The issues to be solved in the case
Is the ship-owner reliable for the unseaworthiness, which is due to the negligence of fitter employed competent ship-repairers?
1. “Exercise due diligence to make the ship seaworthy”
Article III(1) of the Hague-Visby Rules;” 1. The carrier shall be bound before and at the
beginning of the voyage, to exercise due diligence to (a) make the ship seaworthy”.
These words “due diligence” were adopted from American Harter Act (1893) and could be
found in the Australia Sea-Carriage of Goods Act(1904), the Canadian Water Carriage of Goods Act(1910), which were similar to the British Act decisions. The Hague Rules abolished the absolute warranty of seaworthiness and substituted lower measure of obligation("To make the ship seaworthy" v.s. "to exercise due diligence to make the ship seaworthy"). The rules aimed at protecting ship-owners against latent defect in work done their ships.
2. Independent contractor
An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. In carriage by sea, the independent contractor often includes agent, servant, expert and so on who are employed by ship-owners, to finish some work necessary on ship. Of course, the ship repairers in this case are independent contractors.
3. Is the ship-owner reliable for independent contractor’s negligence?
This question has being discussing all the time since Hague Rules abolished absolute liability and adding “due diligence”.
the English Admiralty Court deemed that the carrier is liable not only for his own negligence but also for the negligence of any party, even including an independent contractor to whom he has delegated the responsibility for making the ship seaworthy. This means the liability of ship-owners under the Hague Rules differs little from that of common law. The Rules aimed at making owners exempting from the latent defect not employees’ negligence.
Many scholars and judges insist that ship-owners are not liable for independent contractor’s
negligence. The owners have exercise the due diligence to make ship seaworthy when they employed competent and reputable ship-repairers----regarding the technique nature and arranging suitable repairers.
Viscount Simonds;The owner is not liable if the plaintiff has been injured by the negligence of the independent contractor or his servants.
1. The owner had exercised the due diligence according to the Australian Sea-Carriage of
Goods Act(1923) ART III r.1 & ART IV r.1.
2. The “ due diligence” is not “ provide a seaworthy ship” but “to make the ship seaworthy”.
According to the aims of Hague Rules, the ship-repairers’ negligence should not be imposed
on the owners.
3. The analogies of Angliss’s case and Davie’s case couldn’t support the plaintiff’s claim.
P.S. Angliss’s case: which is said to be the first case in which the Hague Rules were discussed in an English Court since the passing of the Australian Sea-Carriage of Goods Act, 1924, which was about whether the ship-owner were responsible for the ship builder workmen’s
negligence; the builders were employed by the owners.
Davis’s case: That case was an action as between master and servant founded in tort, the accident to the workman being caused, it was said, by the negligence of the employers, their servants, or agents in failing to provide a suitable drift which could be hammered safely without the risk of pieces flying off.