Paul Bugden, Bugden + Co., London
Ref: Alize 1954 v Allianz Elementar Versicherungs AG [2019] EWHC 481 (Admlty) Teare J.
Background
This recent Admiralty case raises a number of interesting points of law and fact arising out of the grounding on 17th May 2011 of the container ship ‘CMA CGM LIBRA’ on a shoal whilst leaving the port of Xiamen in China when her master decided to depart from the dredged, buoyed and swept fairway channel marked on the paper chart on the bridge as being the intended and planned course.
Cargo Interests said that the cause of the casualty was the unseaworthiness of the vessel (in breach of Article III rule 1 of the applicable Hague Rules) though an inadequate passage plan which failed to identify the danger of shoal water outside the fairway and led to the master’s negligent navigation of the vessel so that the casualty was thus caused by the Owners’ actionable fault with the result that Cargo Interests were thereby not liable to contribute in GA pursuant to the York Antwerp Rules.
The cost of salvage was some US $9.5 million and the total claim in General Average by her Owners against Cargo Interests was some US $13 million. 92% of the Cargo Interests paid their contribution to GA but some 8% declined to do so. The sum payable by those interests was approximately US $800,000 and was the subject of the claim in these proceedings.
The evidence showed that in 1999 voyage planning became compulsory under IMO Rules for all ships engaged on international voyages and that the practice of passage planning was therefore well-established by 2011 when this casualty occurred. It also showed that in 2011, the shipping industry was in the course of changing from paper to electronic charts. In 2011 a ship could satisfy the charts requirement of SOLAS by carrying either paper charts (SNCs or Standard Nautical Charts), as this vessel did, or by electronic charts (ENCs or Electronic Navigational Charts) though as from July 2016 ships have been required to use ENCs.
The evidence also showed that, a) the hydrographic authorities knew of the existence of the shoal on which the vessel ran aground as it appeared on the relevant electronic chart as from 13 January 2011, b) a Notice to Mariners extant at the time of sailing contained a clear warning that departure from the dredged fairway might lead to encounter of uncharted shoal areas and, c) the Xiamen entrance and approaches were long notorious for shoaling, but d) nevertheless the hydrographic authorities did not advise users of the relevant paper chart of a correction in respect of the presence of the particular shoal until a date after the grounding.
The vessel was equipped with British Admiralty paper charts and with the Admiralty Sailing Directions. In addition, she carried proprietary electronic charts and an associated bridge display.
The passage plan was prepared by the second officer. It was contained in two documents, the first being a document provided to the vessel by the Owners in which the plan was to be recorded and the second being the vessel’s working paper chart. None of this material identified the relevant shoal water danger outside of the fairway.
Burden of proof under Article III r. 2
It was common ground that there could only be actionable fault within the meaning of the York-Antwerp Rules if the grounding was caused by a failure by the Owners to exercise due diligence to make the vessel seaworthy. The conventional view is that the burden lies on the Cargo Interests to establish that the vessel was unseaworthy and that such unseaworthiness caused the grounding. If those matters are established than the burden lies on the Owners to establish that due diligence was exercised to make the vessel seaworthy.
However, it was submitted on behalf of the Cargo Interests that, following the decision of the Supreme Court in Volcafe Ltd. v Cia Sud Americana de Vaporesi SA [2018] 3 WLR 2087, (where the Supreme Court held that, because the carrier was a bailee, the carrier bore the legal burden of proving that there had been no breach of Article III r.2 or that the damage in question had been caused by one of the exceptions in Article IV r.2(a)) the burden lay on the Owners to prove that the general average expenditure had not been caused by a breach of Article III r.1. by proving that the vessel was seaworthy, or that if it was not due diligence had been exercised or that any unseaworthiness was not causative.
The judge did not accept that submission. He thought that Volcafe was concerned only with Article III r.2. whereas the present case was concerned with the rather differently structured Article III r.1 and it was implicit in his view in Article IV r.1 (in specifically providing that where loss or damage results from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier) that the burden of proving causative unseaworthiness must lie upon the cargo owner.
Unseaworthiness
The judge was confident that by 2011 the prudent owner would have insisted on a passage plan before the voyage was commenced. The passage plan prepared was clearly defective in a directly relevant and material respect in that it failed to identify clearly, or indeed at all, the danger of the shoal outside the fairway or more generally the likely incidence of severe shoaling outside the dredged and depth swept fairway.
It was common ground that the usual test of unseaworthiness is whether a prudent owner would have required the relevant defect, had he known of it, to be made good before sending his ship to sea. However, counsel on behalf of the Owners submitted that a negligent preparation by the crew of a defective passage plan is not an element of seaworthiness; at al events at least where the means and material for a preparation of proper passage were to be found on board her.
The judge held however that passage planning could be an aspect of seaworthiness. Seaworthiness extends to having on board the appropriate documentation, including the appropriate chart; The presence on board a vessel of the appropriate chart is one aspect of the preparation for safe navigation. But the presence on board of the appropriate chart is also an aspect of seaworthiness. If there is a causative breach of Article III r.1 the fact that a cause of the subsequent casualty is also negligent navigation should not protect the carrier from liability. The vessel was as such unseaworthy at the beginning of the voyage.
Causation
The immediate (in time) cause of the grounding was clearly the master’s decision to depart the dredged fairway channel but the rather difficult question in the case that fell to be decided was whether the unseaworthiness identified above in the voyage planning was to be considered a sufficiently proximate cause in law of that grounding.
The judge held that the master’s decision to depart from the passage plan and to navigate outside of the dredged, buoyed and swept Fairway was negligent, being a decision which a prudent mariner would not have taken. His reliance on the charted depths on his paper chart outside the buoyed fairway (which in any event were as noted above inaccurate and in error) was not prudent in all the circumstances and departing from the Fairway introduced a significant and above all unnecessary navigational risk.
All the same a master’s decision to leave the buoyed fairway could likely only be caused by a defective passage plan if he was not in fact otherwise aware of the content of Notice to Mariners warning of the danger of uncharted shoals outside the fairway. The judge however concluded that, whether or not the master had read the notice to mariners before the voyage to Xiamen, its contents were not in his mind when navigating away from Xiamen.
It was then submitted that the master would have made the same decision as he in fact did even if the chart or passage plan contained a warning as to charted depths but again the judge was unable to accept this submission. Had there been a warning on the chart about charted depths being unreliable the master would have been, as it seemed to the judge, most unlikely to have decided to navigate out of the buoyed fairway.
Due diligence
Article III r.1 of the Hague Rules (which, it is common ground, applied to all of the contracts of carriage in issue in the present case) provides as follows:
“The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to –
(a) make the ship seaworthy ……”
Article IV r.1 provides as follows:
“Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy…in accordance with the provisions of paragraph 1 of Article III.
Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this Article.”
The due diligence required is due diligence in the work itself by the carrier and all persons, whether servants or agents or independent contractors whom he employs or engages in the task of making the ship seaworthy; the carrier does not therefore discharge the burden of proving that due diligence has been exercised by proof that he engaged competent persons to perform and supervise the task of making the ship seaworthy. The statute imposes an inescapable personal obligation.
The exercise of due diligence is equivalent to the exercise of reasonable care and skill. Lack of due diligence is negligence and the standard imposed by the obligation to exercise due diligence is equivalent to that of the common law duty of care.
The question was whether by the exercise of due diligence the master and second officer could reasonably have prepared an appropriate passage plan. As the judge observed there are several examples in the authorities of the carrier being held to have failed to exercise due diligence because of failures by the master or chief engineer before the commencement of the voyage.
The purpose of a passage plan was, as the master must have known, to identify areas or sources of danger; including the dangers posed here by the uncharted shoals out of the fairway in order to minimise the risk that the officer navigating the vessel might decide, for whatever reason, to navigate outside the buoyed fairway. It followed that the master and second officer could, by the exercise of reasonable care or due diligence, have prepared a passage plan which prudently marked on the paper chart the required warning.
Counsel for the Owners submitted that due diligence was exercised through the Owners’ instructions to the master contained appropriate guidance for passage planning and the audits of the vessel’s practices showing them to be competent. However, as the judge observed, it has long been recognised, that in order to comply with Article III r.1 it is not sufficient that the owner has itself exercised due diligence to make the ship seaworthy. It must be shown that those servants or agents relied upon by the owner to make the ship seaworthy before and at the beginning of the voyage also exercised due diligence.
Conclusion
The vessel was unseaworthy before and at the beginning of the voyage from Xiamen because it carried a defective passage plan. That defective passage plan was causative of the grounding of the vessel. Due diligence to make the vessel seaworthy was not exercised by the Owners because the master and second officer failed to exercise reasonable skill and care when preparing the passage plan so as to identify the danger of shoal water as in particular advised at that time by a Notice to Mariners but as yet then the subject of paper chart notice of correction. It followed that the grounding of the vessel was caused by the actionable fault of the Owners so that Cargo Interests were not liable to contribute in general average.