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[Did] not adopt another road instead of the road that he had agreed to take, but he got himself into the ditch at the side of the road which he was intending to follow. He was not on another route; he was on the existing route, although he was out of the proper part of the route which he ought to have followed.
III CRITICISM AGAINST THE NAUTICAL FAULT DEFENCE
A Unfairness and Inconsistency by Comparison of Sea Transport and Other Transport Modes.
One of the criticisms is that the nautical fault defence under the Hague Rules is not consistent with other transport modes, for example, carriage by rail, road or air. Basically, all other liability regimes stipulate that a carrier is liable for the loss or damage to the cargo arising or resulting from the negligence of him or his agents, servants or any person who is employed by him.
In the case of carriage of goods by air, a carrier can be exempt from the liability for the loss or damage to cargo where the carrier successfully proves he or his agent took “all necessary measures to avoid the damage or where it was impossible for him or them to take such measures”[41]
Uniform Rules Concerning the Contract for International Carriage of goods by Rail (CIM) 1980 is even tougher with the carrier than the convention for the air transport. Article 36.1 lays down that the railway shall be liable for loss or damage resulting from the total or partial loss of, or damage to goods which were in his custody unless he proves the loss or damage was unavoidable or its consequences were unpreventable. This regime continues to emphasise that the railway shall be liable for any act of its servants and any other persons who it employs to perform the carriage.[42]
The road carrier’s liability is similar to the railway carriers’.[43] The unique provision is that this regime imposes the absolute liability on the carrier that he should keep the vehicle in good condition and is liable for any neglect of person from whom he may have hired the vehicle or neglect of the agents or servants of the latter.[44] Usually a carrier is vicariously liable for an act or omission of its servants or agents, but this regime goes further to make the carrier liable for any wrongdoing made by the independent contractors.
The common characteristic of the above regimes is that a carrier is completely liable for acts of its servants or agents, which is what carriage of goods by sea lacks. Many commentators say that for the sake of the uniformity of the carriage of goods, the liability regime of the carriage of goods by sea should be in line with that of other transport modes and they see no cogent reasons for sea carriers keeping their nautical fault defence.
B The Nautical Fault Defence is at Odds with the Principles of Torts.[45]
The nautical fault defence draws a clear line between a carrier’s own negligence and the negligence of his agents and employees. The carrier will not take any vicarious liability in respect of navigation and management of the ship under the Hague Rules. However, this defence is definitely at odds with the principle of tort law which holds a master liable for the negligence of his servant during the course of employment.[46]
Even if the master told the servant to do things carefully and the servant did it negligently, the master is still vicariously liable. Willes J. held in Barwick v English Joint Stock Bank that[47]
In all these cases it may be said, as it was said here, that the master has not authorised the act. It is true, he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.
In fact, the Hague Rules do impose vicarious liability on the carrier in some respects. For instance, a carrier is liable for the loss or damage to the cargo resulting from his failure to keep the ship seaworthy, even if the affair of the unseaworthiness was caused solely by the negligence of a ship-repairer firm, an independent contractor or its servants.[48] One of the rationales of the nautical fault defence is that the master and mariners are too far away to reach them. Behind this is that the carrier does not perform the carriage contract by itself and the actual performer is out of his control. However, if we have a look at The Muncaster Castle case[49] , this rationale can not be justified. In that case the carrier did not repair the ship by itself but the repairer, an independent contractor whose knowledge, like Master’s, is totally independent from the carrier. It doesn’t seem inappropriate to apply Lord Justice Kay’s comments to nautical fault. He said:[50]
It seems to me to be plain on the face of this contract that what was intended was that the owner should, if not with his own eyes, at any rate by the eyes of proper competent agents, ensure that the ship was in a seaworthy condition before she left port, and that it is not enough to say that he appointed a proper and competent agent.
Lord Justice MacKinnon’s comments are also worth citing, “---the exercise of due diligence involves not merely that the shipowner personally shall exercise due diligence, but that all his servants and agents shall exercise due diligence,---” [51] . Many commentators contend sea carriers’ liability is not necessarily in line with that under other carriage modes given that they are totally different in the risk rate and its consequences.[52] However, here we can’t see any different risk rate and consequences between unseaworthiness and nautical fault. Actually, this case did have a serious impact on shipowners and was regarded as the return to the pre-Hague Rules Era.[53]
Since it is impossible for employers to eliminate negligent acts of their employees, they take out insurance to cover themselves against vicarious liability for their employees’ negligence and the loss can be mitigated as much as possible.[54] Accordingly, we can clearly see that it is employers’ duty to pay for the insurance for the sake of their interests. Under the Hague Rules, however, a carrier is immune from the liability for the nautical fault of its servants or agents and as the result, the third party, the cargo owner, has to buy the insurance for any potential loss or damage resulting from the negligence of the carrier’s servants.
C Changing Grounds
One of the rationales for nautical fault defence is carriage of goods by sea is a very dangerous adventure compared with other transport modes (especially at the beginning of the last century).[55] When a ship sailed into the sea, the master and crew of the ship were out of control of the carrier and the land bound shipowner could do nothing to protect the adventure. It seemed very fair that the carrier risks their ships to perform the contract of carriage and the cargo owner must risk its cargo.[56]
It might be true when the Hague Rules was introduced eighty years ago, but today the grounds for the Hague Rules have fundamentally changed. Modern ship construction technology and new material make ships much faster and safer than before. The comprehensive application of GPS makes navigation easier and less risky. The development of the meteorology makes ship avoid as much catastrophic weather as possible. Sonar equipment makes the ship see where rocks are and the occasion of stranding has been significantly reduced. Telecommunications technology allows a ship to be under the 24-hour control of the carrier. There is no difference between carriage of goods by sea and by other modes in this regard. Although some rationales for the nautical fault defence might be still applicable, we don’t have the dreadful adventure at all which might have existed at the beginning of last century.[57]
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