Alize 1954 and CMA CGM SA v Allianz Elementar Versicherungs AG and 16 Ors
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lord Justice Males,Lord Justice Haddon-Cave |
| Judgment Date | 04 March 2020 |
| Neutral Citation | [2020] EWCA Civ 293 |
| Date | 04 March 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A4/2019/0730 |
[2020] EWCA Civ 293
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
MR JUSTICE TEARE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Lord Justice Haddon-Cave
and
Lord Justice Males
Case No: A4/2019/0730
Mr Timothy Hill QC & Mr Alex Carless (instructed by Reed Smith LLP) for the Appellants
Mr John Russell QC & Mr Benjamin Coffer (instructed by Clyde & Co LLP) for the Respondents
Hearing dates: Tuesday 18 & Wednesday 19 February 2020
Approved Judgment
Introduction
The appellants, who are the Owners of the vessel CMA CGM LIBRA (to whom I will refer as “the Owners”) appeal against the Order of the Admiralty Judge Teare J dated 8 March 2019 dismissing the Owners' claim against the respondents (to whom I will refer as “the Cargo Interests”) for contribution in general average.
The appeal raises issues as to the scope of the obligation imposed upon a shipowner by Article III rule 1 of the Hague/Hague Visby Rules to exercise due diligence to make the vessel seaworthy before and at the beginning of the voyage. The central issue in the appeal is whether defects in the vessel's passage plan and the relevant working chart rendered the vessel unseaworthy because neither recorded the necessary warning derived from the Notice to Mariners 6274(P)/10 that depths shown on the chart outside the fairway on the approach to the relevant port, Xiamen in China, were unreliable and waters were shallower than recorded on the chart. The judge found that these defects did render the vessel unseaworthy, that the Owners had failed to exercise due diligence, so that they were in breach of Article III rule 1, that that breach was causative of the grounding of the vessel and the claim in general average failed.
Factual background
The essential factual background is set out at [9] to [43] of the judgment and is not challenged on appeal. I set out only a relatively brief outline to the extent necessary for understanding the issues on the appeal.
The vessel is a large container ship, carrying some 6,000 containers, most full of cargo, at the time of the grounding, which occurred as the vessel was leaving the port of Xiamen, where she had loaded cargo.
The passage plan prepared for the voyage from Xiamen to the next port of Hong Kong was prepared by the vessel's second officer. It was contained in two documents: a passage plan document provided to the vessel by the Owners in which the plan was to be recorded and the vessel's working chart. The first document, which included the under keel clearance (“UKC”), was described by the judge at [26] to [29] of the judgment.
The working chart (Admiralty chart no. 3449) contained a course line marked in blue on the chart to buoy 19, the pilot station, then from there to buoy 15, passing that buoy on the starboard side edge of the fairway with a danger area marked on the chart passed to port. The course line then took the vessel to the port side of the fairway so as to pass a danger area off buoy 14–1 to starboard. The course line showed the vessel as within the fairway at all times passing buoy 14 also to starboard. The judge found at [33] that there were no “no go” areas, marked with hatched lines on the chart, on either side of the fairway.
The judge's detailed findings about the actual navigation of the vessel are at [34] to [43]. In summary, she left the quayside at 01.33 on 18 May 2011, a little after high water, but with sufficient UKC in the channel. The second officer was on the bridge with the master. As the vessel approached buoy 15, she was on the starboard side of the fairway and aimed to pass a dangerous shallow area to port, which brought her to a position on the chart just outside the magenta pecked line of the fairway, but still within the fairway.
As shown in the chart extract appended to the judgment (where the vessel's actual course is marked in red and the planned course in blue) the vessel was further west than intended. On passing buoy 15, the helm was put gradually to port. As the judge found at [39], the master must have been intending to cross over to the port side of the fairway. However, he then ordered the helm further over to starboard through almost 40 degrees with the consequence that the vessel passed buoy 14–1 and the danger area around it to port. This took the vessel out of the buoyed fairway.
As the judge said at [41], the master then ordered the helm hard to port, presumably to return to the fairway before buoy 14, but this attempt did not last long and he ordered hard to starboard, evidently with the aim of passing the rocks and shallow water at Jiujie Jiao to port. The second officer marked the vessel's position on the chart at 02.32 as about 2 1/2 cables to the west of the fairway, shaping to pass buoy 14 to port. Various helm and engine movements were ordered but by 02.35 the master concluded the vessel had run aground. She was in an area where there were charted depths of over 30 metres.
The judgment of Teare J
Having made the findings as to the circumstances in which the vessel had grounded which I have just summarised, the judge went on, in what was a meticulous and pellucid judgment, to consider in detail from [44] onwards the master's evidence as to why he decided to pass buoy 14 to port and the expert evidence, with a view to determining whether the master's decision to do so and to leave the buoyed channel was negligent. At [50] he concluded that there was a formidable case that it had not been prudent for the master to rely upon the charted depths of 30 metres of water which the master had said he considered there would be if he left buoy 14–1 to port. The principal reason for this (and of relevance to the current appeal) was that: “Notice to Mariners NM 6274(P)/10, issued in December 2010, advised mariners at paragraph 2 that “numerous depths less than charted exist within, and in the approaches to Xiamen Gang”. It is true that the “most significant” which were listed were not in this location but the warning was nevertheless clear that in the approaches to Xiamen there were “numerous depths less than the charted depths”. The judge also noted that NM 6274(P)/10 informed mariners that the least depth within the fairway was 14 metres.
He referred to the conflict of expert opinion and said at [53] that he preferred the evidence of Captain Hart, the expert for the Cargo Interests. He concluded at [54] that the master's decision to part from the passage plan and navigate outside the buoyed fairway was negligent. As he said at [55] there could, however, only be actionable fault within the meaning of the York-Antwerp Rules if the grounding was caused by a failure by the owners to exercise due diligence to make the vessel seaworthy. He noted that, although the case of the Cargo Interests had developed during the course of the litigation, the focus at trial had been upon whether the passage plan had been defective and, if so, whether those defects were causative of the grounding and, if they were, whether there had been failure to exercise due diligence to make the vessel seaworthy.
The judge considered the issue of the burden of proof in relation to unseaworthiness, noting at [56] the conventional view that the burden was on the Cargo Interests to establish that the vessel was unseaworthy and that this was causative of the grounding and that, if those matters were established, the burden was on the Owners to establish that due diligence was exercised to make the vessel seaworthy. At [57], the judge rejected an argument by Mr John Russell QC on behalf of Cargo Interests that, in the light of the decision of the Supreme Court in Volcafé Ltd v Cia Sud Americana de Vaporesi SA [2018] UKSC 61; [2019] AC 358, the burden lay on the Owners under Article III rule 1 of the Hague Rules to prove that the vessel was seaworthy. He considered that that case concerned only Article III rule 2 and was not concerned with the burden of proof in cases of unseaworthiness. The judge considered that the conventional view of the burden of proof in relation to unseaworthiness remained good law. Although the Respondents' Notice sought to challenge that conclusion, on the basis of Volcafé, at the hearing of the appeal, Mr Russell QC indicated that this argument was not pursued.
The judge went on to consider the criticisms of the passage plan. He noted at [64] that the IMO Guidelines on Passage Planning 1999 stated that the passage plan should include “all areas of danger”. Whilst the working chart had been updated with a note placed on the fairway between buoys 15 and 18 advising the mariner to “see” NM 6274(P)/10, the judge said that the note did not in terms remind the mariner of the warning within the Notice to Mariners that charted depths outside the buoyed fairway may be unreliable.
He then went on to consider how the chart should have been marked to give this warning. At [67] to [69] he referred to Captain Hart's primary position that the chart should have been marked with hatched lines down the outside of the fairway indicating “no go” areas outside the fairway, but the judge considered this would make the chart too “busy” and that the same warning could be conveyed, as Captain Hart also suggested, by a note on the chart: “depths less than charted exist outside the fairway.”
The judge then made these important findings at [70]:
“Nevertheless 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...
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