Mridul Nagar & Pradyumna Mishra*
The safety of the people shall be the highest law. – Marcus Tullius Cicero
After the outbreak of COVID-19 in the world, the most alarming aspect is the safety and sanitization of the cargo and the ships. Freight transport is a widely used mode of transport in the trading world. Almost 90% Supply of food, fuels, and medicines to different countries is done by these freights only. Thus, ensuring the safety and sanitization of these freights and cargos, which carry such important and essential commodities from one country to another country, is or must be the primary concern for the carriers. In law, it is known as “Seaworthiness”.
Seaworthiness has been an important aspect of the Maritime Law and yet it has not been defined in any law in India. Mention of Seaworthiness can be seen in firstly, Section 3 of the Indian Carriage of Goods by Sea Act, 1925 (COGSA 1925) for the namesake. It mentions that it is not the implied duty of the carrier to provide a seaworthy ship. Secondly, Section 41(4) in The Marine Insurance Act, 1963 which says that a ship is seaworthy when it is “reasonably fit in all aspects”, does not provide any explanation that what are these ‘all aspects’ and what is the scope of such ‘reasonability’. Moreover, Indian courts have never defined or provided any reasoning on this aspect.
The best possible definition is available in Black’s Law Dictionary, which defines seaworthiness as “an adjective, applied to a vessel, signifies that ship is properly constructed, prepared, manned, equipped, and provided, for the voyage intended.” But simplifying such an important aspect in a few words will do no justice with the end we seek to achieve with such provisions.
The definition is limited only to vessels but the aspect of seaworthiness is much broader and wider than this. A seaworthy ship comprises of two-fold obligations firstly, vessel-worthiness which means, the vessel must be properly manned and equipped so that it can meet any perils of the sea while performing the service, secondly, it must be ‘cargo-worthy’ which means the ship is not only competent enough to be a vessel worthy but to hold the cargo and the goods inside. Such cargo-worthiness is within the aspect of seaworthiness. It ensures that the ship is worthy enough to hold the cargo and the goods inside it. Although, the above two obligations must be fulfilled in order to ensure the seaworthiness of the ship these obligations cannot be rendered as the conditions of a contract, breach of which will result in enabling the aggrieved party to repudiate the contract. We also cannot render it as a warranty, breach of which makes the party eligible to claim the damages. The obligation is classified to fall somewhere between the above two and can be called an innominate or an intermediate obligation.
IMPACT OF COVID-19: HOW TO DETERMINE THE SCOPE OF SEAWORTHINESS?
It has been confirmed that Coronavirus can survive 72 hours on the surface. It raises a concern such as –
- What about the sanitization and decontamination of the commodities being transferred by the freights or ships?
- Can COVID-19 make a ship unworthy?
As the seaworthiness aspect includes the fitness of the ship both at the time of before the beginning of the voyage and during the voyage. Prima facie, you may not see any connection between COVID-19 and seaworthiness of a ship, but COVID-19 is more than enough to make a ship unworthy. To pore out the effect of COVID-19 on the fitness of the vessel three aspects need to be looked into; (1) The crew members (2) The Port and (3) The vessel.
Firstly, the crew, the possibility of spreading infection, and the goods getting infected by the crew of the ship are very high. As, they are the ones who will work on the ship. In the case of The Eurasian Dream, it was held that “it is clear that a vessel may be unseaworthy if the crew members are infected”. This means that will there be a requirement of proper screening of the crew members and the staff as it is a part of the obligation.
Secondly, the ports, the requirement of seaworthiness of ship will arise where the ship or the freight have called at a port which is affected by the coronavirus. A port may be the starting point and the ending point to be examined before branding a ship worthy. As per the case of the Eastern city, an unsafe port is “port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship.” It means not only the ship but also the port from which a port is leaving or coming back must be free from any infectious disease. As the same has been held in the case of Ciampa v. British India Steam Navigation Co. Ltd., a vessel was held to be unseaworthy because it was coming back from a port contaminated by plague, necessitating fumigation of the vessel at her next port. This means that a vessel coming from an unsafe port can cause actual damage to the other port which makes a vessel unseaworthy and hence need to revise the seaworthiness understanding on the aspect of ports as we cannot avoid exposure to such danger.
Lastly, the ship, which includes the fitness of both vessel and cargo. As per the Tattersall v. The National Steamship Company, Limited, obligation regarding ships generally includes the holding of cargo, if a ship is holding any cargo which got infected on its previous voyage then the ship cannot be said to be worthy for next voyage or the vessel is containing any contaminated goods or the vessel is infected in itself. Thus, here the warranty of seaworthy ships casts a duty on the carrier to decontaminate the vessel and cargo.
Hence, above it is clearly shown that how an infectious disease like COVID-19 poses greater harm to the transport of the goods and how the three obligations need to be fulfilled to provide a seaworthy status to ship in future transactions.
ENSURING SAFETY: EMERGING DUTIES AND RESPONSIBILITIES OF CARRIER
After discussing, what will be the scope of Seaworthiness and what will make a ship worthy, the next aspect that needs to be looked into is the duties of the carriers in making a ship protected from coronavirus. What new duties of carriers will emerge after the outbreak of COVID-19?
When it comes to the duty under the COGSA 1925 it is a personal duty of the carrier to provide a seaworthy vessel. And such duty lies on the Carrier as Section 3 clearly says the carrier of the goods should provide a seaworthy ship. However, COGSA 1925 does not provide any specific duty with respect to providing a seaworthy ship. In such circumstances, we need to refer to Article 3.1 of the Hague-Visby Rule which says:
“The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to make the ship seaworthy,…… fit and safe for their reception, carriage and preservation.”
Analysis of Article 3.1 shows that the use of the word ‘shall’ makes it compulsory to fulfill all the above duties. The expression ‘safe for reception, carriage and preservation’ cast a number of duties on the carriers. During and after the coronavirus these duties can be; duty to conduct proper screening of the crew members, duty to ensure proper sanitization of the ship, duty to disclose any previous contamination on the ship, duty to use sanitized receptions.
Apart from that, a carrier is also bound to perform its duty of ‘Maintenance and Cure’. This is a duty for the carrier and a right for the crew members. It has emerged from American Courts, where ‘Maintenance’ includes the food and lodging to the crew members onboard a vessel. The ‘Cure’ means the carrier is liable to incur reasonable medical expenses to the crew member who got infected while on the ship. In India, there is no such legal development in this aspect. Hence it is necessary to ensure the rights and duties of the parties in such situations.
Seaworthiness has always been something which is recognized but not valued. Despite being a crucial safety component, it has always been in law as a showpiece. Neither the legislature nor the courts have tried to expand the scope or looked into this aspect. The question is, how can you expect adherence to the law when you cannot tell what is the law? Thus an understanding of seaworthiness is important. The perils of the sea cannot be predicted but it can be dealt with, by ensuring the vessel-worthiness and cargo-worthiness. COVID-19 poses a grave threat to the maritime industry. The only aspect which can work as a shield against such threats is adhering to the seaworthiness and all the three factors; the crew, the port and the ship should be made fit. Since COGSA 1925 and Marine Insurance Act, 1963 do not provide for any specific duty, but by referring to The Hague-Visby Rules we can infer the duties of a carrier. They have obligations not only towards the ship but also towards the crew members even after the voyages are over. Thus a duty of ‘Maintenance and Cure’ should be recognized. Those who place their lives and property in the hands of others, for the purpose of maritime trade, should be suitably protected by the legal requirement that all vessels be seaworthy. If we would have ensured such safety and security earlier such an outbreak of coronavirus could have been avoided.
*Mridul Nagar and Pradyumna Mishra are third year students at National Law University, Jodhpur.
 The Indian Carriage of Goods By Sea Act, No. 26 of 1925, § 3 (Ind.)
 The Marine Insurance Act, No. 11 of 1963, § 41(4) (Ind.)
 Hongkong Fir Shipping Company, Ltd. v. Kawasaki Kisen Kaisha, Ltd., (The Hongkong Fir), 
 Danielle Renwick, How long does coronavirus live on different surfaces?, The Guardian, (April 4, 2020), available at https://www.theguardian.com/us-news/2020/apr/04/how-long-does-coronavirus-live-on-different-surfaces
 The Eurasian Dream  1 Lloyd’s Rep 719
 The Eastern City  2 Lloyd’s Rep. 127
 Ciampa v British India Steam Navigation Co Ltd  2 K.B. 774
 Tattersall v. The National Steamship Company, Limited, (1883-84) LR 12 Q.B.D. 297
 Article III(1), The Hague-Visby Rules – The Hague Rules as Amended by the 1 Brussels Protocol 1968, available at https://www.jus.uio.no/lm/sea.carriage.hague.visby.rules.1968/portrait.pdf
 Calmar Steamship Corp. v. Taylor, 303 U.S. 525 (1938)
 Farrell v. United States, 336 U.S. 511 (1949).