted vessel
seaworthy. (The vessel put to sea without a loadline or a loading certificate and there were other defects which also
rendered her unseaworthy).
70
W. Angliss & Co. (Australia) Pty. v. P. & O. Steam Navigation Co. supra, K.B. at p. 462, Ll. L. Rep. at p. 214.
71
Riverstone Meat Co. Pty. Ltd. v. Lancashire Shipping Co. (The Muncaster Castle) [1961] A.C. 807 at p. 872,
[1961] 1 Lloyd's Rep. 57 at p. 86 (H.L.). See also Wilson, 2 Ed., 1993 at p. 189.
72
See, for example, Quebec Marine Ins. Co. v. Commercial Bank of Canada (1870) L.R. 3 P.C. 234 (P.C.); The
Vortigern [1899] P. 140.
73
[1966] 2 Lloyd's Rep. 193 (C.A.).
74
The Makedonia [1962] 1 Lloyd's Rep. 316: "I see no obligation to read into the word 'voyage' a doctrine of stages,
but a necessity to define the word itself" (at p. 329). "...the obligation on the shipowner was to exercise due
diligence before and at the beginning of sailing from the loading port to have the vessel adequately bunkered for the
first stage to San Pedro and to arrange for adequate bunkers of a proper kind at San Pedro" (at p. 330). See also
Northmbrian Shipping Co., Ltd. v. E. Timm & Son, Ltd. [1939] A.C. 397, [1939] 2 All E.R. 648 (H.L.), where the
carrier's failure, before the voyage began, to provide sufficient bunkers to get the ship to its first bunkering port was
17
made; if the bunkers are not there on the arrival of the vessel at the arranged port, due diligence
has, nevertheless, been exercised if the arrangements were reasonably made.

When a vessel loaded cargo at a number of contiguous ports for a single destination, it
was held that "before... the beginning of the voyage" continued until the vessel broke ground at
the last loading port.
75


3) Different cargoes may have different voyages

It must be remembered that not all cargoes on a given ship necessarily have the same
contractual "voyage" as the ship itself. For example, if a ship loads cargo A in Southampton,
then sails to Le Havre where it loads cargo B, then continues to New York where it takes on
cargo C, and finally docks in Halifax where all three cargoes are discharged, the ship has
completed a single voyage. The cargoes, however, have had three different voyages, because
they have been laden aboard the vessel at three different ports.
76
In consequence, if cargo B or
cargo C is lost or damaged by unseaworthiness and a cargo claim is instituted, the carrier will not
be relieved of liability for the harm to those cargoes by proving merely that it exercised due
diligence to make the ship seaworthy before and at the beginning of the ship's voyage at
Southampton, because cargoes B and C did not begin their voyages there. Rather, the carrier
must prove that it exercised due diligence in respect of cargo B before and at the beginning of the
voyage of that specific cargo (i.e. at Le Havre) and, in respect of cargo C, before and at the
beginning of the voyage of that specific cargo (i.e. at New York).

On the other hand, where the carrier or its servants or agents lack due diligence at
Southampton in respect of cargo "A", and that default later causes loss or damage to cargo "B" or
cargo "C", the carrier will be liable for such loss and damage, because the harm is attributable to
a lack of due diligence "before" the voyages of cargo "B" and cargo "C" began. The carrier's
liability is grounded on actual or imputed knowledge of the harmful condition or defect
continuing to the relevant date.
77


The Hamburg Rules, at art. 5(1), although not specifically, effectively make the
obligation to exercise due diligence to make the ship seaworthy mandatory throughout the whole
voyage of each lot of cargo.

IV. Due Diligence in Respect of the Loss

The carrier is not obliged to prove that he exercised due diligence to make the vessel
seaworthy in any respect unconnected with the loss. It is only if some particular unseaworthiness

held to be a failure to exercise due diligence resulting in liability and depriving the carrier of the exceptions provided
by the Canadian Hague Rules. See also Scrutton, 20 Ed., 1996 at p. 429.
75
American Mail Line v. U.S.A. 377 F. Supp. 657, 1974 AMC 1536 (W.D. Wash. 1974).
76
See The Fjord Wind [1999] 1 Lloyd's Rep. 307 at p. 313, upheld without discussion of this point [2000] 2 Lloyds
Rep. 191 (C.A.): "References to 'the voyage' in that context [the Hague Rules] are naturally to be construed as
meaning the cargo-carrying voyage."
77
This continuing liability for lack of due diligence on previous voyages also applies to previous voyages of the ship
itself. See W. Angliss & Co. (Australia) Pty. v. P. & O. Steam Navigation Co. [1927] 2 K.B. 456 at p. 463, (1927)
28 Ll. L. Rep. 202 at p. 214; Scrutton, 20 Ed., 1996 at p. 429.
18
contributed to a loss, then it is in respect of that unseaworthiness that the carrier must make his
proof of due diligence.
78


Thus in Heath Steel Mines Ltd. v. The Erwin Schroder,
79
shifting boards were not
installed exactly as prescribed by Department of Transport regulations, but the cause of the
vessel heeling over was held to be the dangerous nature of the cargo of wet copper concentrate.
For this the carrier was thus not responsible.



It was held in Heinz Horn-Marie Horn:
80


"Under the Harter Act, ..., the owner whose diligence is providing a seaworthy
vessel is found deficient is liable for damage to cargo without causal relation
between the defect and the disaster. Framlington Court, supra, 1934 AMC at
283, 69 F.2d at 307. COGSA, however calls for such causal relation as a
prerequisite to a finding of liability. Although sect. 1303(1)(a), supra, n. 12,
makes the exercise of due diligence obligatory, sect. 1304(1) n. 21, infra, has been
construed as requiring that the loss be causally related to the want of due diligence
before liability can be imposed on the carrier."

In Captayannis "S",
81
the ship was unseaworthy due to the incompetence of the crew but
not of the master. It was held, however, that there must be a causal connection under COGSA
between the loss and the unseaworthiness. Because the loss was due to an error of the master in
navigation of the ship, there was no causal connection with the unseaworthiness, and the carrier
was not responsible for the loss.

In Dir. Gen. of India Supp. Miss. v. S.S. Maru,
82
the vessel was overloaded and was 13
inches beneath her marks. It was held, nevertheless, that the shipowner sustained his burden of
proving that violation of the Load Line Act
83
was not a contributory factor, because the vessel
would have grounded in any event at its permissible maximum draft.

In The Yamatogawa,
84
the design defect in the ship's reduction gear, although the result
of a lack of due diligence, could have had no causative effect on the ensuing casualty; the carrier
was therefore exculpated.

78
Bernstein v. MS Titania 1955 AMC 2040 at p. 2044 (E.D. La. 1955): "The carrier's burden does not extend to
proving diligence to make the vessel seaworthy 'in all respects' not causally connected with the ensuing damage, as
under the Harter Act." See also sect. 4(1) of U.S. COGSA 1936, which provides that the carrier is relieved when the
damage results "from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the
ship seaworthy."
79
[1970] Ex. C.R. 426.
80
404 F.2d 422 at p. 432, 1968 AMC 2548 at p. 2558 (5 Cir. 1968). See also U.S. v. Ultramar Shipping 685 F.
Supp. 887 at p. 894, 1988 AMC 527 at pp. 536-537 (S.D. N.Y. 1987), affd 854 F.2d 1315, 1988 AMC 2408 (2 Cir.
1988).
81
306 F. Supp. 866, 1969 AMC 2484 (D. Ore. 1969). See also Dir. Gen. of India Supp. Miss. v. S.S. Janet Quinn
355 F. Supp. 1329, 1972 AMC 1227 (S.D. N.Y. 1971), where the collision was held to be due to bad seamanship
rather than to an outdated Suez Canal chart not relied on by the Canal pilot.
82
1972 AMC 1238 (S.D. N.Y. 1971), upheld in appeal, 459 F.2d 1370, 1972 AMC 1694 (2Cir.. 1972).
83
46 U.S. Code sect. 85 et seq.
84
[1990] 2 Lloyd's Rep. 39 at p. 50.
19

In Sanko Steamship Co. Ltd. v. Sumitomo Australia Ltd. (No. 2),
85
an Australian decision,
because the carriers lack of due diligence in not correcting the vessels charts regularly and
periodically was not the cause of the loss, no liability attached to that default under the
applicable (U.S.) law.


V. Due Diligence in Respect of the Voyage and the Cargo

The nature and degree of due diligence required of the carrier in regard to seaworthiness
are closely related to the anticipated voyage and the type of cargo (or cargoes) carried:
86


"...making the ship seaworthy (or, as the Hague Rules provide, exercising due
diligence to do so) requires consideration of the kinds of conditions that the vessel
may encounter. If the vessel is fit to meet those conditions, both in the sense that
it will arrive safely at its destination and in the sense that it will carry its cargo
safely to that destination, it is seaworthy."

In this sense, the due diligence defence, like the defence of peril of the seas at art. 4(2)(c)
of the Hague and Hague/Visby Rules,
87
requires the court to take account of the weather
conditions which could reasonably be expected as ordinary incidents of the contemplated
voyage.
88
For example, due diligence precautions before departure necessitated by the storms
foreseeable on the North Atlantic in winter differ sharply from those required in calmer waters at
seasons where heavy weather is not ordinarily encountered. The due diligence standard has been
held to be an objective one, ... measured by the standards of a reasonable shipowner, taking into
account international standards and the particular circumstances of the problem in hand.
89


Due diligence also requires careful consideration of whether the vessel, prior to setting
sail, was properly fitted and equipped to carry the cargo in question, i.e., whether it was
"cargoworthy".
90
Depending on the cargo and type of vessel, more or less effort may be required

85
(1995) 63 F.C.R. 227 (Fed. C. Aust.).
86
Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corporation Berhad (The Bunga
Seroja) (1998) 158 A.L.R. 1 at p. 10, [1999] 1 Lloyd's Rep. 512 at p. 517, 1999 AMC 427 at p. 437 (High C. of
Aust.). See also Hof van Beroep te Antwerpen, January 2, 1996 (The Sea King No. 1), [1996] ETL 667.
87
See Chap. 18, "Peril of the Sea and Similar Exceptions", infra.
88
Huddart Parker Ltd. v. Cotter (1942) 66 C.L.R. 624 at p. 663 (High C. of Aust.); McFadden v. Blue Star Line
[1905] 1 K.B. 697 at p. 703; The Toledo [1995] 1 Lloyd's Rep. 40 at p. 50; The Liepaya [1999] 1 Lloyds Rep. 649
at pp. 668-669. See also The Fjord Wind [2000] 2 Lloyds Rep. 191 at p. 197 (C.A.):(... seaworthiness is not an
absolute concept but is relative to the nature of the ship, to the particular voyage and even to the particular stage of
the voyage). See also The Eurasian Dream [2002] 1 Lloyds Rep. 719 at p. 736.
89
The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at p. 266 (C.A.).
90
See, for example, The Good Friend [1984] 2 Lloyd's Rep. 586 at p. 592, where Staughton J. held that: "the
obligation to make a ship seaworthy itself includes an obligation to see that the ship is fit for cargo service. Where
the particular service is specified in the contract, it is an obligation to see that the ship is fit to carry the specified
cargo on the specified voyage." See also The Aquacharm [1982] 1 Lloyd's Rep. 7 at p. 9 (C.A.); The Gudermes
[1991] 1 Lloyds Rep. 456 at p. 472; The Subro Valour [1995] 1 Lloyd's Rep. 509 at p. 516; BHP Trading Asia Ltd.
v. Oceaname Shipping Ltd. (1996) 67 F.C.R. 211 at p. 229 (Fed. C. Aust.). The "uncargoworthiness" must be "some
attribute of the ship itself which threatens the safety of the cargo": The Apostolis [1997] 2 Lloyd's Rep. 241 at p. 257
(C.A.). See also The Silvia 171 U.S. 462 at p. 464 (1898); R.T. Jones Lumber Co. v. Roen Steamship Co. 270 F.2d
20
to ready the ship to receive the goods to be transported. In other words, due diligence is a duty
of variable character and intensity, depending on the circumstances of each case, rather than an
abstract and immutable concept existing in a legal vacuum.
91


In summation, it may be said that

VI. Seaworthiness and Cause of the Loss

1) Carrier must prove the cause

Under art. 4(1), first sentence, neither the carrier nor the ship is liable for loss or damage
resulting from unseaworthiness unless it is caused by the want of due diligence to make the ship
seaworthy within the meaning of art. 3(1).

The carrier must prove the cause of the loss. This is the first step in the carrier's burden
of proof.
92
If the cause of the loss is unseaworthiness, the carrier, as required by art. 4(1), second
sentence, must prove either: a) that it has complied with its due diligence obligation under art.
3(1)(a) or b) that no failure to do so on its part or the part of those for whom it is responsible
could have caused or contributed to the casualty.
93
If the cause of the loss is other than
unseaworthiness or is unseaworthiness arising from lack of due diligence after the beginning of
the voyage of the cargo concerned, the carrier may invoke the exculpatory exceptions of arts.
4(2)(a) to (q).
94


2) When the cause is unknown

If the carrier cannot identify the latent defect which causes the loss, it will be difficult for
it to discharge the burden of proving that it was duly diligent.
95
Where the cause is unknown,

456 at p. 458, 1960 AMC 46 at p. 49 (2 Cir. 1959); Mobil Shipping and Transp. Co. v. Wonsild Liquid Carriers Ltd.
190 F.3d 64 at p. 69, 1999 AMC 2710 at p. 2710 (2 Cir. 1999).
91
See Mobil Shipping Transp. Co. v. Wonsild Liquid Carriers, supra, F. 3d at p. 69, AMC at pp. 2710-2711
(seaworthiness has no absolute meaning, but varies with circumstances and exceptional features of the case; in an
environmentally-sensitive era, it includes consideration of environmental risks of carrying certain cargoes).
92
See supra and Chap. 14, "The Cause of the Loss or Damage," infra. See especially The Torenia [1983] 2 Lloyd's
Rep. 210 at p. 219.
93
The Fjord Wind [1999] 1 Lloyd's Rep. 307 at pp. 319, 323 and 327, upheld and cited with approval [2000] 2
Lloyds Rep. 191 at pp. 203 and 205-206 (C.A.). For an example of a case where lack of due diligence with respect
to seaworthiness on the part of the carrier was found to have been superseded by another cause not attributable to the
carrier, see Elf Oil-Rederiaktiebolaget Sally 1993 AMC 2069 (Arb. N.Y. 1993).
94
Falconbridge Nickel Mines Ltd. v. Chimo Shipping Ltd. [1969] Ex. C.R. 261 at p. 285.
95
Moore v. R. Fox and Sons [1956] 1 Q.B. 596 at p. 611, [1956] 1 Lloyds Rep. 129 at p. 143; The Antigoni [1991]
1 Lloyd's Rep. 209 at pp. 213 and 215 (C.A.); The Fjord Wind [1999] 1 Lloyd's Rep. 307 at p. 319, upheld [2000] 2
Lloyds Rep. 191 at pp. 199-200 and 205 (C.A.); American Home Insurance Co. v. American President Lines, Ltd.
44 F.3d 774 at p. 780, 1995 AMC 1036 at pp. 1044-1045 (9 Cir. 1994) (due diligence defence dismissed where
carrier could not show what unseaworthy condition caused loss). See also Cour dAppel de Versailles, March 20,
1995, (The Soufflot), DMF 1995, 813.
21
courts tend to invoke presumptions of law and to draw inferences from facts, frequently
concluding that the ship was unseaworthy and that the carrier lacked due diligence.
96


When the loss of a ship was totally unexplained -- the ship sinking, for example, in fair
weather and calm seas -- the Second Circuit held that:
97


"Under these circumstances it is presumed that the loss was occasioned by the
unseaworthiness of [ship] Perama."

In North Star Cement, Ltd. v. Labelle,
98
a ship filled with water and was beached. There
was a small test hole in the plating but it was shown that this could not have been the cause of
the entry. As the cause was unknown, the carrier was liable.

In Consolidated & Barge Co. v. Marcona Conveyor Corp.,
99
the unexplained sinking of a
barge in calm water raised a presumption of unseaworthiness which was not rebutted.

Where the facts of the case raise an inference of unseaworthiness before or at the
commencement of the voyage, which is not rebutted by the carrier by proof of due diligence, the
Court may decide that the carrier is liable even where the precise details of the unseaworthiness
remain unclear.
100
In The Fjord Wind,
101
for example, where the ship's main engine failed for
unidentified reasons shortly after the vessel departed the load port, the trial judge inferred that
there was a defect in the propulsion system which rendered the ship unseaworthy at the outset of
the voyage. The inference was supported by proof of several previous failures of the engines
crankpin bearings over a ten-year period, which failures had never been thoroughly investigated
by the defendants or their engine builder. That neglect, coupled with the defendants failure to
implement certain recommendations of the engine builder concerning engine maintenance,
sufficed to establish lack of due diligence in respect of the loss.
102


3) When the cause is uncertain or complex

When more than one possible cause of the cargo loss or damage is identified, courts seek
the most probable cause and hold the carrier liable for any failure to exercise due diligence in
regard to it before or at the commencement of the voyage.
103
If two or more identified causes

96
See P. Bonassies commentary in DMF 1989, 147, No. 106 at p. 172, on Cour de Cassation, Apri 22, 1986, DMF
1988, 28: (translation): the judge is always entitled to infer from a known fact, unseaworthiness, to an unknown
fact, lack of due diligence.
97
Federazione Italiana v. Mandask Compania 388 F.2d 434 at p. 436, 1968 AMC 315 at p. 318 (2 Cir. 1968). See
also Martin & Robertson, Ltd. v. S.S. Barcelona 1968 AMC 331 (S.D. Fla. 1967). For a very similar French
decision.
98
1976 AMC 944 (Fed. C. Can.).
99
716 F.2d 1077, 1985 AMC 117 (5 Cir. 1983). See also C. Itoh & Co. (America) Inc. v. M/V Hans Leonhardt 719
F. Supp. 479 at pp. 505-506, 1990 AMC 733 at pp. 745-747 (E.D. La. 1989), a case decided under the Harter Act, in
which no causal relationship was proven between the excepted perils invoked by the carrier and the damage.
100
The Theodegmon [1990] 1 Lloyd's Rep. 52 at p. 77.
101
[1999] 1 Lloyd's Rep. 307 at pp. 319, 323 and 327, upheld [2000] 2 Lloyds Rep. 191 at pp. 204 and 208 (C.A.).
102
See ibid., [2000] 2 Lloyds Rep. at pp. 204 and 208 (C.A.).
103
See The Subro Valour [1995] 1 Lloyd's Rep. 509 at p. 517, where the most probable of three possible causes of a
fire aboard the ship was identified as being damage to the electrical wiring or its insulation, for which the carrier was
22
have each contributed to the loss or damage, the "dominant" cause is sought, according to
common sense standards and taking account of all relevant circumstances.
104
In some cases,
however, there are found to be two effective causes both of which contributed to the casualty,
without the second cause being a novus actus interveniens, breaking the chain of causation
between the first cause and the ultimate loss.
105


4) Lack of due diligence and another cause

When the cause of the loss is both lack of due diligence by the carrier to make the vessel
seaworthy before or at the commencement of the voyage and a cause which exculpates the
carrier under one of the paragraphs of art. 4(2)(a) to (q), the carrier is responsible for the whole
loss.
106
This is because due diligence is a preliminary obligation which, if unfulfilled, bars any
exculpatory exception. As Lord Somervell said, "Article III, Rule 1, is an overriding
obligation."
107
Thus if hatch covers are not properly secured before and at the beginning of the
voyage and water enters the cargo during rough weather, the carrier is responsible for the whole
loss.
108
This is in effect a stricter version of the Vallescura Rule,
109
where if the damage from
two causes (i.e. lack of care of cargo, art. 3(2), and an exculpatory exception, arts. 4(2)(a) to (q))
cannot be separated, then the carrier is responsible for the whole loss, unless it can prove the
portion of the loss caused by the excepted peril. The rule with respect to due diligence is stricter
because the conflict is not between two equal provisions (an exculpatory exception and care of
cargo), but between an exculpatory exception and an overriding obligation (due diligence).

Thus in Temple Bar,
110
it was held:


liable owing to its want of due diligence. See also The Apostolis [1997] 2 Lloyd's Rep. 241 at p. 257 (C.A.), where
welding was not proven to have been the most probable cause of the fire; The Isla Fernandina [2000] 2 Lloyds
Rep. 15 at p. 33, where negligent navigation, rather than the vessels inadequate charts and navigational aids, was
held to have been the effective cause of the ships grounding.
104
The Tolmidis [1983] 1 Lloyd's Rep. 530 at p. 540; The Fiona [1993] 1 Lloyd's Rep. 257 at p. 284 ("dominant or
most efficient cause").
105
The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at pp. 270-271 (C.A.), distinguishing The Sivand [1998] 2
Lloyds Rep. 97 (C.A.), in which the intervening act was found to be the effective (i.e. exclusive) cause of the loss
or damage.
106
See Cour dAppel dAix, October 27, 1987, (The Knud-Sif), DMF 1989, 126 (entry of seawater, although
aggravated by heavy weather, really resulted from three holes in ships steel plating caused by corrosion before
loading; carrier liable for lack of due diligence).
107
[1959] 2 Lloyd's Rep. 105 at p. 113, [1959] A.C. 589 at pp. 602-603 (P.C.).
108
See, for example, Cour dAppel dAix, October 27, 1987, (The Knud-Sif), DMF 1989, 126 (seawater damage,
although aggravated by heavy weather, was really caused by three holes in ships steel plating resulting from pre-
loading corrosion). See also The Eurasian Dream [2002] 1 Lloyds Rep. 719 at p. .737 (where a fire is caused by
some factor other than unseaworthiness but spreads as a result of unseaworthiness, the carrier is liable for the loss or
damage caused or aggravated by the unseaworthiness, unless it exercised due diligence).
109
Schnell & Co. v. S.S. Vallescura 293 U.S. 296, 1934 AMC 1573 (1934).
110
45 F. Supp. 608 at p. 617, 1942 AMC 1125 at p. 1139 (D. Md. 1942). See also Smith, Hogg & Co. v. Black Sea
and Baltic General Insurance Co. [1940] A.C. 997 at p. 1008, (1940) 67 Ll. L. Rep. 253 at p. 260 (H.L.); A.R.
Kitson Trucking Ltd. v. Rivtow Straits Ltd. (1975) 55 D.L.R. (3d) 462 at p. 467, [1975] 4 W.W.R. 1 at p. 6 (B.C.
S.C.); L. Dreyfus Corp. v. 27, 946 Long Tons of Corn 830 F.2d 1321 at pp 1327-1328, 1988 AMC 1053 at p. 1062
(5 Cir. 1987); BHP Trading Asia Ltd. v. Oceaname Shipping Ltd. (1996) 67 F.C.R. 211 at p. 229 (Fed. C. Aust.).
23
"... if the facts in any case disclose unseaworthiness resulting from the vessel
owner's failure to exercise due diligence to make the vessel seaworthy, which
concur with negligent navigation in causing the loss, the owner will be liable.
That is to say, unseaworthiness cannot be transformed into bad seamanship for the
purpose of avoiding responsibility for loss of vessel or cargo."


VII. Seaworthiness and Fundamental Breach

1) The Hague Rules

Even if the carrier fails to exercise due diligence to make the ship seaworthy before and
at the beginning of the voyage, and even if that failure causes the cargo loss or damage, the
carrier may nevertheless limit its liability for "any loss or damage to or in connexion with goods"
to the amount of the package limitation of art. 4(5) of the Hague Rules.
111
The reason is that art.
4(5) provides that: "Neither the carrier nor the ship shall in any event be or become liable for
any loss or damage to or in connexion with goods in an amount exceeding..." (Emphasis
added).
112


In consequence, the carrier's breach of its due diligence duty under art. 3(1) of the Hague
Rules does not constitute a "fundamental breach"
113
of its obligations under the Convention (i.e.
the Hague Rules) or the contract of carriage. The want of due diligence therefore differs from
unreasonable geographic deviation
114
(art. 4(4)) and from unjustified deck carriage
115
(art. 1(c)),
which, when done intentionally by the carrier, are regarded as fundamental violations of its
obligations under the Rules and the contract of carriage, entailing the loss of at least the package
limitation, and arguably the loss of other defences as well (e.g. the one-year time bar of art. 3(6),
the defences of art. 4(2)(a) to (q) and any other valid defences of the carrier specified by the
contract).

Failure to exercise due diligence, while therefore not a "fundamental breach" depriving
the carrier of the package limitation, should nevertheless deprive it of the one-year time for suit
under art. 3(6), as well as of the art. 4(2)(a) to (q) exceptions and any other contractual defences,
because of the "overriding" character of due diligence and its impact on the order of proof.
116


111
Falconbridge Nickel Mines Ltd. v. Chimo Shipping Ltd. [1969] Ex. C.R. 261 at p. 285, [1969] 2 Lloyds Rep. 277
at p. 298; Illigan v. Integrated Steel Mils, Inc. v. S.S. John Weyerhaueser 507 F.2d 68, 1975 AMC 33 (2 Cir. 1974),
cert. denied, 421 U.S. 965, 1975 AMC 2158 (1975); Tuxpan Lim. Procs. 765 F. Supp. 1150 at pp. 1184-1185, 1991
AMC 2432 at pp. 2451-2453 (COGSA package limitation not broken even where shipowner was reckless re
seaworthiness); Sabah Shipyard Sdn. Bhd. V. M/V Harbel Tapper 178 F.3d 400 at p. 409, 2000 AMC 162 at p. 174
(5 Cir. 1999): to hold that a carrier is never entitled to the $500 limitation on liability if it fails to exercise due
diligence would render the $500 limitation a nullity.
112
See, for example, Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at pp. 290-291 (Fed. C. Can.).
113
See supra, Chap. 5: "Fundamental Breach, Quasi-Deviation, Rupture of the Contract".
114
See infra, Chap. 35: "Geographic Deviation".
115
See infra, Chap. 31: "Deck Carriage".
116
See supra, section II(2). See, for example, Tribunal de commerce de Marseille, September 30, 1988, The Togla,
Revue Scapel 1990, 11, upheld by the Cour dAppel dAix, January 10, 1991, Bulletin des Transports 1991, 716,
commentary by P. Bonassies, DMF 1992, 147 (although deck carriage mandatory because of dangerous nature of
24
For the same reason, the exemption from liability which the carrier enjoys where he lands,
destroys or renders innocuous a dangerous cargo under art. 4(6), as well as the carrier's right
under the same provision to be indemnified by the shipper of such cargo for all damages and
expenses arising, directly or indirectly, from such a shipment, are also rightly lost where the
carrier has failed to exercise due diligence to make the vessel seaworthy before and at the
commencement of the voyage,
117
and where that failure is an effective or co-operating cause
of the loss or damage, even if there is another cause and even if the want of due diligence is not
the dominant cause .
118


2) Hague/Visby Rules

With respect to the Hague/Visby Rules, the failure to exercise due diligence to procure
seaworthiness before and at the commencement of the voyage pursuant to art. 3(1) will not
ordinarily deprive the carrier of the package/kilo limitations of art. 4(5)(a) for "any loss or
damage to or in connection with the goods",
119
unless the cargo claimant can prove that the
carrier's acts or omissions in regard to due diligence were committed with intent to cause the
damage (and not merely the harmful act or omission itself), or that they were committed
recklessly and with knowledge that the damage would probably result (art. 4(5)(e)).
120
This
burden of proof is, of course, highly onerous (and usually impossible) for the cargo claimant to
discharge, with the result that the package/kilo limitations of the carrier are "almost
unbreakable"
121
in due diligence, as in other, cases.

Art. 4(5)(e) is clear in requiring proof of the carrier's intent or recklessness with
knowledge in respect of the damage, as a condition of the carrier's loss of the package/kilo
limitation. In my view, however, the carrier should also lose the package/kilo limitation on
proof that its acts or omissions which caused the damage were committed with intent or with
knowing recklessness. Persons acting fraudulently seldom intend to cause damage; they merely

product, carrier was not exonerated by liberty clause where due diligence had not been exercised to fit ship for such
carriage).
117
The Fiona [1993] 1 Lloyd's Rep. 257 at p. 288, upheld [1994] 2 Lloyd's Rep. 506 at p. 519 (C.A.).
118
The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at pp. 268-270 (C.A.).
119
See The Happy Ranger [2002] 2 Lloyds Rep. 357 at p. 364 (C.A.), where Tuckey, L.J. interpreted that the words
in any event in art. 4(5) of the Hague and Hague/Visby Rules as unlimited in scope, thereby permitting the
carrier to limit its liability to the Hague/Visby package and kilo limitations, even where the cargo loss or damage
was caused by the carriers failure to exercise due diligence in respect of seaworthiness before and at the beginning
of the voyage. Cited on this point (at p. 364), in the absence of English authority, the Canadian (Hague Rules)
decision in Falconbridge Nickel Mines Ltd. v. Chimo Shipping Ltd. [1969] 2 Ex. C.R. 261 at p. 285, [1969] 2
Lloyds Rep. 277 at p. 298, and the American (COGSA 1936) decision in Illigan v. Integrated Steel Mils, Inc. v. S.S.
John Weyerhaueser 507 F.2d 68, 1975 AMC 33 (2 Cir. 1974), cert. denied, 421 U.S. 965, 1975 AMC 2158 (1975).
120
For a case where the carrier acted recklessly and with knowledge, thereby losing the package/kilo limitation for a
portion of cargo carried under the Hague/Visby Rules, see Tuxpan Lim. Procs. 765 F. Supp. 1150 at p. 1183, 1991
AMC 2432 at p. 2451 (S.D. N.Y. 1991). But see also Itel Container Corporation v. M/V Titan Scan 1997 AMC
1568 at pp. 1583-1584 (S.D. Ga. 1996), affd in part, revd in part, 139 F.2d 1450, 1998 AMC 1965 (11 Cir. 1998),
cert. denied 119 S.Ct. 405 (1998), where the stacking of containers five high was found not to have been done
recklessly with knowledge of the probable result, thereby preserving the carriers Hague/Visby limitations when five
of the containers fell overboard.
121
See supra, Chap. 5: "Fundamental Breach, Quasi-Deviation, Rupture of the Contract". The fact that the onus of
making this proof is on the cargo claimant is unfair, because he lacks ready access to the necessary evidence needed
to discharge that burden. He should be required to prove only the deviation or the deck carriage, as the case may.
25
intend to benefit from their acts or omissions. Equity demands that where the carrier has
intentionally lacked due diligence to make the vessel seaworthy before and at the beginning of its
voyage, or has done so recklessly and with knowledge of the likely consequences of such acts or
omissions, it should not benefit from the Visby package/kilo limitations, even if it did not intend
the resulting damage or did not knowingly disregard its likely occurrence. Unfortunately,
however, no decision or other authority appears to support this position,
122
and the text of art.
4(5)(e) leaves no doubt that the damage itself must have been intended by the carrier or have
been the product of its knowing recklessness, before the carrier can be stripped of its liability
limitation.

It is also arguable that the carrier whose lack of due diligence has been intentional or
reckless should lose not only the package/kilo limitation under art. 4(5)(e), but also the benefit
of all other exceptions, notably the one-year limitation period on suits of art. 3(6). Because art.
4(5)(e) mentions only the loss of the package/kilo limitation, it does not necessarily follow that
the carrier's other defences and exceptions are preserved.
123


Similarly, as under the Hague Rules, the carrier who has failed to exercise due diligence
in accordance with art. 3(1), should also be precluded, under the Hague/Visby Rules, from
benefitting from the exculpatory exceptions of art. 4(2)(a) to (q) and any other defences under
the contract of carriage, because of the "overriding" nature of the due diligence obligation and its
effect on my order of proof set forth above, and because art. 4(5)(e) does not regulate the loss of
defences other than the package/kilo limitation.


VIII. Examples of Seaworthiness

1) The hull - seaworthiness

Seaworthiness originally meant the good order of the hull of the vessel and in particular
the condition of bulkheads, plating and rivets in older ships. It still does.

In Federazione Italiana v. Mandask Compania,
124
the Second Circuit held that it was the
duty of the shipowner to investigate the cause of cracks in bulkhead platings, and that it was not
sufficient to rely on American Bureau of Shipping recommendations regarding repairs in order to
establish due diligence.


122
See, however, the comment by Tenney D.J. in Tuxpan Lim. Procs. 765 F. Supp. 1150 at p. 1185, n. 95, 1991
AMC 2432 at p. 2453 n. 95 (S.D. N.Y. 1991), referring to the unjust paradox that under COGSA a carrier who
stows cargo on deck without the shippers authorization loses the package limitation, while a carrier who recklessly
tenders an unseaworthy ship which later sinks with all cargo and crew (which happened in this case), benefits from
the limitation. Similarly, he notes, referring to other COGSA case law, that a carrier who misrepresents
(fraudulently or otherwise) the on-board status of the cargo in its bill of lading loses the package limitation; yet the
carrier who fraudulently misrepresents that the ship is seaworthy still enjoys the limitation.
123
Ibid.
124
388 F.2d 434, 1968 AMC 315 (2 Cir. 1968).
26
In The Torenia,
125
the apparent and longstanding corrosion of the steelwork on the ship,
which existed at the commencement of the voyage and which should have been discovered and
repaired during the ship's surveys, rendered the vessel unseaworthy, resulting in the shipowner's
liability for lack of due diligence.

In The Toledo,
126
the shipowner was held to have lacked due diligence where it had been
"complacent" in failing to maintain a proper system for inspecting and repairing damage to, and
deformations of, certain frames and brackets attached to the shell plating of a bulk carrier's holds,
resulting in the ingress of seawater through cracks in the plating. The owner's classification
society had also been complacent in not recommending repairs when the vessel was surveyed.

2) Hatches and vents - seaworthiness

Hatches are a constant source of damage to cargo and as such a constant source of
litigation. Hatches should be tight, if there is to be seaworthiness.

Sears, Roebuck & Co. v. American President Lines:
127
A vessel was badly constructed,
there being a hole in the coamings of the hatches. The shipowner was deemed not to have
exercised due diligence and was held jointly and severally liable with the builder.

J. Gerber & Co. v. S.S. Sabine Howaldt:
128
The master's action in securing two tarpaulins
to ventilator heads at the commencement of the voyage satisfied the usually acceptable practice
of good seamanship and there was no negligence in not covering the hatch covers with
tarpaulins.

Thorden Lines A.B. v. Stockholms Sifrsakrings:
129
The Supreme Court of Sweden ruled
that vessel with an open shelter deck was not unseaworthy despite water damage to cargo when
hatches on the 'tween deck were not battened down. This, because the hatches on the upper
decks and the tonnage opening were properly closed.

Liberty Shipping Lim. Procs.:
130
Vent closing devices that were defective and ineffective
show a lack of due diligence to make the ship seaworthy. Consequently, the shipowner was held
responsible for damage caused by fire.

Kruger Inc. v. Baltic Shipping Co.:
131
Defective ventilator coamings lacking brackets or
supports were lost during foreseeable bad weather on a North Atlantic crossing, causing water to
enter the holds, resulting in the sinking of the ship with loss of life and cargo. The design defect

125
[1983] 2 Lloyd's Rep. 210 at pp. 230 and 234. See also Cour dAppel dAix, October 27, 1989, (The Knud-Sif),
DMF 1989, 126. But see also Cour de Cassation, June 13, 1989, (The Scopi), DMF 1990, 467, note R. Achard
(crack in hull held a latent defect of ship not discoverable by due diligence).
126
[1995] 1 Lloyd's Rep. 40 at pp. 50, 52-53.
127
1971 AMC 2255, [1972] 1 Lloyd's Rep. 385 (N.D. Cal. 1971). See also Cour dAppel de Paris, May 29, 1987,
DMF 1988, 170.
128
437 F.2d 580, 1971 AMC 539 (2 Cir. 1971).
129
December 1, 1962, [1966] ETL 536.
130
1973 AMC 2241 (W.D. Wash. 1973).
131
(1989) 57 D.L.R. (4
th
) 493 (Fed. C.A.).
27
in the ventilators was unseaworthiness, and the shipowner had lacked due diligence. Defences of
peril of the sea and latent defects not discoverable by due diligence were dismissed.

Tuxpan Lim. Procs:
132
Cracks in the tanktops and hatch covers, as well as history of
unremedied defects with the engine, the absence of a bolt-tightening tool, and defects in the
pipes of the seawater cooling system, all combined to render the vessel unseaworthy.

BHP Trading Asia Ltd. v. Oceaname Shipping Ltd.:
133
Hatch covers were heavily
"scaled" (i.e. rusted) and their rubber seals were damaged, thus allowing seawater to enter the
holds. The shipowner had failed in due diligence in not inspecting adequately the water tightness
of the hatch covers and in either not reading, or failing to act upon, a marine surveyor's report
showing poor maintenance of the vessel.
134


Thyssen, Inc. v. S/S Eurounity:
135
The hatches were at best in a marginal condition
impairing the seaworthiness of the vessel, and the defendants had not been duly diligent, having
conducted no watertightness tests, and having failed to establish any maintenance program or log
or any program for renewing the hatch cover gaskets.

The Apostolis:
136
The ship was not unseaworthy or uncargoworthy because of a small gap
between a hatch cover (which had not been "dropped") and its coaming, through which gap
sparks from on-deck welding work might have fallen causing a fire. In any case, it was
unproven that the fire was caused by welding.

3) Ships engines and generators - seaworthiness

The vessel's engines, boilers and generators must be in good working order before and at
the beginning of the voyage in order to comply with the duty of due diligence.

Hellenic Lines Ltd. v. Life Ins. Corp. of India:
137
The carrier's failure to produce shaft
alignment readings, prior to departure from the last loading port, justified the inference either
that the readings were never made or that they were unfavourable to the carrier; thus there was
held to be no due diligence as regards the main crankshaft which had fractured during the
voyage.

Atlantic Banana Co. v. M/V Calanca:
138
The fact that one of three electrical generators
had been shut down and the other two were in a poor state of maintenance when the vessel sailed
from the loading port was held to be a lack of due diligence.

Karobi Lumber Co. v. S.S. Norco:
139
A vessel leaving port with only one of two boilers
functioning was held to demonstrate lack of due diligence to make the vessel seaworthy.

132
765 F. Supp. 1150 at pp. 1178-1179, 1991 AMC 2432 at p. 2443 (S.D. N.Y. 1991).
133
(1996) 67 F.C.R. 211 at p. 234 (Fed. C. Aust.).
134
See also The Sea Maas [1999] 2 Lloyds Rep. 281 at p. 285.
135
1994 AMC 393 at pp. 400-401 (S..D. N.Y. 1993), affd 21 F.3d 533, 1994 AMC 1638 (2 Cir. 1994).
136
[1997] 2 Lloyd's Rep. 240 (C.A.), reversing [1996] 1 Lloyd's Rep. 475.
137
526 F.2d 830, 1975 AMC 2457 (2 Cir. 1975).
138
342 F. Supp. 447, 1972 AMC 880 (S.D. N.Y. 1972).
28

Cour dAppel de Paris:
140
Successive breakdowns of four generators in less than two
hours, after slightly less than one day of sailing in good weather and calm seas, suggested poor
maintenance prior to the vessels departure, rendering the time charterer liable for want of due
diligence.

The Kriti Rex:
141
Lack of due diligence was inferred from the failure of the shipowners to
conduct regular analyses of the lubricating oil in the ships engine, as well as from their failure to
remove sludge from a sump tank. They were consequently held liable for the failure of the
engine bearings, which most probably resulted from the contamination of the lube oil.

4) Pumps, pipes and lines - seaworthiness

Hof van Beroep te Brussel:
142
Due diligence was held not to have been exercised when
upon the approach of winter, the carrier neglected to protect a water pipe from frost so that it
burst.

Hof van Beroep te Brussel:
143
The failure to diligently clean all of the vessel's tubing
before loading was held to be a lack of due diligence.

B.C. Sugar Refining Co. Ltd. v. The Thor I:
144
A leak near a valve in a sanitary line
indicated lack of due diligence.

Coastal Rambler:
145
Markings on a pipe outlet were indistinct, with the result that by
mistake a seaman put a fire hose and its stream of water into a starboard bilge sounding pipe
instead of a double bottom sounding pipe, thus damaging cargo. Held: the indistinct markings
demonstrated a lack of due diligence.

Cour d'Appel de Rennes:
146
Defective sanitary lines were held to indicate lack of due
diligence.

Greenwich Marine (Arbitration):
147
The failure to inspect an overhead discharge valve
after the pipe froze was lack of due diligence.

The Subro Valour:
148
Failure of the shipowner to prevent damage to the vessel's wiring
and/or its insulation was lack of due diligence where that damage was the most probable cause of
the loss.

139
249 F. Supp. 324, 1966 AMC 315 (S.D. Ala. 1966).
140
Cour dAppel de Paris, January 13, 1988, (The Aspilos), DMF 1988, 395.
141
[1996] 2 Lloyds Rep. 171 at p. 185.
142
October 13, 1967, [1968] ETL 373.
143
January 27, 1967, [1967] ETL 774.
144
[1965] 2 Ex. C.R. 469.
145
404 F.2d 151, 1969 AMC 363 (9 Cir. 1968).
146
February 3, 1975, DMF 1975, 342.
147
1965 AMC 98 (Arb. N.Y. 1964).
148
[1995] 2 Lloyd's Rep. 509.
29

Birmingham Southeast, LLC v. M/V Merchant Patriot:
149
Flooding from corroded
seawater pipe and ensuing cargo damage resulted from shipowners and managers lack of due
diligence in not implementing a systematic and careful inspection/replacement programme of
vessels seawater piping; ship managers lack of lack of records of inspections and replacements;
as well as failure to paint those pipes to retard their corrosion.

5) Navigational equipment - seaworthiness

Ships should have the navigational equipment, such as aids and charts necessary to
operate safely in order to be seaworthy. Normally a ship should have, in good operating order,
the navigational equipment and aids with which she was equipped when commissioned, while
the original charts and "Pilots" should be up to date.

Calif. and Hawaiian S. Corp. v. Columbia S.S. C.:
150
Where the vessel carried proper
sailing directions which were not readily available in the chart room, the shipowner was not
liable, even though the master did not consult the directions.

American Smelting v. Irish Spruce:
151
The carrier established its COGSA defense that the
stranding resulted from an officer's navigational error. The vessel was not unseaworthy for
failing to have an up-to-date (1971) list of radio beacons on board, because the 1969 edition with
the same information was available although not consulted.

Consolidated Mining v. Straits Towing Ltd.:
152
A tug was properly equipped, even though
a copy of the B.C. Pilot was not on board, because it did have a detailed chart of Port McNeil
which gave more information.

Temple Bar:
153
A British vessel in American waters is seaworthy, even if she does not
have American charts, or even the latest British charts, providing that what she does have
available is complete as to all lights, signals, buoys and other aids to navigation.

Heddernheim:
154
A German vessel provided with a German chart on a scale of 1/200,000
was held seaworthy, although a Swedish chart on a scale of 1/100,000 existed, because the
German chart showed the reefs in Swedish waters.

Aakre:
155
An old chart does not constitute unseaworthiness when the master knows of an
error in the chart, has the correct chart available, as well as a catalogue of lights and buoys.
Failure to record every observed compass deviation does not constitute unseaworthiness if
adequate records have been made and the deviations are not large.


149
2000 AMC 1015 (S.D. Ga. 2000).
150
1973 AMC 676 at p. 693 (E.D. La. 1972).
151
548 F.2d 56, 1977 AMC 780 (2 Cir. 1977).
152
[1972] F.C. 804 at p. 815.
153
45 F. Supp. 608, 1942 AMC 1125 (D. Md. 1942).
154
39 F. Supp. 558, 1941 AMC 730 (S.D. N.Y. 1941). This was a Harter Act case.
155
122 F.2d 469, 141 AMC 1263 (2 Cir. 1941).
30
Chicksaw:
156
the master knew that the fathometer was defective before sailing and was
the only person in the Orient who had authority to have it repaired. The vessel was held to be
unseaworthy and the carrier could not limit its liability.

Iristo:
157
The master had "Notices to Mariners" on board but had not corrected his chart.
The stranding of his vessel was held to be an error in navigation and not lack of due diligence.

The Isla Fernandina:
158
Although the vessel was unseaworthy owing to its inadequate
charts and navigational aids, the effective cause of the grounding was held to have been the
negligent navigation of the vessel, rather than lack of due diligence to make the ship seaworthy.

U.S. v. Ultramar Shipping:
159
Lack of a fathometer aboard a small vessel engaged in
lightering did not make the vessel unseaworthy where other equipment permitting a fixing of the
position was carried, nor did unreadable sailing directions make the vessel unseaworthy where
the port pilots instructions would take precedence over the directions.

Associated Metals & Minerals Corp. v. M/V Olympic Mentor:
160
Failure to carry
equipment for measuring the relative humidity and temperature in the holds, and the lack of fans
or mechanical ventilating devices to prevent sweat damage to a cargo of steel coils, made the
ship unseaworthy for such a cargo. The carrier had not been duly diligent in providing only a
natural ventilation system.

In The Kapitan Sakharov, the English Court of Appeal found a shipowner, as carrier,
liable for lack of due diligence where it stowed tank containers holding isopentane, a highly
inflammable liquid, below deck in an unventilated hold, resulting in a fire which ultimately
caused the vessel to sink. Such stowage, being contrary to applicable conventional and
regulatory norms, was also held unreasonable because of the obvious risk of damage which it
entailed.
161


TT Boat Lim. Procs.:
162
Failure of the shipowner to establish any system to ensure that
the tugs charts were kept up to date and corrected periodically resulted in the unseaworthiness
of the vessel. This duty could not be validly delegated to the master.


156
265 F. Supp. 595, 1966 AMC 2219 (S. D. Cal. 1966), upheld in appeal, 414 F.2d 724, 1969 AMC 1682, [1970] 1
Lloyd's Rep. 437 (9 Cir. 1969).
157
137 F.2d 619, 1943 AMC 1043 (2 Cir. 1943).
158
[2000] 2 Lloyds Rep. 15 at p. 33.
159
685 F. Supp. 887 at pp. 899-900, 1988 AMC 527 at p. 545 (S.D. N.Y. 1987).
160
1997 AMC 1140 at p. 1155 (S.D. N.Y. 1955). See also Siderius v. M/V Amilla 880 F.2d 662 at p. 665, 1989
AMC 2533 at p. 2537 (2 Cir. 1989).
161
The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at pp. 268 and 276 (C.A.). While holding that the mere failure
to comply with international standards (in this case, the Russian version of the International Maritime Dangerous
Goods (IMDG) Code) did not of itself defeat a defence of due diligence, if the standards had been honestly
misinterpreted by the carrier and the master, the defence nevertheless failed in this case, because the risk of fire
created by carrying isopentane in tanker containers in an unventilated hold was obvious, precluding any such
defence of honest mistake.
162
1999 AMC 2776 at pp. 2793-2794 (E.D. La. 1999). See also Matter of Texaco, Inc. 570 F. Supp. 1272 at p.
1291, 1985 AMC 1650 at pp. 1678-1679 (E.D. La. 1983); The Marion [1983] 2 Lloyds Rep. 156 at p. 164 (C.A.).
31
6) Radar - seaworthiness

It had been said that a ship did not need Loran or radar in order to be considered
seaworthy, although in many jurisdictions, particularly canals and inland waterways, such
equipment is compulsory. One must conclude that today, because radar, Loran and other
electronic equipment are standard equipment aboard a ship of any size, their presence in good
working order is essential to the vessels seaworthiness.

As early as 1962, a District Judge of Oregon commented on the desirability of vessels
having radar and Loran on board. Yet he was forced to recognize that:
163


"there is no worldwide or American practice or custom with reference to the use
of radar or loran as aids to navigation."



More than ten years later,
164
a Judge of the Southern District of New York noted that:

"there has been a judicial reluctance to find that the failure to employ the major
electronic navigational aids (even radar which is almost universally used by
seagoing and coastwise vessels of all sizes) constitutes an unseaworthy condition,
although the courts have been willing to consider the inoperability of radar aboard
as unseaworthiness."

There has been no change to date by the courts in this attitude,
165
which leads to the
conclusion that if modern equipment is not per se a requirement for seaworthiness, nevertheless
when installed, it must be installed properly
166
and must be properly maintained.

7) Seaworthiness and competent crew

A vessel is not seaworthy and due diligence has not been exercised if the crew are
inexperienced and untrained in the operation of the ship and the owner fails to see that they are
properly instructed in the ship's special features.

The Makedonia:
167
The chief engineer and second engineer were incompetent. There was
no due diligence, because the owner did not take the necessary steps and make the necessary
inquiries to discover the record and competency of these officers. The owner also failed to see

163
President of Idia v. West Coast S.S. Co. (S.S. Portland Trader) 213 F. Supp 352 at pp. 356-357, 1963 AMC 649
at p. 654, [1963] 2 Lloyd's Rep. 278 at p. 281 (D. Ore. 1962). The Court added: "advances in science, as such, do
not make one seaworthy ship unseaworthy... ships which were well built in their time might still carry cargo unless
they became so clearly out of fashion as to be anachronism." Upheld in appeal, 327 F.2d 638, 1975 AMC 2259 at p.
2568 (9 Cir. 1964).
164
Irish Spruce (Irish Shipping Ltd. Lim. Procs.) 1975 AMC 2259 at p. 2568 (S.D. N.Y. 1975); reversed in appeal
on other grounds, 548 F.2d 56, 1977 AMC 780 (2 Cir. 1977).
165
A subsequent judgment on this question is Argo Merchant Lim. Procs. 486 F. Supp. 436 at p. 459, 1980 AMC
1686 at p. 1702 (S.D. N.Y. 1980). Loran was not deemed essential.
166
Texaco North Dakota, Lim. Procs. 570 F. Supp. 1272 at p. 1289, 1985 AMC 1650 at p. 1674 (E.D. La. 1983).
167
[1962] 1 Lloyd's Rep. 316 at pp. 334-338. The engineers were described as "inefficient", relying on Lord
Atkinson in Standard Oil Co. of New York v. Clan Line Steamers, Ltd.[1924] A.C. 100 at p. 120 (H.L. (Sc.)), but
"incompetent" was clearly inferred.
32
that the men were properly instructed or experienced in the use of the oil and ballast lines in the
ship.

The Roberta:
168
Water entered a hold owing to the negligence of the engineer in leaving
open the cock controlling the bilge suction. It was held that the failure to provide a non-return
valve was not unseaworthiness; on the other hand, engaging one working engineer who had no
qualifications was lack of due diligence.

N.M. Paterson & Sons, Ltd. v. Robin Hood Flour Mills Ltd. (The Farrandoc):
169
The
second engineer turned the wrong valve and flooded cargo. His experience and ability were
unknown when engaged, he was not given instruction on the flooding system and no plan of the
engine room was available to him. It was held that due diligence had not been exercised to make
the vessel seaworthy because of the lack of competence and training of the second engineer.

Heinrich Horn-Marie Horn:
170
The owner failed to exercise due diligence to make the
vessel seaworthy at the beginning of the voyage by not ensuring that adequate and competent
personnel who could operate the refrigerating equipment would remain on board throughout the
voyage.

Liberty Shipping Lim. Procs.:
171
The crew was not trained in fire fighting and in
consequence there was lack of due diligence to make the vessel seaworthy.

Ta Chi Lim Procs. (Eurybates):
172
The carrier was held responsible for a loss resulting
from a collision because it had not exercised due diligence in hiring the master, who committed a
gross error of navigation.

Potomac Transport, Inc., Lim. Procs.:
173
Acts of gross negligence by the mate on watch
at the time of the collision raised a presumption of incompetence which could, however, be
rebutted by the shipowner by proving that it had exercised due diligence in selecting as well as
training a competent crew.

On the other hand a carrier may show, that despite an error of navigation which caused
the loss, the master was competent and the ship seaworthy by proving, for example, that the
master had his master's licence for 20 years and had sailed the waters in question for many
years
174
or had many years of experience.
175
Nor does a mere report of a port authority

168
(1937) 58 Ll. L. Rep. 159.
169
[1967] 1 Ex. C.R 431, 1967 AMC 411, [1967] 1 Lloyd's Rep. 232; upheld in appeal, [1968] 1 Ex. C.R. 175, 1967
AMC 1451, [1967] 2 Lloyd's Rep. 276.
170
404 F.2d 422, 1968 AMC 2548, [1970] 1 Lloyd's Rep. 191 (5 Cir. 1968); 1968 AMC 1723 (5 Cir. 1968 -
withdrawn).
171
1973 AMC 2241 (W.D. Wash. 1973).
172
513 F. Supp. 148, 1981 AMC 2350 (E. D. La. 1981).
173
909 F.2d 42, 1990 AMC 191 (2 Cir. 1990). See also a similar marine insurance decision in Canada: Morris v.
Canada (Minister of Fisheries and Oceans) (1991) 47 F.T.R. 271 (Fed. C. Can.).
174
Director General of India Supply Miss. v. S.S. Janet Quinn 335 F. Supp. 1329, 1972 AMC 1227 (S.D. N.Y.
1971).
175
Complaint of Grace Line, Inc. 517 F.2d 404, 1975 AMC 991 (2 Cir. 1975).
33
investigating a ship collision caused by navigational error, calling for better eductaion of the
crew suffice to establish the unfitness of the crew and thus the unseaworthiness of the ship, such
a call being commonplace after a serious marine accident.
176


In The Eurasian Dream,
177
one of the principal causes of a disastrous fire on a car carrier
was the incompetence of the master and crew, who were ignorant of the particular hazards of car
carriage and car carriers and the characteristics of their ship, improperly or inadequately trained
in fire fighting, and who were not supplied with a ship specific manual dealing with fire
prevention and control, including the supervision of stevedores and prevention of their hazardous
activities.

8) Stowage and seaworthiness

Improper stowage can be a cause of unseaworthiness in two ways: a) it may cause
instability of the ship and b) it may cause damage to the cargo so stowed or to other cargo.

a) Poor stowage and instability of the ship

Improper stowage which causes the ship to be unstable or otherwise dangerous is lack of
due diligence in virtue of art. 3(1)(a).
178
If damage is done to cargo as a result of the instability,
the carrier is not exculpated for the damage to the cargo so loaded or to other cargo loaded at the
same or at a subsequent port. But damage to cargo loaded at a previous port caused by the
instability of the ship due to poor stowage of cargo at a subsequent port will be considered as an
act in the management of the ship and not to a lack of due diligence, because due diligence must
be exercised only before and at the beginning of the voyage. In this latter case the carrier will not
be responsible, because of the exculpation provision ("default ... in the management of the ship)
at art. 4(2)(a).

b) Poor stowage and direct damage to cargo

Poor stowage of cargo which results in direct damage to that cargo or to other adjacent
cargo is lack of due diligence to make the vessel seaworthy because the ship's holds, etc. are not
"fit and safe to receive the cargo.
179



176
Firemans Fund Ins. Co. v. Kawasaki Kisen Kaisha, Ltd. 2000 AMC 1643 at p. 1649 (Cal. Ct. App. 1
st
App. Div.
2000).
177
[2002] 1 Lloyds Rep. 719 at pp. 740-744. Lack of due diligence was also found in the ships inadequate
equipment.
178
The Friso, [1980] 1 Lloyd's Rep. 469 at p. 476; A.R.. Kitson Trucking Ltd. v. Rivtow Straits Ltd. (1975) 55 D.L.R.
(3d) 462 at p. 466, [1975] 4 W.W.R. 1 at p. 6 (B.C. S.C.). See also Laing v. Boreal Pacific 1999 AMC 1303 (Fed.
C. Can.) (marine insurance).; Belships (Far East) Shipping (Pte.) Ltd. v. Canadian Pacific Forest Products Ltd.
1999 AMC 2606 at p. 2619 (Fed. C.A.); The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at p. 271 (C.A.).
179
U.S. courts have held that proper stowage falls within the carriers warranty of seaworthiness under COGSA.
See Nuzzo v. Rederi A/S Wallenco 304 F.2d 506 at p. 508, 1962 AMC 1871 at p. 1874 (2 Cir. 1962); Blommer
Chocolate Co. v. Nosira Sharon Ltd. 776 F. Supp. 760 at p. 776, 1994 AMC 1807 (S.D. N.Y. 1991), affd 963 F.2d
1522 (2 Cir. 1992); Sogem-Afrimet, Inc. v. M/V Ikan Selayang 951 F. Supp. 429 at p. 442, 1998 AMC 1366 at p.
1384 (S.D. N.Y. 1996).
34
Direct damage to cargo by improper stowage is nevertheless better considered under art.
3(2), where the carrier, because of his obligation to stow, carry, keep, care for, etc., is
responsible for direct damage to all cargo when damaged by bad stowage, whether it was the
cargo itself which was stowed badly, or other cargo loaded at the same, or a later or earlier port.

Example "A"
A vessel loads cargo properly at Antwerp and proceeds to Le Havre where further cargo is
loaded improperly, causing the vessel to be unstable. The vessel proceeds to London and loads
additional cargo and then sails for New York. At sea, the Le Havre cargo shifts, the vessel
capsizes, and ship and cargo are lost. There was no due diligence at Le Havre or London and the
carrier is responsible for the cargo loaded at those two points, but is not responsible for the
Antwerp cargo, as due diligence was exercised before and at the beginning of the voyage. The
carrier can exculpate itself (as regards the Antwerp cargo) because of error in the management of
the ship and because the theory of stages no longer exists under the Hague Rules.

Example "B"
The Le Havre cargo falls and damages the Antwerp, Le Havre and London cargo without
affecting the stability of the ship. This is lack of care of cargo, an obligation which is absolute
under art. 3(2) and the carrier is therefore responsible for the damage to all the cargo.
180


Judgments in which improper stowage was held to be the cause of unseaworthiness are:

The Anthony II:
181
... placing fork-lift trucks on top of the lumber in the manner done
here was a failure to exercise due care in stowage and rendered the ANTHONY II unseaworthy.

Grace Plastics Ltd. v. The Bernd Wesch II:
182
Deck cargo that was badly stowed broke
free and damaged the hatch covers, so that cargo beneath was wetted. It was held that because
due diligence had not been exercised, the carrier was responsible for the under deck cargo. The
carrier was relieved of responsibility for damage to deck cargo, however, because of an
exclusionary clause and because it was stated on the face of the bill of lading that cargo was
carried on deck.
183


Ocean Eagle - Lim. Procs.:
184
A ship left port, without a loading manual and with a 650-
ton overload which put her five inches beneath her marks. The vessel broke in two as a result
of sagging and it was held that it had been unseaworthy when it sailed.

Cour dAppel dAix:
185
Containers, which were stowed badly, fell on a cargo of cherries
during a storm. The bad stowage was held to be a lack of due diligence under the Brussels
Convention.


180
See Chap. 26, "Properly Carry, Keep and Care for Cargo".
181
[1966] 2 Lloyd's Rep. 437 at p. 445.
182
[1971] F.C. 273.
183
See also The Imvros [1999] 1 Lloyd's Rep. 848.
184
1974 AMC 1629 at pp. 1654-1656 (D. P.R. 1974).
185
May 4, 1972, DMF 1972, 662.
35
9) Improper ballasting, cleaning of holds, refrigeration and heating

Improper procedures or practices at the loading port can render a vessel unseaworthy.

In American Mail Line v. U. S.A.,
186
the carrier's lack of standardized procedures for
ballasting deep tanks constituted unseaworthiness, as it created an unreasonable risk of damage
to cargo. The shipowner's claim for general average contributions was therefore denied.

Slackness in double-bottom tanks caused instability which was also deemed to be lack of
due diligence.
187
Cleaning holds carefully and having them inspected is due diligence even if
subsequent infiltration by previous cargo causes damage.
188
Failure to inspect electrical conduit
trunking which causes infestation is lack of due diligence.
189


Defective refrigeration equipment is unseaworthiness
190
but there is no lack of due
diligence if the surveyor acted diligently in his inspection of the equipment,
191
as is a defective
ventilation system.
192


The carrier's failure to clean residues of previous cargoes away from electrical conduit
trunking in a 'tweendeck prior to loading the plaintiff's cargo of soybean meal was a lack of due
diligence where it permitted the meal to be infested with insects.
193


Similarly, where the carrier had neglected to wash out thoroughly the lines of a tanker
before it was loaded with highly inflammable fuel oil, resulting in the presence of residues of a
previous cargo of condensates in the vessel, the Court found this lack of due diligence to have
been the dominant cause of the explosion of the vessel just prior to the discharge of the fuel.
194


A tanker carrying high-temperature fuel oil was not unseaworthy because unable to
increase heat to 135 degrees, where the shipper had never requested any increase in temperature,
and had thereby not given the carrier any opportunity to breach its duty of due diligence.
195


In other circumstances, however, the carriers failure to heat fuel oil has been held to
make the ship unseaworthy.
196


10) Lighters and seaworthiness


186
377 F. Supp. 657,1974 AMC 1536 (W.D. Wash. 1974).
187
The Friso, [1980] 1 Lloyd's Rep. 469. See also The Aga, [1968] 1 Lloyd's Rep. 431.
188
Hof Van Beroep te Antwerpen, April 21, 1982, [1982] ETL 749.
189
The Good Friend, [1984] 2 Lloyd's Rep. 586.
190
See Cour de Cassation April 22, 1986, (The Tuscan Star), DMF 1988, 28.
191
Tribunal de Commerce du Havre, August 25, 1978, DMF 1979, 103.
192
The Benlawers [1989] 2 Lloyd's Rep. 51.
193
The Good Friend [1984] 2 Lloyd's Rep. 586 at pp. 595-596.
194
The Fiona [1993] 1 Lloyd's Rep. 257, upheld [1994] 2 Lloyd's Rep. 506 (C.A.). See also The Fehmarn [1964] 1
Lloyd's Rep. 355 (failure to clean vessel's storage tanks).
195
Sun Co. Inc. v. S.S. Overseas Arctic 27 F.3d 1104 at p. 1111, 1995 AMC 57 at pp. 65-66 (5 Cir. 1994).
196
The Gudermes [1993] 1 Lloyds Rep. 311 at p. 324 (C.A.).
36
Lighters must be seaworthy in the same way that the ship must be seaworthy, if the
lightering is subject to the Hague or Hague/Visby Rules. Thus in Falconbridge Nickel Mines Ltd.
v. Chimo Shipping Ltd.,
197
due diligence had to be exercised to make the lighter seaworthy.

11) Containers and seaworthiness

Where containers are furnished by the carrier, due diligence has been held to extend to
them as parts of the ship.
198
Where they are provided and stuffed by the shipper, however, and
subsquently cause loss or damage (e.g. by being filled with dangerous, undeclared cargo which
catches fire) the carrier has been exempted from liability for lack of due diligence because it had
no notice of the contents of the container and no reasonable means of detecting the potentially
harmful cargo.
199


12) Ships subject to arrest seaworthiness

A ship is not seaworthy if, when it sails, it is susceptible of being arrested
200
and there is
no system in place of quickly providing a bond such as is normally provided by a protection and
indemnity club (P. & I. Club).


IX. Examples of Due Diligence

Whether due diligence, or "diligence raisonnable", or "diligence", or an intelligent and
efficient attempt to make the ship seaworthy was exercised, is a pure question of fact for the trial
court.
201
The following are useful examples:

Archangelos:
202
Water leaked from a cracked soil pipe and damaged grain. The mate had
only casually inspected the pipes and had not noted any particular leaking. Held, not to be due
diligence.

Armadora Aristomenis v. 5,020 Long Tons of Sugar and Isbrandtsen:
203
Fresh water
leaked from a valve flange, which had been visually inspected. Held to be due diligence.


197
[1974] S.C.R. 933, (1973) 37 D.L.R. (3d) 545, [1974] ETL 45; in first instance [1969] 2 Ex. C. R. 261, [1969] 2
Lloyd's Rep. 277.
198
Houlden & Co. v. S.S. Red Jacket 1977 AMC 1382 at pp. 1401-1402 (S.D. N.Y. 1977), affd without opinion,
582 F.2d 1271 (2 Cir. 1978); Eastman Kodak Co v. S.S. Sealand Voyager 1991 AMC 2356 at p. 2361 (S.D. N.J.
1991), affd 958 F.2d 362, 1992 AMC 1520 and 1816 (3 Cir. 1992). See also Zim Israel Navigation Ltd. v. The
Israeli Phoenix Assurance Company Ltd. (The Zim-Marseilles) [1999] ETL 535 at pp. 547-548 (Supr. C. of Israel).
But see also Cour dAppel de Versailles, June 16, 1988, DMF 1989, 465 (shipper held 25% at fault for not checking
carriers defective container before loading it).
199
The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at p. 273 (C.A.).
200
Morrisey v. S.S. A. &J. Faith, 252 F. Supp. 54, 1966 AMC 71 (N.D. Oh. 1965).
201
Schade v. National Surety Corp., 288 F.2d 106, 1961 AMC 1225 (2 Cir. 1961) The trial judge's holding, that
the shipowner failed to sustain the burden of proving due diligence, was held to be a question of fact not reviewable
in appeal.
202
1957 AMC 549 (S.D. N.Y. 1957).
203
122 F. Supp. 892, 1954 AMC 1642 (E.D. Pa. 1954).
37
Artemis Maritime Co. v. S. W. Sugar Co.:
204
The Second Circuit stated that neither
visual inspection nor inspection of the hull and machinery, "nor diligence in the acquisition of
seaworthiness certificates" was conclusive evidence of due diligence. All the surrounding facts
and circumstances had to be considered.

The Hamildoc
205
(Qubec Court of Appeal): Due diligence means doing everything
reasonable, not everything possible. The term is practically synonymous with reasonable or
ordinary care.

Niagara (Supreme Court of British Columbia):
206
If a ship owner follows a bad practice,
one which he knows or should know may imperil the ship or cargo [merely packing a door with
asbestos and white lead and failing to inspect or replace the packing], he cannot protect himself
by having surveyors make periodical examinations of his ship.

Cypria:
207
No hammer or drill test of the rivets was done, but only a long-range visual
examination by surveyors during the vessel's eight-year classification. Due diligence had been
lacking.

Zarembo:
208
Although there was no doubt that in fact the ship was unseaworthy at the
time she sailed (a plate was 75% worn through), there had been visual inspections and hammer
testing. Thus due diligence had been exercised.

Brazil Oiticica, Inc. v. S.S. Bill:
209
A leak resulted from a hole in a bilge pipe. It was held,
despite the fact that the ship was three years old and the loss unprecedented, that there was no
due diligence, because neither the pipe nor a non-return valve had been inspected.

Western Can. S.S. Co. v. Can. Commercial Corp.:
210
tail shaft broke. Held, that due
diligence did not require the carrier to install torsiography equipment and make numerous tests
before the cause of the weakness could be determined.

Cour d'Appel de Paris:
211
Non-return valves leading from the scuppers on the vessel's first
voyage were defective. The valves had been tested by Veritas, but not under the conditions of
water pressure and seas to be expected on the voyage. The Court held that this was lack of due
diligence rather than a latent defect.

Cour de Cassation:
212
A cement box, which had been repaired long before the voyage, was
in bad order. Thus there was no due diligence.

204
189 F.2d 488, 1951 AMC 1833 (4 Cir. 1951).
205
1950 AMC 1973 at p. 1985 (Ct. of Appeal of Qubec).
206
1944 AMC 1307 at p. 1312 (B.C. S.C.).
207
137 F.2d 326, 1943 AMC 947 (2 Cir. 1943).
208
136 F.2d 320, 1943 AMC 954 (2 Cir. 1943).
209
47 F. Supp. 969, 1942 AMC 1607 (D. Md. 1942).
210
[1960] S.C.R. 632, [1960] 2 Lloyd's Rep. 313.
211
February 21, 1957, DMF 1958, 21. See also Cour dAppel de Rouen, September 20, 1985, (The Medioanum),
DMF 1986, 694.
212
December 4, 1957, DMF 1958, 148.
38

Fred W. Sargent:
213
A fresh-water pipe which had been in a ship for 30 years cracked in
cold weather. None of the ship's officers gave the exposed pipe a thought before sailing, while
the position of the pipe in the hold, in cold weather, constituted an extra hazard for cargo
requiring insulation; thus no due diligence was deemed to have been exercised.

Corporacion Argentina v. Royal Mail Lines:
214
The refrigeration system broke down and
meat was damaged. Brine leaked out of a coupling which had been tested twice by Lloyd's (once
immediately before the voyage). Held, due diligence had been exercised.

Charles Brown & Co Ltd. v. Nitrate Producers' SS. Co.:
215
"I cannot myself believe that in
every case it is obligatory ... to go and tap every rivet to find if it has a defect or not."
216


Price Paper Corp. v. S.S. Granwood:
217
Sabotage caused flooding of the engineroom.
Water entered the cargo's hold from the engineroom by means of a defective cable box, which
had been sheathed with wood to cover the defect. Thus future inspection was precluded. This act,
however, did not convert a patent defect into a latent one. There was in consequence no due
diligence.

Southern Block & Pipe Corp. v. M/V Adonis:
218
A leaking fuel oil sounding pipe had been
damaged in a previous voyage. Only temporary repairs had been made. Fuel oil damaged cargo.
Held: the effecting of temporary repairs did not amount to due diligence.

Asiatic Petroleum Corp. v. S.S. American Trader:
219
No due diligence was exercised
when a World War 11 tanker (T-2) sailed on a Transatlantic winter voyage in 1965 with only a
makeshift cement-box repair to a weep in one of her tanks, which repair had not been
approved by the Bureau of Shipping nor by the Coast Guard.

Firemans Fund Insurance Co. v. Vigsnes:
220
The defendants proved their due diligence
with respect to the defective hatch covers, not only because their watertightness had been tested
by a classification society, but also because of other inspections and tests conducted before the
voyage began.

The Assunzione:
221
Due diligence was not proven in respect of the failure of the ships
steering gear, where the shipowner produced no evidence of classification surveys and repairs

213
32 F. Supp. 520,1940 AMC 670 (E.D. Mich. 1940).
214
(1939) 64 Ll. L. Rep. 188.
215
(1937) 58 Ll. L. Rep. 188 at p. 191.
216
Cited in Cranfield Bros., Ltd. v. Tatem Steam Nav. Co. (1939), 64 Ll. L. Rep. 264 at p. 270.
217
1975 AMC 374 (S.D. N.Y. 1974).
218
1972 AMC 1523 (4 Cir. 1972) affirming 341 F. Supp. 879, 1972 AMC 1525 (E.D. Va. 1970).
219
354 F. Supp. 389,1973 AMC 497 (S.D. N.Y. 1973).
220
794 F.2d 1552 at p. 1556, 1987 AMC 291 at pp. 296-297 (11 Cir. 1986). See also Royal Insurance Co v. S.S.
Robert E Lee 756 F. Supp. 757 at p. 761, 1991 AMC 1750 at pp. 1754-1755 (S.D. N.Y. 1991) (similar case
involving various inspections of metal thickness of a barge).
221
[1956] 2 Lloyds Rep. 468 at p. 487.
39
carried out before the voyage and had appointed no qualified surveyor to superintend the
maintenance and repair of the vessel.

L. Dreyfus Corp. v. 27,946 Long Tons of Corn:
222
Failure by the shipowner and crew to
detect and repair a defect in the main sea suction valve strainer before the voyage commenced
was lack of due diligence.

The Tolmidis:
223
Where the ingress of seawater resulted from a hole in the ships cast iron
water box caused by graphitization of the box, due diligence had not been exercised, because
the graphitization had not been detected during a pre-voyage drydocking.

In The Antigoni:
224
Non-compliance with written procedures from the ships engine
manufacturer concerning maintenance of the engines crankshaft and its counterweights was a
lack of due diligence which caused the ensuing engine breakdown.

Tuxpan Lim. Procs.:
225
The shipowners concealment from its classification society of
major defects in its ship and violations of the Safety of Life at Sea Convention and of the
societys rules, coupled with the carrying out of surreptitious repairs in an effort to mislead the
surveyors, constituted a reckless lack of due diligence with knowledge that damage would
probably result, thereby depriving the carrier of the Hague/Visby package/kilo limitations.

Cour de Cassation:
226
The owner of a vessel which sprang a leak and became suddenly
unseaworthy after (presumably) hitting an unidentified object, established its due diligence by
producing class and inspection certificates, as well as proof that no similar incidents had
occurred on previous voyages.

Zim Israel Navigation Ltd. v. The Israeli Phoenix Assurance Company Ltd. (The Zim-
Marseilles):
227
Where the sides of an aluminum container were ripped off in a storm, the carrier
failed to prove due diligence in the welding of the containers beams before the voyage. Nor did
the carriers examination of a sample of its containers before sailing suffice to prove its due
diligence.


X. Due Diligence and Delegation



The carrier may employ some other person to exercise due diligence, but if the delegate is
not diligent, then the carrier is responsible.
228
It is not sufficient to declare that the delegate was
chosen with diligence or that the delegate was a responsible person, such as a Lloyd's surveyor

222
830 F.2d 1321 at pp. 1325-1328, 1988 AMC 1053 at pp. 1058-1063 (5 Cir. 1987).
223
[1983] 1 Lloyd's Rep. 530.
224
[1990] 1 Lloyd's Rep. 45 at p. 50, upheld [1991] 1 Lloyds Rep. 209 (C.A.).
225
765 F.Supp. 1150, 1991 AMC 2432 (S.D. N.Y. 1991).
226
Cour de Cassation, June 27, 1995, (The Arno), DMF 1996, 302, note F. Regnier, commentary by P. Bonassies,
DMF 1996, No. 78 at pp. 255-256 and DMF Hors srie no. 2, 1998, no. 114 at p. 74.
227
[1999] ETL 535 at p. 548 (Supr. C. of Israel).
228
See generally Wilson, 2 Ed., 1993 at pp. 187-189.
40
with an enviable reputation; the surveyor must exercise due diligence.
229
Nor may the carrier
divest itself of its duty to be duly diligent by contract.
230


Nor are surveyor's certificates in themselves proof of due diligence.
231
Thus the Supreme
Court of Canada
232
held that the production of a certificate of seaworthiness was not sufficient to
discharge the statutory onus of proof that due diligence was exercised to make the ship
seaworthy. Similarly, the Cour d'Appel de Paris
233
held that mere reliance on a Bureau Veritas
certificate issued 18 months before the cargo damage occurred did not suffice to establish the
carriers due diligence.

In most jurisdictions, a surveyor's certificate would not be accepted in evidence at all,
being the second best proof available.
234
The best proof would be the testimony in court of the
surveyor who made the survey and who prepared the survey report or certificate. A court may
take judicial notice of a reputable surveyor's certificate but the certificate is not proof that due
diligence was exercised.
235




229
Riverstone Meat Co. Pty. v. Lancashire Shipping Co. (The Muncaster Castle), [1961] 1 Lloyd's Rep. 57, [1961]
A.C. 807 (H.L.); Cranfield Bros., Ltd. v. Tatem Steam Nav. Co. (1939), 64 Ll. L. Rep. 264; Can. Transport Co. Ltd.
v. Hunt, Leuchars, Hepburn Ltd., [1947] Ex. C.R. 83; Artemis Maritime Co. v. S. W. Sugar Co., 189 F.2d 488, 1951
AMC 1833 (4 Cir. 1951); Louise, 54 F. Supp. 157, 1943 AMC 1246 (D. Md. 1943); Cour de Cassation, November
30, 1948, DMF 1950, 115; Cour d'Appel de Paris, October 20, 1952, DMF 1953, 80; The Farrandoc (Paterson S.S.
Ltd. v. Robin Hood Flour Mills) (1937) 58 Ll. L. Rep. 33 at p. 40 (P.C.); Argo Merchant Lim. Procs., 486 F. Supp.
436,1980 AMC 1686 (S.D. N.Y. 1980); L. Dreyfus Corp. v. 27,946 Long Tons of Corn 830 F.2d 1321 at p. 1327,
1988 AMC 1053 at p. 1061 (5 Cir. 1987); Tuxpan Lim. Procs. 765 F. Supp. 1150 at p. 1180, 1991 AMC 2432 at p.
2445 (S.D. N.Y. 1991).
230
Nichimen Co. v. M.V. Farland 462 F.2d 319 at p. 330, 1972 AMC 1573 at p. 1587 (2 Cir. 1972); Associated
Metals & Minerals Corp. v. M.V. Arktis Sky 978 F.2d 47 at p. 50, 1993 AMC 509 at p. 512 (2 Cir. 1992); Sogem-
Afrimet, Inc. v. M/V Ikan Selayang 951 F. Supp. 429 at p. 442, 1998 AMC 1366 at p. 1384 (S.D. N.Y. 1996),
holding that the carriers due diligence obligation in respect of seaworthy stowage cannot be delegated, so that any
contractual provision purporting to do so violates sect. 3(8) of COGSA (46 U.S.C. Appx. 1303(8)). See also
Industries Perlite Inc. v. The Marina Di Alimuri (1995) 104 F.T.R. 161 at p. 183 (Fed. C. Can.).
231
Cour d'Appel de Rouen, June 11, 1948, DMF 1950, 65; Rechtbank van Koophandel te Antwerpen, October 17,
1995, [1995] ETL 130. A surveyor's certificate of navigability may be contradicted. Such certificates lose their
efficacy when the proof of a defect of seaworthiness is positively established. West Kyska, 155 F.2d 687 at p. 682,
1946 AMC 997 at p. 1004 (5 Cir. 1946): The certificate granted by Captain Finch, a Board of Underwriters
inspector at Baltimore, to the effect that the lashings and gear used to secure it [on deck shipment of structural steel]
appeared to be in good and proper condition, does not merit any weight. Tribunal de Commerce de Rouen, March
9, 1962; DMF 1963, 407: A certificate of rat disinfection puts the vessel in order with the authorities, but does not
relieve the carrier of his obligation to see that the holds are safe to receive cargo. Louise, 54 F. Supp. 157, 1943
AMC 1246 (D. Md. 1943). See also Chambre Arbitrale Maritime de Paris, Sentence No. 933, January 3, 1996,
DMF 1996, 830.
232
Goodfellow Lumber Sales Ltd. v. Verreault, [1971] S.C.R. 522 at p. 541, [1971] 1 Lloyd's Rep. 185 at p. 194.
233
December 12, 1972, DMF 1973, 292. See also Cour dAppel dAix, November 8, 1988, (The Hakko-Minerva),
DMF 1990, 704 (carrier liable for contamination caused by residues of previous cargo, despite inspection and
certification of vessels tanks by an agent).
234
Niagara, 1944 AMC 1307 at p. 1312 (B.C. S.C.).
235
Ibid. See also Rechtbank van Koophandel te Antwerpen, October 17, 1995, [1995] ETL 130, where the
combination of the classification certificates and the fact that the carrier had had recourse to experts who advised
before the voyage commenced that the vessel could proceed after temporary repairs, sufficed to prove the carriers
reasonable diligence.
41
XI. Diligence of the Delegate

The delegate must be duly diligent or reasonably diligent but need not be absolutely
diligent. The degree of diligence required of the delegate to make the ship seaworthy, in other
words, is the same as that required of the shipowner. In Angliss & Co. (Australia) Pty. v. P. & 0.
Steam Navigation Co.,
236
meat was damaged by oil, due to the faulty, recent construction of the
vessel. It was held that the inspector employed to supervise the construction work had been duly
diligent and so the carrier was exculpated.

The leading decision, however, is the House of Lords in The Muncaster Castle
(Riverstone Meat Co. Pty. v. Lancashire Shipping Co.),
237
where the ship repairers had not been
diligent and the carrier was quite properly held responsible.
238


The Muncaster Castle is supplemented by The Amstelslot (Union of India v. N. V
Reederij Amsterdam),
239
where the House of Lords ruled that the carriers had exercised due
diligence to make the vessel seaworthy, because they had employed skilled and competent
persons to carry out necessary inspections and those persons had acted carefully and
competently. Although the inspectors had not discovered a crack in a helix tyre of the drum in
the reduction gear, they had been diligent, and that was sufficient. There were three methods of
inspection, and as the method used was acceptable, due diligence had been exercised, despite the
fact that the other methods were more thorough. The Muncaster Castle and the principle that the
delegate must be duly diligent have been followed ever since.
240
In fact, the principle had been
adopted in American courts long before The Muncaster Castle, as Viscount Simonds noted in
that decision.
241
In particular, The Colima,
242
albeit a Harter Act case, was relied on by Viscount
Simonds.


236
(1927) 28 Ll. L. Rep. 202, [1927] 2 K.B. 456.
237
[1961] 1 Lloyd's Rep. 57, 1961 AMC 1357 (H.L.). An earlier decision to the same effect was Intl. Packers
London, Ltd. v. Ocean S.S. Co. Ltd., [1955] 2 Lloyd's Rep. 219; Firemans Fund Insurance Co. v. Vigsnes, 1986
AMC 1899 (N.D. Fla. 1985).
238
The Muncaster Castle became a cause clbre and was the subject of an ill-advised attempt to include a provision
in the Visby Rules to the effect that carriers were only responsible to diligently choose a delegate, whether or not the
delegate was diligent. The provision, known as The Muncaster Castle amendment, was adopted into the Visby Rules
at Stockholm in 1963 but was dropped ignominiously at the Brussels Diplomatic Conference of 1968. See The
Muncaster Castle Amendment - A Commentary, Marine Cargo Claims, 1 Ed. 1965, at p. 371.
239
[1963] 2 Lloyd's Rep. 223 (H.L.). See also The Admiral Zmajevic, [1983] 2 Lloyd's Rep. 86, 1986 AMC 1899
(N.D. Fla. 1985).
240
See Argo Merchant Lim. Procs., 486 F. Supp. 436, 1980 AMC 1686 (S.D.N.Y. 1980). See also Consol. Grain v.
Marcona Conveyor Corp., 716 F.2d 1077 at pp. 1081-82, 1985 AMC 117 at pp. 121-122 (5 Cir. 1983); The
Yamatogawa [1990] 2 Lloyd's Rep. 39 at p. 50; The Fjord Wind [2000] 2 Lloyds Rep. 191 at pp. 199 and 204
(C.A.); The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at p. 271 (C.A.); The Eurasian Dream [2002] 1 Lloyds
Rep. 719 at p. 737; The Kamsar Voyager [2002] 2 Lloyds Rep. 57 at pp. 69-71. See also generally Roger White,
The Human Factor in Unseaworthiness Claims [1995] LMCLQ 221 at p. 230.
241
[1961] 1 Lloyd's Rep. 57 at pp. 68-69, 1961 AMC 1357 at pp. 1364-65 (H.L.).
242
82 F. 665 (S.D. N.Y. 1897). See also The Mary L. Peters 68 F. 919 (S.D. N.Y. 1895); The Flamborough 69 F.
470 (S.D. N.Y. 1895); The Alvena 74 F. 252 (S.D. N.Y. 1896), affirmed 79 F. 973 (2 Cir. 1897). See also The
Rossmore, [1895] 2 Q.B. 436, 1980 AMC 1606 (S.D. N.Y 1980). See also Consol. Grain v. Marcona Conveyor
Corp., 716 F.2d 1077 at pp. 1081-82, 1985 AMC 117 at pp. 121-22 (5 Cir. 1983).
42
The nondelegable nature of the due diligence duty, of course, is limited to the carrier, its
servants, agents and independent contractors. It therefore does not render the carrier liable for
the fault of shippers, for example, in stuffing a container with undeclared, dangerous cargo,
provided that the carrier had no notice of or reasonable means of ascertaining the shippers
negligence. The reason is that the shippers and carriers respective orbits of responsibility are
normally quite distinct and neither is agent of the other outside its own orbit.
243



XII. Modern Methods of Seaworthiness and Due Diligence

1) The advances of science

Because of the advances of science, new methods of ship construction and new standards
of seaworthiness are available each year. In consequence, the standard of acceptable
seaworthiness rises higher and higher with time and progress.
244
Nevertheless the new standards
are not necessarily imposed on old ships. New standards would seem to be required on old ships
only during major repairs or reconstruction.
245


Due diligence is also the subject of upgrading by technological development so that as
time passes more skillful techniques of ship inspection are expected.
246
This has not necessarily
resulted in fewer breakdowns, because the new vessels themselves are equipped with machinery
and equipment of considerable complexity that requires a very high standard of operation,
maintenance and care.

2) Every dog is allowed one bite theory
247


The first casualty or breakdown of a particular type is judged in the light of the normal
exercise of due diligence, but thereafter the carrier should be especially vigilant. Initially, for
example, it was not known that separators were necessary in the holds of ships carrying cargoes

243
The Kapitan Sakharov [2000] 2 Lloyds Rep. 255 at p. 273 (C.A.).
244
The Lendoudis Evangelos [2001] 2 Lloyds Rep. 304 at p. 306: Seaworthiness must be judged by the standards
and practices of the industry at the relevant time, at least so long as those standards and practices are reasonable.
This holding was cited verbatim in The Eurasian Dream [2002] 1 Lloyds Rep. 719 at p. 736.
245
Peter Paul v. M/S Christer Salen, 152 F. Supp. 410, 1957 AMC 2141 (S.D. N.Y. 1957). Lloyd's surveyors found
the vessel seaworthy in 1950, but in 1951 she cracked and foundered. In 1954 Lloyd's declared that all welded
vessels should be equipped with crack arresters. It was held that the new standard did not relate back to 1951.
Compare with The T.J. Hooper 60 F.2d 737, 1932 AMC 1169 (2 Cir. 1932), where Learned Hand J. decided that
tugs should be equipped with radios, although their use on such vessels at that time was still not customary.
246
The Australia Star (1940), 67 Ll. L. Rep. 110. Because of undiscovered defective rivets and butts in the fuel oil
tanks at the beginning of the voyage, leakage took place later on. Nevertheless, it was held due diligence had been
exercised, because the due diligence was judged in the light of standards of shipbuilding construction and the
owners knowledge at the time in question. See also Bradley & Sons v. Federal Steam Navigation Co. (1927), 27 Ll.
L. Rep. 395 at p. 396. "... neither seaworthiness nor due diligence is absolute. Both are relative, among other things,
to the state of knowledge and the standards prevailing at the material time."
247
It has been said that a dog need not be muzzled and his master is not particularly negligent towards the public
until the dog has bitten for the first time. Thereafter the master must be especially careful because he is aware of the
dog's defect.
43
of wet copper concentrates, but now such separators are standard practice.
248
If, too, a ship
suffers a particular type of breakdown, special diligence must be exercised thereafter.
249



XIII. Due Diligence and France

1) The former Law of April 2, 1936

The former domestic Law of April 2, 1936
250
did not contain a due diligence provision.
The carrier was, however, strictly obliged to seek exoneration through one of the exculpatory
exceptions, which implied the carrier was responsible for lack of seaworthiness. Proving due
diligence was not a prerequisite.


2) The domestic Law of June 18, 1966

The Law of June 18, 1966, at art. 21, obliges the carrier, before and at the
commencement of the voyage, to be diligent (faire diligence) to:

a) make the ship seaworthy, taking account of the voyage which it must perform
and the goods which it much carry;
b) properly man, equip and supply the ship; and
c) make all parts of the ship where goods are to be carried fit and safe.

It is interesting that art. 21(a), unlike art. 3(1)(a) of the Hague/Visby Rules, specifies that
the due diligence obligation is in respect of the voyage and cargo contemplated.

Art. 27(a) provides that the carrier is responsible for the loss or damage sustained by the
goods from the time that the carrier takes charge of them until delivery, unless it proves that the
loss or damage resulted from unseaworthiness, the carrier then being further obliged to prove
that it satisfied the (due diligence) obligations provided for by art. 21.
251


French domestic law on the burden of proof of due diligence differs in several respects
from the Hague/Visby Rules which govern French international carriage.

Decree No. 66-1078 of December 31, 1966 clearly states at art. 56 that the cargo owner
has the burden of establishing the extent of the loss sustained.
252
Once the cargo owner has done

248
Heath Steel Mines Ltd. v. The Erwin Schroder, [1970] Ex. C.R. 426.
249
Heddernheim, 39 F. Supp. 558, 1941 AMC 730 (S.D. N.Y. 1941). In the past, condenser tubes were constantly
breaking down and this was notice to the owners that the boilers were not in seaworthy condition.
250
Journal Officiel of April 11, 1936.
251
Similarly in Belgium, the requirement that the carrier exercise due diligence to make the vessel seaworthy before
and at the commencement of the voyage has been held to be a precondition of invoking the peril of the sea exception
of art. 4(2)(a) of the Hague Rules. See Belgian Cour de Cassation, January 19, 1939 (The Nereus), Pas. 1939.I.33;
R. Roland, Initiation sommaire au droit maritime belge DMF 1996, 451 at p. 459.
252
Cour dAppel de Bordeaux, January 19, 1972, DMF 1972, 155.
44
this, a presumption arises against the carrier. This presumption is not merely one of fault, but
rather a presumption of liability.
253
Art. 27 of Law No. 66-420 of June 18, 1966 states that "the
carrier is liable... unless he proves" The carrier can only escape the presumption of liability if
he shows affirmatively what the cause of the loss was and that it falls within one of the nine
exceptions set out in art. 27. If the carrier fails to produce a sufficient explanation, or merely
provides a hypothetical explanation (albeit a plausible one), the cargo owner will be allowed to
recover from the carrier.
254
Thus the consequence of an event (the cause of which is unknown) is
borne by the carrier rather than the cargo owner.
255
If the presumption against the carrier were
merely one of fault, the carrier would enjoy the benefit of the doubt.
256


3) Burden of proof - due diligence - domestic Law

As described above, the presumption of liability arising against the carrier can be
overcome if he clearly proves that the cause of the loss falls within one of the exceptions in art.
27. It is peculiar that the first exception listed is unseaworthiness. The exception is immediately
qualified by the requirement that the carrier prove that he fulfilled the obligations set out in art.
21: namely, that before and at the beginning of the voyage the carrier exercised due diligence in
the three respects mentioned above.

In other words, the carrier must first prove that the loss was caused by the ship's
unseaworthiness and then prove that it had exercised due diligence before and at the beginning of
the voyage.
257
It does not appear that the carrier must establish that it exercised due diligence
before it can rely on the unseaworthiness exception or on any other of the exceptions listed in art.
27. That provision in fact seems to indicate the opposite order of proof.
258


The cargo owner will nevertheless be able to overcome the carrier's defence by proving
that the loss was caused, in whole or in part, by a fault committed by the carrier or his prposs:
art. 27, second paragraph.
259
While this burden undoubtedly rests on the cargo owner claimant, it
is lightened by the fact that the carrier, in rebutting the presumption of liability, will have had to
provide evidence establishing that the loss was caused by unseaworthiness and that he had
exercised due diligence.

4) International carriage France


253
Rodire & duPontavice, 12 Ed., 1997, para. 364; Vialard, 1997, para. 480.
254
Cour de Cassation, December 4, 1962, DMF 1963,145; Cour de Cassation, February 26, 1963, DMF 1963, 334;
Cour d'Appel de Bordeaux, November 20, 1972, DMF 1973, 287; Cour d'Appel d'Aix, May 16, 1975, DMF 1975,
288; Tribunal de Commerce de Paris, October 24, 1975, DMF 1976, 550. See also Court of Appeal of Brussels,
October 1, 1970, [1971] ETL 371; Rodire & duPontavice, 12 Ed., 1997, para. 364.
255
Rodire & duPontavice, ibid.
256
Rodire Trait Gnral, Affrtements & Transports, t. 2, paras. 613 and 617.
257
Tribunal de Commerce de Marseille, February 22, 1972, DMF 1972, 731; Cour d'Appel de Paris, December 12,
1972, DMF 1973, 292; Rodire & duPontavice, 12 Ed., 1997, para. 365-1; Vialard, 1997, para. 483; Rmond-
Gouilloud, 2 Ed., 1993, para. 581-a).
258
Rodire, supra, para. 619.
259
Except in the case where the carrier has proved that the cause was error in navigation: See art 27, last para.
Rodire & du Pontavice, 12 Ed., 1997, para. 364; Rmond-Gouilloud, 2 Ed., 1993, para. 580.
45
The order of proof found in the domestic law has influenced the order of proof in French
international carriage, where the Hague or Hague/Visby Rules apply, despite the fact that the text
of the 1924 Convention, as amended by the 1968 Protocol, is quite different in respect of due
diligence from the Law of June 18, 1966.
260


After the cargo owner proves his loss, the carrier must establish the cause of the loss and
that it falls within unseaworthiness and is not attributable to a want of due diligence or one of the
17 exceptions in art. 4(2).
261
Hypothetical explanations of the cause of the loss do not suffice.
262

The carrier must then prove that he exercised due diligence to make the ship seaworthy before he
may prove that the cause of the loss fell within the exceptions.
263
Some courts, however, have
held otherwise.
264
The cargo owner can nevertheless overcome the carrier's due diligence
defence if he proves that the carrier or his prposs committed a fault.
265


Due diligence in France as elsewhere extends to cargoworthiness, but French courts have
been quick to dismiss cargo claims where the loss or damage has resulted from the shippers
deliberate selection of an unsuitable mode of transport for his goods, with actual or constructive
knowledge of its unsuitability.
266



XIV. Hamburg Rules

The due diligence to make the ship seaworthy provision is not specifically set out in the
Hamburg Rules but is effectively covered by art. 5(1). The obligation, however, is not merely
before and at the beginning of the voyage, but also during the voyage.
267
Under art. 5(l), as
well, the burden of proof is clearly on the carrier.
268
In fact, the entire order of proof under
Hamburg is must simpler than under Hague or Hague/Visby, in that, once the Hamburg Rules
claimant has met his prima facie burden of proving that the goods were lost or damaged while in

260
Rodire & du Pontavice,, 12 Ed. 1997, at para. 392, fail to show the significance of the difference in the drafting
between the international conventions and the domestic law.
261
Rodire, supra, paras. 754 and 755. See note by Raymond Achard appended to Cour de Cassation, July 4, 1972,
DMF 1972, 717 at p. 721. See also Court of Appeal of Brussels, March 3, 1972, [1972] ETL 992; Rodire & du
Pontavice, 12 Ed., 1997, para. 392.
262
Rodire ibid., paras, 755. See also Cour dAppel de Paris, October 21, 1994, DMF 1995, 622.
263
Rodire ibid., paras. 752 and 754; Sentence arbitrale No. 434, November 26, 1981, DMF 1982, 441; Raymond
Achard, DMF 1972, 717 at p. 720. See also Cour dAppel dAix, January 10, 1991, (The Togla), Bulletin des
Transports 1991, 716, commentary by P. Bonassies, DMF 1992, 147; Cour de Cassation, June 27, 1995, (The Arno),
DMF 1996, 302, note F. Regnier, commentary by P. Bonassies, DMF 1996, No. 78 at pp. 255-256 and DMF Hors
srie no. 2, 1998, no. 114 at p. 74.
264
Cour de Cassation, April 2, 1974, DMF 1974, 458, [1975] ETL 486; Court of Appeal of Brussels, March 3, 1972,
[1972] ETL 992.
265
Cour d'Appel de Rouen, June 30, 1972, DMF 1972, 722, with note by P. Bouloy.
266
Cour de Cassation, June 8, 1993, DMF 1994, 359, note Y. Tassel; Cour dAppel de Rouen, October 28, 1993,
DMF 1994, 393 and June 30, 1994, DMF 1995, 40, note P.Y. Nicolas; commentary by P. Bonassies, DMF Hors
srie no. 1, 1997, no. 74 at pp. 56-57.
267
R. Achard, Les Rgles de Hambourg nouveau mises en examen DMF 1994, 254 at p. 257.
268
J.O. Honnold, Ocean Carriers and Cargo; Clarity and Fairness Hague or Hamburg? (1993) 24 JMLC 75 at p.
99.
46
the carriers custody, the burden switches to the carrier to show on a balance of probabilities
that the proximate cause of loss fell within the general defence provision of Article 5(1).
269


This difference between the two cargo liability regimes must not be overstated, however.
It is true that the carriers due diligence duty, under art. 3(1) of the Hague and Hague/Visby
Rules, exists only before and at the commencement of the voyage. On the other hand, the duty
of caring properly for the cargo, under art. 3(2) of those same Rules, is a continuous one,
applying at all stages of the voyage. In consequence, if an unseaworthy condition arises, or first
manifests itself, only after the voyage begins, the carrier may be found liable for improper care
of cargo under art. 3(2), unless he can show that he and those for whom he is responsible acted
diligently in detecting and eliminating the problem. This potential liability and associated
burden of proof is, in fact, quite similar to that of the carrier under the Hamburg Rules, who, in
order to avoid liability for unseaworthiness arising after the start of the voyage, must rebut the
presumption of fault of art. 5(1) of those Rules by proving that he, his servants and agents took
all measures that could reasonably be required to avoid the harmful occurrence and its
consequences (i.e. measures to detect and remedy the unseaworthiness).
270


In respect of loss or damage caused by unseaworthy conditions existing before or at the
commencement of the voyage, art. 5(1) of the Hamburg Rules would seem likely to result in
liability being imposed on the carrier in most of the same cases as under the Hague and
Hague/Visby regimes.
271


It can also be argued that under Hague and Hague/Visby, due diligence need be proven
by the carrier only after cargo has proven that unseaworthiness caused the loss or damage,
272

whereas under Hamburg, the mere fact that the loss or damage occurred while the goods were in
the carriers charge suffices to trigger the presumption of fault of art. 5(1). In fact, however, as
soon as the claimant under Hague or Hague/Visby makes prima facie proof of his loss by
producing the clean bill of lading and proving damage or short outturn at delivery, the burden
switches to the carrier to rebut the presumption of fault weighing against it, which entails proof
of due diligence under art. 3(1). This is similar to the burden on the Hamburg Rules carrier
under art. 5(1). Once again, the practical (as opposed to theoretical) difference between the two
regimes appears more illusory than real.
273



XVI. The International Safe Management (I.S.M.) Code and Seaworthiness

269
C.C. Nicoll, Do the Hamburg Rules Suit a Shipper-Dominated Economy? (1993) 24 JMLC151 at p. 167.
270
On this point, see Robert Force, A Comparison of the Hague, Hague-Visby and Hamburg Rules: Much Ado
About (?) (1996) 70 Tul. L. Rev. 2051 at p. 2064.
271
See R. Glenn Bauer, Conflicting Liability Regimes: Hague-Visby v. Hamburg Rules A Case by Case
Analysis (1993) 24 JMLC 53 at pp. 57-60, analyzing seven sample U.K. and U.S. decisions on pre-voyage
unseaworthiness under Hague and Hague/Visby, and concluding that they would most probably be decided the same
way under the Hamburg Rules.
272
This position, however, is based on what I believe to be the mistaken view that the burden of proving
unseaworthiness falls on the cargo claimaint. See supra.
273
Force, supra at pp. 2061-2062. Force also argues (at pp. 2062-2064) that just as the Hague carriers liability for
due diligence extends to the acts and omissions of independent contractors, because due diligence is nondelegable,
so too the Hamburg carriers duty and liability under art. 5(1) of those Rules extends to independent contractors,
provided that the word agents in that provision is interpreted as extending to independent contractors.
47

1) The I.S.M. Code adoption and implementation

On November 4, 1993, the International Maritime Organization (IMO) adopted the
International Management Code for the Safe Operation of Ships and for Pollution
Prevention,
274
abbreviated as the International Safety Management Code, and commonly
called the ISM Code. The advent of the ISM Code is among the most important developments
in international maritime law since World War II, notably because within six months of its
enactment by the Assembly of IMO as a recommendation, the Code was incorporated into the
Safety of Life at Sea Convention (SOLAS) 1974,
275
an IMO convention to which the majority of
flag states are party and which is estimated to cover about 98% of the worlds merchant
tonnage.
276
As a result, the I.S.M. Code is now mandatory for all countries party to SOLAS,
and may well constitute customary international law even for other States.
277


The Code became applicable, as of July 1, 1998, to all passenger ships, oil tankers,
chemical tankers, gas carriers, bulk freight vessels, and high speed craft of 500 gross register
tons and over, on international voyages. Since July 1, 2002, all other cargo ships of 500 gross
register tons and over have been subject to the Code, as well as all mobile offshore drilling units.
Thus, the vast majority of the worlds merchant ships are governed by the Code.
278



274
Annex to IMO Resolution A.741(18), adopted November 4, 1993. For a comprehensive article on the origin,
content and legal implications of the ISM Code, see A.J. Rodriguez and M.C. Hubbard, The International Safety
Management (ISM) Code: A New Level of Uniformity (1999) 73 Tul. L. Rev. 1585. See also Dimitrios
Christodoulou, The International Safety Management (ISM) Code and the Rule of Attribution in Corporate
Criminal Responsibility under English Law, Ant. N. Sakkoulas Publishers, Athens, 2000.
275
Adopted November 1, 1974, and in force May 25, 1980, 34 U.S.T. 47, as amended by the 1978 Protocol, adopted
February 17, 1978 and in force May 1, 1981, was amended with the adoption of the ISM Code as Chapter IX,
adopted May 24, 1994, entitled Management for the Safe Operation of Ships. Chapter IX consists of only six
regulations, the third of which provides: The company and the ship shall comply with the requirements of the
International Safety Management Code. Chapter IX entered into force under the tacit acceptance procedure
provided for by art. 8(b)(vi)(2) of the SOLAS Convention 1974, whereby a SOLAS provision automatically comes
into force unless more than one-third of Contracting Governments (or Contracting Governments the combined
merchant fleets of which constitute not less than 50% of the gross tonnage of the worlds merchant fleet) notify that
they object to the amendment.
276
Captain T. Ogg, IMOs International Safety Management Code (The ISM Code) (1996) Intl. J. Shipping L.
143. See also D. Morrison, The ISM Code: Background and Legal Implications, an unpublished paper on file
with the author, dated May 27, 1998, stating (at p. 4) that 137 countries representing over 98 % of world tonnage are
parties to SOLAS, and are thus bound by the ISM Code as of July 1, 1998.
277
D. Morrison, ibid. at p. 4. Note also that some countries have enacted the ISM Code by national law. The United
States, for example, promulgated the Code by the Coast Guard Authorization Act of 1996, Pub. L. No. 104-324,
104
th
Cong., 2d Sess. (1996), 46 U.S.C. 3201-3205 (1997) and regulations issued on December 24, 1997 by the U.S.
Coast Guard, 33 C.F.R. 96 (1998). France, for its part, promulgated the ISM Code by Decree No. 98-1132 of
December 9, 1998, Journal officiel, December 16, 1998, p. 18902. Note also that the International Chamber of
Shipping and the International Shipping Federation have published Guidelines on the Application of the IMO
International Safety Management (ISM) Code, 3 Ed., London, 1996, and that IMO has adopted Guidelines for
Implementation of the International Safety Management by Administrations (IMO Assembly Resolution A.788(19)
of November 23, 1995.
278
The Code does not apply, however, to towing vessels, barges, vessels solely engaged in domestic trade, domestic
passenger vessels carrying fewer than twelve passengers or fishing vessels. See Rodriguez & Hubbard, supra at p.
1594.
48
2) The I.S.M. Code summary

The Code applies not only to shipowners, but also to any other organizations or persons,
such as ship managers and bareboat charterers, who have assumed responsibility for operation of
ships from their owners and who, on so doing, have agreed to take over all the duties and
responsibility imposed by the Code.
279
In the Code, such a responsible party is termed a
Company.

As its preamble declares, the ISM Code is intended to provide an international
standard for the safe management and operation of ships and for pollution prevention.
280
The
attainment of these objectives under the Code requires Companies to specify safety management
objectives for their vessels, develop procedures to attain those objectives and maintain records
proving that these procedures have been implemented.

In particular, Companies are called upon to develop, implement and maintain a Safety
Management System (SMS) for their ships, including: 1) a safety and environmental protection
policy; 2) instructions and procedures to ensure safe operation of the ships and environmental
protection in compliance with relevant international and flag-state legislation; 3) defined levels
of authority and lines of communication between, and amongst, shore and shipboard personnel;
4) procedures for reporting accidents and non-conformities with the Codes provisions; 5)
procedures to prepare for and respond to emergency situations; and 6) procedures for internal
audits and management reviews.
281


Further rules deal with the development of plans for shipboard operations,
282
plans for
responding to emergencies
283
and procedures for reporting non-conformities, accidents and
hazardous situations, as well as for investigating and analyzing such reports so as to improve
safety and pollution prevention.
284
Verifications, reviews and audits of compliance by the
Company are also provided for,
285
as well as requirements respecting documentation relating to
the SMS.
286
Extensive responsibilities are assigned to ship masters,
287
who must be assigned
overriding authority and responsibility in the SMS with respect to safety and pollution
prevention aboard vessels. On shore, the designated person, one or more employees of a
Company, with access to the highest level of management, is responsible for monitoring the
safety of each vessel and ensuring that there are adequate shore-based resources for vessel
operations.
288


Certification is a key feature of the ISM system. A document of compliance (DOC) (a
copy of which is to be carried aboard the ship) is issued by the Administration (the government

279
ISM Code, art. 1.1.2 (definition of Company).
280
ISM Code, Preamble, para. 1.
281
ISM Code, art. 1.4.
282
ISM Code, art. 7.
283
ISM Code, art. 8.
284
ISM Code, art. 9.
285
ISM Code, art. 12.
286
ISM Code, art. 11.
287
ISM Code, art. 5.
288
ISM Code, art. 4.
49
of the State whose flag the ship is entitled to fly)
289
, certifying that the Companys SMS
complies with the Code.
290
A Safety Management Certificate (SMC) is also issued, certifying
the ships compliance with the Code.
291


3) The I.S.M. Code relevance to seaworthiness

Because the I.S.M. Code sets an international standard for the safe and
environmentally-friendly operation of virtually all merchant ships,
292
the failure of a Company
acting as a carrier of goods by sea to comply fully with the Codes obligations could, in many
instances, be regarded as a failure by the shipowner, manager or bareboat charterer concerned to
fulfill the carriers obligation to exercise due diligence to make the vessel seaworthy before and
at the commencement of the voyage, as required by art. 3(1) of the Hague and Hague/Visby
Rules.
293
Because due diligence under those Rules is an overriding obligation, proof of non-
compliance with I.S.M. requirements could thus preclude the carrier from enjoying the
exemptions from liability of art. 4.
294
The onus of proving due diligence in complying with the
Code before the start of the voyage would, of course, fall on the carrier, as art. 4(1) of Hague and
Hague/Visby provides.

Under art. 5(1) of the Hamburg Rules, such a failure could also pose an insurmountable
obstacle to attempts by the carrier to discharge its onus of showing that, together with its servants
or agents, it took all measures that could reasonably be required to prevent the occurrence and its
consequences. The carrier might then be unable to rebut the presumption of liability which
attaches under Hamburg as soon as the claimant proves that the occurrence (i.e. the cargo loss or
damage) transpired during the carriers period of responsibility.

The relevance of the I.S.M. Code to seaworthiness is obvious in many of its provisions.
Art. 1.2.3., for example, requires the Safety Management System (SMS) of a Company to
ensure: 1) compliance with mandatory rules and regulations; and 2) that applicable codes,
guidelines and standards recommended by IMO, Administrations, classification societies and
maritime industry organizations are taken into account. In consequence, for a carrier-Company
to apply aboard its ships a defective or incomplete SMS, which does not take account of such

289
ISM Code, art. 1.1.3. (definition of Administration).
290
ISM Code, art. 13.1, 13.2 and 13.3. Most flag states have designated classification societies as the organizations
authorized to certify ISM compliance.
291
ISM Code, art. 13.4 and 13.5.
292
Note that the ISM Code, art. 1.3, provides that the requirements of the Code may be applied to all ships. This is
likely to become reality as the ambit of the Code gradually extends to virtually all classes of merchant vessels.
293
See G.W. Poulos, Legal Implications of the ISM Code: New Impediments to Sea Fever (1996) 9 U.S.F. Mar.
L.J. 37 at pp. 65-70. The I.S.M. Code also affects the standard of seaworthiness in marine insurance, as well as
shipowners limitation of liability. See Poulos, ibid. at pp. 45-65. See also A.J. Rodriguez & M.C. Hubbard, supra
at pp. 1599-1610, focusing on the likely impact of the Code on U.S. law in respect of maritime negligence,
unseaworthiness, ship collision, oil pollution, cargo claims, charterparties and marine insurance.
294
See L.T. Weitz, The Nautical Fault Debate (the Hamburg Rules, the U.S. COGSA 95, the STCW 95, and the
ISM Code) (1998) 22 Tul. Mar. L.J. 581 at p. 593, observing that the ISM Code is likely to become a factor in the
analysis of the due diligence exception and the crew negligence exception of art. 4(2)(a). The extensive reporting
requirements laid down by the Code, and the role of the duty of the designated person to serve as a link between
the vessel and Company management, could also result in shoreside management no longer being able to rely on the
defence of error of navigation of its employees at sea. See D. Morrison, supra at pp. 10-11.
50
mandatory rules or regulations or of such applicable codes, guidelines or standards, could
constitute at least prima facie evidence of unseaworthiness, and quite possibly of lack of due
diligence by the carrier-Company as well.

Art. 6 further obliges the Company to ensure that the master is: 1) properly qualified for
command; 2) fully conversant with the Companys SMS; and 3) given the necessary support so
that the masters duties can be safely performed.
295
The Company is to ensure that each ship is
manned with "qualified, certificated and medically fit seafarers in accordance with national and
international requirements."
296
Later paragraphs of the same article call for familiarization of
new and transferred personnel with their safety-related duties; provision of essential pre-sailing
instructions, procedures to identify needs for ongoing training in support of the SMS; procedures
for informing personnel of relevant information concerning the SMS in a language or languages
understood by them; and provision for effective communications of personnel in the execution of
their SMS-related duties.
297
These obligations, setting a standard for crew training, provide
fertile ground for litigation over unseaworthiness and lack of due diligence under the Hague or
Hague/Visby Rules,
298
as well as for debate over whether the carrier-Company, if subject to the
Hamburg regime, neglected measures reasonably necessary to prevent the occurrence and its
consequences.

Art. 10 of the Code is no less germane to seaworthiness. It obliges the Company to
establish procedures to ensure that the ship is maintained in conformity with the provisions of the
relevant rules and regulations and with any additional requirements established by the
Company.
299
In meeting these requirements, the Company must ensure that: 1) inspections are
held at appropriate intervals; 2) any non-conformity is reported, with its possible causes, if
known; 3) appropriate corrective action is taken; and 4) records of these activities are
maintained.
300
The SMS must establish procedures to identify equipment and technical systems
whose sudden operational failure may result in hazardous situations, as well as measures to
promote the reliability of such equipment or systems, including regular testing of stand-by
arrangements and equipment or technical systems that are not in continuous use.
301
Any
negligence in these respects on the part of a Hague or Hague/Visby Rules carrier governed by the
Code could have disastrous effects on its effort to establish that it had been duly diligent before
and at the commencement of the voyage. Under Hamburg, such proof could also destroy the
carriers case that it took all measures reasonably required.

Obviously, as well, the absence of a valid and in force document of certification and/or
safety management certificate aboard a vessel subject to the ISM Code, as required by art. 13,
could be invoked to establish the vessels unseaworthiness
302
and to help prove the carrier-
Companys lack of due diligence under Hague or Hague/Visby or its failure to take reasonable

295
ISM Code, art. 6.1.
296
ISM Code, art. 6.2.
297
ISM Code, art. 6.4, 6.5, 6.6 and 6.7.
298
A.J. Rodriguez & M.C. Hubbard, supra, at p. 1602.
299
ISM Code, art. 10.1.
300
ISM Code, art. 10.2.
301
ISM Code, art. 10.3. The inspections mentioned in art. 10.2 and the measures referred to in art. 10.3 are to be
integrated into the ships operational maintenance routine (art. 10.4).
302
See A.J. Rodriguez & M.C. Hubbard, supra, at p. 1601.
51
measures under Hamburg. Additionally, because such absence could result in the detention of
the vessel under Port State Control,
303
the carriers liability for damages for delay in delivery of
the cargo under art. 5(1) and (2) and 6(1)(b) of the Hamburg Rules could potentially arise from
such a want of proper ISM documentation.

4) The I.S.M. Code and seaworthiness - conclusion

Of course, unseaworthiness-based liability for I.S.M. violations will arise only where the
violation is proven by the claimant to have caused the cargo loss, damage or delay. But the mere
fact that the I.S.M. Code now applies as an international standard defining the specifics of safe
management and pollution prevention for most merchant tonnage, means that there is now a new
and demanding international criterion of seaworthiness in maritime law. The stringent
reporting requirements of the Code will also make available to lawyers, judges and arbitrators in
maritime disputes, including cargo claims, much more documentary evidence on the issues of
vessel seaworthiness and due diligence on the part of both shipboard and shoreside personnel.
ISM, as a new and far-reaching benchmark, with the voluminous paper trail which it
engenders, can be expected to change considerably the tenour, and in many cases the outcome, of
cargo litigation and arbitration around the world.
304



Prof. William Tetley, Q.C.
Faculty of Law
McGill University
Montreal, Quebec, Canada

e-mail: william.tetley@mcgill.ca
website: http://tetley.law.mcgill.ca/

303
Port State Control is the system whereby the authorities of a State responsible for marine safety are empowered
to inspect vessels entering its ports, even if they do not fly the flag of that State, in order to identify ships not
complying with applicable norms, especially with respect to safety. Port State Control is typically governed by an
international agreement, such as the Paris Memorandum of Understanding (Paris MOU) of July 1, 1982 (binding
most European countries and a few others, including Canada) or the Tokyo MOU of December 2, 1993, in force
April 1994 (binding many States in the Asia-Pacific region and also including Canada). Other Port State Control
MOUs exist for various other regions of the world, including the Caribbean, the Mediterranean, Latin America,
West Africa and the Indian Ocean. These MOUs typically confer powers of detention on the port states party to
them in respect of vessels inspected and found wanting in their compliance with national or international standards,
such as the I.S.M. Code. See also A.J. Rodriguez & M.C. Hubbard, supra at pp. 1615-1616, concerning the
Vancouver Declaration of 1998 on enforcement of the Code by signatories of the Tokyo and Paris MOUs and also
outlining enforcement measures taken by the European Union. The United States, although not party to any Port
State Control MOU, nevertheless vigorously enforces the I.S.M. Code through the U.S. Coast Guard by boardings,
inspections, detentions and denial of port entry. See Matthew Marshall, Port State Detentions what message for
insurers?, an unpublished lecture delivered to the Insurance Institute of London, January 12, 1999 at p. 9 (on file
with the author); Rodriguez & Hubbard, supra at pp.1613-1615.
304
See Laurie C. Sahatjian, the ISM Code: A Brief Overview (1998) 29 JMLC 405 at p.. 409: The ISM Code can
be employed to a company's benefit or detriment. A responsible company will use its ISM Code documentation to
establish that it is a responsible operator committed to identifying problems and promptly correcting them. On the
other hand, an irresponsible company lacking a commitment to ISM Code compliance will merely lay a road map to
non-compliance for regulators, prosecutors, and possibly civil litigants to follow.