Alize 1954 and another (Appellants) v Allianz Elementar Versicherungs AG and others (Respondents)

Michaelmas Term

[2021] UKSC 51

On appeal from: [2020] EWCA Civ 293

Appellants
Timothy Hill QC

Alex Carless Michal Hain

(Instructed by Reed Smith LLP (London))

Respondents

John Russell QC Benjamin Coffer

(Instructed by Clyde & Co LLP (Guildford))

LORD HAMBLEN: (with whom Lord Reed, Lord Briggs, Lady Arden and Lord Leggatt agree)

1.          This appeal concerns the scope of a shipowner’s obligation to exercise due

diligence to make a vessel seaworthy. The seaworthiness obligation is fundamental to obligation imposed by article III rule 1 of the Hague Rules, a 1924 international convention for the unification of rules of law relating to bills of lading. It is in the same terms under the Hague Visby Rules, the Hague Rules as amended by the 1968 Brussels Protocol. The Hague or Hague Visby Rules have been ratified by more than 95 states across the world. Where not compulsorily applicable, they are widely contractually incorporated into bills of lading, charterparties and other contracts of affreightment, often through a clause paramount.

all contracts of carriage of goods by sea. At common law the carrier was under an
absolute obligation to provide a seaworthy vessel. Today the seaworthiness obligation
is invariably governed by the terms of the parties’ contract or by statute, such as the

2. The main issue raised on the appeal is whether, as the appellants contend, the

carrier’s obligation under the Hague Rules is subject to a category-based distinction
between a vessel’s quality of seaworthiness or navigability and the crew’s act of
navigating. It is said that there is a distinction between seaworthiness, which concerns
the attributes and equipment of the vessel, and the navigation and management of the
vessel, which concerns how the crew operates the vessel using those attributes and
equipment. A further and related issue arises in relation to the obligation of due
diligence. It is the appellants’ case that so long as the carrier has equipped the vessel
with all that is necessary for her to be safely navigated, including a competent crew,
then the crew’s failure to navigate the vessel safely is not a lack of due diligence by the
carrier.

3.          The factual context in which these issues arise is the grounding of the

appellants’ container vessel CMA CGM LIBRA on leaving the port of Xiamen, China, on a voyage to Hong Kong. The Admiralty Judge, Teare J, found that the vessel’s defective passage plan was causative of the grounding and that this involved a breach of the
carrier’s seaworthiness obligation under article III rule 1 of the Hague Rules. His
decision was upheld by the Court of Appeal. The appellants (“the owners”) contend
that the decisions of the courts below were wrong, that the vessel was not
unseaworthy and/or due diligence was exercised, and that any negligence in passage
planning was a navigational fault which is exempted under article IV rule 2(a) of the
Hague Rules.

1.          THE FACTUAL BACKGROUND

Passage planning

4.          The Guidelines for Voyage Planning adopted by Resolution A893(21) of the

International Maritime Organisation (“IMO”) on 25 November 1999 (“the Guidelines”) were to be brought “to the attention of masters of vessels, … shipowners, ship operators, shipping companies, maritime pilots, training institutions and all other parties … for information and action as appropriate” (2nd resolution). As the judge held (para 87), they involve recognition of the need for passage planning to be adopted by “all ships engaged on international voyages” (5th recital). They state that “the development of a plan for voyage or passage, as well as the close and continuous monitoring of the vessel’s progress and position during the execution of such a plan, are of essential importance for safety of life at sea, safety and efficiency of navigation and protection of the marine environment” (Objective 1.1). They identify four components of passage planning: appraisal, planning, execution and monitoring.

5.          The appraisal stage requires “all information relevant to the contemplated

voyage or passage” to be considered. This should include “appropriate scale, accurate
and up-to-date charts to be used for the intended voyage or passage, as well as any
relevant permanent or temporary notices to mariners and existing radio navigational
warnings”. The appraisal “should provide a clear indication of all areas of danger” and
of “those areas where it will be possible to navigate safely”.

6.          The planning stage requires a detailed berth to berth passage plan to be

prepared on the basis of the “fullest possible appraisal”. The factors which should be
included in the passage plan include “the plotting of the intended route or track of the
voyage or passage on appropriate scale charts” with an indication of “the true
direction of the planned route or track” and “all areas of danger”. The details of the
passage plan “should be clearly marked and recorded, as appropriate, on charts and in
a voyage plan notebook or computer disk” and its details “should be approved by the
ships' master prior to the commencement of the voyage”.

7. The execution stage involves executing the voyage in accordance with the plan

or any changes made thereto and the Guidelines list various factors which should be
taken into account “when executing the plan, or deciding on any departure
therefrom”.

8. The monitoring stage involves ensuring that the plan is “available at all times on

the bridge to allow officers of the navigational watch immediate access and reference
to the details of the plan”. The Guidelines further provide that “the progress of the
vessel in accordance with the voyage and passage plan should be closely and
continuously monitored” and that any “changes made to the plan should be made
consistent with these Guidelines and clearly marked and recorded”.

9. Prudent passage planning would reasonably be expected to involve due regard to the Guidelines. As the judge stated at para 3:

“Established principles with regard to seaworthiness and the recognition by the International Maritime Organisation in 1999 that voyage or passage planning should apply to all ships engaged on international voyages. The practice of passage planning was therefore well established by 2011.”
duty of due diligence pursuant to article III, rule 1 of the

10.        As the judge found at para 65:

“The purpose of a passage plan is to plan the passage so as to was to identify areas where it was unsafe for the vessel to go and to prevent ‘bad real-time decisions from being made’. As Captain Hart put it, ‘a proper passage plan operates to prevent bad ad hoc decision-making during the course of a passage’.”

ensure that the vessel is navigated safely: see the IMO
Guidelines for Passage Planning. The owners’ own guidance
to their masters emphasised that the information noted on
the passage plan should include ‘the areas to be avoided’ and
‘navigation dangers such as … shallow waters’. Captain

The defects in the passage plan

11.        In the present case, the passage plan was contained in two documents: a

completed pro-forma “passage plan document” and the vessel’s working chart. For the
part of the vessel’s passage involving departure from Xiamen, the relevant chart was
British Admiralty chart no 3449 (“BA 3449”). The printed version of BA 3449 which the
vessel had onboard was the most up-to-date printed version. The UK Hydrographic
Office regularly publishes (usually on a weekly basis) Notices to Mariners that provide
crews with navigational information, some of which must be marked on the chart
(nowadays vessels use electronic charts which are automatically updated).

12. The vessel had onboard Notice to Mariners 6274(P)/10 (“NM 6274”). NM 6274 included the following warning (“the uncharted depths warning”):

“Numerous depths less than the charted exist within, and in
the approaches to Xiamen Gang.”

13.        During the passage planning process, the crew did not annotate BA 3449 to

include an express reference to the uncharted depths warning, nor did they refer to it
in the passage plan document. NM 6274 also included advice that the “least depth”
within the buoyed fairway leading from the port to the open sea was 14 metres at low
tide, so that it was at all times sufficiently deep for the vessel. When this advice was
read together with the uncharted depths warning, the judge found (at para 53) that an
ordinarily prudent mariner would consider that it was safe to navigate within the
fairway (which had a sufficient depth) but not outside of the fairway (which had
numerous depths less than charted).

14.        The judge found that:

“70.	… prudent passage planning required the danger

created by the presence of numerous depths less than those charted outside the fairway to be noted on the chart. Such a note, in the terms suggested by Captain Hart, would

immediately remind the officer navigating the vessel that it
was unsafe to navigate outside the fairway. Such a note
would do that which the IMO guidance on passage planning
requires, namely, it would give a clear indication of the
danger in navigating outside the fairway … My conclusion,
having considered the expert and other evidence, is that
whilst it would of course be prudent to note the warning in
the passage plan it would also be necessary (and prudent) to
mark the warning on the chart since that is the primary
document to which the officer navigating the vessel would
refer when making navigational decisions in the course of the

outward passage.

…

73.        In the present case neither the passage plan nor the

chart contained the necessary warning. It was therefore defective or inadequate and imprudently so. A source of danger when leaving Xiamen was not clearly marked as it ought to have been.”

Causation

15. On 18 May 2011, whilst leaving Xiamen, the vessel grounded on a shoal outside

of the buoyed fairway. The detailed factual circumstances leading up to the grounding
are set out in paras 9 to 43 of Teare J’s judgment.

16.        The then current version of BA 3449, as “updated” by the crew to take into

account the latest Notices to Mariners (where required), did not indicate the shoal on
which the vessel grounded (though it did show a sounding of 1.2 metres that might
have been part of the shoal).

17. According to the passage plan, the vessel was not meant to leave the buoyed

fairway. Nonetheless, whilst underway the master decided to leave the fairway to pass
west of buoy 14.1. The judge found that decision to be negligent (para 54).

18.        The judge further found that “it is more likely than not that the defect in the

passage plan was causative of the master’s decision to leave buoy 14-1 to port” (para 89). He explained that had “there been a warning on the chart about charted depths being unreliable the master would have been, as it seems to me, most unlikely to have
decided to navigate beyond the buoyed fairway to the west of buoy 14-1” (para 90)
and concluded that “the defective passage plan and the master’s resulting negligence
in deciding to navigate outside the buoyed fairway” was “a real and effective cause of
the grounding” (para 92).

2.          THE LEGAL CONTEXT

19.        The grounding of the vessel led to its salvage at a cost of some US$9.5m. It

resulted in a total claim in general average made by the owners against the cargo owners of some US$13m. General average is a principle of maritime law whereby sacrifice or expenditure, in time of danger, for the sake of all the property interests to
the common maritime adventure, is to be replenished by a general contribution by all
property interests whose property has been thereby brought to safety.

20. Most of the cargo owners paid their contribution to general average but some

8% refused to do so, leading to the general average claim made by the owners against
the respondents (“the cargo interests”) in the present proceedings of approximately
US$800,000.

21. A shipowner is not entitled to recover general average contributions from the

owners of the cargo where the loss or expenditure was caused by its “actionable fault”
which includes any causative breach of the terms of the relevant contract of carriage.

22.        In the present case, the cargo was being carried pursuant to contracts of

carriage contained in or evidenced by bills of lading which, as is common ground, are
governed by English law. The contracts of carriage incorporated the Hague Rules.

23. Article II of the Hague Rules provides that “under every contract of carriage of

goods by sea the carrier … shall be subject to the responsibilities and liabilities, and
entitled to the rights and immunities” thereafter set out.

24.        The responsibilities and liabilities of the carrier are set out in article III, which

provides that:

“1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:

(a)	Make the ship seaworthy.
(b)	Properly man, equip and supply the ship.
(c)	Make the holds, refrigerating and cool

chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

2. Subject to the provisions of article 4, the carrier shall

properly and carefully load, handle, stow, carry, keep, care
for, and discharge the goods carried.”

25. The rights and immunities of the carrier are set out in article IV which identifies the circumstances in which the carrier shall not be responsible for loss or damage.

26. In relation to the obligation of seaworthiness under article III rule 1, the relevant provision is article IV rule 1 which provides as follows:

“1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is

properly manned, equipped and supplied, and to make the
holds, refrigerating and cool chambers and all other parts of
the ship in which goods are carried fit and safe for their
reception, carriage and preservation in accordance with the
provisions of paragraph 1 of article III. Whenever loss or
damage has resulted from unseaworthiness the burden of
proving the exercise of due diligence shall be on the carrier or
other person claiming exemption under this article.”

27. In relation to the obligation properly and carefully to care for the goods under article III rule 2, the relevant provision is article IV rule 2 which provides as follows:

“2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:

(a)	Act, neglect, or default of the master, mariner,

pilot, or the servants of the carrier in the navigation or

in the management of the ship.

(b)	Fire, unless caused by the actual fault or privity

of the carrier.

(c)	Perils, dangers and accidents of the sea or other

navigable waters.

(d)	Act of God.
(e)	Act of war.
(f)	Act of public enemies.
(g)	Arrest or restraint of princes, rulers or people,

or seizure under legal process.

(h)	Quarantine restrictions.

(i)          Act or omission of the shipper or owner of the

goods, his agent or representative.

(j)	Strikes or lockouts or stoppage or restraint of

labour from whatever cause, whether partial or

general.

(k)	Riots and civil commotion.
(l)	Saving or attempting to save life or property at
sea.
(m)	Wastage in bulk or weight or any other loss or

damage arising from inherent defect, quality or vice of

the goods.

(n)	Insufficiency of packing.
(o)	Insufficiency or inadequacy of marks.
(p)	Latent defects not discoverable by due

diligence.

(q) Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the

agents or servants of the carrier contributed to the
loss or damage.”

3.          THE PROCEEDINGS BELOW

28. In defence of the owners’ claim for contribution in general average, the cargo

interests alleged “actionable fault” by the owners in failing to exercise due diligence to
make the ship seaworthy, in breach of their obligation under article III rule 1 of the
Hague Rules, in that the passage plan was defective.

29.        The owners’ response to this allegation was that a passage plan records

navigational decisions, a defective passage plan does not render a vessel unseaworthy,
and article IV rule 2(a) exempts shipowners from liability for negligent navigational
decisions. The owners’ alternative case was that, even if the vessel was unseaworthy,
they had exercised due diligence to make her so: they employed a competent crew
and equipped the vessel with all the necessary equipment to enable the crew to
navigate the vessel safely, and in particular with both the relevant up-to-date chart as
well as the Notices to Mariners warning of dangers not printed on the chart.

30. Following a six-day trial, Teare J dismissed the owners’ claim: [2019] EWHC 481 (Admlty); [2019] Bus LR 1453.

31.        In relation to the issue of seaworthiness, the judge applied what he described as

McFadden v required the relevant defect, had he known of it, to be made good before sending his ship to sea” (“the prudent owner test”). He found that the prudent owner would have required the defective passage plan to be made good before the vessel set to sea, and indeed that it was “inconceivable” that the prudent owner would have acted otherwise:

“the usual or conventional test on unseaworthiness” (para 77), as set out

“78. Given that, as stated in the IMO Resolution of 1999, a ‘well-planned voyage’ is of ‘essential importance for safety of life at sea, safety of navigation and protection of the marine

environment’ one would expect that the prudent owner, if he
had known that his vessel was about to commence a voyage
with a defective passage plan, would have required the
defect to be made good before the vessel set out to sea. This
is particularly so where the defect in question is an absence
from the passage plan and chart of a warning that numerous
depths outside the fairway are less than those charted and
where the owners had advised their masters of the difficulty
of navigating in Xiamen waters because of, amongst other
matters, ‘shallow waters’ and urged ‘utmost care and diligent
caution’. The appropriate warning in the passage plan and on
the chart would serve to reduce the risk of poor navigational
decisions during the passage. It seems to me inconceivable
that the prudent owner would allow the vessel to depart
from Xiamen with a passage plan which was defective in the
manner which I have found.”

The judge rejected all other allegations of unseaworthiness (para 129).

32.        In relation to due diligence, the judge found that:

(i) The master was competent (para 122). The master and second officer

had on board everything that they needed to prepare a non-defective passage plan (para 101). No criticism was advanced by the cargo interests’ expert of the owners’ safety management system or auditing practices (para 110).

(ii) The owners were, however, wrong to characterise their duty of due diligence as being merely to ensure that the requisite materials were on board for a competent crew to prepare an adequate passage plan, putting in place proper systems and auditing those systems to check that they were being properly implemented (para 86).

(iii) The owners were responsible for all of the acts of the crew carried out whilst passage planning. “Due diligence … was not exercised by the owners because the master and second officer failed to exercise reasonable skill and care when preparing the passage plan” (para 129).

33. The Court of Appeal dismissed the owners’ appeal: [2020] EWCA Civ 293; [2020] Bus LR 1590. The leading judgment in the Court of Appeal was given by Flaux LJ, with whom Males and Haddon-Cave LJJ agreed. Males LJ gave a judgment with which Haddon-Cave LJ agreed. Haddon-Cave LJ also gave a short concurring judgment. It is to be noted that all the judges below are very experienced in shipping law.

4.          THE APPROACH TO INTERPRETATION OF THE HAGUE RULES

34.        In its recent decision in Nautical Challenge Ltd v Evergreen Marine (UK) Ltd

[2021] UKSC 6; [2021] 1 WLR 1436 this court observed at para 38 that international known passage Lord Macmillan stated as follows at p 350:
conventions should in general “be interpreted by reference to broad and general
principles of construction rather than any narrower domestic law principles”. One of

the leading authorities there cited is the House of Lords decision in Stag Line Ltd v

“It is important to remember that the Act of 1924 was the
outcome of an International Conference and that the rules in
the Schedule have an international currency. As these rules
must come under the consideration of foreign courts it is
desirable in the interests of uniformity that their
interpretation should not be rigidly controlled by domestic
precedents of antecedent date, but rather that the language
of the rules should be construed on broad principles of
general acceptation.”

35. In the Nautical Challenge case the court observed (para 39) that the relevant

general principles include article 31.1 of the Vienna Convention on the Law of Treaties
1969 which provides:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and

purpose.”

36.        They also include article 32 of the Vienna Convention which provides that

recourse may be had to “supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion” in order “to
confirm the meaning” or “to determine the meaning” when it is “ambiguous or
obscure” or “leads to a result which is manifestly absurd or unreasonable”.

37. Regard may therefore be had to the travaux préparatoires (“the travaux”) as a

supplementary means of interpretation of the Hague Rules. As, however, Lord Steyn
observed in Effort Shipping Co Ltd v Linden Management SA (The Giannis NK) [1998] AC
605 at p 623D (a case concerning the Hague Rules):

“Although the text of a convention must be accorded primacy in matters of interpretation, it is well settled that the travaux préparatoires of an international convention may be used as ‘supplementary means of interpretation’: compare article 31 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. Following Fothergill v Monarch Airlines Ltd [1981] AC 251, I would be quite prepared, in an appropriate case

necessary to pay particular regard to their history, origin and context … The Hague Rules, as is well known, were the result of the Conferences on Maritime Law held at Brussels in 1922 and 1923. Their aim was broadly to standardise within certain limits the rights of every holder of a bill of lading against the shipowner, prescribing an irreducible minimum for the responsibilities and liabilities to be undertaken by the latter.

“To ascertain [the Rules’] meaning it is, in my opinion, precedents the American Harter Act of 1893, the Australian Sea Carriage of Goods Act, 1904, the Canadian Water Carriage of Goods Act, 1910, and, though they had no British Act as a model, they had decisions of the English courts in which the language of the Harter Act had fallen to be construed by virtue of its provisions being embodied in bills of lading.”

involving truly feasible alternative interpretations of a
convention, to allow the evidence contained in the travaux
préparatoires to be determinative of the question of
construction. But that is only possible where the court is
satisfied that the travaux préparatoires clearly and
indisputably point to a definite legal intention: see Fothergill
v Monarch Airlines Ltd, per Lord Wilberforce, at p 278C. Only
a bull’s-eye counts. Nothing less will do.”

38. Account should also be taken of the note of caution expressed by Lord Bingham

of Cornhill in JI MacWilliam Co Inc v Mediterranean Shipping Co SA (The Rafaela S)
[2005] UKHL 11; [2005] 2 AC 423 at para 19:

“It must be remembered that in a protracted negotiation
such as culminated in adoption of the Hague Rules there are
many participants, with differing and often competing
objects, interests and concerns. It is potentially misleading to
attach weight to points made in the course of discussion,
even if they appear at the time to be accepted. In the present
case, I do not think that either party can point to such a clear,
pertinent and consensual resolution of the issue before the
House as would provide a sure ground of decision.”

39.        In considering the object and purpose of the Hague Rules it is appropriate to

have regard to their history, origin and context. As Viscount Simonds explained in
Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd (The Muncaster Castle) [1961]

AC 807 at p 836:

The framers of the Rules also had as precedents decisions of the English and US courts
on the meaning of seaworthiness and on a number of the article IV rule 2 exceptions,
many of which mirrored the wording of provisions commonly included in bills of lading
– see, for example, Gosse Millerd Ltd v Canadian Govt Merchant Marine Ltd [1929] AC
223, p 237 (Lord Sumner) and p 230 (Lord Hailsham LC).

40.        It may also be appropriate to have regard to the French text of the Rules, as this

is the official and authoritative version. As explained in the Introduction to Chapter 1
of International Maritime Conventions Vol 1: The Carriage of Goods and Passengers by
Sea, 1st ed (2014):

“The peculiarity of the Hague Rules is that, although they have been adopted in the French language only, they are based on a French unofficial translation of the Hague Rules

1921, the only official text of which was in English. Therefore it may look odd to base the interpretation of the Hague Rules on a French text that originates from a translation of the
original English text. However, at the diplomatic conference, the text considered was that in French and the debates took place in the French language, which at that time was the
unique diplomatic language. Consequently, it must be the
French text that in any event prevails ...”

41. In Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 QB 402 Devlin J had regard to the French text, explaining as follows (at p 421):

“Having regard to … the fact that the French text is the only
authoritative version of the Convention, I think … that it is
permissible to look at it. I agree that it is not conclusive, but it
may help to solve an ambiguity if there be one. I agree also
that unless the court is assisted by a French lawyer it should
be looked at cautiously.”

The legitimacy of looking to the French text for assistance has been confirmed in a
number of subsequent cases - see, for example, The Rosa S [1989] 1 QB 419, 422-423
(Hobhouse J); The Rafaela S at para 44 (Lord Steyn) and para 55 (Lord Rodger of
Earlsferry); Kyokuyo Co Ltd v AP Møller-Maersk A/S (t/a Maersk Line) (The Maersk
Tangier) [2018] EWCA Civ 778; [2018] Bus LR 1481, paras 60-61 (Flaux LJ).

42.        Finally, as stated in the Nautical Challenge case at para 42, international

conventions should “be interpreted in a uniform manner and regard should therefore
be had to how they have been interpreted by the courts of different countries”. This
will be particularly important if there is shown to be a consensus among national
courts in relation to the issue of interpretation.

5.          ISSUE 1 - DID THE DEFECTIVE PASSAGE PLAN RENDER THE VESSEL

UNSEAWORTHY FOR THE PURPOSES OF ARTICLE III RULE 1 OF THE HAGUE RULES?

(1)	The owners’ case

43. The owners submitted that the Hague Rules draw a clear distinction between

the navigable state of the vessel and the navigation of the vessel by the master and
crew. The former is the subject matter of the carrier’s duty to make the vessel
seaworthy under article III rule 1, whilst the latter is subject to the “nautical fault”
exception as set out in article IV rule 2(a).

44. It was submitted that the seaworthiness obligation is concerned with whether

the vessel is fit in herself for the purpose of safe navigation. It is concerned with the
state of the vessel and defects which are intrinsic to the vessel, rather than extrinsic or
ephemeral matters. To render the vessel unseaworthy the defect must be an attribute
of the vessel.

45.        It was said that such an approach is supported by the history of the obligation of

seaworthiness, the origin, context and purpose of the Hague Rules and various English navigabilité”, which literally means “state of navigability” or “navigable condition”. By contrast, article IV rule 2(a) covers acts, neglect or default “dans la navigation” - ie when actually navigating the vessel.
and US precedents. Reliance was also placed on the French text of the Hague Rules.

History

46.        Prior to the adoption of the Hague Rules it was firmly established as a matter of

English law that it was an implied term of a contract of carriage of goods by sea that the vessel be seaworthy. In Kopitoff v Wilson (1876) 1 QBD 377, 380 it was said in the judgment of the court (Blackburn, Quain and Field JJ) that this implication necessarily arises from “the nature of the contract” and that:

“For this proposition we have the high authority of Lord published in 1802, and for the correctness of which he vouches Emerigon, Roccus, and other eminent writers and commentators upon the subject; Abbott on Shipping, 1st ed, [p 181]. The accuracy of the proposition thus stated in 1802 has not, that we are aware of, ever been brought into question in any of the subsequent editions, or of the numerous text books since published on the subject. In further support of the implication of such a warranty, we have the authority of Lord Ellenborough … in the case of Lyon v Mells ...”

47.        In Lyon v Mells (1804) 5 East 428, 102 ER 1134, Lord Ellenborough CJ stated at p

437 that:

“It is a term of the contract on the part of the carrier …
implied by law, that his vessel is tight and fit for the purpose
or employment for which he offers and holds it forth to the
public: it is the very foundation and immediate substratum of
the contract that it is so. The law presumes a promise to that
effect on the part of the carrier without any actual proof; and
every reason of sound policy and public convenience requires
it should be so.”

48.        The implied term involved an absolute warranty of seaworthiness. As Lord

Blackburn stated in Steel v State Line (1877) 3 App Cas 72 at p 86:

“I take it my Lords, to be quite clear, both in England and in Scotland, that where there is a contract to carry goods in a ship, whether that contract is in the shape of a bill of lading,

Ellenborough, following him, and of Baron Parke, also, in the case of Gibson v Small, without seeing that these three great masters of marine law all concurred in that; and their opinions are spread over a period of about 40 or 50 years. I think therefore, that it may be fairly said that it is clear that there is such a warranty or such an obligation in the case of a contract to carry on board ship.”

or any other form, there is a duty on the part of the person
who furnishes or supplies that ship, or that ship’s room,

unless something be stipulated which should prevent it, that
the ship shall be fit for its purpose. That is generally
expressed by saying that it shall be seaworthy; and I think
also in marine contracts, contracts for sea carriage, that is
what is properly called a "warranty", not merely that they
should do their best to make the ship fit, but that the ship
should really be fit. I think it is impossible to read the opinion
of Lord Tenterden, as early as the first edition of Abbott on

49.        In order to mitigate the consequences of the absolute obligation of

seaworthiness and their strict liability as carriers, during the course of the 19th century
shipowners came to insert an increasingly wide range of exclusion clauses in their
contracts of carriage. The strong bargaining position of liner shipping companies meant
that such exclusions generally had to be accepted by cargo interests. This led to calls
for action to be taken internationally to achieve a fairer balance between carriers and

cargo interests.

Origin

50. The owners submitted that the origin of article III rule 1 of the Hague Rules is a

legislative response to carriers’ largely successful attempts to contract out of the
implied absolute obligation and that it reflected a compromise.

“[T]he attack [by the ‘agitators’ amongst cargo interests] was
mainly directed against the negligence clause [ie the
navigational fault exception]. … We told our friends the cargo
interests that if they made us assume that responsibility they
would increase very substantially the cost of carriage, and
that if we were to act both as underwriters and as
shipowners the freights must provide the funds out of which
both services were met. ...
[N]ow when meeting this new agitation we find that the
cargo interests have practically all come round to our view
and they are all now maintaining that they can effect their
insurances against negligent navigation far more cheaply
with the underwriters than if that responsibility is put upon
shipowners. They have come round to our view on that
point.”

55. Reliance was also placed on the drafting summary provided by the chairman of the plenary session of the Brussels Convention in 1923, Mr Louis Franck, as follows:

“[T]he origins of the drafting were recalled, inspired by
custom and practice. Jurisprudence ought to be guided by
custom and practice. The commission considered that the
text had not been produced according to any systematic
drafting or a preconceived plan by drafters free to formulate
their thought in a correct and elegant manner, but rather,
according to formulae inserted many years ago in bills of

lading that had undergone the test of practice. …

A commentary on this article was formulated … saying that could be deemed ‘force majeure’ where the shipowner was not liable. … Finally, the third category: cases … resulting neither from the actual fault or privity of the carrier or his agents.”

there were, in effect, three major subdivisions. The first
included the case dealing with the actual faults of the captain
or the agents of shipowning interests in the navigation or
management of the ship, that is to say, the technical and
nautical management. In such a case, there was no liability
on the part of the shipowner for these faults. That was
compensation for the obligation imposed on the shipowner
always to accept liability in matters of the care of the cargo.

Precedent

56.        In support of their argument that a vessel is seaworthy if intrinsically and in all

her attributes she is fit for purpose, the owners placed particular reliance on the Court of Appeal decisions in Actis Co Ltd v Sanko Steamship Co Ltd (The Aquacharm) [1982] 1 WLR 119 and A Meredith Jones & Co Ltd v Vangemar Shipping Co Ltd (The Apostolis)
[1997] 2 Lloyd’s Rep 241. It was submitted that these authorities establish that there is
an “attribute threshold”. Unseaworthiness requires there to be an attribute of the
vessel which threatens the safety of the vessel or her cargo. The owners also relied on
the judgment of Scrutton LJ in Madras Electrical Supply Co v P&O Steam Navigation Co
(1924) 18 Lloyd’s Rep 93 and the decision of David Steel J in Owners of Cargo Lately
Laden on Board the Torepo v Owners of the Torepo (The Torepo) [2002] EWHC 1481
(Admlty); [2002] 2 Ll L Rep 535, a case which involved an allegation of defective

passage planning. These authorities will be discussed below.

“… the first submission on behalf of the respondents was that
in cases of fire article III never comes into operation even
though the fire makes the ship unseaworthy. All fires and all
damage from fire on this argument fall to be dealt with under
article IV, rule 2(b).”

68.        The Board rejected that argument, stating as follows at pp 602-603: “Article III, rule 1, is an overriding obligation. If it is not fulfilled and the nonfulfillment causes the damage the immunities of article IV cannot be relied on. This is the natural construction apart from the opening words of article

III, rule 2. The fact that that rule is made subject to the provisions of article IV and rule 1 is not so conditioned makes the point clear beyond argument.”

69. The Board further held that before and at the beginning of the voyage “means

the period from at least the beginning of the loading until the vessel starts on her
voyage” so that “the obligation to exercise due diligence to make the ship seaworthy
continued over the whole of the period from the beginning of loading until the ship
sank” (p 603). It followed that it did not matter whether the appellant cargo owners’
goods were stowed before or after the commencement of the fire. As the Board stated
(p 602):

“From the time when the ship caught on fire she was
unseaworthy. This unseaworthiness caused the damage to
and loss of the appellants’ goods. The negligence of the
respondents’ servants which caused the fire was a failure to
exercise due diligence.”

70. Maxine Footwear clearly establishes that where loss or damage is caused by a

breach of the carrier’s obligation to exercise due diligence to make the vessel
seaworthy under article III rule 1, the article IV rule 2 exceptions cannot be relied
upon, including where the excepted matter is the cause of the unseaworthiness.

71.        This established principle undermines the owners’ argument that there is a

category-based distinction between seaworthiness and navigation or management of the ship. They are not mutually exclusive. Negligent navigation or management of the ship may cause unseaworthiness. If it does so, then that negligence is likely to amount to a failure to exercise due diligence and the carrier will be liable for any resulting loss and damage.

72.        The owners criticised this approach as importing an unwarranted temporal

distinction. The fact, however, that the seaworthiness obligation under article III rule 1 only applies before and at the beginning of the voyage necessarily imports temporality. The carrier will be liable for a negligent act of navigation or management which causes the vessel to become unseaworthy before and at the beginning of the voyage, but not so liable if the same act does so after the voyage has commenced. If, for example, in

Maxine Footwear the negligent use of the acetylene torch had occurred during the course of the voyage then the carrier would be likely to have been able to rely on the exceptions under both article IV rule 2(a) and (b).

73. This does not mean that article IV rule 2 exceptions are inapplicable prior to the

- saving or attempting to save life or property at sea) but they can be relied upon in
relation to an alleged breach of article III rule 2 which occurs at any time from when
the goods come into the care of the carrier. So, for example, negligent management of
the vessel that caused damage to the cargo at the loadport would be exempted,
always provided that it involved a failure to take reasonable care of the ship rather
than the cargo - see the dissenting judgment of Greer LJ in Gosse Millerd Ltd v

voyage. Some of them may only be relevant when the vessel is at sea (such as rule 2(l) the House of Lords. The exceptions cannot, however, be relied upon in relation to a causative breach of article III rule 1.

74. This is illustrated by The Aquacharm, one of the cases strongly relied upon by

the owners. That case concerned alleged unseaworthiness as a result of the
overloading of the vessel. At first instance [1980] 2 Lloyd’s Rep 237, Lloyd J held that
the overloading was an error in the management of the vessel and that it did not
matter that the error took place prior to the commencement of the voyage: “The word
‘management’ applies equally whether the vessel is in harbour or on the high seas” (p
240). Since the vessel was found not to be unseaworthy Lloyd J held that the carrier
was entitled to rely on the article IV rule 2(a) exception.

75. As was recognised in the Court of Appeal, the crucial issue was whether or not

the vessel was unseaworthy. If she was unseaworthy then the article IV rule 2(a)
exception could not be relied upon. As Lord Denning MR stated at p 122:

seaworthy, the shipowners would not be liable. They would be exempted from liability by reason of article IV, r (2)(a), because the loss arose from the ‘neglect … of the master’ in the ‘management’ of the ship.”

“The answer depends on whether the vessel was seaworthy shipowners would be liable. They would not be able to prove that they exercised due diligence. The shipowners would be liable under articles III, r (1)(a) … and IV of The Hague Rules ... If she was
or not when she left Baltimore for her trip through the

76.        The “natural construction” of the Hague Rules, as confirmed by Maxine

Footwear, is therefore that the article IV rule 2 exceptions do not apply to a causative breach of the carrier’s obligation to exercise due diligence to make the vessel seaworthy under article III rule 1.

The travaux

77. Even if there was any ambiguity about this being the correct interpretation of

the Hague Rules, there is nothing in the travaux which clearly indicates otherwise.
There is no “clear, pertinent and consensual resolution of the issue” which does so nor
“bull’s eye”.

78. There is no doubt that the nautical fault exception was an important issue for

the shipowners at the Conferences and that its inclusion was integral to the
compromise which was struck. That compromise involved, however, various different
elements including, for example, package limitation and time limits. There is,
moreover, nothing in the travaux which shows that the nautical fault exception was
meant to limit the shipowners’ obligation to make the vessel seaworthy before the
commencement of the voyage or that they were to be mutually exclusive. Indeed,
there are statements made in the travaux which indicate that the nautical fault
exception was not to impact upon the shipowners’ obligation of seaworthiness. For
example, on the second day of the August 1921 Conference, during a discussion as to
whether the carrier would be obliged to keep the vessel seaworthy throughout the
voyage or only at the start, Sir Norman Hill stated that the article IV exceptions were to
apply where the shipowner had fulfilled his duty to make the vessel seaworthy before
the start of the voyage:

“To begin with, before you start loading your cargo you must have a seaworthy ship, a ship worthy to take that cargo, and when she leaves on the voyage she must still be seaworthy. If

you go further than that, and you say that there is an keep the ship seaworthy throughout the voyage: he is excused, and we all agree, as I understand, that he should be excused, because the damage has been done through negligence in the navigation. When this was drafted, I think all of the interests clearly agreed that the obligation, and the only obligation, they wanted to put on the shipowner was that the ship shall be seaworthy when she starts loading, that she shall be seaworthy when she starts on the voyage. If he has done that, he has done his duty, and then the voyage is made under the conditions set out in No 2, and with the exemptions set out in article 4.” (CMI Travaux pp 145-146)

absolute obligation on the part of the shipowner to keep the
ship seaworthy throughout the voyage, then, of course, you
render quite valueless most of your exceptions. For instance,
if, through the negligent navigation of the pilot, the ship is
run on the rocks and holed, she ceases to be seaworthy.

79. The Chairman of the Conference, the Rt. Hon. Sir Henry Duke (then President of

the Probate, Divorce and Admiralty Division, later Lord Merrivale), agreed with Sir
Norman Hill, stating: “That is evidently the intent of the draft” (CMI Travaux p 146).

80. Nor does the owners’ reliance on the Harter Act advance their argument. While

the Harter Act does link its nautical fault exception to the carrier’s obligation to
exercise due diligence to make the vessel seaworthy, it does so in terms which mean
that the nautical fault exception can only be relied upon if such due diligence has been
exercised. As under the Rules, the nautical fault exception cannot therefore be relied
upon where there has been a material failure to exercise due diligence to make the
vessel seaworthy.

The French text

81.        As for the owners’ reliance on the French text of the Hague Rules, the dictionary

definition of “état de navigabilité” is “seaworthiness” (see eg Collins Roberts and Larousse) so that the point may be said to be circular. Seaworthiness did have an established common law meaning at the time of the Rules and there is no hint in the

travaux that some narrower meaning was intended to be adopted in the Hague Rules. specific aspects of seaworthiness in article III rules 1(b) and (c) as well as the general duty to make the vessel seaworthy under article III rule 1(a).

Insurance risk

82. In relation to the balance of insurance risk, shipowners and their insurers bear

the risk of cargo damage or general average expenses caused by a failure to exercise
due diligence to make the vessel seaworthy. That remains the case where the
unseaworthiness is caused by negligent management or navigation. Most negligent
navigation will occur during the voyage rather than before it and so it is correct that
the main burden of resulting cargo damage or general average claims is likely to fall on
cargo owners and their insurers rather than shipowners and their P & I Clubs. It may
be, as the owners submitted, that a decision that negligent passage planning may
render the vessel unseaworthy will lead to more cargo damage or general average
claims being made against shipowners and their insurers. In any such case, however, it
would be necessary to prove first that the defect in the passage plan was sufficiently
serious to render the vessel unseaworthy, and secondly that it was causative of the
loss or damage. In many cases it will be the failure to properly and carefully navigate
the vessel during the voyage that is the cause of the loss rather than any prior defect in
passage planning. A different conclusion was reached on the particular facts of the
present case because (i) the defect in the passage plan was found to have a decisive
influence on the master’s critical decision to leave the fairway and (ii) the danger was
one which was not sufficiently visible or otherwise detectable to be avoided by the
exercise of due navigational care.

Other authorities

83.        Aside from Maxine Footwear, there are a number of cases in which it has been

held that a vessel may be rendered unseaworthy by negligent management of the vessel, despite the nautical fault exception in article IV rule 2(a). Examples include: Steel v State Line Steamship Co (1877) 3 App Cas 72 (water entered through a porthole

which had not been properly fastened, and damaged a cargo of wheat); Gilroy Sons & Co v W R Price & Co [1893] AC 56 (the master negligently failed to case a water-closet pipe before the commencement of the voyage and the pipe burst during the voyage

causing damage to the ship’s cargo); G E Dobell & Co v Steamship Rossmore Co Ltd
[1895] 2 QB 408 (water ingress through porthole negligently closed by the ship’s
carpenter - discussed further below); and The Friso [1980] 1 Lloyd’s Rep 469 (the
master failed before the voyage to press up three double bottom tanks so that the
vessel was unstable and therefore unseaworthy).

84.        Whilst an act of management is more likely to render a vessel unseaworthy

prior to the voyage than an act of navigation, as owners rightly accepted, the same the vessel unseaworthy. The first is Paterson Steamships Ltd v Robin Hood Mills Ltd (The Thordoc) (1937) 58 Ll L Rep 33 in which the vessel was unseaworthy because a compass adjuster had negligently adjusted the vessel’s compass. The second is E B Aaby’s Rederi A/S v Union of India (No 2) (The Evje) [1978] 1 Lloyd’s Rep 351 in which the vessel was unseaworthy because the master had miscalculated the amount of fuel required for the voyage.

approach must apply to both elements of the nautical fault exception. As the Court of

85.        The owners submitted that all these cases are distinguishable because they

involved an act of management or navigation which caused the unseaworthiness,
whilst in the present case the act of navigation is itself the unseaworthiness. This is not
a principled distinction. If the vessel is unseaworthy then it can make no difference
whether negligent navigation or management is the cause of the unseaworthiness or is
itself the unseaworthiness. What matters is the fact of unseaworthiness. Causation is
relevant to the issue of due diligence, but not to whether the relevant defect or state
of affairs amounts to unseaworthiness. That will depend on its effect on the fitness of

the vessel to carry the goods safely on the contractual voyage.

Is there an “attribute threshold”?

86. The owners’ argument that there is an “attribute threshold” is made in reliance upon the Court of Appeal decisions in The Aquacharm and The Apostolis.

87.        In The Aquacharm the vessel was unable to transit through the Panama Canal

because she was overloaded when she left the load port due to an error on the part of the master. The charterers argued that the vessel had been unseaworthy in breach of article III rule 1. The owners sought to rely on article IV rule (2)(a), on the basis that the
master’s conduct in overloading the vessel was an error in “management”.

88.        The Court of Appeal agreed with Lloyd J and the umpire (Mr Christopher

Staughton QC) that the ship was not unseaworthy because there was no risk to her safety. The owners relied in particular upon the following passages from the judgments as showing that seaworthiness concerns the inherent qualities and attributes of the vessel:

(1) The statement of Lord Denning MR at p 122 that “seaworthy” “means

that the vessel - with her master and crew - is herself fit to encounter the perils
of the voyage and also that she is fit to carry the cargo safely on that voyage”.

(2)	The statement of Shaw LJ at p 126 that he wished to enter his “own

caveat against any artificial extension of the concept of ‘seaworthiness’ where that term is used in relation to the carriage of goods by sea … ‘Seaworthiness’ connotes an inherent quality with which the unit comprising vessel and cargo is

invested. So long as that unit maintains a constant character, that quality
remains inherent in it. External factors cannot influence or affect the innate
attribute of seaworthiness”.

89. The owners also relied on The Aquacharm as demonstrating that the prudent

owner test is not a universal test of unseaworthiness. The prudent owner would
undoubtedly have ensured that the overloading error be put right before the vessel
sailed, had he known of it. The vessel was not, however, unseaworthy. Contrary to
cargo interests’ case, it cannot therefore be said that any defect is capable of
rendering the vessel unseaworthy.

“The judge was urged to find that the cargo was damaged by unseaworthiness on two alternative bases. First it was argued that, once the cargo caught fire, the fact of the burning cargo rendered holds Nos 4 and 5 unfit for the preservation of the

cargo in those holds and thus unseaworthy. The judge
rejected that contention, and I think that he was right to do
so. For a ship to be unseaworthy, or more strictly
uncargoworthy, there must be some attribute of the ship
itself which threatens the safety of the cargo. If a hold is dirty,
that is properly considered as an attribute of the ship. But the
fact that a hold contains cargo which threatens damage to
other cargo stowed in proximity is not an attribute of the ship
and does not render the ship unseaworthy.” (Emphasis
added)

91. The owners submitted that these authorities show that there is an “attribute

threshold”. Unseaworthiness requires there to be an attribute of the vessel which
threatens the safety of the vessel or her cargo.

92.        If there is an “attribute threshold” it is clear on the authorities that it must be

Lately Laden on Board the Makedonia v The Makedonia [1962] P 190 and Robin Hood Flour Mills Ltd v N M Paterson & Sons Ltd (The Farrandoc) [1967] 2 Lloyd’s Rep 276). It extends to the mental abilities of the crew and whether they have a “disabling want of skill” or a “disabling want of knowledge” (see Papera Traders Co Ltd v Hyundai Merchant Marine Co Ltd (The Eurasian Dream) [2002] 1 Lloyd’s Rep 719 at para 129). It extends to the adequacy of the vessel’s systems such as in relation to engine maintenance (see CHS Inc Iberia SL v Far East Marine SA (The Devon) [2012] EWHC 3747 (Comm)) or hot works and fire safety (see Various Claimants v Maersk Line A/S (The Maersk Karachi) [2020] 2 Lloyd’s Rep 98). It may extend to the cargo on the vessel, as, for example, where it is stowed so as to endanger the vessel (see Kopitoff v Wilson (1876) 1 QBD 733) or where a dangerous cargo does so (see Northern Shipping Co v Deutsche Seereederei GmbH (The Kapitan Sakharov) [2000] 2 Lloyd’s Rep 586). It also extends to residues of previous cargo which render the holds of a vessel unfit for carriage (see, for example, Empresa Cubana Importada de Alimentos “Alimport” v Iasmos Shipping Co SA (The Good Friend) [1984] 2 Lloyd’s Rep 593). It even extends to the trading history of the vessel, as illustrated by Ciampa v British India Steam Navigation Co [1915] 2 KB 774 in which it was held that the vessel was unseaworthy at the commencement of a voyage for the carriage of lemons from Naples to Marseille because, having called at the plague port of Mombasa, she would inevitably have to undergo fumigation at Marseilles which would cause damage to the cargo. If “attribute” is to have such a wide and extended meaning as to cover all these eventualities, it is unlikely to be of definitional assistance.
widely and diversely drawn. Seaworthiness is not limited to physical defects in the
vessel and her equipment. It extends to documentary matters such as adequate and

up-to-date charts (see, for example, Grand Champion Tankers Ltd v Norpipe A/S (The

93. The suggestion that there is an attribute threshold has been criticised by some commentators - see, for example, Aikens and others, Bills of Lading, 3rd ed (2021), at 11.127; Carver on Charterparties, 2nd ed (2020), at 3.115; Girvin “Seaworthiness and the Hague-Visby Rules” [1997] IJOSL 201. As stated in Carver on Charterparties: “a

requirement that the cause of the damage must be an attribute of the ship itself rather than an extrinsic cause can be difficult to apply in practice and can lead to anomalies”. It is there suggested that any such requirement should be confined to cargoworthiness and should in any event “be regarded as illustrative rather than prescriptive”. Flaux LJ
commented in the Court of Appeal that he saw “considerable force” in the submission
that it involves “an unnecessary gloss” (para 61).

94.        The authorities relied upon by Phillips LJ in The Apostolis, namely The Thorsa

[1916] P 257 and Elder Dempster & Co Ltd v Paterson, Zochonis & Co Ltd [1924] AC 522,
concerned negligent stowage of the cargo and the focus of the analysis in those cases
was upon the consequences of that stowage. In circumstances where there was no
defect in the vessel herself and the effect of the stowage of the cargo was to cause
damage to adjacent cargo, but to pose no danger to the vessel, the cases were treated
as involving merely bad stowage rather than unseaworthiness. That reasoning does
not require the prescription of an attribute threshold, nor is it directly applicable to the
different facts in The Apostolis where the fire in the cargo did pose a danger to the
vessel.

95. As for The Aquacharm, the key feature of that case was the consequence of the

vessel having been overloaded, rather than the fact that the defect involved
overloading of cargo. There can be no doubt that overloading of a vessel can cause a
vessel to be unseaworthy, as, for example, if it renders the vessel unstable. It did not
do so in The Aquacharm because its sole consequence was to cause some delay and
expense (a “temporary or minor impediment” - per Staughton J in The Good Friend at p
593). That is the context in which the comments about what is meant by
seaworthiness need to be considered. Indeed, Shaw LJ recognised at p 126 that
unseaworthiness is not limited to the attributes of the vessel in herself when he
referred to it as connoting “an inherent quality with which the unit comprising vessel
and cargo is invested” (emphasis added).

96. For all these reasons I do not consider that it is either correct or helpful to treat

the concept of unseaworthiness as being subject to an attribute threshold, and I agree
with the editors of Carver that it is best treated as an illustrative rather than a
prescriptive requirement.

The prudent owner test

97. I agree, however, with the owners that The Aquacharm does illustrate that the prudent owner test is not a universal test of unseaworthiness.

100. There is no doubt that the prudent owner test has stood the test of time well

suited to adapt to differing and changing standards. The standards required are not
absolute but are relative to the vessel, the cargo and the contemplated voyage. They
are also “relative, among other things, to the state of knowledge and the standards
prevailing at the material time” - F C Bradley & Sons Ltd v Federal Steam Navigation Co
Ltd (1927) 27 Ll L 395 at 396 (Viscount Sumner). Thus, the standards required may rise
to reflect improvements in, for example, shipbuilding (see, for example, Burgess v
Wickham [1863] 3 B & S 669, 693-694), equipment (see, for example, Mountpark

98. The origin of the prudent owner test is a passage in Carver, A Treatise on the

Law relating to the Carriage of Goods by Sea (first appearing in the third edition in
1900, at section 18, pp 20-21) in which it was stated that:

“… the duty to supply a seaworthy ship is not equivalent to a duty to provide one that is perfect, and such as cannot break down except under extraordinary peril. What is meant is that she must have that degree of fitness which an ordinary

careful and prudent owner would require his vessel to have
at the commencement of her voyage, having regard to all the
probable circumstances of it. To that extent the shipowner,
as we have seen, undertakes absolutely that she is fit; and
ignorance is no excuse. If the defect existed, the question to
be put is, Would a prudent shipowner have required that it
should be made good before sending his ship to sea had he
known of it? If he would, the ship was not seaworthy within
the meaning of the undertaking.”

99.        This statement of the law was approved and applied by Channell J in in

McFadden v Blue Star Line [1905] 1 KB 697 and by Scrutton LJ in F C Bradley & Sons Ltd
v Federal Steam Navigation Co Ltd (1926) 24 Ll L Rep 446, 454. It has been applied in
many cases since then - see, for example, MDC Ltd v NV Zeevaart Maatshappij
“Beursstraat” [1962] Lloyd’s Rep 180, 186; Alfred Schiffahrtsgesellschaft GmbH v Tossa
Marine Co Ltd (The Derby) [1985] 2 Lloyd’s Rep 325, 332; Fyffes Group Ltd v Reefer
Express Lines Ltd (The Kriti Rex) [1996] 2 Lloyd’s Rep 171, 184; Eridania SpA v Rudolf A
Oetker (The Fjord Wind) [2000] 2 All ER (Comm) 108; [2000] 2 Lloyd’s Rep 191, para 18.
The judge described it as “the usual or conventional test” of seaworthiness: [2019] Bus
LR 1453, para 77.

and that in many cases it will be an appropriate and helpful test to apply. It is also well navigation, as the judge observed in the present case at para 87.

101.     There may, however, be cases at the boundaries of seaworthiness where it is

not appropriate merely to apply the prudent owner test, as The Aquacharm illustrates. In such cases it may be necessary to address a prior question of whether the defect or state of affairs relied upon sufficiently affects the fitness of the vessel to carry the

goods safely on the contractual voyage as to engage the doctrine of seaworthiness. For

reasons developed below, this is not such a case.

Remediable defects

102.     In support of their suggested category-based distinction between equipping a

vessel with all that the crew may need (navigability) and the crew’s failure to make use amount to unseaworthiness in circumstances where the master had the requisite tackle on board to fit up the guy. In his judgment Scrutton LJ stated as follows, at pp 97-98:
of such equipment (negligence in navigation), the owners relied on the judgment of
Scrutton LJ in Madras Electrical Supply Co v P&O Steam Navigation Co (1924) 18 Ll L

“The learned judge has thought it was negligence. I am not certain that I should have gone further than thinking it was an error of judgment of the master; but whether it is

negligence or whether it is error in judgment, I am quite clear
it does not make the ship unseaworthy. As I understand the
authorities, a ship is not unseaworthy where the defect is
such that it can be remedied on the spot and in a short time
by materials available. The common case is a ship with an
open port-hole. If the port-hole is in a place where you can
shut it at once, a ship is not unseaworthy because her port-
hole happens to be open. If the port-hole is in a place where
you cannot get at it during the voyage, and it is open, then
the ship is unseaworthy. In the same way I absolutely decline
to hold that a ship is unseaworthy because, there being the
materials on board to be used for the purpose for which
seaworthiness is required, the officers of the ship do not use
the materials which are available. … [H]ere were the
materials on board which the master could use; he could
have used them in a quarter of an hour or ten minutes if he
had fitted up the gear. He did not use either through an error
of judgment or negligence. I absolutely decline to hold that
that is unseaworthiness.” (Emphasis added)

103. The fact that a defect is remediable may mean that a vessel is not unseaworthy. Whether or not the defect renders the vessel unseaworthy is likely to depend on whether it would reasonably be expected to be put right before any danger to vessel or cargo arose. This is illustrated by the open porthole example given by Scrutton LJ. If the port hole is inaccessible, then it would not reasonably be expected to be closed during the voyage and so the prudent owner would require the defect to be made good before sending the vessel to sea and the vessel would be unseaworthy. If, on the other hand, it is easily accessible then it would reasonably be expected to be closed by the crew as and when the need to do so arose and the vessel would not be unseaworthy. The same applies to the use of materials. It depends upon whether they would reasonably be expected to be used to remedy the defect before any danger to vessel or cargo arose. There is certainly no rule of law that remediable defects cannot make a vessel unseaworthy.

104.     Nor does Madras v P&O support the drawing of the suggested distinction

between providing the vessel with the materials and equipment required to make the vessel seaworthy and the use made of those materials by the crew. If it is necessary to make use of those materials in order to render the vessel seaworthy for the voyage,

then the carrier will be responsible for any negligent failure so to do. The non-
delegable nature of the carrier’s seaworthiness obligation under article III rule 1 (as
discussed under Issue 2 below) means that there are many cases where the carrier has
been held responsible for the failure of the crew to use the materials and equipment
provided to make the vessel seaworthy before the commencement of the voyage (see,
for example, the cases referred to at paras 83 and 84 above). The distinction is also
contrary to the terms of the Hague Rules. The carrier’s obligation is not merely to
“man, equip and supply the ship” (article III rule 1(b)). It is also to “make the ship
seaworthy” (article III(1)(a)) and to make “parts of the ship in which goods are carried,
fit and safe for their reception, carriage and preservation” (article III(1)(c)).

105.     The other English law authority on which the owners placed particular reliance

The Torepo obiter observations:
was the decision of David Steel J in [2002] EWHC 1481 (Admlty); [2002] 2 unseaworthiness and one of the allegations of unseaworthiness was that there was no proper passage plan. The judge commented at para 98 that: “Passage planning is not a science. There is inevitably an element of judgment as to what annotations need to be added to the chart (or recorded elsewhere)”. He found that the passage plan was not defective but then went on make the following

“100. But let me assume in the claimants’ favour that the passage plan was defective in one or more of the respects suggested, it was not in the event contended that this flowed

from any failure of the defendants to provide a proper system in the sense that the guidance and instructions furnished by the owners were in any sense inappropriate.

Section 5 of the Navigational Procedures Manual was devoted to passage planning including the requirement that the planning should include any passage through pilotage waters (5.1.1 and 5.2.8). Those instructions (taken with the additional publications furnished on board such as the Bridge Procedures Guide) were agreed to be fully appropriate and sufficient.”

106.     The owners relied on David Steel J’s emphasis on the provision of a proper

system of guidance and instruction when considering the question of whether a
defective passage plan would have rendered the vessel unseaworthy. This is primarily

relevant to the owners’ argument on due diligence and will be addressed below.

US case law

107.     The US cases relied upon by the owners would be of assistance if they

demonstrated a uniform approach. This has not, however, been shown. As cargo the owners’ case as to what the US case law establishes. In that case, the vessel was found to be unseaworthy as a result of the crew’s failure to securely fasten port covers prior to the voyage. The carrier argued that the crew’s failure to close the port covers was an error in management and that it could therefore rely on the nautical exception in the Harter Act. The court rejected that argument, stating as follows at pp 225-226:

interests point out, the US Supreme Court decision in International Navigation Co v

“We cannot accede to a view which so completely destroys
the general rule that seaworthiness at the commencement of
the voyage is a condition precedent, and that fault in
management is no defence when there is lack of due
diligence before the vessel breaks ground.

We do not think that a ship owner exercises due diligence within the meaning of the act by merely furnishing proper structure and equipment, for the diligence required is

diligence to make the ship in all respects seaworthy, and that,
in our judgment, means due diligence on the part of all the
owners’ servants in the use of the equipment before the
commencement of the voyage and until it is actually
commenced.
…

We repeat that even if the loss occur through fault or error in management, the exemption cannot be availed of unless the vessel was seaworthy when she sailed, or due diligence to

make her so had been exercised, and it is for the owner to
establish the existence of one or the other of these
conditions.”

108.     In reaching this conclusion the Supreme Court relied upon and followed the

English Court of Appeal decision in G E Dobell & Co v Steamship Rossmore Co Ltd [1895] 2 QB 408, a Harter Act case, in which a porthole used for loading cargo was negligently closed by the ship’s carpenter, with the result that it was not watertight. Access to the porthole was obstructed by cargo. During the voyage, water entered through the porthole and caused damage to the cargo. The argument for the shipowners was that this was “an error in navigation” and fell within the nautical fault exception. The court rejected that argument and found that the negligence of the ship’s carpenter involved a failure to exercise due diligence to make the vessel seaworthy for which the carrier was liable.

109.     The decision of the US Supreme Court in the International Navigation case is

entirely consonant with the English law authorities which show that a vessel may be rendered unseaworthy by negligent management of the vessel, despite the nautical fault exception in article IV rule 2(a), discussed above at para 83.

110.     The three US decisions relied upon by the owners are The Oritani, The Iristo and

The Jalavihar.

1. The Oritani concerned the Harter Act and an allegation that the vessel was

unseaworthy because the compass data on board was insufficient for the safe
navigation of the vessel. District Judge Kirkpatrick considered the relevant question to
be whether “insufficient compass data at the commencement of the voyage is a
matter affecting the seaworthiness of the vessel or whether it pertains to her
navigation and management”: 40 F 2d 522, 528. He held that it was the latter, stating
that:

“All authorities agree in treating the whole matter of owners are justified in committing all matters of navigation to skillful and experienced navigating officers.”

correction of compass readings (which necessarily includes
the obtaining of the requisite data) as a branch of the science
of navigation. In the case of the Oritani, the master had
always, from the time he left the dock, the means to obtain
whatever information as to deviations was needful or
advisable in order to complete the compass data. … The
master of a vessel such as the Oritani is always in theory and
almost always in fact an experienced navigator. Captain

In so far as the decision turned on the judge’s view that the master had the means to obtain the deviations needed to complete the compass data during the voyage, and would reasonably be expected to do so, then the conclusion that the vessel was not unseaworthy is understandable. In so far as the judge was suggesting or holding that a matter of “navigation and management” and a “matter affecting the seaworthiness of the vessel” are mutually exclusive then that is not consistent with the International Navigation case and the English law authorities.

112. In The Iristo a vessel was held not to be unseaworthy in circumstances where

that the notice to mariners was available on board the vessel and “the means to
correct [the chart] in good season were available”. Reference was made to an earlier
decision of the same court in United States Steel Products Co v American & Foreign Ins

her charts had not been corrected by reference to a notice to mariners on the grounds the fact that her charts had not been brought up to date, because there were records on board from which they could be readily corrected before the vessel reached the waters in which the information became necessary for proper navigation”: 137 F 2d 619, 622. That conclusion is understandable at that time on the basis that the means to update the charts were available on board and such updating would reasonably be expected to be done before their use.

113.     This would be consistent with Lord Brandon’s general statement in The Marion

[1984] AC 563 as to the requirements which have to be fulfilled in relation to the

vessel’s charts (at p 573):

“It was not, and could not sensibly, have been disputed that,
in order to ensure the safe navigation of a ship on the
voyages undertaken by her, three requirements with regard

to charts have to be fulfilled. The first requirement is that she
should have on board, and available for use, the current
versions of the charts necessary for such voyages. The second
requirement is that any obsolete or superseded charts, which
might formerly have been proper for use on such voyages,
should either be destroyed, or, if not destroyed, at least
segregated from the current charts in such a way as to avoid
any possibility of confusion between them. The third
requirement is that the current charts should either be kept
corrected up-to-date at all times, or at least that such
corrections should be made prior to their possible use on any
particular voyage.” (Emphasis added)

114. As the cargo interests pointed out, nowadays paper charts would be required to

be corrected so as to be up-to-date before the commencement of the voyage as the voyage begins.

1. The Jalavihar concerned a vessel which grounded while executing a turning

manoeuvre when unberthing in the Mississippi. The district court held that the cause
of the grounding was miscommunication between the pilot and the master of another
vessel, that this was an error in the navigation or management of the vessel for which
the carrier was exempted under the US Carriage of Goods by Sea Act (“COGSA”), that
there had been no failure by the carrier to exercise due diligence to make the vessel
seaworthy and that the cargo owners’ defence of actionable fault to the carrier’s
general average claim therefore failed.

116.     On appeal, one of cargo owners’ arguments was that navigational or

managemental errors which occur prior to the commencement of the voyage are to be of the master concerning the movement of the vessel would be considered a navigational or managemental error, not an unseaworthy condition”: p 335. The parties’ arguments were not considered further as the Court of Appeals moved on to address the causation issue. The owners nevertheless rely on the statements made in the course of the court’s judgment in relation to the application of the nautical fault exception. In so far as the court stated that the exception is capable of applying to navigational errors before the commencement of the voyage, that is unexceptionable. In so far as the court went further and suggested that navigational error and unseaworthiness are somehow mutually exclusive and that a navigational error cannot create “an unseaworthy condition”, that is contrary to the International Navigation case and the English law authorities.

regarded as a failure to exercise due diligence so that the exception only applies to
errors which occur after the voyage had commenced. The Court of Appeals rejected
this argument and held that “COGSA’s exception for navigational or managemental
error ... is not restricted to navigational errors occurring after the commencement of a
voyage”: 118 F 3d 328, 333. It followed that the cargo owners’ defence could only
succeed it they could “prove that a concurrent cause of the accident was an
unseaworthy condition”: p 334. The Court of Appeals upheld the district court’s finding
that none of the conditions that allegedly rendered the vessel unseaworthy were
concurrent causes of the grounding and the appeal was accordingly dismissed on the
grounds of causation. One of the alleged unseaworthy conditions was the master’s
failure to discuss the manoeuvre with the pilot, in relation to which the Court of

117.     In summary, the decisions in the US cases relied upon by the owners are

explicable on their facts. In so far as they include statements which suggest that
matters of navigation or management within the nautical fault exception are
necessarily distinct from and cannot cause unseaworthiness, then that is contrary to

the International Navigation case and the English law authorities.

118. I would accept that the preparation of a passage plan is a matter of navigation. I would also accept that the failure to note or mark the uncharted depths warning in the passage plan and on the working chart can be regarded as an “act, neglect, or default” in “the navigation … of the ship” within the article IV rule 2(a) exception.

119.     On the proper interpretation of the Hague Rules, and as confirmed by Maxine

Footwear and many other decisions, the article IV rule 2 exceptions cannot, however, be relied upon in relation to a causative breach of the carrier’s obligation to exercise due diligence to make the vessel seaworthy.

120. Leaving aside for the moment the issue of due diligence, the judge has found that the defects in the passage plan rendered the vessel unseaworthy.

121. The fact, if it be a fact, that the “act, neglect, or default” in the navigation of the

ship is itself the unseaworthiness makes no difference. What matters is the fact of
unseaworthiness. In any event, the negligence in this case was the decision not to note
or mark the uncharted depth warning in the passage plan and on the chart. The
unseaworthiness was the consequent defective passage plan and working chart. This is
therefore a case where the negligent navigational act has caused the unseaworthiness.

122. The judge found at para 85, and the Court of Appeal affirmed at para 64, that a

defective passage plan is an attribute of the vessel. However, even if a defective
passage plan were not considered to be an attribute of the vessel, this would make no
difference as there is no attribute threshold in law.

123.     The owners sought to draw a distinction between a failure to correct a chart so

that it is up-to-date (which they accepted could render a vessel unseaworthy) and a failure to annotate a chart as part of passage planning (which they contended could not do so). There is, however, no meaningful distinction between them. In both
situations the end result is the same, namely an inappropriately marked up working
chart. If such a chart is not safe for use for the navigation of the vessel on the voyage
then it renders the vessel unseaworthy. The reason why that situation has come about
makes no difference to the fact of unseaworthiness.

124.     The owners are similarly wrong to contend that a passage plan is not part of the

documentary outfit of the vessel or a navigational tool. The purpose of a passage plan is to assist in the safe navigation of the vessel. The Guidelines state that such a plan is of “essential importance” for the “safety … of navigation”. The judge found that its

purpose is “to ensure that the vessel is navigated safely” (para 65) and that both chart
correction and passage planning are part of the preparation for safe navigation (para
70). There can be no doubt that a vessel would be unseaworthy if she began her
voyage without a passage plan. The same must be true if she did so with a defective
passage plan which endangered the safety of the vessel. That is effectively what the
judge has found.

125. The example of a vessel departing without a passage plan highlights the fallacy

of the owners’ suggested distinction between providing the materials and equipment
for the safe navigation of the vessel and the crew’s use of such equipment and
materials in navigation. In such a case the carrier would have provided the crew with
everything they required to produce a passage plan, but they would have failed to
deploy them. That would make no difference to the fact of unseaworthiness. The same
analysis should apply where the crew fail properly to deploy the materials and
equipment provided for passage planning.

126. The importance of passage planning as a navigational tool is particularly clear in

this case as the judge found that proper passage planning required the working chart
to be marked with the uncharted depths warning. The working chart is the primary
document which the officer of the watch will use to navigate the vessel during the
voyage. It is a critical navigational tool.

127.     Nor is this a case in which the prudent owner would reasonably expect the

defects in the passage plan to be remedied before its use. The requisite noting and
marking up ought to have been done as part of the planning stage and was unlikely to
be revisited as part of the execution and monitoring stage. This is all the more so in
circumstances where it related to the initial part of the voyage. The judge found (para
78) that it was “inconceivable” that a prudent owner would allow the vessel to depart
on her voyage with a passage plan which was defective in the manner found.

128. Given the judge’s findings as to the importance of passage planning to the safe

navigation of the vessel there can be no doubt that this was an appropriate case for
the judge to apply the prudent owner test of unseaworthiness. This is not a case at the
boundaries of unseaworthiness. It concerns the safety of the vessel. His trenchant
conclusion as to what the prudent owner would have done is unassailable, as is his
consequent conclusion on unseaworthiness.

6.          ISSUE 2 – DID THE FAILURE OF THE MASTER AND SECOND OFFICER TO

EXERCISE REASONABLE SKILL AND CARE WHEN PREPARING THE PASSAGE PLAN
CONSITUTE WANT OF DUE DILIGENCE ON THE PART OF THE CARRIER FOR THE
PURPOSES OF ARTICLE III RULE 2 OF THE HAGUE RULES?

129.     The owners’ alternative case is that, so long as the carrier has equipped the

vessel with all that was necessary for her to be safely navigated including a competent crew, the crew’s failure to safely navigate the ship is not a lack of due diligence by the carrier. Put another way, it is outside of the carrier’s orbit of responsibility. Therefore, because the carrier has in the present case provided all the equipment and instructions

to allow the crew to create a proper passage plan, a defective one caused by the crew’s failure to annotate it was not caused by the carrier’s lack of due diligence.

130.     The owners submitted that the critical question is: what steps does a carrier

have to take to discharge the obligation of due diligence in respect of the relevant applied to passage planning so that due diligence required (i) employing competent navigating officers, (ii) ensuring that the navigating officers are properly instructed in respect of passage planning and (iii) auditing at regular intervals their performance to ensure that those instructions are being complied with.
aspect of seaworthiness? They drew attention to the fact that the owner’s due
diligence obligation in relation to the master/crew involves exercising proper care in
relation to the appointment of a generally competent master/crew and the specific
competence of the master/crew in relation to the vessel and voyage in question - see

131.     It was submitted that this approach is correct in principle, as a competent

master is singularly and exclusively responsible for navigation. As Judge Kirkpatrick, sitting in the Federal District Court for the Eastern District of Pennsylvania, stated in The Oritani: “The theory of the law is that the owners are justified in committing all matters of navigation to skilful and experienced navigating officers”: 40 F 2d 522, 528.

Navigation is accordingly not within the remit of a carrier and a carrier is right to leave such matters to the discretion of the master (subject to proper instructions and supervision).

132.     It was said that this is further borne out by the fact that passage planning,

specifically, is not a science. It involves judgment as to what annotations to add to the otherwise competent crew’s incidental failures to follow such systems gives effect to the master’s responsibility for safety, which is reinforced by applicable criminal legal provisions. This division also reflects the mandatory training received by the navigational crew and shoreside staff.
chart or record elsewhere - see The Torepo at para 98. It would be invidious for an
owner to have to second-guess the navigational decisions made by a master whenever
the ship is about to leave port. Those navigational decisions often involve judgments

made at the time based on prevailing nautical and environmental local conditions.

“… the question, when there has been damage to cargo and
that damage is traceable to unseaworthiness of the vessel,
[is] whether that unseaworthiness is due to any lack of
diligence in those who have been implicated by the carriers
in the work of keeping or making the vessel seaworthy. Such
persons are then agents whose diligence or lack of it is
attributable to the carriers. An inquiry on these lines is not
concerned with distinctions between carelessness on the
part of officers or servants of the carriers or their supervising
agents, on the one hand, and carelessness on the part of
their contractors or those contractors’ contractors, on the
other. The carriers must answer for anything that has been
done amiss in the work. It is the work itself that delimits the
area of the obligation …”

134. Article III rule 1 has often been described as involving a non-delegable duty. The owners criticised this description and suggested that it masked the critical question of what steps the carrier has to take to discharge its due diligence obligation. It provides, however, a useful summary of what was decided in The Muncaster Castle. The carrier is responsible for any failure to exercise due diligence by those to whom he has

entrusted the task of making the vessel seaworthy. It is the carrier’s contractual
responsibility to ensure that due diligence is exercised in making the vessel seaworthy

and he cannot contract out of that responsibility by delegation.

“… turns on the consideration that the causative carelessness
took place at a time before the carrier’s obligation under
article III(1) had attached and in circumstances, therefore,
when the builders and their men could not be described as
agents for the carrier ‘before and at the beginning of the
voyage to … make the ship seaworthy’. This is a tenable
position for those who engage themselves upon the work of
bringing the ship into existence. The carrier’s responsibility
for the work itself does not begin until the ship comes into
his orbit, and it begins then as a responsibility to make sure
by careful and skilled inspection that what he is taking into
his service is in fit condition for the purpose and, if there is
anything lacking that is fairly discoverable, to put it right. This
is recognised in the judgment. But if the bad work that has
been done is ‘concealed’ and so cannot be detected by any
reasonable care, then the lack of diligence to which
unseaworthiness is due is not to be attributed to the carrier.”

136.     Just as the carrier may not be liable for lack of due diligence which occurs

before the vessel “comes into his orbit”, he may equally not be liable for lack of due presence on board of an undeclared dangerous containerised cargo but it was held that there was no failure to exercise due diligence as the containers had been packed by the shippers and there was nothing to put the carrier on notice of the danger. In his judgment Auld LJ (with whom the rest of the Court of Appeal agreed) stated at p 273:

diligence which occurs before the cargo “comes into his orbit”, as is illustrated by The

“[T]he ratio of [The Muncaster Castle] was that a carrier
cannot absolve itself from its personal duty of due diligence
by delegating its responsibility as a carrier to an independent
contractor. The shipper’s and the carrier’s respective orbits
of responsibility are normally quite distinct and neither is
agent of the other outside its own orbit ... Those responsible
for the manufacture, stuffing and shipping of containers are
plainly not carrying out any part of the carrier’s function for
which he should be held responsible.”

The carrier may nevertheless be liable if the defect or danger would be reasonably discoverable by the exercise of due diligence once the vessel or cargo has come within its control - see, for example, Parsons Corpn v CV Scheepvaartonderneming Happy Ranger (The Happy Ranger) [2006] EWHC 122 (Comm); [2006] 1 Lloyd’s Rep 649.

137. The owners sought to rely on these cases, in particular The Kapitan Sakharov,

arguing that the task of preparing a passage plan is the responsibility of the master and
deck officers and not part of the carrier’s function or within the carrier’s orbit of
responsibility. However, the reasoning in these cases has no application to a case such
as the present. At all material times the vessel was within the owners’ “orbit”. The
work of preparing a proper passage plan so as to make the vessel seaworthy for the
voyage was entrusted to the master and deck officers, who are the owners’ servants. It
was they who were “implicated by the carriers in the work of keeping or making the
vessel seaworthy” in relation to passage planning. As such, the owners “must answer
for anything that has been done amiss in the work.”

138. The failure to exercise due diligence was not that of some third party who could

shipbuilder prior to the carrier’s acquisition of the vessel, or in the work of a shipper
prior to the carrier’s acquisition of control over the cargo. In such cases there is no
question of delegation by the carrier. The vessel or cargo are not yet its responsibility.

not at that time be regarded as an agent of the carrier, such as in the work of a failure to exercise due diligence was that of the carrier’s servants in the preparation of the vessel for her voyage. As Flaux LJ observed at para 75 of his judgment, “all the acts of the master and crew in preparing the vessel for the voyage are performed qua carrier”.

139.     The fact that navigation is the responsibility of the master and involves the

exercise by the master and his deck officers of their specialist skill and judgment makes
no difference. The same is true of much work necessary to make a vessel seaworthy,
such as work carried out by specialist ship repairers, or main engine work carried out
by engine manufacturers or by the chief engineer and the engineering officers. It is
commonplace for a carrier to entrust the task of making the vessel seaworthy to those
with particular skills and experience. The carrier nevertheless remains responsible for
any lack of due diligence in the performance of that task.

140. The fact that the carrier’s due diligence obligation in relation to crewing the

vessel relates to their competence takes matters no further. Where that duty is
discharged the carrier nevertheless remains liable for a failure by a member of that
competent crew to exercise due diligence to make the vessel seaworthy. The provision
of a competent crew is only one aspect of the carrier’s seaworthiness obligation. This is
explicitly so under the Hague Rules which include both an obligation to “properly …
man … the ship” (article III rule 1(b)) and an obligation to “make the ship seaworthy”
(article III rule 1(a)).

141.     In relation to passage planning, it is undoubtedly correct that the carrier’s

obligation under article III rule 1 means that there have to be systems in place to
ensure that proper passage planning takes place, but it does not follow that that is the
limit of the carrier’s obligation. As with the provision of a competent crew, it is an
important part of the carrier’s seaworthiness obligation, but it is not definitive of it.

142. If, for example, the causative negligence consisted of errors made by the master

or deck officers in the execution or monitoring stage of passage planning during the
voyage then prima facie the carrier would be able to rely on the nautical fault
exception. It would not be able to do so, however, if those errors were attributable to
the carrier’s failure to have proper systems in place for the execution or monitoring of
passage planning as that would involve a failure to exercise due diligence to make the
vessel seaworthy. The same result would follow if the errors were attributable to the
carrier’s failure to exercise proper care in relation to crew competence. If, however,
the causative negligence consisted of errors in passage planning which occurred at the
appraisal or planning stage and rendered the vessel unseaworthy before and at the
beginning of the voyage then the carrier would be liable regardless of whether it had
discharged its obligations in relation to the systems for passage planning and crew

competence.

143.     To the extent that the obiter passage at para 100 of David Steel J’s judgment in

The Torepo suggests that the carrier’s seaworthiness obligation in relation to passage planning is limited to providing a proper system for such planning it is not a correct statement of the law. In any event, counsel in that case does not appear to have argued otherwise and, as Flaux LJ observed at para 66 of the Court of Appeal judgment: “It is difficult to see how the fact that counsel there did not run a point which would have failed on the facts in any event, so that David Steel J did not have to deal with it, can have any bearing on the issues raised by this appeal.” It is also to be noted that the grounding in The Torepo occurred in 1997, which is before the Guidelines were adopted.

144.     For all these reasons, in agreement with the judge and the Court of Appeal, I

would reject the owners’ novel and unsound case on due diligence. The carrier cannot escape from its responsibilities under article III rule 1 of the Hague Rules by delegating them to its servants or agents qua navigators, or qua managers, or qua engineers or
qua ship repairers. If the task of making the vessel seaworthy has been entrusted by the carrier to those servants or agents then (if relevant) they are acting qua carriers and under article III rule 1 of the Hague Rules the carrier is responsible for any

causative failure by them to exercise due diligence.

7.          CONCLUSION

145.     The carrier’s obligation under the Hague Rules is not subject to a category-

based distinction between a vessel’s quality of seaworthiness or navigability and the
crew’s act of navigating. The crew’s failure to navigate the ship safely is capable of
constituting a lack of due diligence by the carrier. It makes no difference that the
delegated task of making the vessel seaworthy involves navigation. In particular:

(i) On the proper interpretation of the Hague Rules, the article IV rule 2

exception of act, neglect or default in the navigation or management of the
vessel cannot be relied upon in relation to a causative breach of the carrier’s
obligation to exercise due diligence to make the vessel seaworthy (see paras 70-
76; 83-84; 119).

(ii) If the vessel is unseaworthy, it makes no difference whether negligent

navigation or management is the cause of the unseaworthiness or is itself the
unseaworthiness (see paras 85, 121).

(iii) The concept of unseaworthiness is not subject to an attribute threshold

requiring there to be an attribute of the vessel which threatens the safety of the
vessel or her cargo (see paras 86-96; 122).

(iv)       Save for exceptional cases at the boundaries of seaworthiness, the well-

established prudent owner test, namely whether a prudent owner would have required the relevant defect to be made good before sending the vessel to sea had he known of it, is an appropriate test of seaworthiness, well suited to adapt
to differing and changing standards (paras 97-101).

(v)        The fact that a defect is remediable may mean that a vessel is not

unseaworthy. This is likely to depend on whether it would reasonably be
expected to be put right before any danger to vessel or cargo arose (see paras
102-103).

(vi) Given the “essential importance” of passage planning for the “safety … of

navigation”, applying the prudent owner test, a vessel is likely to be
unseaworthy if she begins her voyage without a passage plan or if she does so
with a defective passage plan which endangers the safety of the vessel (see
paras 124-128).

(vii) The fact that the defective passage plan involves neglect or default in

“the navigation of the ship” within the article IV rule 2(a) exception is no
defence to a claim for loss or damage caused by unseaworthiness (see paras
118-119).

(viii) The obligation on the carrier to exercise due diligence to make the vessel

seaworthy requires that due diligence be exercised in the work of making the
vessel seaworthy, regardless of who is engaged to carry out that task (see paras
133-134).

(ix) The carrier may not be liable for lack of due diligence which occurs before

he has responsibility for the vessel or for lack of due diligence which occurs
before he has responsibility for the cargo. The carrier may nevertheless be liable
if the defect or danger would be reasonably discoverable by the exercise of due
diligence once the vessel or cargo has come within his control (paras 135-136).

(x) The carrier is liable for a failure to exercise due diligence by the master

and deck officers of his vessel in the preparation of a passage plan for the
vessel’s voyage. The fact that navigation is the responsibility of the master and
involves the exercise by the master and deck officers of their specialist skill and
judgment makes no difference (paras 137-139).

(xi) The carrier’s seaworthiness obligation in relation to passage planning is not limited to providing a proper system for such planning (paras 141-143).

146.     In summary, the judge directed himself properly in law and the findings he

made amply support the conclusion he reached that the defective passage plan
involved a want of due diligence to make the vessel seaworthy. I would dismiss the
appeal.

JUDGMENT

Alize 1954 and another (Appellants) v Allianz
Elementar Versicherungs AG and others

(Respondents)

before

Lord Reed, President

Lord Briggs Lady Arden

Lord Hamblen

Lord Leggatt

JUDGMENT GIVEN ON

10 November 2021

Heard on 7 and 8 July 2021