Alize 1954 & Anor v Allianz Elementar Versicherungs AG & Ors

Under Article III rule 1 of the Hague Rules, a vessel may be unseaworthy because of a navigational error or omission made before or at the beginning of the voyage. The Article IV rule 2(a) exception for nautical fault during the voyage does not protect a carrier from such causative unseaworthiness. Essential voyage documentation, including a proper passage plan and corrected working chart, forms part of seaworthiness. If prudent planning requires a warning to be marked on the chart, its omission may render the vessel unseaworthy. The carrier’s due-diligence duty is non-delegable and cannot be avoided by describing the master’s work as navigation rather than carriage. A one-off error may suffice, as may a systematic failure.

The owners of the container vessel CMA CGM LIBRA appealed against Teare J’s dismissal of their claim for contribution in general average following the vessel’s grounding while leaving Xiamen.

The lower court held that the vessel was unseaworthy because its passage plan and working chart did not record a warning that charted depths outside the fairway were unreliable. It also held that the owners had failed to exercise due diligence under Article III rule 1 of the Hague Rules. The appeal concerned whether a defective passage plan or chart could constitute unseaworthiness, and whether work performed by the master and officers as navigators fell outside the owners’ non-delegable duty.

The appeal was dismissed unanimously. The Court of Appeal upheld the judgment that the vessel was unseaworthy and that the owners’ general average claim failed.

1. Article III rule 1 of the Hague Rules imposes an overriding obligation to exercise due diligence to make the vessel seaworthy before and at the beginning of the voyage. The Article IV rule 2(a) exception for negligence in navigation or management during the voyage does not protect a carrier against a causative condition of unseaworthiness arising before or at commencement. Maxine Footwear [1959] AC 589, Dobell v Rossmore [1895] 2 QB 408, and The Evje (No. 2) [1978] 1 Lloyd’s Rep 351 supported that conclusion.
2. The traditional prudent-owner test, stated in McFadden v Blue Star Line [1905] 1 KB 697, asks whether a prudent owner knowing of the defect would have required it to be remedied before departure. A proper passage plan and working chart are essential documentation. The omission of the warning from Notice to Mariners 6274(P)/10 made both defective and unsafe. It made no difference that marking the warning involved judgment rather than a purely mechanical correction.
3. A one-off navigational error can cause unseaworthiness. The court rejected the attempted distinction between mechanical acts and acts involving judgment or seamanship. The reasoning in The Apostolis [1997] 2 Lloyd’s Rep 241 concerning the need for an attribute of the vessel was obiter and was not relied upon as a controlling limitation.
4. The due-diligence duty is non-delegable. Once the owners assumed responsibility as carriers, they could not avoid liability by characterising the master’s or officers’ work as performed qua navigator rather than qua carrier. The Kapitan Sakharov [2000] 2 Lloyd’s Rep 255 concerned functions belonging to the shipper’s orbit, while W. Angliss [1927] 2 KB 456 concerned pre-acquisition construction work.
5. The failure to mark the warning was causative of the grounding. Both grounds of appeal failed, and the appeal was dismissed.

• Court of Appeal (Civil Division) dismissed the owners’ appeal from Teare J’s decision, holding that the vessel was unseaworthy and that the owners had failed to exercise due diligence: [2020] EWCA Civ 293.
• High Court, Admiralty Court dismissed the owners’ general average contribution claim: [2019] EWHC 481 (Admlty).