On 17 May 2011, the CMA CGM Libra, owned by Alize 1954 and CMA CGM SA (claimants), grounded whilst leaving Xiamen, China. The salvage costs amounted to approximately USD 9.5 million. The claimants claimed a total of approximately USD 13 million in general average against cargo interests. Although some 92% of the cargo interests paid their contribution to general average, some 8% refused. The sum payable of approximately USD 800,000 was claimed in the present proceedings. The claim involved questions of unseaworthiness, due diligence, negligent navigation and causation.

The cargo interests (defendants) argued that they were not liable to contribute in general average pursuant to the York-Antwerp Rules because the claimants did not exercise due diligence to make CMA CGM Libra seaworthy in accordance with art 3.1 of the Hague Rules. The cause of the casualty was the master’s negligent navigation resulting in an inadequate passage plan - the casualty was caused by the claimants’ actionable fault.

The claimants argued that the grounding was due to an uncharted shoal. The shoal appeared on the electronic chart as from 13 January 2011, but hydrographic authorities only advised users of the paper chart of the shoal after the grounding.

This casualty occurred at a time of transition in the shipping industry from paper Standard Nautical Charts (SNCs) to Electronic Navigational Charts (ENCs). From July 2016, ships were required to use ENCs, but in 2011, ships could satisfy the SOLAS charts requirement by carrying either paper charts (as this vessel did) or electronic charts.

The defendants submitted that a prudent owner would have required defects in the vessel’s passage plan to be corrected before the vessel set out to sea. The claimants submitted that passage planning was not itself an aspect of seaworthiness.

Held: CMA CGM Libra was unseaworthy before and at the beginning of the voyage from Xiamen because it carried a defective passage plan, which was causative of the grounding of the vessel. Due diligence to make the vessel seaworthy was not exercised by the claimants because the master and second officer failed to exercise reasonable skill and care when preparing the passage plan. Accordingly, the grounding of the vessel was caused by the actionable fault of the claimants and so the defendants were not liable to contribute in general average.

Seaworthiness extended to having on board the appropriate documentation, including the appropriate charts (Scrutton on Charterparties and Bills of Lading (23rd edn, 1st supp, Sweet & Maxwell 2017) [7-028]). Established principles with regard to seaworthiness and the duty of due diligence pursuant to art 3.1 of the Hague Rules had to be considered in light of recent developments designed to improve the safety of navigation: for example, the recognition by IMO in 1999 (and thus well-established by 2011) that passage planning should apply to all ships engaged on international voyages and the use of Electronic Chart Display and Information System (ECDIS) by ships. An adequate passage plan was a required document at the beginning of the voyage to ensure that the vessel was reasonably fit to carry its cargo safely to its destination and therefore necessary for safe navigation. The document or documents in which it was recorded were for the benefit of the officers in fact navigating the vessel during the voyage. Accordingly, passage planning could not be removed from the scope of seaworthiness.

The seaworthiness obligation was imposed upon the carrier ‘before and at the beginning of the voyage’ (art 3.1). The long established and authoritative test for unseaworthiness was whether a prudent owner would have required the relevant defect, had the owner known of it, to be made good before sending its ship to sea (McFadden v Blue Star Line [1905] 1 KB 697, 706; The Cape Bonny [2018] 1 Lloyd’s Rep 356 (CMI145)). A well planned voyage was of essential importance for safety of life at sea, safety of navigation and protection of the marine environment (IMO Resolution of 1999).

The passage plan contained a defect: the absence of an appropriate warning that numerous depths outside the fairway were less than those charted. The appropriate warning in the passage plan and on the chart would serve to reduce the risk of poor navigational decisions during the passage. A prudent owner, knowing that the CMA CGM Libra was about to commence a voyage with a defective passage plan, would have required the defect to be made good before it departed from Xiamen.

The duty of due diligence is an inescapable personal obligation (Scrutton on Charterparties (20th edn) 429) - it is non-delegable. The exercise of due diligence is equivalent to the exercise of reasonable care and skill; the lack of due diligence is negligence. The test for the lack of due diligence to make the vessel seaworthy is whether there was an error of judgment that amounted to professional negligence.

The burden was first on the defendants (art 4.1) to establish that the CMA CGM Libra was unseaworthy, causing the grounding, and once this was established the burden fell on the claimants (art 4.1, read with art 3.1) to establish that due diligence was exercised to make the vessel seaworthy (cf Volcafe Ltd v Compania Sud Americana De Vapores SA [2019] 1 Lloyd's Rep 21 (CMI221), which was on art 3.2). A well-documented Safety Management System would be of considerable help in establishing the exercise of due diligence and therefore an important tool for defending claims based on unseaworthiness (Maritime Law (4th edn) 352). Since the defendants’ Safety Management System was inadequate, due diligence had not been exercised.

The defective passage plan and the master’s resulting negligence in deciding to navigate outside the buoyed fairway did not cease to be real and effective causes of the grounding just because the shoal was not marked on the paper chart. Although art 3.2 is subject to art 4.2.a, which provides that the carrier will not be responsible for loss caused by neglect in the ‘navigation or in the management of the ship’, art 3.1 is not subject to art 4.2.a. Since there was a causative breach of art 3.1, the fact that a cause of the subsequent casualty was also negligent navigation would not protect the carrier from liability.

Accordingly, there was actionable fault within the meaning of the York-Antwerp Rules as the grounding was caused by a failure by the claimants to exercise due diligence to make the vessel seaworthy. The defendants had established causative unseaworthiness and the claimants had failed to establish the exercise of due diligence to make the vessel seaworthy.

[For the unsuccessful appeal to the Court of Appeal, see Alize 1954 v Allianz Elementar Versicherungs AG (CMI714).]