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'''CLAIM FOR CONTRIBUTION IN GENERAL AVERAGE: NEGLIGENT VOYAGE PLANNING BY THE VESSEL’S OFFICERS CAUSED GROUNDING OF VESSEL LEADING TO EXPENDITURE IN THE NATURE OF GENERAL AVERAGE TO REFLOAT THE VESSEL: WHETHER CARGO INTERESTS ENTITLED TO DEFEND THE CLAIM ON THE BASIS THAT OWNERS HAD FAILED TO EXERCISE DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY BEFORE AND AT THE BEGINNING OF THE VOYAGE: ARTICLE III, RULES 1 AND 2 AND ARTICLE IV, RULE 2(A) OF THE HAGUE/HAGUE-VISBY RULES'''
'''Note: The decision in this case has been upheld by the UK Supreme Court, in a judgment dated 10 November 2021. A note on that judgment can be found here[[https://www.onlinedmc.co.uk/index.php/Alize_1954_and_CMA_CGM_SA_v_Allianz_Versicherungs_AG_and_Ors_-_the_CMA_CGM_Libra]]'''
'''Summary'''
The Court of Appeal, in dismissing Owners’ appeal, held that:
(1) Passage planning (which includes making appropriate marks of dangers on charts) is an aspect of seaworthiness that arose before and at the beginning of the voyage [under Article III, rule 1 of the Hague/Hague-Visby Rules- see Fn.1], such that;
(2) Where Owners had not discharged their non-delegable obligation to exercise due diligence before and at the beginning of the voyage in relation to passage planning (including marking dangers on charts), as was the case here;
(3) Owners were not entitled to rely on the defence of “error of navigation” [under Article IV, rule 2(a)- see Fn.2], to succeed in their claim for a contribution in general average against Cargo Interests, where the failure to mark dangers on the chart was the operative cause of the grounding after the voyage from Xiamen to Hong Kong had commenced.
Case note contributed by Jim Leighton, LLM (Maritime Law), LLB (Hons), BSc (Hons), Solicitor of England & Wales, LMAA Supporting Member and International Contributor to DMC’s Case Notes
The Master made a decision to depart from the fairway along the departure route which led to the vessel grounding. The Admiralty Judge, based on the expert evidence, decided that the departure from the fairway was negligent, in view of the Notice to Mariners that warned of the innacurate chart depths.
This alone was insufficient for the defence of Cargo Interests to succeed in their defence, as there had to be in addition a failure by Owners to exercise due diligence before and at the beginning of the voyage for that defence to apply. The Admiralty Judge took the view that the burden of proof was on Owners to show that they had exercised due diligence before and at the beginning of the voyage to make the vessel seaworthy.
Based on IMO passage planning guidance, which stated that such plans should include “all areas of danger”, the Admiralty Judge concluded that the update placed on the working chart was inadequate, because this did not remind the mariner of the content of the Notice to Mariners, which indicated that depths outside the buoyed fairway were unreliable.
The Admiralty Judge concluded, on the expert evidence, that both prudence and necessity dictated that the working chart should have been marked with a note, to the effect that “depths less than charted exist outside the fairway”, to give the mariner a clear warning of the danger, as the chart was the primary document to which the navigating officer would refer when making navigational decisions when departing Xiamen.
In the light of the conventional and non-delegable test of seaworthiness, namely being to ask would whether a prudent owner, if he had known of the relevant defect, would he have required it to be made good before sending the ship to sea, the Admiralty Judge concluded that it was inconceivable that a prudent owner would not have required the defect to have been made good before departure. Accordingly, the Admiralty Judge found against Owners, dismissing their claim against Cargo Interests for contribution in general average, as the failure to exercise due diligence was the effective cause of the grounding.
As a result, Owners appealed to the Court of Appeal in relation to the scope of the obligation on a shipowner to exercise due diligence to make the vessel seaworthy before and at the beginning of the voyage, under Article III, rule 1 of the Hague/Hague-Visby Rules, on the basis that production of a defective passage plan was an “error of navigation”, to which a defence in Owners’ favour arose under Article IV, Rule 2(a), and that it did not matter that the error occurred prior to the commencement of the voyage.
The chances of a repetition may possibly be somewhat less likely in future, as this case concerned a paper-based passage plan, prior to the mandatory use of the far more automated electronic passage planning that is done nowadays on ECDIS (“Electronic Chart & Display Information System”).
However, while ECDIS has many advantages, as with all technological solutions, there is always in practice a very real potential for user error, and for defects or limitations in the software or hardware in practice. As such, application of the principles of this judgment in the ECDIS context could be expected in the future. Fn.1: Article III rule 1 of the Hague/Hague-Visby Rules reads: "Article III Responsibilities and Liabilities 1. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to (a) make the ship seaworthy; (b) properly man, equip and supply the ship; (c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation." Fn.2: Article IV, rule 2 of the Hague/Hague-Visby Rules reads in relevant part as follows: "Article IV Rights and Immunities 2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from
