In scrutinising the grounding which occurred in the spring of 2023 in Turkish waters, the English Admiralty Court helpfully summarises the legal principles which apply in relation to a shipowner’s obligation to provide their ship with a competent crew.
The Happy Aras is a bulk carrier that was more than 30 years old at the time of the events. On 20 March 2023, she grounded on the north shore of the Datca Peninsula in Southern Turkey. General Average was declared, and a salvage, lightering, and transshipment operation followed. Fortunately, no crew member died or was injured as a result. When the owner tried to recover a GA contribution in the region of US$ 1.3 million from the cargo insurers under the GA guarantee, the insurers defended the claim, arguing that the vessel was unseaworthy. They criticized her in two respects: 1) that she had an inadequate passage plan and/or an inadequate passage planning system; and 2) she was not manned with a competent crew, more specifically a competent Master.
The Admiralty Registrar found for the cargo insurers. The passage plan point was dealt with quickly. Whilst both sides accepted that it was a “basic” passage plan, the grounding would not have occurred had it been followed.
The real issue was the conduct of the Master, who was the Officer of the Watch at the time of the incident. In the words of the Registrar, there was “a complete dereliction of duty” by him. Among other things, the Master “cut a corner” by taking an early alteration to a southerly heading (apparently to save a couple minutes of sailing time), sent the lookout away to make tea (thereby leaving him alone on the bridge at night-time), and must have ignored several system alarms. Eventually, the vessel grounded when she reached the shallow waters of the Peninsula, after the Master failed to make an alteration required by the passage plan.
The Registrar held that the vessel was unseaworthy and that due diligence had not been exercised by the shipowner. In doing so, the Registrar helpfully summarised the governing legal principles and how they applied to the facts:
- A shipowner has an obligation to exercise due diligence before and at the beginning of a voyage to make their ship seaworthy. The test of unseaworthiness is whether a prudent owner would have required a defect, had he known of it, to be made good before sending their ship to sea (The Cape Bonny).
- An aspect of seaworthiness is the obligation to provide a competent crew.
- In this respect, incompetence is different from negligence. The Registrar recognised that anyone can make a mistake or “have a bad day” at work. This is not incompetence. Incompetence is a “disabling want of skill” or “disabling want of knowledge” (The Eurasian Dream). In trying to ascertain on which side of the coin a case falls, the number of mistakes leading up to an incident is not determinative either way.
- On the present facts, the Registrar held that the Master was incompetent. In his view, the Master’s errors were “egregious” and could be characterised as “a complete dereliction of duty”. Neither the Master nor any other member of the crew appeared before the English Court to defend their actions or dispute the account of events. The vessel was therefore held unseaworthy.
- Where there is a finding of unseaworthiness, the onus is on the shipowner to demonstrate the exercise of due diligence in order to benefit from the protections of Article IV of the Hague Rules. In this case the defences relied upon by the shipowner were: “Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy” (Art. IV(1)); and, where such due diligence has been exercised, “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from…Act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship” (Art. IV.2(a)).
- The exercise of due diligence in the context of crew competence requires the owners to satisfy themselves that the Master is reasonably fit to occupy the post to which he is appointed, by inspection of their documents, interviews and inquiries from previous employers (The Makedonia), as well as satisfy themselves of the specific competence of the Master in relation to the vessel and voyage in question (The Eurasian Dream).
- In this case, the Registrar held that the evidence provided by the shipowner fell significantly short of showing compliance with the above. Whereas the owner had obtained (and provided in evidence) the Master’s documents, they had not substantiated the rest of their assertions. The owner said that the Master was assigned to the Happy Aras upon “positive performance evaluation results”, but the witness statement gave no further details about what these evaluations were. They also stated that they had obtained a “positive reference” from another company, but that was not disclosed. As the Turkish owner could not attend to give evidence before the English Court (due to criminal proceedings against him in Turkey, unrelated to the incident), his statements could not be tested by questioning or cross-examination.
Our comment: This is an unsurprising decision on the facts. The evidence (or lack thereof) before the Court heavily pointed towards one side, particularly given that neither the crew nor the owner attended to give oral evidence. The safeguards in place in respect of seaworthiness and crew competency are there for good reason, and owners should be very careful not only in observing them, but also in keeping detailed records of compliance.
