UK: Supreme Court Grants Permission In The CMA CGM LIBRA - John Russell QC & Benjamin Coffer

The Supreme Court will hear the shipowners' appeal from the decision inAlize 1954 v Allianz Elementar Versicherungs AG (The "CMA CGM LIBRA") [2020] EWCA Civ 293, after granting permission to appeal. The appeal will consider the legal test for unseaworthiness, the nature and limits of the carrier's non-delegable obligation to exercise due diligence, and the consequences of a defective passage plan. John Russell QC and Benjamin Coffer act for the respondent cargo interests.

The case arises out of the grounding of the CMA CGM LIBRA, a 6,000 TEU container ship, while leaving the port of Xiamen. The grounding occurred because the ship's chart failed to record a warning that depths shown on the chart outside the fairway were unreliable and waters were shallower than recorded on the chart. The Court of Appeal upheld the decision of Mr Justice Teare that the defect in the chart rendered the vessel unseaworthy, and that the failure of the crew to mark the required warning on the chart was a failure to exercise due diligence attributable to the owners. The Court of Appeal's judgment is discussed here.

The owners challenge the decision of the Court of Appeal on the basis that the crew's decision as to what to mark on the chart was a navigational decision rather than an "attribute of the ship", and that it was therefore incapable of making the ship unseaworthy. Alternatively, the owners argue that the failure to exercise due diligence on the part of the crew occurred outside of the owners' "orbit of responsibility". The owners' application for permission to appeal was supported by the International Group of P&I Clubs, who argued that the judgment of Teare J had led to "a marked increase in cargo interests alleging unseaworthiness on the basis of navigational decisions", and sought to intervene in the appeal in support of the owners' position.

The appeal is likely to take place towards the end of 2021.

Originally published by Quadrant Chambers, August 2020

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