This claim arose from the grounding of the Happy Aras in Turkey. The claimant owners declared general average. The defendant insurer of the cargo owners refused to pay a general average contribution on the ground that the vessel was unseaworthy in two respects: (i) it was not manned with a competent crew, more specifically a competent master; and (ii) there was no proper system in place for passage planning and/or there was a failure to exercise due diligence in passage planning, in contravention of IMO Resolution A.893(21) (Guidelines for Voyage Planning).

The recap to the voyage charterparty provided for general average to be adjusted and settled in London in accordance with the York-Antwerp Rules 1994. The cargo was shipped under a single CONGENBILL 1994 bill of lading which incorporated the terms of the charterparty and provided for general average to be adjusted and settled in London in accordance with the Rules. The average guarantee was governed by English law and contained a jurisdiction clause in favour of the High Court in London.

Held: General average claim fails. Judgment for the defendant.

Rule D of the York-Antwerp Rules provides as follows:

Rights to contribution in general average shall not be affected, though the event which gave rise to the sacrifice or expenditure may have been due to the fault of one of the parties to the adventure; but this shall not prejudice any remedies or defences which may be open against or to that party in respect of such fault. 

As to 'fault': 'A shipowner is not entitled to recover general average contributions from the owners of the cargo where the loss or expenditure was caused by its "actionable fault" which includes any causative breach of the terms of the relevant contract of carriage': The CMA CGM Libra [2021] 2 Lloyd’s Law Rep 613, [2021] UKSC 51 [21] (CMI1619).

The actionable fault relied upon in this case is a breach of the carrier’s duty of seaworthiness. The contract of carriage incorporated the Hague Rules. The test of unseaworthiness is whether a prudent owner would have required the relevant defect, had it known of it, to be made good before sending the ship to sea. It has now been conclusively established by the Supreme Court that a defective passage plan can render a ship unseaworthy for the purposes of art 3.1 of the Hague Rules.

Another aspect of seaworthiness is the carrier's duty to provide a competent crew: The Eurasian Dream [2002] 1 Lloyd's Rep 719, [2002] EWHC 118 (Comm). This case, so far as liability is concerned, has come to focus on the competence of the master. In the absence of any evidence from the master or any member of the crew, the burden of proving due diligence, which lay on the claimant, has not been discharged. The master was incompetent. For this reason, the general average contribution claim fails.

The passage plan in this case was 'basic'. That placed a greater burden on the master to discharge his duty as master at the time of the grounding. But the passage plan, taken on its own, did not render the vessel unseaworthy.