ABSTRACT
Article 3(1) of the Hague-Visby Rules, imposes an obligation on a carrier of goods by sea before, and at the beginning of, the voyage to exercise due diligence to: (a) make the ship seaworthy; (b) properly man, equip and supply the ship; and (c) 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. Article 4(1) exempts a carrier and a ship from liability for loss or damage
arising or resulting from unseaworthiness unless caused by want of due diligence in carrying out the obligations of Article 3(1). Thus, if the lack of the due diligence of a carrier or ship resulting in unseaworthiness is causative of loss or damage, liability is established. Article 4(2) provides that:
or without the fault or neglect of the agents or servants of the carrier. Certain commentators have expressed the view, in purported reliance on authority, that the obligation imposed by Article 3(1) of the Hague-Visby Rules is an overriding one, and that a carrier who has not exercised due diligence before and at the beginning of the voyage to make the ship seaworthy is deprived of the protection of the immunities in Article 4(2).1 Article 4(1) makes it abundantly clear that a failure to exercise due diligence in accordance with Article 3(1), which failure is causative of loss or damage arising or resulting from unseaworthiness, will ground liability in a carrier. The question then is the validity of the assertion that a breach of the obligation contained in Article 3(1) necessarily deprives a carrier of the immunities in Article 4(2).
