Duty to provide a seaworthy vessel. Article III, r. 1 of the Hague Rules and the Hague Visby Rules states that the carrier must, before and at the beginning of the voyage, exercise "due diligence" to make the vessel seaworthy and cargoworthy. ("Seaworthiness" includes manning, equipping and supplying the vessel.) This is quite different from the common law implied obligation of seaworthiness which is an absolute undertaking. The duty commences ` . . . from at least the beginning of the loading until the vessel starts on her voyage . . ." (Maxine Footwear v. Canadian Government Merchant Marine, 1959.)
The meaning of "due diligence" is that the carrier should make a reasonable and genuine attempt to carry out the responsibilities. If the carrier wishes to benefit from the immunities from liability in Art. IV, he must show that due diligence was in fact exercised. This must be exercised in such a way that it is not delegated to a person who is not competent or thorough and careful, that is, who is not "diligent". Merely diligent choice of a person or diligently choosing a "responsible" person, such as a professional surveyor, is insufficient to establish that due diligence was exercised in making the vessel seaworthy and cargoworthy. The leading case is The Muncaster Castle, 1961, where cargo was damaged by seawater entering the cargo compartment because a fitter from a ship repairing company had failed to seal an opening in the vessel during an inspection some months before the damage. After the inspection by a Lloyd's Register of Shipping surveyor, the fitter's replacement of the inspection covers was negligent. The replacement was not supervised by the senior officers on board the vessel and this was the lack of exercising "due diligence". There was no question of the surveyor's being diligent or not.
In The Muncaster Castle the delegate was not diligent and this caused the carrier to fail to show his own diligence. If the delegate is diligent, this can establish the diligence of the carrier who delegates the task of making the vessel seaworthy. In The Amstelslot, 1963, the carriers had exercised due diligence to make the vessel seaworthy because the delegate surveyor had acted carefully and competently. Delay was caused by an engine breakdown resulting from metal fatigue. The vessel had been surveyed by a surveyor from Lloyd's Register of Shipping but he had failed to detect that the fatigue could occur despite having taken reasonable care in carrying out the survey.
If there is a claim by a cargo owner against the carrier the cargo owner must first prove the loss to him while the goods are in the care of the carrier and that the measurable, financial losses are directly caused by the physical damage to the goods or the delay in their transport. The carrier must then prove the cause of the loss or damage or delay. The carrier must next prove that he complied with Art. III, r. 1, and exercised due diligence. Once the carrier has established that he carried out his responsibility, he can then rely on the exceptions in Art. IV. In Maxine Footwear v. Canadian Government Merchant Marine, 1959 (see also above), the obligations in Art. III, r. 1 were said- to be "overriding". They must be proved before reliance is permitted on the exceptions or limitations to liability. The cargo claimant will then attempt to disprove the carrier's evidence that the obligations were carried out. If the claimant cannot prove that the obligations in Art. III, r. 1 were not carried out, he can rely on Art. III, r. 2 and attempt to prove that the cargo was not loaded, etc., properly and carefully. In any case, under the Hague Rules or Hague Visby Rules the carrier is relatively protected, the cargo claimant having considerable burden of proof. Under the Hamburg Rules 1978, there is a reversal of the burden of proof. The liability of the carrier for any breach of obligation “ . . . is based on the principle of presumed fault or neglect. This means that, as a rule, the burden of proof rests on the carrier . . .". (Annex II to the Hamburg Rules.)
In the Hamburg Rules there is no precise requirement that the carrier must exercise "due diligence" at any time. However, the earliest reference to "responsibility" in these Rules appears in Art. 4, r. 1, which deals with the period of responsibility. The carrier's responsibility which is not defined or described for the goods ". . . covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge". Article 5 is the nearest to Art. III in the Hague Rules or Hague Visby Rules. It states:
"The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in An. 4, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences."
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