On 17 May 2011, the CMA CGM LIBRA grounded whilst leaving the port of Xiamen, China. The owners claimed general average contributions from the cargo interests. At first instance, Teare J held that the passage plan and working chart were defective because they failed to record a warning in a Notice to Mariners that depths shown on the chart outside the fairway were unreliable and waters were shallower than recorded on the chart. The defective passage plan rendered the vessel unseaworthy.

The owners appealed against the Judge's decision, arguing that defective passage planning could not render a vessel unseaworthy because it involved no more than the recording of a navigational decision.

A strong Court of Appeal (Haddon-Cave, Flaux and Males LLJ) emphatically rejected that argument. The Court held that it is clear on the authorities that errors in navigation or management can render a vessel unseaworthy if they occur prior to the commencement of the voyage. There is no relevant distinction between mechanical acts of the master and crew and acts of the master and crew which require judgment and seamanship. Nor is there any relevant distinction between one-off acts of negligence which render a ship unseaworthy and continuing or systemic failings. The Court doubted whether unseaworthiness requires a defect affecting an "attribute" of the ship but did not find it necessary to decide the point as the defective passage plan and chart were attributes of the ship.

The owners also argued that even if the ship was unseaworthy, there was no relevant failure to exercise due diligence. Again, that argument was roundly rejected by the Court. The Owners are responsible for all the acts of the master and crew in preparing the vessel for the voyage (even if they are acts of navigation) as a consequence of the non-delegable duty under Article III rule 1.

What does the judgment mean for the future? On the facts of the case, the decision should be relatively uncontroversial: the Court of Appeal agreed with the Judge that it turned on a straightforward application of the existing test for unseaworthiness to the defective passage plan and chart. There is no obvious distinction between defective updating of the working chart as part of passage planning and a chart which is defective in any other way.

More difficult, perhaps, is whether defects in passage planning which are not recorded in any documentation can make a ship unseaworthy. What if the Master has an intention prior to the commencement of the voyage to navigate in a way which exposes the ship to danger? If there is no requirement to identify any "attribute" of a ship, the Master's intention arguably makes the ship unseaworthy – although it might be questionable whether that prior intention is sufficiently causative. Another possible example, considered in the course of argument before the Court of Appeal, is if the SMS requires a master-pilot exchange to take place prior to departure. If the exchange does not take place, can that constitute unseaworthiness?

The decision re-affirms the carrier's non-delegable duty to exercise due diligence to make the ship seaworthy. But there remains fuzziness at the outer limits of that principle: what does it mean to say that a failure to exercise due diligence occurs outside of the carrier's "orbit"? Are there new situations, beyond the existing cases of shipbuilding defects and dangerous cargo, in which the orbit theory might apply? The judgment raises these sorts of questions as problem areas for the law, but does not provide definitive answers.

[The Owners' application for permission to apply to the Supreme Court is pending]

John Russell QC and Benjamin Coffer appeared for the successful Respondents, instructed by John Reed and Jai Sharma at Clyde & Co.

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