In every contract of carriage of goods by

 

In
every contract of carriage of goods by sea, there is an implied obligation that
needed the parties in the agreed contract to follow, involving the carrier to
provide a seaworthy ship. Also, needed them to meet and undergo the perils of
the sea and other incidental risks where they are obliged to expose in the
course of a voyage.

Focusing
on the degree of obligations in seaworthiness, both Hague Visby Rules and
Common Law have a different views. To this extent of obligations that we could
compare between these two rules are merely about the seaworthiness is depending
on type of vessels and the character of voyage itself. Basically in Common Law, there are twofold
requirements for the carrier to oblige in a seaworthy ship. In order for the
ship to meet the normal perils likely to be faced while undertaking the
services required, it must be appropriately manned and equipped. The general
rule is that the vessel must be resolute, strong and well equipped for the
intended journey, and she must also be provided with a crew, consistent in
number and competent for the voyage with reference to its length and other
particulars and have a competent and mastered in the sound judgment and
discretion. Therefore, if it has all these defective engines, or a defective
compass, or where deck cargo is stowed in such a way as to render the ship
unstable, 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 fit
state to receive the specified cargo. While in Hague Visby Rules, it is the duty of the parties that involved to
exercise due diligence to make the vessel seaworthy. To be precise, the carrier
will no longer be strictly liable in the absence of any fault, where s/he will
be liable not only for his/her own negligence but also for the negligence of
any party, that also included an independent contractor, to whom they has to
provide a seaworthy ship, that delegated responsibility under the rules.

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 However, in Common law, when the ship owner hires an incompetent engineer or
other crew, where inadequate bunkers are taken on board for the journey, or
even where the documentations for the voyage is insufficient, the ship owner
will equally be in breach. There is no further implied obligation to cover such
matters, once these legal requirements are already fulfilled. In the case of a
voyage charter, at the time of sailing on the charter voyage, the duty to provide
a seaworthy ship is on the ship owner itself. It is imbalance that defects
occur providing the ship unseaworthy during the pre-journey to the loading port
or even during the loading operation, provided that it can be repaired by the
time of sailing. In similar, if the ship is seaworthy at the time of sailing, neither
it happened after or even during the journey or at an intermediate port, the
duty is discharged. While in Hague Visby
Rules, The carrier’s duty to ensure seaworthiness is overlap in that a
breach of the duty, if it causes loss or damage, prevents the carrier relying
on the defences in Article IV Rule 2 and on the right to assure contained in
Article IV Rule 6. However, a carrier is authorized to limit financial
liability under Article IV Rule 5 notwithstanding a failure to exercise due
diligence to make the vessel seaworthy. Thus, in other way, the carrier cannot
be held responsible for negligent acts done by the shipbuilders or their
employees.  

Moreover,
in the case of a consecutive voyage charter, under the Common law, the duty arises at the initiation of each voyage is
managed in performance of the charter, and there will be a duty to make the
ship seaworthy at the beginning of each stage of the journey, where a voyage
charter is divided into stages by agreement between the parties. While Hague Visby Rules emphasizing in a
different views, which is under this rules, the
due diligence obligation to provide a seaworthy ship would arise in respect of
each voyage under the time charter, and it is the carrier who need to bound to the
commencement of the voyage. Conversely, the position under the Common
Law rules is different where the duty attaches only at the time of delivery of
the 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 until
the vessel starts on her voyage.

Under
common law, a cargo claimant who
alleges that loss or damage has been caused by the failure to deliver in
accordance to provide a seaworthy ship on the agreed contract may succeed on
either ground but bears the burden of proof on both. However, a carrier who
resists a claim under the first head may find him/herself providing evidence
that establish liability under the second. In certain circumstances, the
claimant’s burden of proof will be assisted if there are facts, which might
give rise to an inference of un-seaworthiness. Normally, the presence of
seawater in the hold will be treated by the courts as prima facie evidence of
the ship not being seaworthy. However, under The Hague Visby Rules, different opinions exist as to the burden of
proof relating to the exercise of due diligence. Under Article IV Rule 1, the
burden of proving due diligence lies on the carrier, if there are loss or
damage resulting from the un-seaworthiness. This has led to a general
assumption that it is not on the carrier to proof due diligence until the other
party establishes that the ship was not seaworthy and that the loss was attributable
to that fact. However, there is another opinion that the burden of proof in
both cases should rest with the carrier because is the party who has access to
the full facts. 

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