Lloyd's Maritime and Commercial Law Quarterly
PASSAGE PLANNING AND UNSEAWORTHINESS
Stephen Girvin*
The CMA CGM Libra
For almost 600 years,1 shipowners have warranted absolutely that their vessels are seaworthy.2 This was later formulated in the Hague and Hague-Visby Rules as an obligation to exercise “due diligence” to provide a seaworthy vessel.3 Although the appeal in The CMA CGM Libra
4 was considered “straightforward”,5 the decision was keenly awaited. The maritime community did not have long to wait: a very strong Court of Appeal handed down judgment6 a fortnight after the conclusion of the hearing.7
Fundamental to the case was the well-known test laid down by Channell J in McFadden v Blue Star Line
8 that:
“If the defect existed [at the commencement of her voyage], the question to be put is: Would a prudent owner 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.”
The issue in the appeal, as in the Admiralty Court,9 was whether defects in a vessel’s passage plan and working charts rendered the CMA CGM Libra unseaworthy because they
* MPA Professor of Maritime Law, Director, Centre for Maritime Law, National University of Singapore.
1. See, eg, The Cheritie (1531), Reginald G Marsden (ed), Select Pleas in the Court of Admiralty, vol.1 (Selden Society, 1892), 35.
2. See Stephen Girvin, “The carrier’s fundamental duties to cargo under the Hague and Hague-Visby Rules” (2019) 25 JIML 443, 444.
3. Art.III, r.1.
4. Alize 1954 and CMA CGM SA v Allianz Elementar Versicherungs AG (The CMA CGM Libra) [2020] EWCA Civ 293 (hereafter “CMA CGM Libra (CA)”).
5. Ibid, [77] (Males LJ).
6. 4 March 2020. Somewhat unusually, all three appeal judges, Flaux, Males, and Haddon-Cave LJJ, came from distinguished backgrounds at the shipping bar.
7. 18 and 19 February 2020.
8. [1905] 1 KB 697, 706. See CMA CGM Libra (CA), [17].
9. Alize 1954 v Allianz Elementar Versicherungs AG (The CMA CGM Libra) [2019] EWHC 481 (Admlty); [2019] 1 Lloyd’s Rep 595 (hereafter “CMA CGM Libra (QB)”).
Case and comment
549