Alize 1954 v Allianz Elementar Versicherungs AG and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Teare,Mr. Justice Teare |
| Judgment Date | 08 March 2019 |
| Neutral Citation | [2019] EWHC 481 (Admlty) |
| Docket Number | Case No: AD-2016-000111 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 08 March 2019 |
[2019] EWHC 481 (Admlty)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Mr. Justice Teare
Case No: AD-2016-000111
Timothy Hill QC and Alex Carless (instructed by Reed Smith) for the Claimants
John Russell QC (instructed by Clyde and Co.) for the Defendants
Hearing dates: 28–31 January, 1 and 6 February 2019 with further written submissions exchanged until 22 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 17 May 2011 the CMA CGM LIBRA, a modern (and laden) container vessel, grounded whilst leaving the port of Xiamen in China. The cost of her salvage was some US $9.5 million and the total claim in General Average by her Owners against Cargo Interests was some US $13 million. 92% of the Cargo Interests paid their contribution to GA but some 8% have refused to do so. The sum payable by those interests is approximately US $800,000 and it is claimed in these proceedings. The claim has given rise to questions of unseaworthiness, due diligence, negligent navigation and causation.
In broad terms the Owners say that the cause of the casualty was an uncharted shoal on which the vessel grounded. The Cargo Interests say that the cause of the casualty was the unseaworthiness of the vessel which led to the master's negligent navigation of the vessel. In particular it was said that the vessel was unseaworthy by reason of the fact that she had an inadequate passage plan, that that inadequacy was a cause of the casualty and that due diligence was not exercised to make the vessel seaworthy. The casualty was thus caused by the Owners' actionable fault (a breach of Article III rule 1 of the Hague Rules) and so the Cargo Interests are not liable to contribute in GA pursuant to the York Antwerp Rules.
Established principles with regard to seaworthiness and the duty of due diligence pursuant to Article III r.1 of the Hague Rules fall to be applied in the context of two (relatively) recent developments designed to improve the safety of navigation. The first is the recognition by IMO 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. The second is the use by ships of electronic charts displayed on an ECDIS, that is, an Electronic Chart Display and Information System. It is right to observe, however, that in 2011 when this casualty occurred, the shipping industry was in the course of changing from paper to electronic charts. In 2011 a ship could satisfy the charts requirement of SOLAS by carrying either paper charts (SNCs or Standard Nautical Charts), as this vessel did, or by electronic charts (ENCs or Electronic Navigational Charts). As from July 2016 ships were required to use ENCs. This casualty therefore occurred at a time of transition in the shipping industry from paper to electronic charts.
The witnesses
The master of the vessel, Captain Culusi, gave oral evidence. He did so some 7–8 years after the events in question. It is to be expected that he will have given considerable thought to the causes of the casualty over the intervening years. It is also to be expected that he will have carefully considered the criticisms made of his navigation of the vessel. In those circumstances it is likely that it is difficult for him now to disentangle in his mind his actual recollection of the events leading up to the casualty with his reconstruction, based in particular upon the Voyage Data Recorder (VDR), of what happened. Of course in circumstances where the vessel carried a VDR there can be little if any dispute as to the course and speed of the vessel and of her likely track to the grounding position. There are, however, disputes as to matters not recorded by the VDR, for example, whether the master was aware of the contents of a particular Notice to Mariners during the navigation and as to the relative reliance placed by the master on the paper chart, the electronic chart and the radar. With regard to these matters his evidence in 2019, save where it is consistent with the probabilities or, perhaps, with contemporaneous reports made by him in 2011, is unlikely to be reliable, not because he was untruthful in his evidence, but because his evidence on such matters is likely to be the product, not of recollection but of his reconstruction of the events, the truth of which he has convinced himself over the intervening years.
Captain Gansinhounde, a DPA (“Designated Person Ashore”) employed by the Owners (though not in relation to this particular vessel) also gave oral evidence. He did so because the vessel's DPA at the time no longer works for the Owners and (until recently) no statement was available from him. It was apparent from Captain Gansinhounde's cross-examination that listening to the cross-examination of the Master had caused him to revise certain of the opinions expressed by him in his written statement. Thus, whilst in his witness statement he had said that the preparation of the vessel's passage plan had been in accordance with the relevant procedures and nautical instructions, in his oral evidence he accepted that the master had not followed proper procedures. He thus appeared to be frank and candid with the court.
The court was assisted by the expert opinion of two master mariners called by the parties, Captain Whyte for the Owners and Captain Hart for the Cargo Interests. Both studied the circumstances leading up to the casualty in immense and well researched detail. Each was accused by counsel of having done his best to assist the side which instructed him. I accept that both experts sought to give the court their honest opinion. However, there were limitations to the benefit which the court could derive from their opinions. Whilst Captain Whyte was well qualified and had been at sea until 2012 (serving with the Royal Fleet Auxiliary) with experience of ENCs, he had difficulty, it seemed to me, in standing back from the detail of the case and assessing the matter from the point of view of the ordinarily prudent mariner. This may have been because of his very detailed research into certain aspects of the case. It may also have been because in his first report he made no mention of a Notice to Mariners which he accepted in his oral evidence was critical and paramount. Having formed his views as to the conduct of the master without regard to that Notice to Mariners he may have found it difficult to reconsider his views as to how matters might have appeared to the prudent mariner in the light of that Notice. In addition, his answers tended to be lengthy so that it was sometimes difficult to discern his answer to the question put to him. Captain Hart had the merit of answering questions directly and with reasons concisely expressed. However, in the context of the present case he was handicapped by not having sailed as master with the benefit of electronic charts. He had been at sea until 1987 serving on merchant vessels deep sea and offshore. Thus his experience was not as recent as Captain Whyte's and not as relevant (with regard to the use of ENCs). Nevertheless, the opinions of both experts on the questions of passage planning and navigation were both interesting and helpful to the court. 1
The court also heard evidence from Captain Greenfield on questions relating to seaworthiness and due diligence with regard to manning and training. However, having regard to the way in which the Cargo Interests' case was put on these issues his evidence was not at the heart of the case, as was apparent from the fact that his cross examination was very short indeed.
There were also statements in writing from, in particular, the second officer, Mr. Autida, who had prepared the passage plan and was officer of the watch, and from Mr. Chauffeteau, the vessel's DPA at the time of the casualty. He was responsible for auditing the vessel's practices and its compliance with the Owners' SMS. The last audit he carried out before the grounding was in October 2010. The vessel had not by then called at Xiamen.
The vessel
CMA CGM LIBRA is a container vessel, post-Panamax size, which was built in South Korea in 2009. She has 8 cargo holds forward of the engine room and accommodation and 2 holds aft. Her length overall is 353 metres and her breadth 45.66 metres. The distance from bridge to stem is 273 metres. Her summer load draft is 15.524 metres and her summer displacement 171,371 tonnes. She is fitted with a single marine diesel engine developing a maximum rated output of 96,875 BHP at 104 RPM and producing a maximum speed of about 24.7 knots. Propulsion is by a single right-hand turning 6 blade fixed pitch propeller, controlled remotely from the bridge. To assist manoeuvring the vessel is also fitted with a bow thruster. Her manoeuvring full speed is 16 knots at 65 RPM.
She is fitted with an ARPA radar and an ECDIS. The ARPA is to starboard of the main conning console and to starboard of that is the ECDIS. On the passage in question the master was positioned on the bridge to starboard of the main conning console with the ARPA ahead of him. The chartroom was behind him.
The vessel was equipped with British Admiralty paper charts and with the Admiralty Sailing Directions. In addition she carried C-Map Professional Plus proprietary electronic charts which were installed on her ECDIS.
The vessel's working chart (Admiralty chart no.3449) was...
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