In this action the plaintiff sues the defendants, the owners of the motor vessel Kantang, to recover damages under a bill of lading covering 1000 bags of Thailand maize received by the defendants for carriage from Singapore to Penang. The bill of lading was expressly made subject to the Singapore Carriage of Goods by Sea Ordinance (Cap 173). On the voyage from Singapore to Penang the Kantang sank in international waters in the Straits of Malacca on 27 August 1967 between Pulau Pangkor and Penang near the Sembilan Islands. The cargo it was carrying was lost and four members of the crew were drowned.

The plaintiff alleged that the defendants failed in breach of their duty to provide a seaworthy ship and failed, before and at the beginning of the voyage, to exercise due diligence to make it seaworthy as required by art 3.1.a of the Rules scheduled to the Singapore Carriage of Goods by Sea Ordinance (the Hague Rules). The defendants deny liability contending that the loss of the plaintiff's goods was caused by perils of the sea within the meaning of art 4.2.c of the Rules. In their pleadings the defendants say that they would rely also on the provisions of art 4.2.a in that the loss resulted from 'act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship', but this point was not pursued at the trial. The defendants further deny that the vessel was unseaworthy or that they had failed to use due diligence before and at the beginning of the voyage to render it seaworthy.

Held: Judgment for the defendants.

The first question that falls to be decided is whether the loss of the plaintiff's goods was caused by perils of the sea as alleged by the defendants. If it was then under art 4.2.c of the Rules 'neither the carrier nor the ship shall be responsible for loss or damage arising or resulting' therefrom. Lord Herschell in The Xantho (1887) 12 App Cas 503 said at 509: 'I think it clear that the term "perils of the sea" does not cover every accident or casualty which may happen to the subject matter of the insurance on the sea. It must be a peril "of" the sea. Again, it is well settled that it is not every loss or damage of which the sea is the immediate cause that is covered by these words. They do not protect, for example, against that natural and inevitable action of the winds and waves, which results in what may be described as wear and tear. There must be some casualty, something which could not be foreseen as one of the necessary incidents of the adventure.'

The test, in essence, is one of foreseeability. Was the weather encountered unusual and beyond reasonable expectation? The evidence of the assistant director of the Meteorological Service was clear that the weather between 26 August and 27 August was not unusual or abnormal or violent or overwhelming or unexpected for the voyage during that time of the year at that place. The master himself said that he had encountered similar weather before even in a smaller vessel. The weather encountered by the Kantang was not of such catastrophic nature or so overwhelming as to constitute perils of the sea. The vessel sank as it was unseaworthy in that the fastenings of the bow planking of the vessel were unsound whereby the bow planking worked loose in the heavy seas allowing water to enter the vessel causing it to sink.

At common law a shipowner by contracting to carry goods in a ship, in the absence of express stipulation, impliedly undertakes that its ship is seaworthy but where the contract of carriage is subject to the Hague Rules, that is the rules set out in the Schedule to the Singapore Carriage of Goods by Sea Ordinance, as is in the present case, those rules exclude the absolute warranty of seaworthiness and substitute therefor an obligation on the part of the shipowner to exercise due diligence, before and at the beginning of the voyage, to make the ship seaworthy. The burden of proving the exercise of due diligence is on the defendants in this case.

The defendants in discharge of this burden in their particulars pleaded that 'the diligence taken by the defendants to secure the seaworthiness of the MV Kantang was to have the vessel surveyed by a qualified surveyor on or about 27 July 1967 when the vessel was certified to be seaworthy and no alteration or repairs were advised. Subsequently, a qualified surveyor appointed by the insurance company which insured the said vessel also reported that the vessel was seaworthy and in good order. The Master of the Kantang examined the vessel prior to sailing and her engine was repaired and put in order prior to sailing.'

Captain Roseli inspected the vessel before it left Singapore and there was no leakage. It is true that the captain made only a visual inspection but it is not obligatory upon a ship’s officer on the commencement of a voyage to go and tap every plank in the hull to find if it has a defect or not. Captain Roseli exercised due diligence. The defendants exercised due diligence to make the Kantang seaworthy and therefore the defendants are entitled to the protection of the Ordinance.