"On departure, in what most would have considered an error in navigation, the vessel ran aground and required assistance to be refloated."
Facts
CMA CGM LIBRA, a 6000 TEU container vessel, had part-loaded a cargo in Xiamen. On departure, in what most would have considered an error in navigation, the vessel ran aground and required assistance to be refloated. General Average (GA) was declared, and GA security was collected. A substantial proportion of cargo interests had settled their contribution, but a number of others set out to establish a York-Antwerp Rule D defence that the vessel was not seaworthy at or before the commencement of the voyage.
It was discovered that an appropriate preliminary notice to mariners had not been applied to the working chart, no annotations had been made indicating the danger and the danger had not been properly accounted for in the passage plan.
High Court decision
As a result, at first instance Mr Justice Teare held that there was a defect in the vessel that should have been rectified before departure and that rendered the vessel unseaworthy. He held that the cargo interests were therefore not liable to pay their contribution in GA. Our article on this decision can be found here.
Court of Appeal Decision
The owners appealed on two grounds:
- The judge had incorrectly held that a one-off defect in a passage plan rendered the vessel unseaworthy for the purposes of Article III Rule 1 of the Hague Rules and, in particular, had failed to properly distinguish between matters of navigation and aspects of seaworthiness; and
- The judge had wrongly held that the actions of the vessel’s master and crew had been carried out in their capacity as navigators and not as carrier and could not, therefore, be treated as attempted performance by the carrier to exercise due diligence to make the vessel seaworthy.
The Court dismissed both grounds.
As the Court noted, it is well-established that a vessel can be rendered unseaworthy by negligence in the navigation or the management of the vessel. The owners have an overriding obligation to exercise due diligence to make the vessel seaworthy, to which none of the exemptions found in Article IV Rule 2 apply. Negligent management of the vessel prior to the commencement of the voyage can render a vessel unseaworthy.
In this case, the Court held that the failure to properly apply the preliminary notice to the chart, a notice that had crucial navigational information contained within it that was vital to safety, was sufficient to render the vessel unseaworthy at or before the commencement of the voyage. In his judgment, Lord Justice Males suggested that there was no distinction to be made between whether the issue was one of a defective chart or a defective passage plan. In either case, failure to properly heed the warnings was sufficient to render the vessel unseaworthy.
"If prudent seamanship required the information in the notice to be marked on a chart, it was no answer to say that the notice did not give clear guidance on how that information was to be displayed."
The Court rejected the owners’ argument that the test of seaworthiness required the defect to be attributable to the vessel – some form of mechanical or physical defect. This applied an unnecessary gloss to the previously established test.
The judges also rejected the owners’ attempt to separate the acts of the master and officers into acts in their capacity as navigators (to which the obligation would not apply) and acts as servant or agents of the carriers (to which the obligations would apply). The relevant task of making the ship seaworthy and thus carrying out a proper passage plan, had been entrusted by the owners to the master and his officers. It was nobody else’s responsibility (and was non-delegable) and there was no question that the defect existed before the owners had control of the vessel. Whilst the owners had submitted that the House of Lords decision in The Hill Harmony[2] supported their approach, the Court of Appeal disagreed, and, in any event, the former decision concerned something quite different.
The Court went on to reject the owners’ additional argument that their role as navigator was outside their ‘orbit’ and, therefore, that any fault in that role could not render the vessel unseaworthy. The Court was aware of no case where such fault had been held to be outside the ‘orbit’ of the owners and it had difficulty envisaging circumstances where there would be.
The owners had also sought to distinguish those acts which were ‘mechanical’ and those acts which might require an element of judgement, the latter not being capable of rendering the vessel unseaworthy. In this case, as the owners argued, the question of how to apply the information from the preliminary notice on the chart would require an element of judgement – was that to be done using text or was it to be done by expanding the ‘no go’ areas to all areas outside the channel? The Court of Appeal rejected this submission – if prudent seamanship required the information in the notice to be marked on a chart, it was no answer to say that the notice did not give clear guidance on how that information was to be displayed.
"It is clear from the Court of Appeal’s judgment and that of the lower court, that the process of passage planning is integral to the seaworthiness of the vessel."
Finally, Lord Justice Haddon-Cave also drew attention to the balance struck at the inception of the Hague Rules in 1924. There was an agreed allocation of risk for maritime cargoes. The first regime in the Rules imposes a non-delegable duty on the owners to exercise due diligence to ensure the vessel is seaworthy before the commencement of the voyage, and the second excuses them for losses caused by the error of their servants during the passage. The Court held that the owners were incorrectly attempting to merge the two regimes.
Comment
This was an unusual case that focussed on the failure to apply a warning to the chart or in the passage plan prior to the departure from the berth. It seems unlikely that these circumstances would arise again.
Be that as it may, it is clear from the Court of Appeal’s judgment and that of the lower court, that the process of passage planning is integral to the seaworthiness of the vessel. Owners should therefore revisit their passage planning and navigation systems in light of the judgment to see if they are fit for purpose.
It should also be remembered that the grounding happened at a time when paper charts were still in commonplace usage; this vessel itself was being navigated on a paper chart. The way in which these notices are processed and displayed on an electronic chart system might not make the information or warnings readily apparent to those navigating. That may be enough to cause a vessel to be unseaworthy and care should be taken to ensure any passage planning procedures properly take that into account.
[1] Alize 1954 & Anr v Allianz Elementar Versicherungs AG & Ors [2020] EWCA Civ 293
[2] Whistler International v Kawasaki Kisen Kaisha (The Hill Harmony) [2001] 1 AC 638