Lloyd's Maritime and Commercial Law Quarterly
ENGLISH CARRIAGE OF GOODS BY SEA LAW
Thomas Krebs *
CASES
131. Alize 1954 v Allianz Elementarversicherungs AG (The CMA CGM Libra) 1
Hague/Hague-Visby Rules—relationship between Art.III, r.1 and Art.IV, r.2(a)—seaworthiness—fault in navigation and management of the ship—failure to update charts/passage plan
The large container vessel CMA CGM Libra ran aground while leaving the port of Xiamen in China. The cost of salving the vessel and her cargo, some US$13m, was claimed by way of general average. Over 90 per cent of cargo interests duly paid up. The remainder refused to pay on the basis that the carrier was itself responsible for the event leading to the need for general average sacrifice in that it had failed to exercise due diligence in making the ship seaworthy at the beginning of the voyage.2
The grounding occurred because the master, in leaving the port, briefly left the fairway. The vessel’s charts indicated that there would be sufficient water under her keel, but this proved to be incorrect. While the cargo interests contended that the cause of the grounding was that the vessel was unseaworthy because both her passage plan and her charts were defective, this defect being caused by the shipowners’ failure to exercise due diligence to make the ship seaworthy, thus breaching Art.III, r.1 of the Hague Rules. The shipowners, in turn, argued that the casualty was caused by negligent navigation, falling squarely within the scope of the “nautical fault” exception in Art.IV, r.2(a) of the Rules.
Teare J held in favour of the cargo interests. The shipowners appealed to the Court of Appeal.
Decision: Appeal dismissed. Cargo interests not liable to contribute to general average.
Held: As the judge found, a defective passage plan coupled with defective charts rendered the vessel unseaworthy. In preparing the vessel for the voyage, the master and crew were carrying out functions designed to make her seaworthy, even if these were acts
* Associate Professor in Commercial Law, University of Oxford; Fellow and Tutor in Law, Brasenose College Oxford.
1. [2020] EWCA Civ 293; [2020] 2 Lloyd’s Rep 565.
2. It is, of course, trite law that, where the loss is caused by unseaworthiness at the beginning of the voyage, the shipowner cannot recover a contribution from the owners of the cargo (The Lendoudis Evangelos II [2001] 2 Lloyd’s Rep 304; The Kosmar Voyager [2002] 2 Lloyd’s Rep 57). The position under r.D of the York-Antwerp Rules appears to be no different, in that it preserves any defences against the party at fault for giving rise to the general average sacrifice. All parties involved in the CMA CGM Libra litigation appear to take this very much for granted, with the focus of the inquiry being on the question whether, under the Hague/Hague-Visby Rules, the cargo interests would have had an action against the carrier in respect of damage to the cargo.
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