A general average claim: what makes a vessel unseaworthy?

Cargo interests regularly dispute shipowners’ claims for general average contributions because the casualty was caused by the vessel’s unseaworthiness, arising from the owners’ lack of due diligence.

In Alize 1954 v Allianz (the “CMA CGM Libra”) the Admiralty Court held that this applied not only to the physical condition of the vessel, but also the documents on board and proper passage planning.

Relying on charted depths

The casualty occurred in 2011, when the vessel grounded whilst leaving a Chinese port. The owners knew it was a difficult port to navigate in and out of, and that outside the marked fairway channel there could be uncharted areas of shallow water. The ship hit an uncharted shoal outside the marked channel, in an area where there were charted depths of over 30 metres. The master had deviated from the marked channel because he was told there was shallow water in certain areas during the inward passage. 

The judge found this decision was negligent. A recent notice to mariners warned it was unsafe to rely on charted depths and gave advice on the least depth in the fairway. A prudent mariner would conclude it was safe to navigate within the fairway but not outside it where they might encounter uncharted shoal areas. However, negligent navigation alone wouldn’t amount to the owners being legally at fault. 

The passage plan

Cargo interests claimed the passage plan prepared before departure was defective, which made the vessel unseaworthy. The judge agreed. Applying the legal test of seaworthiness, he considered that if a prudent shipowner knew his vessel was about to begin a voyage with a defective passage plan, he would require the defect to be made good before the vessel set out to sea. Producing the defective passage plan was not an error of navigation but came within the owners’ obligation under the Hague Rules to exercise due diligence to make the vessel seaworthy before and at the beginning of the voyage. He also found the defective passage plan was a cause of the casualty, because the master would not have attempted the manoeuvre which led to the grounding if there had been proper warnings on the chart or passage plan. 

The conclusion

Finally, he concluded that as the master and second officer were negligent when they prepared the passage plan this amounted to a breach of the owners’ non-delegable duty to exercise due diligence, and accordingly owners were not entitled to recover general average contributions from the cargo insurers.