SUPERINTENDENT’S ACTIONS MAY REVIVE DUE DILIGENCE OBLIGATION

For centuries, admiralty lawyers have concerned themselves with the concept of seaworthiness as it relates to the transportation of goods by sea. Unless a vessel is reasonably fit to carry a specific cargo on a particular voyage, it is unseaworthy.

Under general maritime law, a shipowner’s duty to furnish a seaworthy vessel is absolute and non-delegable. It is also independent of the shipowner’s knowledge or intent. Breaching this duty will result in liability for cargo loss or damage.

The shipowner’s absolute duty to furnish a seaworthy vessel has been modified in modern times by the Carriage of Goods by Sea Act (COGSA). Under this statute, the ocean carrier is bound at the beginning of a voyage to exercise “due diligence” to make the ship seaworthy. There is no longer an absolute obligation on a shipowner to send a seaworthy vessel to sea. Exercising due diligence will suffice.

Due diligence requires the use of all reasonable means to make the vessel seaworthy. Whether due diligence has been exercised when an unseaworthy condition has been found is always a question of fact. Some of the factors considered are: what was actually done by the shipowner, and was it all that reasonably could have been done to make the vessel seaworthy under the prevailing circumstances.

The shipowner’s due diligence duty is non-delegable. Therefore, the ocean carrier is responsible for the negligent acts of ship repairers or agents used to fulfill its duty. For example, seaworthy certificates issued by classification societies hired by shipowners to inspect vessels do not establish due diligence. However, failing to perform classification inspections may be considered a failure to exercise due diligence.

The shipowner’s duty to use due diligence to make the vessel seaworthy ends when cargo loading is completed and the ship breaks ground on the voyage. Under the doctrine of “seaworthiness by stages,” this duty can arise again if the vessel calls at an intermediate port during the voyage and the shipowner takes substantial control of the vessel from the master during the period.

The recent New York maritime arbitration of the M/V TROPEOFOROS (S.M.A. No. 3148) illustrates this point. Here a cargo consignee sought to recover for water damage to sugar carried from New Orleans to Peru. While transiting the Panama Canal, the vessel struck a lock and sustained damage to shell plates three feet above the waterline. Bilge soundings were taken twelve minutes after the incident and no water was found.

CDivers examined the vessel and found only an indent below the waterline. However, no inspection of the loaded cargo hold was performed. Shortly thereafter, the shipowner’s superintendent engineer and repair team boarded and made temporary repairs. The classification society approved the repairs and issued a seaworthy certificate. However, a hose test of the repaired area was not performed.

In the arbitration, cargo interests argued the shipowner failed to establish the superintendent exercised due diligence and his intervention made the shipowner liable for the faulty repairs. The owner argued the damage was caused by a latent repair defect which is excusable under COGSA.

The arbitrator found: “The apparent failure of the superintendent to periodically monitor the vessel’s watertight integrity [by additional bilge soundings] cannot be considered an exercise of due diligence. Similarly, his failure to conduct a hose test in way of the temporarily repaired damage to the [adjoining] wing tank also does not qualify as an exercise in due diligence.”

The arbitration reaffirms that shipowners must exercise due diligence to make vessels seaworthy at the commencement of voyages. More significantly, the arbitration serves as a reminder for shipowners to insure their superintendents exercise due diligence if they intervene in vessel repairs during a voyage.


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