Lloyd's Maritime and Commercial Law Quarterly


Thomas Krebs *


141. 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 Supreme Court affirmed the Court of Appeal’s conclusion that a failure to prepare an accurate passage plan amounted to negligence in furnishing a seaworthy ship.
Facts: 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. 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 argued, in turn, 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 had held in favour of the cargo interests. Having been unsuccessful in the Court of Appeal, the owners appealed to the Supreme Court.
Decision: Appeal dismissed; cargo interests not liable to contribute to general average.

* Associate Professor in Commercial Law, University of Oxford; Fellow and Tutor in Law, Brasenose College Oxford.
2. It is, of course, trite law that, where the loss is caused by unseaworthiness at the beginning of the voyage, the ship owner cannot recover a contribution from the owners of the cargo (Demand Shipping Co Ltd v Ministry of Food Government of the People’s Republic of Bangladesh (The Lendoudis Evangelos II) [2001] EWHC 524 (Comm); [2001] 2 Lloyd’s Rep 304; Guinomar of Conakry v Samsung Fire & Marine Insurance Co Ltd (The Kamsar Voyager) [2002] 2 Lloyd’s Rep 57), and the position under rule 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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