General average: negligent passage planning can lead to unseaworthiness

Earlier this year the Court of Appeal upheld the Admiralty Court’s decision in the case of the “CMA CGM Libra”, where they denied the owners’ claim for general average contributions on the grounds of their failure to exercise due diligence to make the ship seaworthy.

Was passage planning an act of navigation?

The vessel grounded whilst leaving a Chinese port because the passage plan prepared by the ship’s officers did not take proper account of published warnings that depths shown on the charts might not be reliable.

The owners argued that the judge was wrong to decide that this made the vessel unseaworthy, because under the Hague Rules the carrier is not responsible for negligence of the ship’s crew in the navigation or management of the vessel. 

According to this argument, passage planning is to be regarded as an act of navigation, although actually carried out before the start of the voyage. The owners also argued that seaworthiness is concerned with the attributes or inherent qualities of the vessel itself, and although these may include having the correct charts and other documentation on board they do not extend to the way in which passage planning is done by the crew, which is a matter of navigation.

Appeal rejected

These arguments were rejected by the Court of Appeal. In the court’s view, there was no reason in principle why a defect caused by navigational error before the beginning of the voyage could not make the vessel unseaworthy. 

The court also referred to examples in previous cases which supported this view. It was implicit in the judge’s reasoning that a defective passage plan, like an out of date chart, was to be regarded as an attribute of the vessel and there was no reason to distinguish this from other documentation.

Furthermore, based on the established rule that carriers’ duty to take proper care to make the vessel seaworthy is a “non-delegable” duty, the court agreed with the judge’s finding that the owners were responsible for the negligence of the ship’s officers in this respect.