On 4 March 2020, the Court of Appeal handed down its judgment in the CMA CGM LIBRA[1] case.  The Court of Appeal upheld Admiralty Judge Teare J’s judgment that the vessel’s passage plan was defective and rendered the vessel unseaworthy.  CJC’s William Pyle and Andrew Shannon provide the details. 

Background

The appellants, who were owners of the vessel CMA CGM LIBRA, appealed against the High Court’s ruling of March 2019, which dismissed the owners’ claim against cargo interests for contribution in general average.

The case concerned the scope of the obligation imposed upon a shipowner to exercise due diligence to make the vessel seaworthy before and at the beginning of the voyage pursuant to Article III Rule 1 of the Hague/Hague Visby Rules.

The High Court held that the passage plan was defective in that it did not refer to the existence of a Preliminary Notice to Mariners (NM6274/P10), alerting mariners to the presence of various areas where the depths were less than what was charted in the approaches to the port of Xiamen. The bridge team had, as a result, failed to mark any ”no-go areas” on the chart, and the court determined that this ultimately caused the vessel to go aground. 

It was determined that having an accurate passage plan prior to and at the commencement of the voyage was an aspect of seaworthiness, rather than navigation. As a result, the vessel was unseaworthy, and the shipowners’ claim against cargo interests for contribution in general average failed.

The Appeal  

On appeal, the shipowners did not dispute that the vessel grounded as a result of a defective passage plan. However they appealed on the following grounds: -

(a) that the defective passage plan was a result of an “error of navigation” by the master and second officer acting qua navigator, rather than qua carrier pursuant to the obligation to exercise due diligence before and at the commencement of the voyage to make the vessel seaworthy; and

(b) that the shipowners did not fail to exercise due diligence pursuant to Article III Rule 1 of the Hague/Hague Visby Rules because they were entitled to delegate navigational decisions to the master and crew.

In a unanimous decision, the Court of Appeal dismissed the shipowners’ arguments, and upheld the decision of the High Court. 

On the first issue, the Court of Appeal confirmed that a defective passage plan prepared prior to the commencement of the voyage is a document attributable to the vessel’s seaworthiness and was not an “error of navigation”.

As to the second point, the Court of Appeal decided that attempting to draw a distinction between acts of the master and second officer qua navigator and qua carrier was misconceived.  The shipowners were vicariously liable for the failure by the master and crew to exercise due diligence to make the vessel seaworthy by preparing an adequate passage plan. In short, the shipowners’ seaworthiness obligation extended to cover navigational decisions made by the master and crew prior to the commencement of the voyage.

Comment

This decision confirms that a proper passage plan, like an up to date and properly corrected chart, is an aspect of seaworthiness. Furthermore, a shipowners’ seaworthiness obligation is non-delegable, meaning they will be held vicariously liable if the master or second officer fails to exercise due diligence to prepare an adequate passage plan prior to the commencement of the voyage.  

The judgment highlights the need for shipowners to ensure that charts are up to date, and include all relevant temporary / preliminary notices to mariners, and that the master and second officer prepare a suitable passage plan with appropriate markings for any relevant no-go areas.   

Article by William Pyle, Senior Associate and Andrew Shannon, Master Mariner & Solicitor, Campbell Johnston Clark Singapore LLP.