Alize 1954 & Anor v Allianz Elementar Versicherungs AG & Ors

A defective passage plan may render a vessel unseaworthy where it omits a necessary navigational warning and the defect exists before the voyage begins. Passage planning and appropriate chart documentation form part of the vessel’s preparation for safe navigation and may therefore fall within Article III rule 1 of the Hague Rules.

The carrier’s duty to exercise due diligence is personal and non-delegable. It is not discharged merely by maintaining adequate systems or appointing competent personnel if the servants or agents preparing the vessel for the voyage fail to exercise reasonable care. Causative unseaworthiness is for the cargo interests to establish; the carrier then bears the burden of proving due diligence.

The owners claimed general average contributions following the grounding of the container vessel CMA CGM LIBRA while leaving Xiamen. Cargo interests resisted payment, alleging that the vessel was unseaworthy because its passage plan failed to warn that charted depths outside the buoyed fairway were unreliable.

The principal issues were whether the passage plan was defective, whether the defect made the vessel unseaworthy under Article III rule 1 of the Hague Rules, whether the defect caused the grounding, and whether the owners had exercised due diligence. The court also considered the master’s negligent navigation, the burden of proof, the navigation exception, and whether the incident amounted to a deviation.

1. Disposition. The owners’ claim for general average contributions failed. The vessel was unseaworthy before and at the beginning of the voyage because the passage plan and working chart omitted a necessary warning about unreliable depths outside the buoyed fairway. That defect caused the grounding, and the cargo interests were not liable to contribute.
2. Passage planning and seaworthiness. The prudent-owner test asks whether a prudent owner, knowing of the defect, would have required it to be remedied before the vessel sailed. By 2011, an adequate passage plan was a document required for safe navigation. A defective plan can therefore be an aspect of unseaworthiness, just as an uncorrected chart can be. The court did not require one particular form of warning, but held that the danger had to be clearly marked on the working chart.
3. Navigation. The master negligently left the buoyed fairway relying on charted depths which the relevant Notice to Mariners warned might be unreliable. His intended return to the fairway was not achievable. The navigational error did not break the causal chain because it flowed from the defective plan and the risk created by leaving the fairway.
4. Burden and due diligence. The cargo interests bore the burden of proving causative unseaworthiness. Article IV rule 1 then placed the burden on the owners to prove due diligence. The duty was non-delegable. Adequate safety-management systems and competent auditors did not establish due diligence where the master and second officer themselves failed to prepare the required plan with reasonable care.
5. Other issues. The absence of official electronic charts did not make the vessel unseaworthy in 2011, when they were not required by SOLAS. The master’s departure from the fairway was negligent navigation, not a deviation, because he intended only a temporary departure before rejoining the route.

First-instance decision of the High Court (Admiralty Division). No earlier decision in the same litigation is stated.