The appellants, owners of the vessel CMA CGM Libra, appealed against the judgment of Teare J in Alize 1954 v Allianz Elementar Versicherungs AG [2019] 1 Lloyd's Rep 595 (CMI362) dismissing the appellants' claim against the respondents for contribution in general average on the ground that the CMA CGM Libra was unseaworthy before and at the beginning of the voyage from Xiamen because it carried a defective passage plan, which was causative of the grounding of the vessel.

The appellants argued that the Judge wrongly held that: (1) a one-off defective passage plan rendered the vessel unseaworthy for the purposes of art 3.1 of the Hague Rules and, in particular, failed properly to distinguish between matters of navigation and aspects of unseaworthiness; and (2) the actions of the vessel's master and crew which were carried out qua navigator could be treated as attempted performance by the carrier of its duty qua carrier to exercise due diligence to make the vessel seaworthy under art 3.1 of the Hague Rules.

Held: Appeal dismissed.

Flaux LJ: There are a number of fallacies in the appellants' arguments, the principal of which is the contention that, because the preparation of a passage plan can be said to be an act of navigation involving an exercise of judgement and seamanship, it falls within the exception in art 4.2.a of the Hague Rules and a defect in the plan cannot constitute unseaworthiness. It has been established, at least since Dobell v Passmore [1895] 2 QB 408, that a vessel may be rendered unseaworthy by negligence in the navigation or management of the vessel and, as Maxine Footwear v Canadian Government Merchant Marine [1959] AC 589 established, the obligation to exercise due diligence to make the vessel seaworthy is an overriding obligation, to which none of the exceptions in art 4.2 is a defence.

Furthermore, the submission that, while negligent management of the vessel before the commencement of the voyage can render the vessel unseaworthy, negligent navigation cannot, is wrong both in principle and on authority. There is no principled basis for concluding that a defect caused by navigational error by the master or crew before or at the commencement of the voyage cannot render the vessel unseaworthy.

On the first ground of appeal, the Judge was right to find that the defect in the passage plan (which included the working chart) - that it did not contain the warning about the unreliability of charted depths outside the fairway - rendered the vessel unseaworthy. It is necessarily implicit in the Judge's reasoning that he considered that the working chart had not been appropriately corrected or updated to contain the relevant warning and that this constituted a defect in the chart, which was an attribute of the vessel. Even if that analysis were wrong, the respondents would be correct that the judgment should be upheld on the ground that the working chart was defective because it did not contain the relevant warning and that defect, which was an attribute of the vessel, rendered it unseaworthy. The second ground of appeal, which seeks to draw a distinction between acts of the master and crew qua carrier (for which the appellants are responsible) and their acts qua navigator (for which the appellants are not responsible) is misconceived.

Males LJ: It does not matter whether this is viewed as a case of a defective chart or a defective passage plan. Either way, at the commencement of the voyage, the failure to mark the warning on the chart meant that it was not safe for the vessel to proceed to sea. The conclusion that the vessel was unseaworthy due to having a defective passage plan appears to have been novel, but was no more than the application of well-established principles. The duty to exercise due diligence under art 3.1 of the Hague and Hague-Visby Rules is non-delegable: see eg The Muncaster Castle [1961] AC 807. This means that the shipowner will be liable for a failure of due diligence by whomever the relevant work of making the vessel seaworthy may be done. Here, the relevant work, ensuring that the chart had been updated and preparing the passage plan, was to be done by the master and deck officers.

The appellants' submission that the principle of non-delegability only applies to work performed by the master and officers qua carrier and not qua navigator and that a failure of navigation by the master or officers was 'outside the orbit' of the shipowner's responsibility, is not accepted. The task of making the vessel seaworthy for the voyage in the relevant respects was entrusted by the shipowner to the master and officers. It was nobody else's responsibility and there was no question of a defect existing from a time before the shipowner had control of the vessel. There is no case in which a failure of due diligence by the master and officers has been held to be outside the 'orbit' of the shipowner's responsibility and it is hard to think that there could be. Accordingly, as the duty is non-delegable, the shipowner cannot avoid liability by delegating responsibility for making the vessel seaworthy to the master and officers.

Haddon-Cave LJ: The signatories to the Convention agreed to divide the allocation of risk for maritime cargo adventures into two separate regimes. The first regime imposes a non-delegable duty on carriers to exercise due diligence to make the ship seaworthy 'before and at the beginning of the voyage' (art 3.1). The second regime excuses carriers from liability for loss or damage caused by errors of crew or servants 'in the navigation or in the management of the ship' thereafter, ie during the voyage (art 4.2.a). The appellants' submissions seek to elide these two separate regimes and are heterodox.

[For the unsuccessful appeal to the UK Supreme Court, see Alize 1954 v Allianz Elementar Versicherungs AG [2021] UKSC 51 (CMI1619).]