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B Distinction between Nautical Fault and Failure to Exercise Duty of Care of Cargo.
Generally speaking, nautical fault is the negligence of the master, mariner, pilot, or the servants of the carrier affecting the ship, not the cargo, during the period of navigation.[16] In practice the distinction between the two, while superficially simple enough, is difficult to make. Usually an act or omission affects both the ship and the cargo. In Gosse Millard Ltd. v. Canadian Government Merchant Marine Ltd,[17] a difficult situation even confused judges about what the nautical fault under the Hague Rules was. The questions of law in this case focused on whether the shipper’s failure to cover the hatch was the negligence in management of the ship and therefore came within the immunity from the liability for the loss or damage of cargo under article 4.2(a) of the Hague Rules.
In the first trial, judges ruled for the cargo owner on the grounds that leaving the hatch uncovered was not the negligence of management of the ship but failure to exercise the duty of care of the cargo according to article 3 (2). Therefore the carrier was not entitled to the nautical fault defence. On appeal, the Court of Appeal ruled for the carrier that “ ‘management of the ship’ must include management of part of the ship which incidentally damages some of the cargo” and that in the present case the act resulting in the damage of the cargo was the negligence in management of the ship.[18]
Interesting enough, the House of Lords reversed the Court of Appeal’s judgement by invoking the same cases cited by the Court of Appeal. Lord Hailsham appreciated the principle laid down in The Glenochil case where Gorenll Barnes.J. held that:[19]
I think that where the act done in the management of the ship is one which is necessarily done in the proper handling of the vessel, though in the particular case the handling is not properly done, but is done for the safety of the ship herself, and is not primarily done at all in connection with the cargo, that must be a matter which falls within the words ‘management of the said vessel’.
Following Lord Hailsham, Viscount Sumner in the Gosse case said that not all neglect in operating part of ship would necessarily fall within the nautical fault defence. It depends on carriers’ primary purpose. [20] He thought the certain amount of water getting into the ship “would not have done any harm to an empty hold or to the ship as a ship”.[21] Therefore, leaving the hatch uncovered was not directed at the ship but at the cargo interest.
Having reviewed the Gosse case[22] , we can clearly conclude what the distinction is between the nautical fault and failure to exercise the duty of care of cargo. If the negligence primarily puts the ship in jeopardy, it is nautical fault; if the negligence primarily puts the cargo in jeopardy, it is the failure to care for cargo.
C Distinction between Nautical Fault and Unseaworthiness
Nautical fault and unseaworthiness look superficially similar since both of them are related to the qualities of ship, its crew and equipment. However, the legal consequences are totally different. Under the Hague Rule, a carrier is not liable for nautical fault, but liable for unseathiness [23] . As a result, no matter what the loss or damage to the cargo resulted from, the cargo owner always claim its damages by virtue of the provisions of unseaworthiness and the carrier always does their best to attribute the loss to nautical fault.
Rio Tinto Company, Ltd. v. The Seed Shipping Company, Ltd[24] is a good example and the judgement gives a good illustration of what is the difference between unseaworthiness and the nautical fault.
In this case, the master who suffered from indigestion and giddiness[25] took the wrong course which caused the stranding. The cargo and the ship were totally lost. The plaintiffs claimed the whole recovery of the loss of the cargo on the grounds that the master was too unwell or incompetent to fulfil his duty and therefore the carrier did not properly man the ship which required by the Hague Rules article 3 (1). [26] The arguments were focused on whether the wreckage resulted from the incompetence of the master or his negligence in management of the ship.[27] Roche L.J found the master was a competent man with rich experience in navigation and management of the ship[28] although he did suffer from indigestion and giddiness and was not familiar with the conditions of the water off the Ayr off Troon [29] . The evidence showed that the master fell on the floor and lost his memory just because the ship struck the rock, not the other way around.[30] Therefore, “no one of ordinary knowledge and of ordinary diligence in these matters, and with ordinary care, would have thought it necessary to stop the master from going as master on this voyage in command of this ship”.[31] Roche L.J went on:[32]
As is sometimes said, it is not a contract that the ship is a perfect ship, and it is certainly not a contract that the master is a perfect master or that he is in perfect health. All must be regarded and decided in reference to what shipowners of reasonable skill and care would do under the circumstances, and having regard to proper and reasonable and ordinary standards in these matters.
The claim that the master’s illness led to his faint and the loss of the control of the ship was not established.[33] The fatal problem could only be attributed to the master’s negligence in the navigation which came within the exceptions for which the carrier was not liable. From this case we can conclude that if the carrier has exercised normal knowledge, due diligence and care to man the ship, he will not be accused of unseaworthiness in this respect and is entitled to the nautical fault defence. Accordingly, whether the negligence can be directly attributed to a carrier is a good way to distinguish unseaworthiness and nautical fault.[34]
D Distinction between Nautical Fault and Unreasonable Deviation
Rio case[35] illustrates, apart from the above distinction between nautical fault and unseaworthiness, the difference between nautical fault and unreasonable deviation. The plaintiffs contended that the ship had left the contractual route and caused total loss of ship and cargoes. According to many countries’ carriage of goods by sea regimes, if the unreasonableness of a deviation is established, the carrier will not be entitled to exceptions provided for in the Bill of lading.[36] At a first glance, the plaintiffs’ proposition seems persuasive. After all the ship was 10 miles out of the normal course and it seemed that the stranding was due to the deviation. In other words, if the ship had been on the contractual route, there would not have been a stranding. The defendants argued that stranding was not due to the deviation but to the negligence of the act of the master which came within the exceptions inserted in the bill of lading.
In order to sort the confusing issue out, it is necessary to refer to the authorities to ascertain what is a deviation which may deprive the carrier of the right to immunities. Lord Mansfield said, in Lavabre v. Wilson:[37]
A deviation from necessity must be justified both as to substance and manner. Nothing more must be done than what the necessity requires. The true objection to a deviation ... is that the party contracting has voluntarily substituted another voyage ... .
By citing the Lavabre v. Wilson[38] case, Justice Roche held that in Rio there was no question of whether the deviation was reasonable or not, but the question of whether this was a deviation. The master had no intention to alter the voyage which he agreed to follow. All he did was to take the wrong course and it could fall well within the regime of negligence of the act of the master. He went on to hold that it was not appropriate to regard a mere departure or failure to follow the contract voyage or route as a deviation. If it were true we would ridiculously conclude that every stranding which occurred in the course of a voyage would be a deviation because no contracts of carriage of goods by sea stupidly involved the necessity of stranding.[39] Following this persuasive judgement, he finally made an analogy that the captain[40]
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