4th INTERNATIONAL SCIENTIFIC

CONFERENCE ON MARITIME LAW:

MODERN CHALLENGES OF MARINE NAVIGATION
SPLIT, CROATIA, 13-14 April 2023
(ISCML Split 2023)

BOOK OF PROCEEDINGS OF THE 4th INTERNATIONAL

SCIENTIFIC CONFERENCE ON MARITIME
LAW – ISCML Split 2023

Split, 2023
 BOOK OF PROCEEDINGS OF THE 4th INTERNATIONAL SCIENTIFIC
CONFERENCE ON MARITIME LAW – ISCML Split 2023

Organisers
Faculty of Law, University of Split
Adriatic Institute of the Croatian Academy of Sciences and Arts, Zagreb

Publisher
Faculty of Law University of Split

For Publisher
Ratko Brnabić, Dean of the Faculty of Law University of Split

Co-Publisher
Croatian Academy of Sciences and Arts

For Co-Publisher
Dario Vretenar, Secretary General of the Croatian Academy of Sciences and Arts

Editorial Board
Petra Amižić Jelovčić, Faculty of Law, Split
Ratko Brnabić, Faculty of Law, Split
Vesna Skorupan Wolff, Adriatic Institute – Croatian Academy of Sciences and Arts, Zagreb
Adriana V. Padovan, Adriatic Institute – Croatian Academy of Sciences and Arts, Zagreb
Božena Bulum, Adriatic Institute – Croatian Academy of Sciences and Arts, Zagreb
Mitja Grbec, Faculty of Management of the University of Primorska, Koper
Massimiliano Musi, Alma Mater Studiorum University of Bologna, Bologna

Print
DES Split

Edition
200 copies

ISBN 978-953-8116-40-7 (Pravni fakultet u Splitu)

ISBN 978-953-347-508-0 (HAZU)
 CONTENTS
1. Berlingieri, Giorgio:
Time Bars in Maritime Claims ...................................................................... 1

2. Bilić, Andrijana:
Who Wants to Stay on Board? Industry 4.0 and Maritime Education
and Training ................................................................................................. 23

3. Bulum, Božena; Pijaca, Marija:

Functioning of the Consortia Block Exemption Regulation under the
Current Circumstances in the Liner Shipping Services Market – Is
there a Justification for its Further Prolongation .......................................... 53

4. Janković, Svetislav:
Conflict of Stoppage in Transit and Bill of Lading Disposal ........................ 69

5. Jovanović, Nebojša:
The Liability of Classification Societies from the Perspective of
Aggrieved Parties .......................................................................................... 89

6. Padovan, Adriana Vincenca:

The Elements of Seaworthiness in the Context of Marine Insurance
Revisited ..................................................................................................... 101

7. Petrović Tomić, Nataša:

The Use of Artibration in Marine Insurance Market ................................. 123

8. Pomade, Adélie:
Shipping Industry, Renewable Energies and Decarbonisation ................... 147

9. Primorac, Željka:
Expansion possibilities of the application of the European Passenger
Name Record System to MaritimeTransport ............................................. 165

10. Runko Luttenberger, Lidija; Luttenberger, Axel; Kosovac, Ivana:

Environmental Protection and the Outcomes of Environmental Impact
Assessment Procedure ................................................................................ 181

V
11. Slišković, Merica; Petrinović, Ranka; Mandić, Nikola; Vuković, Tony:
Analysis of Pollutants Emitted by Ships in the Focus of MEPC
in the Period from 2010 to 2020 ................................................................ 197

12. Soliman-Hunter, Tina:

The Role of FSRI’s in Addressing War-Induced Energy Insecurity
in Europe .................................................................................................... 219

13. Vojković, Goran; Milenković, Melita:

Concessions at Request on the Maitime Domain in Croatian Law ........... 237

14. Vučenović, Josipa:

Application of the Regulation (EU) 2017/352 in Relation to the
Croatian Maritime Domain and Seaports Act – Possible Amendments
of Croatian Law Concerning Towage ........................................................ 255

VI
Adriana V. Padovan THE ELEMENTS OF SEAWORTHINESS IN THE CONTEXT...

Adriana V. Padovan, PhD, Adjunct Associate Professor

Adriatic Institute, Croatian Academy of Sciences and Arts (Zagreb, Croatia)

THE ELEMENTS OF SEAWORTHINESS IN THE

CONTEXT OF MARINE INSURANCE REVISITED

UDK: 368.23
Original scientific paper

1. Introduction*
Seaworthiness is one of the oldest and most important notions of maritime
law. It is of relevance in the context of various private and administrative
maritime and shipping law concepts. According to Tetley, “[s]eaworthiness
runs like a thread through all maritime and admiralty law in various forms.”1
Specifically, seaworthiness is extremely important for any marine insurance
contract. Hull and machinery insurance and shipowner liability insurance are
generally provided on the assumption that the ship is seaworthy unless the
insurer knowingly and voluntarily accepts to insure under special conditions
a ship that does not meet all seaworthiness requirements. Seaworthiness is a
key issue that is at the core of the entire contractual relationship of marine
insurance. It is the insured shipowner’s duty to take care of all the requirements
of the ship’s seaworthiness with due diligence. It is a generally accepted principle
that marine insurance does not indemnify the insured for damages resulting
from unseaworthiness if the insured was aware of this unseaworthiness and in
connection with which he did not act conscientiously. This basic principle is
present in different forms in various national laws, usually as an ex lege legal basis
for the insurer’s defence against the insured’s claim for insurance indemnity. It
means that unseaworthiness usually leads to certain adverse legal consequences
under a marine insurance contract. In general, it could be said that in most legal
systems unseaworthiness, in one way or another, commonly leads to the loss of
insurance coverage. From the insurer’s standpoint, the aim of the legal concept
of seaworthiness is to control the quality and alteration of the insured risk and
* This paper is a result of research within the research project entitled “Transport Faced with the
Challenges of Technological Development and Globalization: New Solutions in the Field of Liability
and Competition”, hosted by the Institute for Transport Law (IDT) of the University Jaume I,
Castellón de la Plana and funded by the Ministry of Science and Innovation of the Government of
Spain, ref. PID2019-107204GB-C33 (2020-2024) (principal researchers: Professor Mª Victoria Petit
Lavall, PhD and Professor Achim Puetz, PhD).
1
Tetley, W., International Maritime and Admiralty Law, Éditions Yvon Blais, Cowansville, 2002, p. 52.

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Adriana V. Padovan: THE ELEMENTS OF SEAWORTHINESS IN THE CONTEXT...

eliminate substandard ships from the insurance portfolio and from the shipping
trade in general.2
The doctrine of seaworthiness appears to have been generally well-settled in
the legal literature and case law of maritime nations for a very long time.3 Many
distinguished authors extensively deal with the legal concept of seaworthiness
in the context of marine insurance. We hereby mention only some of them,
including Bennett,4 Clarke,5 Davies,6 Fogliani,7 Foster,8 Franchina,9 Gilman
et al.,10 Hodges,11 Mandaraka-Sheppard,12 Marin,13 Merkin & Derrington,14
Pavić,15 Soyer,16 Schoenbaum,17 Wilhelmsen,18 and others. However, based on
preliminary research, it is submitted that there are no examples of systematic
2
For a more detailed study of the role of marine insurance in the elimination of substandard shipping
see A. V. Padovan, Uloga pomorskog osiguranja u zaštiti morskog okoliša od onečišćenja s brodova, Croatian
Academy of Sciences and Arts, Zagreb, 2012, pp. 15-212.
3
Similarly, So, L. K.; Sooksripaisarnkit, P., Seaworthiness and Autonomous Ships: Legal Implications in
the 21st Century, Australian and New Zealand Maritime Law Journal, Vol. 35, No. 1, 2021, p. 21, 25.
4
Bennett, H., Causation in the Law of Marine Insurance: Evolution and Codification of the Proximate
Cause Doctrine, in D. R. Thomas (Ed.), The Modern Law of Marine Insurance, LLP, London, 1996, pp.
173-200; Bennett, H., The Law of Marine Insurance, 2nd Edition, Oxford University Press, Oxford, 2006.
5
Clarke, M., Insurance Warranties: The Absolute End?, Lloyd’s Maritime and Commercial Law Quarterly,
2007, pp. 474-493.
6
Davies, M., Warranties and Utmost Good Faith in US Marine Insurance Contracts, in D. R. Thomas
(Ed.), The Modern Law of Marine Insurance, Vol. 3, Informa, London, 2009, pp. 81-100.
7
Fogliani, E., Onere della prova e navigabilità della nave nell’assicurazione corpi - Nota alla sentenza
cassazione 10 maggio 1995, n. 5123, www.fog.it/articoli/falcone.htm (access: 12th January 2023).
8
Foster, N. R., The Seaworthiness Trilogy: Carriage of Goods, insurance, and Personal Injury, Santa
Clara Law Review, Vol. 40 (2000), No. 2, pp. 473–510.
9
Franchina, F., The Seaworthiness: An Old Warranty for a New Duty, Rivista di diritto dell’economia dei
trasporti e dell’ambiente, Vol. XV, 2017, pp. 73-91.
10
Gilman, J., Merkin, R., Blanchard, C., Cooke, J., Hopkins, P., Templeman, M., Arnould’s Law of Marine
Insurance and Average, 17th Edition, Sweet & Maxwell, London, 2008.
11
Hodges, S., The ISM Code and the Law of Marine Insurance, www.nadr.co.uk/articles/published/
shipping/ISMMarineInsurance.pdf (access: 12th January 2023); Hodges, S., The Quest for
Seaworthiness: A Study of US and English Law of Marine Insurance, in Thomas, D. R. (Ed.), Modern
Law of Marine Insurance, Vol. 2, LLP, London/New York/Hong Kong, 2002, pp. 199-252.
12
Mandaraka-Sheppard, A., Modern Maritime Law and Risk Management, 2nd Edition, Informa, London,
2008.
13
Marin, J.,Odgovornost prijevoznika za plovidbenu sposobnost broda, Zbornik Pravnog fakulteta u
Zagrebu, Vol. 58., No. 1-2., 2008, pp. 489 – 507.
14
Merkin, R.; Derrington, S., Marine Insurance Act 1906: Magnificent Achievement or Monstrous
Aberration in D. R. Thomas (Ed.), The Modern Law of Marine Insurance, Vol. 4, Informa Law from
Routledge, Abingdon, 2016, pp. 1-41.
15
Pavić, D., Pomorsko osiguranje – Knjiga druga, Croatia osiguranje d.d., Zagreb, 1994; Pavić, D., Ugovorno
pravo osiguranja, Tectus, Zagreb, 2009.
16
Soyer, B., Warranties in Marine Insurance, 3rd Edition, Routledge, Abingdon / New York, 2017.
17
Schoenbaum, T. J., Admiralty and Maritime Law, Sixth Edition, Vol. 2, 6th Edition, Thomson Reuters,
pp. 497-509.
18
Wilhelmsen, T. L., The Norwegian Marine Insurance Plan and Substandard Ships, in Huybrechts, M.
(Ed.), Marine Insurance at the Turn of the Millennium, Vol. 1, Intersentia, Antwerpen, 1999, pp. 123-144.

102
Adriana V. Padovan: THE ELEMENTS OF SEAWORTHINESS IN THE CONTEXT...

comparative law studies focused specifically on the concept of seaworthiness in

the context of marine insurance law.
Furthermore, it is submitted that the ongoing development of digital
technologies in shipping, including the fast-paced progress toward the operation
of autonomous commercial ships, may pose a challenge to the traditional legal
concept of seaworthiness, particularly in the context of marine insurance.
Many scholars and practitioners around the world have been exploring
the impact that technological developments and automatization in maritime
transport will have on maritime law,19 but only a smaller part of the available

19
See, for example, Caligiuri, A., A New International Legal Framework for Unmanned Maritime
Vehicles?, in Caligiuri, A. (Ed.), Legal Technology Transformation. A Pratical Assesment, Editoriale
Scientifica, Napoli, 2020, pp. 99-109; Chircop, A., Testing International Legal Regimes: The Advent of
Automated Commercial Vessels, German Yearbook of International Law, Vol. 60, No. 1, 2018, pp. 1-31;
Giunta, L., The Enigmatic Juridical Regime of Unmanned Maritime Systems, OCEANS 2015 – Genova,
2015, pp. 1-9; Hogg, T.; Ghosh, S., Autonomous Merchant Vessels: Examination of Factors that Impact
the Effective Implementation of Unmanned Ships, Australian Journal of Maritime & Ocean Affairs, Vol.
8, No. 3, 2016, pp. 206-222; Karlis, T., Maritime Law Issues related to the Operation of Unmanned
Autonomous Cargo Ships, WMU Journal of Maritime Affairs, Vol. 17, no. 1, 2018, pp. 119-128; Kim,
T.; Schröder-Hinrichs, J. U., Research Developments and Debates Regarding Maritime Autonomous
Surface Ship: Status, Challenges and Perspectives, in Ko, B. W., Song, D. W. (Eds.), New Maritime
Business. WMU Studies in Maritime Affairs, Vol. 10, Springer, Cham, 2021, pp. 175-197; La Torre, U.,
Navi senza equipaggio e shore control operator, Diritto dei trasporti, 2019, pp. 487-518; Mavilla, L.,
The Conflict between Maritime Law & Unmanned Shipping: Manning the Unmanned Ghost Ships?,
Supremo Amicus, Vol. 10, 2019, pp. 142-152; Mudrić, M.; Ferreira, F.; Autonomous Surface Vessels and
COLREGs: Considering the Amendments, Poredbeno pomorsko pravo = Comparative Maritime Law,
Vol. 61 (2022), No. 176, pp. 323-361; Musi, M., The Phenomenon of «Mass»: Is it Time to Rethink
the Current Maritime Liability Regime?, Rivista del diritto della navigazione, 2021, No. 2, pp. 763-805;
Nawrot, J.; Pepłowska-Dąbrowska, Z., Revolution or Evolution? Challenges posed by Autonomous
Vessels for National and International Legal Framework, Comparative Law Review, No. 25, 2019, pp.
239-255; Osinuga, D., Unmanned Ships: Coping in the Murky Waters of Traditional Maritime Law,
Poredbeno pomorsko pravo = Comparative Maritime Law, Vol. 59, No. 174, 2020, pp. 75-105; Parker,
J., The Challenges Posed by the Advent of Maritime Autonomous Surface Ships for International
Maritime Law, Australian and New Zealand Maritime Law Journal, Vol. 35, No. 1, 2021, pp. 31-42;
Pritchett, P. W., Gost Ships: Why the Law Should Embrace Unmanned Vessel Technology, Tulane
Maritime Law Journal, 2015, Vol. 40, No. 1, pp. 197-225; Ringbom, H., Regulating Autonomous
Ships – Concepts, Challenges and Precedents, Ocean Development & International Law, Vol. 50, No. 2,
2019, pp. 1-29; Ringbom, H.; Røsæg, E.; Solvang, T. (Eds.), Autonomous Ships and the Law, Routledge,
London, New York, 2020; Siccardi, F., Le navi autonome. Maritime Autonomous Surface Ships
(MASS), Diritto marittimo, 2019, pp. 848-862; Soyer, B.; Tettenborn, A., (Eds.), Artificial Intelligence
and Autonomous Shipping: Developing the International Legal Framework, Hart Publishing, Oxford, 2021;
Soyer, B.; Tettenborn, A. (Eds.), New Technologies, Artificial Intelligence and Shipping Law in the 21st
Century, Informa Law from Routledge, Abingdon, New York, 2020; Suri, M.; Wróbel, K., Identifying
Factors Affecting Salvage Rewards of Crewless Vessels — Lessons from a Case Study, WMU Journal
of Maritime Affairs, Vol. 21, 2022, pp. 213–232; Van Hoydonk, E., The Law of Unmanned Merchant
Shipping – An Exploration, Journal of International Maritime Law, Vol. 20, 2014, pp. 403-423; Veal,
R., Regulation and Liability in Autonomous Shipping: Panoptic View, Tulane Maritime Law Journal,
Vol. 45, No. 1, 2020, pp. 101-138; Veal, R.; Ringbom, H., Unmanned Ships and the International
Regulatory Framework, Journal of International Maritime Law, Vol. 23, No. 2, 2017, pp. 110-118; Veal,
R.; Tsimplis, M., The Integration of Unmanned Ships into the Lex Maritima, Lloyd’s Maritime and
Commercial Law Quarterly, 2017, pp. 303-335; Veal, R.; Tsimplis, M; Serdy, A., The Legal Status and
Operation of Unmanned Maritime Vehicles, Ocean Development & International Law, Vol. 50, No. 1,
2019, pp. 23-48.

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Adriana V. Padovan: THE ELEMENTS OF SEAWORTHINESS IN THE CONTEXT...

publications deals with the relevant issues related to marine insurance.20

The present paper analyses the elements of the legal notion of seaworthiness
in the context of marine insurance. It does not go into the legal consequences
of unseaworthiness, the nature of the insured’s duty relating to seaworthiness,
nor into the distribution of the burden of proof relating to seaworthiness in
the context of a marine insurance contract. The elements of seaworthiness are
explored in view of the traditional seaworthiness doctrine and faced with the
challenges brought by the technological developments and automatization in
maritime transport. The paper presents primary findings of research in progress
that shall constitute a basis for further study entailing a comparative law
analysis of the legal consequences of unseaworthiness under various national
legal systems of civil law and common law tradition in view of the emergence of
remotely controlled or operated ships and autonomous ships.

2. The Legal Notion of Seaworthiness in General

Seaworthiness is essentially a matter of fact, in other words, it refers to the
actual condition of the ship, the totality of its technical properties, the properties
of its crew, equipment, bunkers and supplies, documentation, cargo loading and
stowage etc.21

20
Carey, L., All Hands off Deck? The Legal Barriers to Autonomous Ships, National University of
Singapore, Faculty of Law Working Paper Series, NUS Centre for Maritime Law Working Paper No.
17/06, August 2017, http://law.nus.edu.sg/wps/ (access: 12th January 2023); Constantino Chagas Lessa,
J., Bulut, B., A New Era, a New Risk! “A Study on the Impact of the Developments of New Technologies
in the Shipping Industry and Marine Insurance Market”, in Marano, P., Noussia, K. (Eds.) InsurTech:
A Legal and Regulatory View, AIDA Europe Research Series on Insurance Law and Regulation, Vol 1.
Springer, Cham, 2020, pp. 313-342; CORE Advokatfirma, CEFOR, Maritime Autonomous Surface
Ships: Zooming in on Civil Liability and Insurance (Report, December 2018) https://static.mycoracle.
com/igpiwebsite/media/articleattachments/maritime_autonomousshipsreport_dec_18_6URrRcy.
pdf (access: 12th January 2023); Rodríguez Delgado, J. P., The Legal Challenges of Unmanned Ships
in the Private Maritime Law: What Laws Would You Change?, in Musi, M. (Ed.), Port, Maritime
and Transport Law Between Legacies of the Past and Modernization, Il diritto marittimo – Quaderni,
Vol. 5, Bonomo Editore, Bologna, 2018, pp. 493-523; So, L.; Sooksripaisarnkit, P., op. cit.; Soyer, B.,
Autonomous Ships and Private Law Issues, in Soyer, B.; Tettenborn, A., (Eds.), Artificial Intelligence
and Autonomous Shipping: Developing the International Legal Framework, Hart Publishing, Oxford,
2021, pp. 63-80; Trowers, S. N., Smooth Sailing or a Risky Expedition: A Critical Exploration into
the Innovation of Unmanned Maritime Vehicles and Its Potential Legal and Regulatory Impacts on
the Insurance Sector, in Marano, P., Noussia, K. (Eds.), InsurTech: A Legal and Regulatory View, AIDA
Europe Research Series on Insurance Law and Regulation, Vol 1. Springer, Cham, 2020, pp. 363-401,
Weigel, A. M., & Belknap, T., Autonomous vessels: Legal, Regulatory, and Insurance Issues, RAIL:
The Journal of Robotics, Artificial Intelligence & Law, 2020, vol. 3, no. 3, pp. 163-170; Zhu, L.; Xing,
W., Probing Civil Liability Insurance for Unmanned/Autonomous Merchant Ships, in Marano, P.,
Noussia, K. (Eds.), InsurTech: A Legal and Regulatory View, AIDA Europe Research Series on Insurance
Law and Regulation, Vol 1. Springer, Cham, 2020, pp. 343-362.
21
Similarly Foster, N. R., op. cit. p. 479-480.

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Adriana V. Padovan: THE ELEMENTS OF SEAWORTHINESS IN THE CONTEXT...

For legal purposes, the interpretation of that term may differ depending on
the context. As a legal concept, seaworthiness may have a different meaning when
it comes to marine insurance contracts, shipbuilding contracts, bareboat charter
contracts, contracts of affreightment, towage contracts, seafarers’ employment
contracts, ship sale and purchase, general average, or in the context of safety of
navigation and protection of the marine environment.22
In addition, seaworthiness is not an absolute standard, given that maritime
transport technology is constantly advancing, followed by developments in the
regulation (national and international) in the field of safety of navigation and
protection against marine pollution from ships.23
Thus, the legal meaning of seaworthiness is relative to the maritime law
context in which it is applied but it also changes over time as its standard is
constantly increasing in connection with the advancement of technology in
shipping.
Since seaworthiness is a matter of fact and it is a relative term, the courts
have to define seaworthiness on a case-by-case basis.24 When answering the
question of whether a ship is unseaworthy due to a certain defect or deficiency,
the specific circumstances of each individual case should be considered. Indeed,
the interpretation of the notion of seaworthiness in the context of private
shipping law relationships has developed through a rich judicial practice in
various national jurisdictions.

2.1. Seaworthiness in the Context of Carriage of Goods by Sea

In the context of carriage of goods by sea, the notion of seaworthiness relates
to the fitness of a ship to perform the contracted voyage. The concept must
be interpreted adequately, depending on the nature of the ship, the service in
which it is employed, and the particular voyage or stage of the voyage, on which
the ship is engaged.25 Therefore, in this context seaworthiness means the ship’s
fitness to safely navigate, and to encounter the ordinary perils of the seas that
it is exposed to during the contracted voyage, to preserve the goods received

22
Similarly Tetley, W., op. cit., p. 52. See also Pengfei Zhang, P., Phillips, E., Safety First: Reconstructing
the Concept of Seaworthiness under the Maritime Labour Convention 2006, Marine Policy, Vol. 67
(2016), pp. 54–59, on p. 54.
23
According to Justice Cresswell in the Eurasian Dream (at para. 127) “seaworthiness must be judged by
the standards and practices of the industry at the relevant time”. Papera Traders Co. Ltd. and Others v.
Hyundai Merchant Marine Co. Ltd. and Another (The Eurasian Dream) [2002] 1 Lloyd’s Rep. 719.
24
Foster, N. R., op. cit., p. 478. For case law definitions of seaworthiness in the practice of English, US and
Australian courts see Zhang, P.; Phillips, E., op. cit., p.55.
25
Similarly, Schoenbaum, T., op. cit., p. 499; see also Zhang, P.; Phillips, E., op. cit., p. 54.

105
Adriana V. Padovan: THE ELEMENTS OF SEAWORTHINESS IN THE CONTEXT...

and to safely transport them to the contracted destination.26 In other words, in

this context seaworthiness relates to the ship’s physical properties and technical
characteristics relevant to its maritime function, as well as its adequacy in
relation to the particular cargo that it is contracted to carry.27
The doctrine differentiates between a) general seaworthiness, relating to the
general condition of a ship,28 and b) special seaworthiness, which is additionally
required to carry out the specifically contracted voyage.29, 30 In the context of the
transport of goods by sea, in order to be seaworthy, the ship must have general
and special seaworthiness.31
Furthermore, according to the prevailing position in the doctrine of maritime
law, for a ship to be deemed seaworthy in the context of carriage of goods by
sea and contracts of affreightment, it must have a) the fitness to perform the
contracted voyage in the navigational sense and b) the fitness to receive and
carry the particular cargo (to safely load, stack, store, preserve, transport and
unload the cargo in the condition in which it was received for transport).32 The
position is inter alia reflected in article III, rule (1) of the Hague and Hague-
Visby Rules33 according to which the carrier has the obligation to exercise due
diligence before and at the beginning of the voyage to make the ship seaworthy,
to properly man, equip and supply the ship, and to make the holds, refrigerating
and cool chambers, and all other parts of the ship in which goods are carried, fit
and safe for their reception, carriage and preservation.34

26
Similarly, Marin, J., op. cit., pp 490-491.
27
Similarly, Pavić, D., Ugovorno pravo osiguranja, op. cit. p. 565-566.
28
For example, the strength of the ship’s structure, stability, technically sound hull, watertight hatch
covers, sound condition of machinery, installations, and gear, proper fire protection system, etc.
29
For example, enough fuel and supplies, a sufficient number of qualified and trained crew members,
up-to-date nautical charts, adequate additional equipment for sailing in special conditions (such as for
sailing through ice, if the ship is not already adapted for such sailing by its very construction), etc.
30
Marin, J., op. cit. p. 491. See also Pavić, D., Ugovorno pravo osiguranja, op. cit., p. 566.
31
Ibid.
32
Jakaša, B., Sistem plovidbenog prava Jugoslavije – Ugovori o iskorištavanju brodova, Treća knjiga,
Informator, Zagreb, 1980, pp.133-139, especially p. 134; Pavliha, M., Implicitna obveznost prevoznika
iz ladjarske pogodbe na potovanje glede sposobnosti ladje za plovbo, Pravnik, Ljubljana, 1993, No. 1-3,
pp. 29-42; Wilson, J. F., Carriage of Goods by Sea, 7th Edition, Pearson Education Limited, Harlow, 2010,
pp. 9-15, 187-193, 211-214; Schoenbaum, T. J., op. cit., pp. 29-31.
33
Convention for the Unification of Certain Rules of Law relating to Bills of Lading, Brussels, 25 August
1924 as amended by the Protocol signed at Brussels on 23 February 1968 and as furthermore amended
by the Protocol signed at Brussels on 21 December 1979.
34
The seaworthiness obligation is similarly defined in the UN International Convention on the Carriage
of Goods by Sea, Hamburg, 1978 (the Hamburg Rules) and the UN Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea, New York, 2008 (the Rotterdam Rules),
except that the carrier’s duty is extended to cover the entire voyage.

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Adriana V. Padovan: THE ELEMENTS OF SEAWORTHINESS IN THE CONTEXT...

2.2. Seaworthiness in the Context of a Shipbuilding Contract

In the case of a contract for the construction of a ship, the shipbuilder is obliged
to build and deliver a ship that complies with the contractual requirements,
rules of practice and statutory and classification requirements so that the ship
can be properly certified, including inter alia certificate of seaworthiness.35,36 In
this sense, seaworthiness is assessed according to the relevant administrative
maritime law, particularly according to the internationally adopted maritime
safety standards and standards of pollution prevention for ships,37 as well as
the respective requirements prescribed by the relevant national laws of the flag
states, and, when applicable, the ship safety legislation of the European Union.38.

2.3. Seaworthiness in the Context of a Bareboat Charterparty

In the case of a bareboat charterparty, it is the lessor’s duty to furnish a
seaworthy ship.39 The ship must be reasonably fit for ordinary or special use as
stipulated in the bareboat charter party. According to the Croatian Maritime
Code (hereinafter: MC), the lessor is liable for damage caused by defects
that make the ship unseaworthy or reduce its fitness for contracted or normal
exploitation, if these defects existed at the time of handing over the ship to the
lessee (MC, art. 662, in connection with art. 650, para. 1). In fact, this means
that the lessor is liable for unseaworthiness since the ship is leased for the
purpose of performing navigational activities (MC, art. 658). The meaning of
35
Maritime Code of the Republic of Croatia, Official Gazette, No. 181/04, 76/07, 146/08, 61/11, 56/13,
26/15, 17/19, art. 433.
36
Similarly, Marin, J., op. cit., p. 492, especially in fn. 7.
37
Typically, the following are the relevant IMO conventions: the International Convention for the Safety
of Life at Sea, 1974, as amended (SOLAS), International Convention for the Prevention of Pollution
from Ships, 1973, as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997
(MARPOL), International Convention on Load Lines,1966 (LL), the Torremolinos International
Convention for the Safety of Fishing Vessels, 1977 (SFV), superseded by the 1993 Torremolinos
Protocol, Cape Town Agreement of 2012 on the Implementation of the Provisions of the 1993 Protocol
relating to the Torremolinos International Convention for the Safety of Fishing Vessels, Convention
on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGs).
38
For example, the relevant EU ship safety legislation includes: Directive 2003/25/EC of the European
Parliament and of the Council of 14 April 2003 on specific stability requirements for ro-ro passenger
ships, OJ L 123, 17.5.2003 (as amended); Commission Directive 2010/36/EU of 1 June 2010
amending Directive 2009/45/EC of the European Parliament and of the Council on safety rules
and standards for passenger ships, OJ L 162/1, 29.6.2010; Commission Directive 2002/35/EC of 25
April 2002 amending Council Directive 97/70/EC setting up a harmonised safety regime for fishing
vessels of 24 metres in length and over, OJ L 112 , 27.04.2002; Directive 2002/84/EC of the European
Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and
the prevention of pollution from ships, OJ L 324, 29.11.2002; Regulation (EU) No 530/2012 of the
European Parliament and of the Council of 13 June 2012 on the accelerated phasing-in of double-hull
or equivalent design requirements for single-hull oil tankers (recast), OJ L 172/3, 30.6.2012.
39
See for example BIMCO’s BARECON 2017 Standard Bareboat Charter Party, cl. 3.

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seaworthiness in the context of bareboat charter parties, given the nature, usually
longer duration, and content of such contracts, will in principle be limited to
general seaworthiness, but this will still depend on what is stipulated in the
specific case.40

2.4. Seaworthiness in the Context of Maritime Safety, Security and

Pollution Prevention
In administrative maritime law, the requirements that a ship must meet in
order to be seaworthy are prescribed by the international rules on the safety
of navigation and the prevention of marine pollution from ships (SOLAS,
MARPOL, Load Lines, COLREG41, STCW42, ISM43 and ISPS44 Codes,
MLC 2006,45 etc.), the ship safety legislation of the EU, the flag states and port
states’ statutory law and the rules of classification societies. The MC prescribes
seaworthiness requirements for ships flying the Croatian flag. It stipulates that
a ship is seaworthy in certain categories of navigation and for a specific use if
it complies with the provisions of the MC, the sub-laws adopted on the basis
of the MC and the Technical Rules for Seagoing Ships, in connection with the
safety of human life, the ship, and property; with the ship and company safety
and security management systems; with the ship source pollution prevention;
with the protection of the marine environment from bio-invasive species in
ballast water, from the harmful effects of anti-fouling systems; with the safety
at work, the accommodation of the seafarers and other persons employed on
the ship; with the conditions for transporting passengers and the safety of
cargo handling devices. Furthermore, the ship must be crewed with at least
the minimum prescribed number of crew members appropriately qualified,
certified, and trained, as is necessary for the safe navigation of the ship. The
accommodation and the number of passengers on board must be in accordance
with the regulations governing the transport of passengers and the terms
and conditions specified in the ship’s documents, records, and books and the
approved technical documentation. The cargo on the ship must be loaded,
stowed, distributed, and secured in accordance with the regulations governing

40
Similarly, Marin, J., op. cit., pp. 492-493.
41
Convention on the International Regulations for Preventing Collisions at Sea, 1972.
42
The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers,
1978.
43
The International Management Code for the Safe Operation of Ships and for Pollution Prevention,
1993 as amended.
44
The International Ship and Port Facility Security Code, 2002.
45
Maritime Labour Convention, 2006.

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the conditions of cargo transportation and with the terms and conditions
specified in the ship’s documents, records, and books and the approved technical
documentation of the ship. The prescribed conditions for the provision of
medical care must be ensured on the ship and the ship must have and properly
run a ship’s pharmacy.46
The seaworthiness of ships flying the Croatian flag is thus established by a
recognized organization (Croatian Register of Shipping), through a system of
technical inspections, and it is evidenced by the issuance of appropriate ship
documents, records, and books.47
However, the fact that the ship has all the appropriate documents, records,
and books does not necessarily mean that the ship is in fact seaworthy at the
specific moment.48 Still, formal seaworthiness creates a strong presumption of
actual seaworthiness, and it is a necessary element of actual seaworthiness.49
In the context of private shipping law relationships, it is important to
determine the actual seaworthiness of the ship at the relevant time. Formal
compliance with international and national regulations in itself does not mean
that the ship was seaworthy and fit to perform the contracted voyage at the
relevant time.50
However, in practice, it is common for the shippers, charterers, insurers,
banks that finance ship sales and purchases, and other stakeholders entering
into business with shipowners, to require that the ship shall have all proper
certificates of class and documentation attesting their compliance with national
and international regulations. This is for at least two reasons. One is that formal
compliance with national and international regulations and class rules (especially
if it is a reputable classification society) still creates a certain presumption that
the ship is indeed seaworthy. The second reason is that the possession of certain
prescribed ship documentation is mandatory according to both national and
international regulations, which is checked and implemented through the system
of inspections and control of flag states and port states, so ships would not be
able to sail freely without adequate documentation. Therefore, the possession

46
MC, art. 76, para. 1 – 3.
47
MC, art. 77.
48
For example, Judge Prakash of the Singapore Court of Appeal in Marina Offshore Pte Ltd v. China Ins
Co (Singapore) Pte Ltd [2007] 1 Lloyd’s Rep. 66, Singapore CA, at p. 84 states that while a ship must
meet the requirements determined by the classification society in order to have a class of that society,
the class in itself does not mean the seaworthiness or unseaworthiness of the ship. The seaworthiness of
a ship must be assessed in relation to a particular voyage, and the fact that a ship does not have a class
does not mean that it is ipso facto unseaworthy for the purpose of that voyage.
49
See infra, chapter 4.3.
50
Marin, J., op. cit., p. 492.

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of all the necessary ship documentation is also one of the prerequisites for the
ship’s seaworthiness.51

3. Generally on Seaworthiness in the Context of Marine Insurance

As for the understanding of the concept of seaworthiness in the context of
carriage of goods, there is no prescribed absolute standard for the assessment of
seaworthiness in the context of marine insurance either, given that it is a factual
issue that depends on the circumstances of each individual case.52
A very general definition of seaworthiness, in the context of a marine
insurance contract, is given by the UK Marine Insurance Act 1906 in section
39(4) according to which a ship is deemed to be seaworthy when it is reasonably
fit in all respects to encounter the ordinary perils of the seas to which it is
exposed during the insured marine adventure. The emphasis is on “reasonably
fit in all respects”, which leaves enough room for the interpretation of that term
depending on the circumstances of each specific case.
Under Croatian law it is prescribed that in the context of hull and machinery
insurance, a ship is unseaworthy if it is generally unfit for navigation and if
it is unfit for a particular voyage and for carriage that it performs, due to
technical defects or insufficient equipment, inadequate manning, overloading
or inappropriate loading, an excessive number of passengers, or other reasons
(MC, art. 729, para. 3). The definition is not complete, and certain defects that
cause the ship to be unseaworthy are listed only as examples, considering their
impact on the severity of the risk.53
Generally, in hull and machinery insurance, seaworthiness is interpreted in
the narrower sense, as nautical fitness, and does not include the fitness of the
ship to accept, transport and preserve certain goods on the contracted voyage
(cargoworthiness). This is because the hull insurer has no interest in the fate
of the cargo on board, but only in the ship’s fate. Thus, for example, in terms
of the hull and machinery insurance contract, the ship will be seaworthy, even
though the ventilation system or the cooling system of the cargo hold is not
functioning, which makes it unfit for receiving and transporting cargo.54
On the other hand, the cargo insurer has a direct interest in the fate of the
cargo transported on the ship, whilst the P&I insurer has an indirect interest

51
Bennett, H., The Law of Marine Insurance, op. cit., p. 568.
52
Pavić, D., Pomorsko osiguranje – knjiga druga, op. cit., p. 77.
53
Pavić, D., Ugovorno pravo osiguranja, op. cit., p. 567.
54
Bennett, H., The Law of Marine Insurance, op. cit., p. 569.

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therein, as it insures the liability of the shipowner for damage to the cargo.
Therefore, the notion of seaworthiness in the context of cargo insurance and
P&I insurance is interpreted in the same way as in the context of the carriage of
goods, so that if the ship is used for cargo transportation, seaworthiness includes
the element of cargoworthiness.55,56 However, the legal concept of seaworthiness
is of principal relevance for the hull and machinery and P&I insurance, whilst
its importance in the context of cargo insurance has diminished, since the
warranty of seaworthiness is most frequently waived in the standard cargo
policies commonly used in practice.57, 58

4. Elements of Seaworthiness
4.1. The Physical Condition of a Ship
It is obvious that the term seaworthiness of a ship, in any case, includes the
physical condition of the ship, in particular its hull, machinery, installations, and
equipment. It also extends to the design and construction of the ship which
must comply with the statutory requirements and rules of the classification
societies. Thus, the courts identified very different problems as the causes of
the ship’s unseaworthiness, such as leaking hulls, hull structure weakened by
corrosion, deformed frames in the internal structure of the ship, cracks in
the hull, inappropriate or damaged anchors, engine failures, defective boilers
or generators, lack of or deficiency in the firefighting equipment, damaged
insulation of electrical wiring, lack of technical equipment, defective hatches,
poor condition of the pipes, defective pumps, error in construction or design in
any part of the ship, etc.59 However, not every defect in the physical condition

55
For example, the UK Marine Insurance Act in s. 40 (2) states that “[i]n a voyage policy on goods or
other moveables there is an implied warranty that at the commencement of the voyage the ship is not
only seaworthy as a ship, but also that she is reasonably fit to carry the goods or other moveables to the
destination contemplated by the policy.”
56
Bennett, H., The Law of Marine Insurance, op. cit., p. 569; See also Pavić, D., Pomorsko osiguranje
– knjiga druga, op. cit., p. 78. For an analysis of the concept of seaworthiness in the context of P&I
insurance, see Compania Maritima San Basilio S.A. v The Oceanus Mutual Underwriting Association
(Bermuda) Ltd
(The ‘‘Eurysthenes’’) [1976] 2 Lloyd’s Rep 171, and see also Hazelwood, S. J.; Semark, D., P&I Clubs:
Law and Practice, 4th Edition, Informa, London, 2010, pp. 53-54, 201, 204-205, 213-218.
57
Similarly, Soyer, B., Warranties in Marine Insurance, op. cit., p. 62.
58
See for example Institute Cargo Clauses (A) CL.252 1/1/82, cl. 5; Institute Cargo Clauses (A) CL.382
1/1/2009, cl. 5. See also Hudson, N. G., Madge, T, Marine Insurance Clauses, 4th Edition, Chapter
II: Marine Cargo Forms, Informa Law, London, 2005 (e-book). The idea behind the waiver of the
seaworthiness warranty in the standard cargo policies is that the insured cargo owner has very little or
no control over the actual condition of the ship carrying the insured cargo.
59
Bennett, H., The Law of Marine Insurance, op. cit., p. 566. See also Soyer, B., Warranties in Marine
Insurance, op. cit., pp. 69-73.

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of a ship leads to unseaworthiness. For example, the shipowner can allow the
ship to sail, knowing that there is a defect on the ship, having assessed that it is
a (temporary) defect that the crew can easily rectify during the voyage, or that it
is such a minor defect that it does not affect the ship’s seaworthiness.60 However,
the fact that the defect is easily repairable or that it is a minor defect does not
necessarily mean that the ship is still seaworthy. The question of whether the
ship is unseaworthy due to repairable or minor defects is a question of fact
that should be evaluated in the specific case.61 The issue then is whether a ship
with a defect is reasonably fit for navigation in the circumstances of a particular
case, in other words, whether such defect affects the ship’s ability to encounter
the ordinary perils of the seas. The question is: “Would a prudent owner have
required that [the relevant defect] should be made good before sending his ship
to sea, had he known of it? If he would, the ship was not seaworthy.”62 In this
sense, Mr. Justice Clarke concludes in the Fjord Wind63 case: “seaworthiness is
concerned with the state of the vessel rather than with whether the owners
acted prudently or with due diligence. The only relevance of the standard of the
reasonable prudent owner is to ask whether, if he had known of the defect, [...]
he would have taken steps to rectify it.”64

4.2. Master and Crew

It has been broadly acknowledged that the human element plays a vital role
in the safety of navigation. Thus, the concept of a ship’s seaworthiness certainly
includes the adequacy of the crew, both in terms of number and qualifications,
with regard to the foreseeable circumstances of the specific marine adventure.65
In this respect, the competence of the crew is determined as a real factual
situation, and not only in accordance with the formal qualifications, although
the lack of formal qualifications may be relevant when determining whether
the insured was aware of the crew’s incompetence or when assessing whether
the insured acted with due diligence in relation to the crew management. The
unseaworthiness of a ship due to the incompetence of the master or crew

60
Soyer, B., Warranties in Marine Insurance, op. cit., p. 72; see also Marin, J., op. cit., p. 493.
61
Bennett, H., The Law of Marine Insurance, op. cit., p. 567.
62
McFadden v. Blue Star Line, (1905) 1 KB 697; see also: Marin, J., op. cit., p. 493; Project Asia Line Inc
v. Shone (The Pride of Donegal) [2002] 1 Lloyd’s Rep. 659, para. 38, 39, 82 − 85.
63
[2000] 2 Lloyd’s Rep. 191; cited as in the Pride of Donegal [2002] 1 Lloyd’s Rep. 659, p. 666.
64
Cited as in the Pride of Donegal [2002] 1 Lloyd’s Rep. 659, p. 666. Otherwise, the test of a prudent
shipowner in the context of seaworthiness under English law was established in 1926 in the case of
F. C. Bradley & Sons, Ltd v. Federal Steam Navigation Company, Ltd (1926) 24 Ll. L. Rep. 59. See
Marin, J., op. cit., p. 493.
65
Bennett, H., The Law of Marine Insurance, op. cit., p. 567.

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may result from a lack of general maritime skills due to insufficient education
or training. Equally, it can arise from ignorance of the characteristics of the
particular ship or its equipment on the part of the master or the crew, who are
otherwise generally competent seamen. It is irrelevant whether such ignorance
exists because the master or the crew did not inform themselves enough about
the characteristics and the way of functioning of the specific ship, or because the
shipowner did not sufficiently instruct them.66
Thus, for example, in the Star Sea67 the House of Lords held that the ship,
which suffered great damage due to a fire, was unseaworthy for several reasons,
including the master’s incompetence resulting from his lack of knowledge of
proper handling of the CO2 fire-extinguishing system on that ship.
Finally, in addition to general maritime skills and knowledge of the features
and ways of functioning of the specific ship and its equipment, the master and
crew should be such that the shipowner can rely on their physical, psychological
and mental fitness, in other words, they should be able and willing to apply
their knowledge and skills in an appropriate manner in specific circumstances.
Thus, the incompetence of the master or crew can be caused, for example, by
bad health, illness, addiction, or some other physical or psychological deficiency.
In the case of unseaworthiness due to the physical condition of the ship, as well
as unseaworthiness due to the incompetence of the master or crew, the test of a
prudent shipowner should be applied appropriately.68
It should be borne in mind that unseaworthiness cannot simply be attributed
to the ship solely on the basis of one or more errors of the seamen. It should
be appreciated what lies at the root of such possible incidents in a specific
case, in other words, whether a mistake or a series of mistakes indicates the
incompetence of the master or crew, which really affects the state of the ship, or
whether it is a case of their ordinary negligence.69
Regarding the appropriate number and composition of the crew, the position
of judicial practice is that the seaworthiness of the ship requires that the ship has
a sufficient number of crew at the beginning of the voyage for the entire voyage.
It should be borne in mind that the crew must be composed so that there are

66
Ibid. Similarly, about the element of safe manning as a prerequisite of seaworthiness under Turkish
law and practice, see: Aydin, S.; Ulusoy M. E., Seaworthiness of the Ship in Turkish law, International
Journal of Business and Management Studies, Vol. 4 (2012), No. 1-2, pp. 307–313, especially pp. 309-310.
67
Manifest Shipping Co Ltd v. Uni-Polaris Insurance Co Ltd (The Star Sea) [2001] 1 Lloyd’s Rep. 389,
HL, p. 394.
68
For a more detailed discussion about unseaworthiness caused by the incompetence or inefficiency of the
master or crew see The Eurasian Dream [2002] op. cit., pp. 736 − 737.
69
Ibidem. See also: Bennett, H., The Law of Marine Insurance, op. cit., pp. 567 – 568; Soyer, B., Warranties
in Marine Insurance, op. cit., pp. 78-82.

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seamen among them who are capable of replacing the master or officers, if the
need arises during the voyage.70, 71
Finally, we agree with Zhang and Phillips who submit that the standard
of seaworthiness with which a ship must comply should be tested against the
requirements of the MLC 2006 prescribing certain obligations for shipowners
in respect of providing a safe workplace, decent working and living conditions
and health protection.72 Given that the safety of the ship, cargo and environment
is inseparable from the employment and work conditions on board a ship, as
they considerably influence seafarers’ performance, the requirements prescribed
by the MLC 2006 are significantly relevant for seaworthiness.73

4.3. Ship’s Documentation (Documentary Seaworthiness)

In accordance with international maritime conventions and national
regulations of flag states and port states, as well as the regional agreements on
port State control (Memoranda of Understanding or MoUs74), it is mandatory
for ships to have certain valid certificates, books and other documentation,
which must be carried on board at all times. The absence of any of these
documents on the ship, which are necessary for the marine adventure to be
carried out, makes the ship formally unseaworthy.75 Particularly important in
this sense are certificates and documents confirming the ship’s compliance with
the international safety, security, labour and environmental standards, including

70
Bennett, H., The Law of Marine Insurance, op. cit., p. 568.
71
An example of the established unseaworthiness of the ship due to, inter alia, the insufficient number
of crew and the incompetence of the master is found in the case of the sinking of the ship “Borak”.
Croatian courts dealt with this case between the insured shipowner as the plaintiff, and the ship hull
and machinery insurer, as the defendant. From the reasoning in the judgment of October 4, 2005
(judgment no. Pž-523/2005-3) of the High Commercial Court, as the court of appeal, it can be seen
that the first-instance court established the unseaworthiness as follows: “[...] the ship M/V ‘Borak’
did not have an adequate crew in accordance with the Maritime Code since there were only three
crew members on board at the time of the accident [...] so the crew was not manned in accordance
with article 147 and article 148 of the Maritime Code [...] it was further established that the master
persistently and continuously committed maritime offenses, that he was punished for this several times
[...] that he consciously skimped on the prescribed elements of the safety of navigation.” In this case,
the Supreme Court of the Republic of Croatia also decided on the plaintiff ’s review, which was rejected
by the judgment of December 13, 2006 (judgment no. Revt 116/2006-2).
72
Zhang, P.; Phillips, E., op. cit., p. 57.
73
Ibid, pp. 56, 57.
74
Paris MoU; Tokyo MoU; Acuerdo de Viña del Mar; Caribbean MoU; Abuja MoU; Black Sea MoU;
Mediterranean MoU; Indian Ocean MoU; The Riyadh MoU.
75
Bennett, H., The Law of Marine Insurance, op. cit., p. 568. See also Soyer, B., Warranties in Marine
Insurance, op. cit., p. 76-77. Similarly, Similarly, So, L. K.; Sooksripaisarnkit, P., op. cit., p. 24.

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the compulsory insurance requirements76, implemented through the systems

of inspections by flag states, port states and classification societies.77 Besides
the respective ship certificates, documentary seaworthiness presupposes the
possession of the plan of the ship’s ballast and fuel systems, updated navigational
maps charts and nautical publications as are appropriate for the safe navigation
of the ship.78 According to a recent decision of the UK Supreme Court in the
CMA CGM Libra,79 a ship is considered unseaworthy due to a defective passage
plan, as the passage plan must be prepared before the commencement of the
voyage by the master and his officers in line with the IMO Guidelines for
Voyage Planning.80
Thus, for example, Mr. Justice Smith, in the Pride of Donegal,81 discussing the
requirements for the ship’s ability to sail, concludes: “…the vessel must carry
necessary documents for the voyage, that is to say those which may be ‘required
by the law of the vessel’s flag or by the laws, regulations or lawful administrative
practices of governmental or local authorities at the vessel’s port of call’ [...]
However, this does not include documents which would simply facilitate the
voyage or the owner’s compliance with the charterers’ requirements or without
which the vessel must be delayed.”82

4.4. Cargo Loading and Stowage

Overloading, inappropriate stowage, bad trimming, and similar can be
qualified as a cause of unseaworthiness if it endangers the safety of the ship. If
improper loading and stowage has harmful consequences only for the cargo, and
76
Compulsory insurance for shipowners is prescribed under the following IMO conventions that
are in force: International Convention on Civil Liability for Oil Pollution Damage (CLC) 1992,
International Convention on Civil Liability for Bunker Oil Pollution Damage (BUNKER) 2001,
Nairobi International Convention on the Removal of Wrecks 2007, Athens Convention relating to the
Carriage of Passengers and their Luggage by Sea (PAL) 2002, MLC 2006. Furthermore, compulsory
insurance for maritime claims is prescribed by Directive 2009/20/EC of the European Parliament and
of the Council of 23 April 2009 on the insurance of shipowners for maritime claims, OJ L 131, 28th
May 2009.
77
See supra chapter 2.4.
78
Similarly, Soyer, B., Warranties in Marine Insurance, op. cit., p. 76.
79
Alize 1954 and another v. Allianz Elementar Versicherungs Ag and others (The CMA CGM Libra)
[2021] UKSC 51; [2021] 2 Lloyd’s Law Reports 613.
80
In this case the ship grounded on an uncharted shoal. The shipowners’ claim for the general average
contribution against cargo interests under the applicable York Antwerp Rules was rejected because
the ship was found unseaworthy within the meaning of the Hague Rules, article III, rule (1) due
to a defective passage plan. For a more detailed analysis of the case see Pospišil, M., The Impact of
CMA CGM Libra on the Allocation of Risk in a Maritime Adventure, Poredbeno pomorsko pravo =
Comparative Maritime Law, Vol. 61 (2022), No. 176, pp. 447–475.
81
The Pride of Donegal [2002] 1 Lloyd’s Rep. 659
82
Ibid, para. 41.

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does not jeopardize the safety of the ship, then there is no seaworthiness of the
ship in the context of ship hull and machinery insurance but could be relevant
in the context of cargo insurance and P&I cover, as it would amount to lack of
cargoworthiness of the ship.83,84

5. The Challenges of New Information Technologies and

Automatisation in Maritime Transport
Currently, there are a number of (semi)autonomous ship design projects
developed worldwide and it is expected that the commercial operation of these
ships will become reality in the near future.85 In addition, after the first large
concept study, the EU-financed MUNIN project,86 there are several large

83
Some practical examples of such cases are the loading of cargo of chocolate and gorgonzola in the same
ship’s hold, which caused the chocolate to spoil; or stacking overweight bags of palm kernels on top of
palm oil drums, leading to damage to the drums and leakage of oil into the ship’s hold. See Bennet, H.,
The Law of Marine Insurance, op. cit., p. 570. See also Soyer, B., Warranties in Marine Insurance, op. cit.,
pp. 82-83.
84
An example of unseaworthiness established due to improper loading and stowage of cargo is found
in the decisions of Croatian courts in the case of the sinking of M/V “Borak” (cited in fn. 71). The
unseaworthiness was established as the cause of the sinking of the ship as follows: “[...] the cargo was
not loaded, stowed, distributed and secured properly and in accordance with the provisions of article
110 of the Maritime Code and the rules for the transport and stowage of cargo prescribed by the
Ordinance for the technical supervision of marine ships, so it was determined that a significant volume
of free space was visible in the left part of the cargo hold (approx. 2.5 meters), that the fastening of the
cargo to the ship’s plating was not in accordance with the requirements of the Rules for the technical
supervision of marine ships [...] in the process it was established that the primary cause of the sinking
of the ship was the improper stowage and securing of the cargo, as well as of the canvas covers of the
cargo holds, as a result of which there was a shift of the cargo and inclination of the ship, as well as the
penetration of the sea into the warehouses through inadequately secured covers.”
85
See, for example, the Japanese Fully Autonomous Ship Program MEGURI2040 in “Japan Demonstrates
Long Distance Autonomous Ship Operations”, The Maritime Executive, 15 March 2002, https://
maritime-executive.com/article/japan-demonstrates-long-distance-autonomous-ship-operations;
“China Launches its First Autonomous Container Ship Service”, The Maritime Executive, 25 April
2022, https://maritime-executive.com/article/china-reports-first-autonomous-containership-entered-
service; Rolls-Royce, Autonomous Ships: The Next Step (Report, 2016), https://www.rolls-royce.com/~/
media/Files/R/Rolls-Royce/documents/%20customers/marine/ship-intel/rr-ship-intel-aawa-8pg.
pdf; “Yara Birkeland Begins Further Testing for Autonomous Operations”, The Maritime Executive,
29 April 2022, https://maritime-executive.com/article/yara-birkeland-christened-and-begins-testing-
for-autonmous-operations, SEAFAR, “Alewijnse and SEAFAR join forces to help make autonomous
shipping a reality”, 5 April 2022, https://seafar.eu/alewijnse-and-seafar-join-forces-to-help-make-
autonomous-shipping-a-reality/; Kongsberg Maritime, “Autonomous Electric Barges Being Developed
by Kongsberg Maritime and its Partners Will Help Ensure a Norwegian Retail Giant Becomes a
Global Pioneer in Sustainable Logistics”, The Full Picture Magazine, December 2020, https://www.
kongsberg.com/maritime/the-full-picture-magazine/2020/12/asko/ (access to all cited websites: 12th
January 2023).
86
Maritime Unmanned Navigation through Intelligence in Networks (MUNIN), http://www.
unmanned-ship.org/munin/ (access: 12th January 2023).

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research projects ongoing worldwide, including the EU projects AUTOSHIP87

and AEGIS,88 the Korean KASS project,89 and the Norwegian SFI AutoShip.90, 91
Furthermore, the relevant international organizations and professional
associations, as well as some national governments have conducted projects
dealing with, inter alia, the legal ramifications of the emerging new technologies
and operation of commercial autonomous ships, including, the International
Maritime Organization (IMO)92, Comité Maritime International (CMI)93, the
Baltic and International Maritime Council (BIMCO)94 and others.95
Consequently, there is a need to revisit the legal concept of seaworthiness,
and in particular, the relevant implications in the context of marine insurance.
The focus of this article is on the elements of seaworthiness, whilst the legal
consequences of unseaworthiness, including matters such as the degree of fault
of the insured for unseaworthiness, the burden of proof and allocation of risk in
connection therewith shall be further examined in the future studies.
In this context, considering the condition of a ship as an element of
seaworthiness, it is submitted that with the eventual emergence of shore-based
controlled or operated ships and (semi)autonomous ships, the notion should
87
Autonomous Shipping Initiative for European Waters, https://www.autoship-project.eu/ (access: 12th
January 2023).
88
Advanced, Efficient and Green Intermodal Systems, EU Project, https://aegis.autonomous-ship.org/,
(access: 12th January 2023).
89
Korean Autonomous Surface Ship Project, https://kassproject.org/en/main.php, (access: 12th January
2023).
90
Centre for Research-based Innovation (SFI) AutoShip, https://www.ntnu.edu/sfi-autoship, (access:
12th January 2023).
91
Rødseth, Ø. J.; Nesheim, D. A.; Rialland, A.; Holte, E. A., The Societal Impacts of Autonomous Ships:
The Norwegian Perspective, in Johansson, T. M. et al. (Eds.), Autonomous Vessels in Maritime Affairs,
Studies in National Governance and Emerging Technologies, Palgrave Macmillan, Cham, 2023, https://
doi.org/10.1007/978-3-031-24740-8_18, pp. 357-376.
92
IMO, MSC.1/Circ.1638, 3 June 2021, Outcome of the Regulatory Scoping Exercise for the Use of
Maritime Autonomous Surface Ships (MASS); IMO Legal Committee, 108th session (LEG 108), 26-
30 July 2021 - completed its work on the regulatory scoping exercise of conventions emanating from
the Legal Committee for the use of MASS.
93
CMI International Working Group Position Paper on Unmanned Ships and the International
Regulatory Framework, 2018, https://comitemaritime.org/wp-content/uploads/2018/05/CMI-
Position-Paper-on-Unmanned-Ships.pdf (access: 12th January 2023).
94
Hunter, G., First Ever Standard Contract for Autonomous Ship Underway, BIMCO, 6 November
2020, https://www.bimco.org/news/contracts-and-clauses/20201106-first-ever-standard-contract-for
-autonomous-ship-operation-underway (access: 12th January 2023).
95
See also: Danish Maritime Authority Report, Analysis of Regulatory Barriers to the use of Autonomous
Ships, Final Report, December 2017, available on https://dma.dk/Media/637745499808186153/
Analysis%20of%20Regulatory%20Barriers%20to%20the%20Use%20of%20Autonomous%20Ships.
pdf; The Nordic Association of Marine Insurers (CEFOR), Maritime autonomous surface ships:
Zooming in on civil liability and insurance, 2018, available on https://cefor.no/globalassets/documents/
industrypolicy/news/mass---zooming-in-on-civil-liability-and-insurance---10-december-2018.pdf
(both websites accessed on 12th January 2023).

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be extended to include not only the condition of the ship, its equipment,
installations, hardware and software on board, but also the corresponding
shore-based conditions affecting the fitness of the ship to encounter the
ordinary perils of the voyage that it is engaged on. This would inter alia relate
to the sound functioning of the relevant electronic and digital systems of cyber
security, remote control and operation or artificial intelligence if applicable.96 As
seaworthiness is not an absolute standard, the actual impact of an established
deficiency in the sphere of the ship’s information technologies on seaworthiness
will have to be assessed on a case-by-case basis. This will entail the engagement
of qualified and trained surveyors with special knowledge, expertise, and skills in
the field of information technology and cyber security. The notion should evolve
to accommodate the new regulatory requirements that will need to be developed
to ensure an adequate level of maritime safety, security, and pollution prevention
standards in view of the application of the new information technologies in
maritime transport.
As for the documentary seaworthiness, it is submitted that the concept
should continue to apply, but obviously by accommodating the new statutory
and class requirements that are expected to develop and adapt to the respective
innovations.97 The classification societies will need to extend their inspections to
encompass the ship’s IT systems on board and onshore, both in the phase of their
design, construction and installation, as well as in respect of the maintenance
ensuring the safe management and operation of remotely controlled or operated
ships, and (semi)autonomous ships.98 As noted by Veal and Tsimplis99, and by
So and Sooksripaisarnkit, this entails specifically trained and qualified surveyors
who possess knowledge and expertise in the field of information technology
and cybersecurity.100
As for the master and crew element of seaworthiness, the concept must
be revisited differently in respect of a) the semiautonomous ships with crew
on board and b) shore-base-controlled unmanned ships. In the case of the

96
Similarly, So, L. K.; Sooksripaisarnkit, P., op. cit., p. 29.
97
Classification societies are already adapting to the emerging new information technologies and
automatisation in marine systems and are actively participating in various fora contributing to the
development of marine autonomous surface ships (MASS). See, for example: IACS Position Paper
MASS, March 2019, available on https://iacs.org.uk/media/8673/iacs-mass-position-paper-rev2.pdf;
Design Code for Unmanned Marine Systems – Lloyd’s Register, February 2017, available on https://
www.lr.org/en/unmanned-code/; Position Paper on Remote-Controlled and Autonomous Ships,
DNV-GL, August 2018, available on https://www.dnv.com/maritime/publications/remote-controlled-
autonomous-ships-paper-download.html (cited websites accessed on 12th January 2023).
98
Similarly, So, L. K.; Sooksripaisarnkit, P., op. cit., p. 26.
99
Veal, R.; Tsimplis, M., The Integration of Unmanned Ships into the Lex Maritima, op. cit., pp. 315-316.
100
So, L. K.; Sooksripaisarnkit, P., op. cit., p. 26.

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semiautonomous ships with crew on board, the master and crew element of
seaworthiness is likely to continue to be interpreted in a more or less traditional
manner as analysed above. Clearly, it will need to evolve in respect of the seafarers’
qualifications and training, as necessarily seamen will be required to have special
knowledge and skill related to the new information technologies and cyber
security, and this might be implemented through the STCW Convention.101
In respect of autonomous and shore-base-controlled or operated ships with
no crew on board, the crew element of seaworthiness will have to be entirely
reformulated. In assessing the human element of seaworthiness, the focus will
be on the responsible shore-based staff. This is an area where the concept of
seaworthiness is expected to undergo substantial transformation. New criteria
will have to be developed and put in place when assessing the competencies
and qualifications of the responsible shore-based personnel, always keeping in
mind that seaworthiness is measured not only based on the formal compliance
with the prescribed standards, but primarily as a matter of fact in relation to the
circumstances of a particular case. Still, in our opinion, there is a lot of room
for an analogy between the conventional doctrine and the evolving concept of
seaworthiness. In this case, the approach that has so far been applied to the
assessment of the ship’s master and crew on board should mutatis mutandis,
by analogy, be applied to the shore-based personnel. Thus, according to the
conventional understanding, for a ship to be seaworthy it must be properly
manned in terms of sufficiency in number and competency, whereas according
to the reasoning in the “Hong Kong Fir”102 case, it may suffice that the crew
is efficient and competent for the ship to be seaworthy, notwithstanding the
numerical deficiency.103 Applying this reasoning by analogy on a shore-base-
controlled or operated ship, provided the shore-based operator personnel are
competent to ensure the safe navigation and operation of the ship, the human
element of seaworthiness would be fulfilled.104
Considering the variety of technical and organisational arrangements that
can be envisaged regarding the shore-based operation of unmanned ships,
a question may arise in relation to the shore-based personnel engaged as
independent contractors. It is submitted that for the purpose of establishing the
human element of seaworthiness, the responsible persons actually performing
the tasks of the shore-based control, monitoring or operation of the ship, or

101
Ibid, p. 29.
102
Hongkong Fir Shipping Company, Ltd. v. Kawasaki Kisen Kaisha, Ltd. (The Hongkong Fir) [1961] 2
Lloyd’s Rep. 478.
103
Carey, L., op. cit., p. 4.
104
Ibid.

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persons responsible for the safe maintenance and functioning of the autonomous
ship operating systems will have to be identified in each particular case and
their competencies and qualifications will need to be assessed regardless of
whether they are employed as the shipowner’s servants or engaged as individual
subcontractors.105 This is due to the fact that seaworthiness is a) a matter of fact
and b) it is broadly recognised that the shipowner remains personally responsible
for the seaworthiness of his ship regardless of whether he delegated any or all
of the tasks related to the maintenance of seaworthiness to other entities, e.g.
his servant or agent (master, crew, employee) or a service provider acting as an
independent contractor (ship management company, shiprepairer, etc.).106
Furthermore, it is submitted that as well as under the conventional
seaworthiness doctrine, a failure to provide a proper and safe ship management
system should cause unseaworthiness in the case of an unmanned ship.107 The
standard of a proper ship management system is nowadays measured against
the requirements of the ISM Code. Thus, shipowners are held responsible
for the safety management systems on their ships. In this respect, as noted by
Carey, it might be easier for the owners of unmanned ships to comply with the
ship safety management requirements, as all officers will be in the shore-based
control centre, and thus the shipowner will have greater control of the ship
operations because there will be less risk of miscommunication.108
Special challenges may be envisaged in this context in relation to the
employment of fully autonomous ships operated by artificial intelligence.
Namely, the functioning of such complex and sophisticated technology is
difficult to understand. Some writers refer to this as the “black box” problem,
whereby humans will not be able to detect the decision-making process nor the
reasons behind the decisions made by the artificial intelligence.109 The designer
of the technology may know how the artificial intelligence decision-making
process works, but this might not be the case for the shore-based operator

105
Compare with So, L. K.; Sooksripaisarnkit, P., op. cit., p. 26; see also Baughen, S., Who Is the Master
Now? Regulatory and Contractual Challenges of Unmanned Vessels, in Soyer, B.; Tettenborn, A. (Eds),
New Technologies, Artificial Intelligence, and Shipping Law in the 21st Century, Routledge, 2019, pp.
129 et seq.
106
About the non-delegable shipowners’ duty to maintain their ships in a seaworthy condition, see for
example Marin, J., op. cit., p. 495. The leading authority on the subject is the judgment in the case of
Riverstone Meat Co Pty Ltd v. Lancashire Shipping Co Ltd (The Muncaster Castle) (HL) [1961] 1
Lloyd’s Rep 57. The doctrine has been confirmed in many other cases, for example, in The Eurasian
Dream [2002] op. cit.; The CMA CGM Libra [2021] op. cit.
107
Carey, L., op. cit. p. 5.
108
Ibid.
109
So, L. K.; Sooksripaisarnkit, P., op. cit., p. 29.

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monitoring the autonomous ship.110 So it is difficult to foresee the criteria for

assessing the competencies of the shore-based operator of an autonomous ship
for the purpose of establishing seaworthiness. This is especially so if the shore-
based operator is deemed to be in the position of the master of the autonomous
ship, as in that case he ought to be held responsible for the ship’s conduct, whilst
artificial intelligence making decisions in navigation and operation of the ship
might represent a “black box” problem for him.111

6. Conclusion
Seaworthiness has been deeply rooted in maritime law. It has evolved
over time in line with the development of the technologies used in maritime
transport and shipping, and along with the increasing statutory and class
requirements of maritime safety, security, and environmental protection. The
centuries-old legal notion of seaworthiness has so far successfully adapted to the
technical advancements and regulatory changes in the field of maritime safety,
security and pollution prevention. In recent times, the question arises whether
and how the concept of seaworthiness will accommodate the emergence of
new information technologies and artificial intelligence in maritime transport,
including the eventual introduction of remotely controlled or operated ships
and (semi)autonomous ships in commercial shipping.
In this paper we focused on the elements of seaworthiness in the context of
marine insurance. The research results will be used as a basis for further analysis
of the legal consequences of unseaworthiness in the context of marine insurance,
that will be presented in the papers to follow. The future study will include
matters such as the degree of fault of the insured, the burden of proof and
allocation of risk relating to unseaworthiness in the context of marine insurance
contracts.
We analysed the traditional understanding of the maritime law notion of
seaworthiness and its elements in the context of marine insurance (physical
condition of the ship, documentary seaworthiness, master and crew element and
the element of cargo loading and stowage), and revisited these concepts in view
of the emerging new information technologies and automatization in maritime
transport.
Based on this analysis we can conclude that the doctrine of seaworthiness
should continue to apply to remotely controlled or operated, (semi)autonomous

110
Carey, L., op. cit., pp. 11-12.
111
Similarly, So, L. K.; Sooksripaisarnkit, P., op. cit., p. 29; Carey, L., op. cit., pp. 11-12.

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and unmanned ships. In terms of elements of seaworthiness in the context of

marine insurance, we found that analogy may be applied to a large extent, but
the concepts should further evolve and adapt to the technological innovations to
accommodate new requirements. This particularly relates to the human element
of seaworthiness which will have to be extended to the shore-based personnel
responsible for the safe operation and monitoring of remotely controlled
or operated ships and (semi)autonomous ships, whilst the requirement of
qualifications and competences of the master and crew in the case of (semi)
autonomous ships with crew on board will necessarily include new skills and
training in the field of information technology and cyber security. Finally, the
seaworthiness element of the condition of ship will need to be extended to the
onshore information technology and cyber security systems.

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