John Habergham, Myton Law, Hull U.K.

The Court of Appeal has handed down its decision in this case.

This was a case in which vessel owners sought general average contributions and a proportion of cargo interests declined – on the basis that there had been actionable fault by the vessel owners sufficient to provide a defence to any claim for general average contributions.

Shortly prior to the judgement of the High Court, this firm conducted an arbitration in which the issue as to whether passage planning was an incident of seaworthiness or an incident of navigation was central. The defence of the vessel owners seemed to be driven by the fact that there was no binding precedent on this point and implied that the reason for this was that it should be reasonably obvious – no one has dared take the issue to a binding precedent because it is obviously wrong – it must be an issue of navigation.

The Court of Appeal found exactly the opposite when it said:

“The conclusion that the vessel was unseaworthy due to a defective passage plan appears to have been novel, but was in my judgement no more than an application of well-established principles”.

In a decisively worded judgment, the Court of Appeal dismissed the vessel owners’ appeal against the decision of the judge that defects in the vessel’s passage plan rendered her unseaworthy.

The Court of Appeal said it described the owners’ assertion that preparation of a passage plan is an act of navigation, an exercise of judgement and seamanship and, therefore, falls within the negligent navigation exception and cannot amount to unseaworthiness as a fallacy.

It concluded that a properly prepared passage plan was an essential document that any vessel should have at the beginning of any voyage and there was, therefore, no reason why the absence of a passage plan should not render the vessel unseaworthy – as is the case with any other essential document such as a chart.

As to a second point – the owners sought to draw a distinction between the acts of the master and crew as embodying the acts of the carrier and their acts as navigators of the ship, well the Court of Appeal said this was “misconceived”.
The owners had sought to mount an argument that whatever the master and crew did in this regard was before it became within the owners’ “orbit”. This was roundly dismissed.

Once vessel owners assume a responsibility for the cargo as carriers, all acts of the master and crew in preparing the vessel for voyage are acts carried out as if they were the carrier. The duty is non-delegable.

And in passing, the Court of Appeal accepted cargo interests’ contention that it is well established that both one off instances of negligence and systemic failings can cause unseaworthiness. Vessel owners had sought to argue that one-off failings are on their own not sufficient to amount to unseaworthiness.

So, there is now a binding precedent from the Appeal Court that passage planning can be a seaworthiness issue.