Kassem, A.H.; (2006) The legal aspects of seaworthiness: current law and development. Doctoral thesis , Swansea University.

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Abstract

Summary: The thesis aims to analyse the current legal approach to the carrier’s obligation of seaworthiness under Carriage of Goods by Sea due to the impact of such an obligation on the stability of the shipping industry and its effect on reducing marine casualties. In addition, recent developments in the industry have had an affect on the carrier’s obligation. Therefore, it seems necessary to deal with the carrier’s obligation of seaworthiness under the current law and in the light of recent development. In order to achieve the aim of this study, a library-based research project will be conducted and most of the courts’ decisions, recent or old, will be considered in order to find out how they have dealt with this issue in the past and whether their attitude has changed to reflect the development in the shipping industry. The opinions and thoughts of scholars on this matter will also be examined in order to ascertain their opinion on the law and its development. The final chapter of this thesis will deal with the conclusions arrived at by this study. These can be summarised by the following: - The carrier’s obligation to make the vessel seaworthy should be extended to cover the whole voyage instead of just limiting it to the beginning of the voyage. - The burden of proof in case of seaworthiness should be based on presumed fault, not proved fault. - The burden of proving unseaworthiness/seaworthiness should shift to the carrier, and should be exercised before seeking the protections of the law or carriage contract. - There is also a need to depart from the use of detailed articles with regard to Seaworthiness to a more general article which deals with carriers’ duties and obligations in general. - Finally, it is necessary to highlight the need to establish that the ISM Code, and to a lesser extent the ISPS, should be considered as good practice with regard to seaworthiness.

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