Lloyd's Maritime and Commercial Law Quarterly
Seaworthiness, negligent navigation and safer ships
Sir Nigel Teare*
The scope of the seaworthiness obligation in the Hague and Hague-Visby Rules can expand to reflect developments in the manner in which ships are built, equipped, managed and navigated. Seaworthiness is thus the handmaiden of beneficial changes in the operation of ships designed to promote safety at sea. The most recent example is the recognition by IMO in 1999 that every ship should have a passage plan in order to ensure that she is safely navigated. In The Libra the Supreme Court rejected an argument that passage planning was an act of navigation for which the carrier was exempt from liability by the nautical fault exemption in the Hague and Hague-Visby Rules. Where the passage plan was defective in a manner which endangered the safety of the vessel, there was a breach of the obligation in Art.III r.1 to make the vessel seaworthy and the Art.IV r.2 exceptions could not be relied where an act of navigation was the cause of the unseaworthiness. In the context of electronic charts, which are now compulsory, there are grounds to fear that navigating officers are not being properly trained in the art of passage planning on such charts giving rise to the risk of “electronic chart assisted” groundings. Looking further ahead to autonomous vessels, the application of the decision in The Libra will give rise to interesting questions which may be resolved only by expert evidence from software engineers.
Notwithstanding modern aids to navigation, collisions and groundings still occur. Both can give rise either to damage to cargo or to a liability of cargo interests to contribute in general average. When that happens, two concepts are central to the question of the shipowner’s liability and whether the shipowner can recover the contribution in general average, namely, seaworthiness and negligent navigation. This was so both before and after 1924, when the Hague Rules were introduced.1 Before the Hague Rules, shipowners had and exercised an ability to contract out of liability by means of inserting appropriate clauses in their bills of lading. It was usual for shipowners to exclude liability for negligent navigation. To the modern eye it seems curious that an employer can seek to avoid liability
* Arbitrators at 10 Fleet Street; High Court Judge 2006–2020; Admiralty Judge 2011–2020. This article is based upon a lecture given to the British Maritime Law Association in February 2023, to the World Maritime University in March 2023 and to the Association of Average Adjusters in May 2023.
1. International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (The Hague-Rules); enacted in the UK by the Carriage of Goods by Sea Act 1924.
Seaworthiness, negligent navigation and safer ships
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