Lloyd's Maritime and Commercial Law Quarterly
GOOD FAITH AND GOOD SEAMANSHIP
The Star Sea
In the Star Sea
1 the ship of that name caught fire and became a constructive total loss. The ship’s insurers resisted the owners’ claim on two grounds. The first was that the ship would not have been a constructive total loss but for breach of the Marine Insurance Act 1906, s. 39(5). The second was breach of the insured’s duty of disclosure.
Unseaworthiness
The defence under s. 39(5) was that loss was attributable to the unseaworthy state in which the ship had been sent to sea with the privity of the insured. The unseaworthiness alleged was that the master was incompetent. Clearly, the incompetence of a master (or crew) can constitute unseaworthiness: what Lord Atkinson called “disabling lack of skill and disabling lack of knowledge”.2
The insured owners argued that, for unseaworthiness of this kind, there had to be not one act but a series of acts by the master (or crew) that did not come up to the required standard of skill or competence. Indeed, in one case3 a crew member called Gun Gun Jupardi ran amok, knifed four officers and crew, opened valves and sank the ship. It was not even argued that that alone was evidence enough of “disabling will”; the court sought evidence (unsuccessfully) of earlier deviant behaviour by Mr Jupardi. Something in him might just have “snapped”. In The Star Sea, however, Leggatt, L.J., who delivered the judgment of the Court of Appeal, rejected the argument. On the one hand, it was accepted that anyone can make a mistake without the conclusion being drawn that he has either “a disabling want of skill” or “a disabling lack of knowledge”.4 But the court also thought that it must be possible in certain circumstances, which the court did not define, to draw such a conclusion from a single incident that someone had a “disabling lack of knowledge”, such as had been found in the court below.5 The master’s ignorance was not
1. Manifest Shipping & Co. Ltd v. Uni-Polaris Ins. Co. Ltd (The Star Sea)
[1997] 1 Lloyd’s Rep. 360 (C.A.).
2. Standard Oil Co. of New York v. Clan Line Steamers Ltd [1924] A.C. 100, 120, per Lord Atkinson. Cf. The Derby
[1984] 1 Lloyd’s Rep. 635, aff’d
[1985] 2 Lloyd’s Rep. 325 (C.A.). US idem: The Heinz Horn
[1970] 1 Lloyd’s Rep. 191 (5 Cir., 1968).
3. Re Intercontinental Properties Management SA 1977 AMC 1841 (E.D. Va.).
4. At p. 374.
5. Ibid.
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