Unseaworthiness And Due Diligence

July 2001

The decision of the Court of Appeal in the "FJORD WIND" ¹, affirming the decision at first instance ², illustrates the heavy burden that a ship owner bears in seeking to demonstrate the exercise of due diligence.

The vessel had a history of recurrent crank pin bearing failures prior to the incident in question. Despite a number of investigations in which the owners involved the engine manufacturers, MAN, both prior and subsequent to the casualty, the cause of the failures remained unidentified. Nor had it proved possible to predict when it was likely that such a failure would occur.

The failure in issue occurred when the vessel was navigating in the River Parana. Unfortunately, this meant that when the initial alarm was received, it was not possible to stop the main engine due to the risk of grounding, and the alarm had to be overridden until the vessel reached a location at which she could safely anchor and consequently the crankshaft sustained severe damage, requiring its removal and transport back to the engine manufacturers for remachining before reinstallation. In consequence the voyage would have been substantially delayed and the cargo was transhipped.

The Court upheld the finding of Mr Justice Moore-Bick at first instance that the vessel had been unseaworthy at the commencement of the voyage on the basis that nothing had occurred during the course of the voyage which would have affected the condition of the main engine on sailing. Although it was recognised that it was impossible to identify the precise cause of the bearing failure, the judge was held entitled to draw the inference that there must have been a defect on the bearing itself, or in the lubricating system.

The Court of Appeal also endorsed the trial judge’s approach that where a vessel suffered casualty without any outside intervention, the natural inference was that there was something wrong with her which a prudent owner would have rectified if he had known about it. The difficulty with this analysis from the owners’ perspective was that although the vessel’s main engine had a known history of bearing failures, these had been intermittent and there was nothing to suggest that the Owners ought to have realised that a failure might occur on the particular voyage or that in the particular location where, due to the vessel’s inability to stop, the effects would be so serious.

Although it had been recognised at first instance that the Owners had acted prudently in involving the engine manufacturers in their previous enquiries, that was of itself insufficient to discharge the burden of due diligence. In the light of the decision The "MUNCASTER CASTLE" ³, it was necessary to demonstrate that MAN had also exercised due diligence.

Since neither party was able to identify the nature of the defect causative of the casualty, the Owners argued that it could not be alleged that they had failed to exercise due diligence because it was not possible to state what investigations they ought to have carried out which would have identified the defect. The Court of Appeal upheld the trial judge’s findings that, given the prior history of bearing failures, the Owners had to show that they, and those for whom they were responsible, did not overlook any lines of enquiry which competent experts could reasonably be expected to have pursued. It was not necessary for the cargo interests to demonstrate that any failure in this regard was causative.

One of the Appeal Court judges, although agreeing with the majority, expressed some sympathy for the Owner’s position and it may be argued that the effect of the Court’s decision on the particular facts comes close to reducing the distinction between due diligence and strict liability for unseaworthiness. The lesson to be drawn, however, is that where a vessel has a propensity for repeated failures of a component on board, the defence of exercise of due diligence is unlikely to succeed unless it is possible to demonstrate that the investigations carried out as to cause were exhaustive and covered all possibilities. That is likely to be an extremely heavy burden to discharge.

 With thanks to Charles Brown of Richards Butler for preparing this article.

1 [2000] 2 Lloyd’s Rep 191

2 1999] 1 Lloyd’s Rep 307

3 [1961] 1 Lloyd’s Rep. 57