In 2011, before the widespread use of automatically updated electronic navigational charts, the crew of a container ship, in preparing a passage plan prior to its departure from Xiamen, China, used a printed chart intended to be updated as required by reference to weekly navigational “Notice to Mariners” updates issued by the UK Hydrographic Office. The crew failed to mark on the chart an update warning that there were areas outside the buoyed fairway in the approaches to the port where the waters were shallower than recorded on the chart. While leaving the port, the master navigated outside the buoyed fairway and the vessel was grounded on a shoal. The vessel’s owners funded the salvage and claimed general average. Some of the cargo interests refused to pay their contributions on the ground that the loss had been caused by the owners’ actionable fault within the meaning of the York-Antwerp Rules governing general average claims, namely a failure by the owners to exercise due diligence to make the vessel seaworthy, given that it had left port with a defective passage plan, in breach of their obligation under article III, rule 1 of the International Convention for the Unification of Certain Rules relating to Bills of Lading (“the Hague Rules”) which had been incorporated into the contracts of carriage. The owners brought proceedings against those cargo interests to recover the withheld contributions, contending that the Hague Rules drew a category-based distinction between a vessel’s equipment and other attributes necessary for safety, which constituted the seaworthiness requirement of article III, rule 1, and failures by an otherwise competent and adequately equipped crew to navigate a seaworthy ship, which fell within article IV, rule 2(a) of the Rules and which exempted owners from liability. The owners claimed that the defective passage plan fell into the latter category and so the vessel had not been unseaworthy. In the alternative, the owners claimed that even if the vessel had been rendered unseaworthy by the defective plan, it still had to be shown that there had been a want of due diligence on their part, which did not arise since they had employed a competent crew, equipped the vessel with all the necessary equipment to enable the crew to navigate the vessel safely including providing all relevant Notices to Mariners, and so had provided a proper system for the master and desk officers to exercise their specialist skill and judgment. The admiralty judge held that the defective passage plan had been a decisive influence on the master’s decision to leave the fairway, the danger not having been sufficiently visible so to be avoided by the exercise of due navigational care, and so that defective passage plan had been causative of the grounding. Having rejected both strands of the owners’ argument, the judge concluded that they had been in breach of article III, rule 1 and so the cargo owners had a good defence to the claim. The Court of Appeal dismissed the owners’ appeal.
On the owners’ further appeal—
Held, appeal dismissed. (1) The question as to a vessel’s seaworthiness before and at the beginning of a voyage, within article III, rule 1 of the Hague Rules, was not to be made the subject of a category-based distinction between a vessel’s quality of navigability and the crew’s act of navigating, and was not to be confined to the physical attributes of the vessel itself. Save in exceptional circumstances, the question was whether prudent owners, had they known of some defect, would have required it to be made good before they sent the vessel to sea. Applying that test, a vessel would be unseaworthy if she began her voyage with a defective passage plan which endangered the safety of the vessel. In such circumstances the exception in respect of neglect or default in “the navigation of the ship” under article IV, rule 2(a) of the Hague Rules would not apply, since the article IV exceptions did not apply where a lack of seaworthiness within article III, rule 1 had been causative of the loss or damage. Here, a prudent owner would have expected a passage plan which erroneously omitted a published warning about the charted depths outside the fairway for the initial part of the journey being unreliable to have been remedied before the vessel left port. The judge had directed himself properly in law when finding that the defective passage plan causative of the loss, albeit the result of a negligent navigational act by the crew, had rendered the vessel unseaworthy (paras 70–72, 76, 92, 96, 100–101, 103, 118–119, 121–122, 128, 145).
(2) Where owners of a vessel found to have been unseaworthy claimed that they had nevertheless exercised all due diligence and so were not in breach of article III, rule 1, the due diligence required of them extended to all work necessary to make the vessel seaworthy, regardless of who they had engaged to carry out that task, save where the defect or danger had occurred before they had responsibility for the vessel or its cargo and could not have been reasonably discovered by them once the vessel or cargo had come within their control. Applying that test, owners’ due diligence obligation in relation to passage planning was not limited to providing a proper system for such planning but, rather, extended to the master’s and deck officers’ preparation of a passage plan for the vessel’s voyage, notwithstanding that navigation was their particular responsibility and involved the exercise of their specialist skill and judgment. Accordingly, the judge had also directed himself properly in law when finding that the defective passage plan, albeit prepared by the crew in the exercise of their specialist skill and judgment, involved a want of due diligence by the owners to make the vessel seaworthy. His order dismissing their claim against the cargo interests would stand (paras 133–141, 144, 145).
Timothy Hill QC, Alex Carless and Michal Hain (instructed by Reed Smith LLP) for the shipowners.
John Russell QC and Benjamin Coffer (instructed by Clyde & Co LLP, Guildford) for the cargo interests.