Lloyd's Maritime and Commercial Law Quarterly
THE HUMAN FACTOR IN UNSEAWORTHINESS CLAIMS
Roger White *
The unseaworthiness of vessels caused by the so-called “human factor”, leading to cargo claims, is a matter of considerable practical importance. The recent report of Lord Donaldson’s Inquiry, Safer Ships, Cleaner Seas, highlighted the importance of human error in relation to accidents that occur at sea: “[i]t is generally accepted that human error is the cause of about four fifths of marine accidents.”1
Traditionally, the physical side of unseaworthiness involving, for instance, rusty hulls or sub-standard equipment has received more attention from writers than the human side involving incompetence or inefficiency of the crew.2
This article seeks to redress the balance by examining the approach of the English courts (primarily the Admiralty Court) to the human aspects of unseaworthiness. Reference is also made to other jurisdictions where appropriate. The primary focus of the article is the Hague and Hague-Visby Rules, as most unseaworthiness claims, in the author’s experience, tend to involve these Rules in some form or other.3
The article considers, in particular, the distinction to be drawn between “incompetence” (or “inefficiency”) and “negligence” for the purposes of the Hague-Visby Rules
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in relation to unseaworthiness claims. The article looks at the different aspects of “incompetence” or “inefficiency” and seeks to place these aspects into a convenient framework. The second part of this article examines “due diligence”, which may be open as a defence to carriers faced with cargo claims resulting from the failures of their officers and crew. The article considers, in relation to the concept of “due diligence”, the possible impact of the recent IMO Code on safety management.5
* Crump & Co., Hong Kong. I should like to thank Professor John Wilson (Institute of Maritime Law, University of Southampton) for his helpful comments on an earlier draft of this article.
1. Safer Ships, Cleaner Seas—Report of Lord Donaldson’s Inquiry into the Prevention of Pollution from Merchant Shipping (hereafter “The Donaldson Report”) Cm 2560 (May 1994), para. 2.1. There is relatively little case law in relation to the “human element” of unseaworthiness claims. The Donaldson Report, (para. 11.28), emphasizes the difficulty in checking on the human factor: “[i]t is almost as difficult to check on operational efficiency in terms of voyage planning, bridge manning and linguistic proficiency and compatibility among the officers and crew. And it is impossible to assess the application of skills and experience in the varied and often unpredictable conditions arising at sea.”
2. In terms of textbooks the following have useful passages in relation to the “human element” of unseaworthiness cases: Mustill and Gilman (eds), Arnould’s Law of Marine Insurance and Average, 16th edn (London, 1981) (hereafter “Arnould”); W. E. Astle, Shipping and the Law (Fairplay Publications, London, 1980); Colinvaux (ed.), Carver’s Carriage by Sea, 13th edn (London, 1982) (herafter “Carver”); Cooke, Young, Taylor, Kimball, Martowski, Lambert, Voyage Charters (London, 1993) (hereafter “Voyage Charters”); Gaskell, Debattista and Swatton (eds), Chorley & Giles, 8th edn (London, 1987); Halsbury’s Laws of England, 4th edn (London, 1983) (hereafter “Halsbury”); Mocatta, Mustill and Boyd (eds), Scrutton on Charterparties and Bills of Lading, 19th edn (London, 1984); Tetley, Marine Cargo Claims, 3rd edn (Canada, 1988) (hereafter “Tetley); Wilford, Coghlin, Kimball, Time Charters, 3rd edn (London, 1989); Wilson, Carriage of Goods by Sea, 2nd edn (London, 1993).
3. In a typical case the issue of whether a vessel is unseaworthy may be important for the following reasons: (i) a defence of “actionable fault” may be available to the owner of cargo faced with a claim for general average (e.g., The Admiral Zmajevic
[1983] 2 Lloyd’s Rep. 86); (ii) cargo may seek damages in respect of their contribution to salvage, etc.; and (iii) cargo may seek damages in respect of loss or damage to their cargo.
4. For the purposes of this article, the effect of the Hague and Hague-Visby Rules is the same, so reference will be made to the Hague-Visby Rules unless the context requires specific reference to the Hague Rules.
5. See Assembly Resolution A. 741(18) adopting International Safety Management Code (hereafter “ISM Code”). See also Guidelines on the application of the IMO International Safety Mangement Code produced by the International Chamber of Shipping and International Shipping Federation.
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