Inevery contract of carriage of goods by sea, there is an implied obligation thatneeded the parties in the agreed contract to follow, involving the carrier toprovide a seaworthy ship.
Also, needed them to meet and undergo the perils ofthe sea and other incidental risks where they are obliged to expose in thecourse of a voyage. Focusingon the degree of obligations in seaworthiness, both Hague Visby Rules andCommon Law have a different views. To this extent of obligations that we couldcompare between these two rules are merely about the seaworthiness is dependingon type of vessels and the character of voyage itself. Basically in Common Law, there are twofoldrequirements for the carrier to oblige in a seaworthy ship. In order for theship to meet the normal perils likely to be faced while undertaking theservices required, it must be appropriately manned and equipped. The generalrule is that the vessel must be resolute, strong and well equipped for theintended journey, and she must also be provided with a crew, consistent innumber and competent for the voyage with reference to its length and otherparticulars and have a competent and mastered in the sound judgment anddiscretion.
Therefore, if it has all these defective engines, or a defectivecompass, or where deck cargo is stowed in such a way as to render the shipunstable, a ship will be clearly unseaworthy. Plus, in the views of Common Law,the seaworthy ship must be a cargo-worthy in such a sense that it is in a fitstate to receive the specified cargo. While in Hague Visby Rules, it is the duty of the parties that involved toexercise due diligence to make the vessel seaworthy. To be precise, the carrierwill no longer be strictly liable in the absence of any fault, where s/he willbe liable not only for his/her own negligence but also for the negligence ofany party, that also included an independent contractor, to whom they has toprovide a seaworthy ship, that delegated responsibility under the rules. However, in Common law, when the ship owner hires an incompetent engineer orother crew, where inadequate bunkers are taken on board for the journey, oreven where the documentations for the voyage is insufficient, the ship ownerwill equally be in breach.
There is no further implied obligation to cover suchmatters, once these legal requirements are already fulfilled. In the case of avoyage charter, at the time of sailing on the charter voyage, the duty to providea seaworthy ship is on the ship owner itself. It is imbalance that defectsoccur providing the ship unseaworthy during the pre-journey to the loading portor even during the loading operation, provided that it can be repaired by thetime of sailing. In similar, if the ship is seaworthy at the time of sailing, neitherit happened after or even during the journey or at an intermediate port, theduty is discharged. While in Hague VisbyRules, The carrier’s duty to ensure seaworthiness is overlap in that abreach of the duty, if it causes loss or damage, prevents the carrier relyingon the defences in Article IV Rule 2 and on the right to assure contained inArticle IV Rule 6. However, a carrier is authorized to limit financialliability under Article IV Rule 5 notwithstanding a failure to exercise duediligence to make the vessel seaworthy.
Thus, in other way, the carrier cannotbe held responsible for negligent acts done by the shipbuilders or theiremployees. Moreover,in the case of a consecutive voyage charter, under the Common law, the duty arises at the initiation of each voyage ismanaged in performance of the charter, and there will be a duty to make theship seaworthy at the beginning of each stage of the journey, where a voyagecharter is divided into stages by agreement between the parties. While Hague Visby Rules emphasizing in adifferent views, which is under this rules, thedue diligence obligation to provide a seaworthy ship would arise in respect ofeach voyage under the time charter, and it is the carrier who need to bound to thecommencement of the voyage. Conversely, the position under the CommonLaw rules is different where the duty attaches only at the time of delivery ofthe vessel under the charter party, in case of the time charter. While Hague rules focusing on the period from at least the beginning of the loading untilthe vessel starts on her voyage. Undercommon law, a cargo claimant whoalleges that loss or damage has been caused by the failure to deliver inaccordance to provide a seaworthy ship on the agreed contract may succeed oneither ground but bears the burden of proof on both. However, a carrier whoresists a claim under the first head may find him/herself providing evidencethat establish liability under the second.
In certain circumstances, theclaimant’s burden of proof will be assisted if there are facts, which mightgive rise to an inference of un-seaworthiness. Normally, the presence ofseawater in the hold will be treated by the courts as prima facie evidence ofthe ship not being seaworthy. However, under The Hague Visby Rules, different opinions exist as to the burden ofproof relating to the exercise of due diligence. Under Article IV Rule 1, theburden of proving due diligence lies on the carrier, if there are loss ordamage resulting from the un-seaworthiness. This has led to a generalassumption that it is not on the carrier to proof due diligence until the otherparty establishes that the ship was not seaworthy and that the loss was attributableto that fact. However, there is another opinion that the burden of proof inboth cases should rest with the carrier because is the party who has access tothe full facts.