Recent Court decisions in Spain and in the UK have clarified the meaning and extent of seaworthiness. The judgment issued by the UK Supreme Court in the "CMA CGM LIBRA" case, on 10 November 2021, confirmed that a defective passage plan will render a vessel unseaworthy^[1]. The court found that the vessel´s defective passage plan was causative of the grounding of the container vessel "CMA CGM LIBRA" on leaving the port of Xiamen, China, on a voyage to Hong Kong, and that this involved a breach of the carrier´s seaworthiness obligation under article III Rule 1 of the Hague-Visby Rules^[2]. The English courts thus dismissed the shipowners´ contention that any negligence in passage planning was a navigational fault which is exempted under article IV Rule 2 (a) of the Hague-Visby Rules^[3].

The importance of this ruling is that it broadens the scope of the legal term "seaworthiness".

In particular, the UK Supreme Court held as follows: 

"The carrier´s obligation under the Hague Rules is not subject to a category-based distinction between a vessel´s quality of seaworthiness or navigability and the crew´s act of navigating. The crew´s failure to navigate the ship safely is capable of constituting a lack of due diligence by the carrier. It makes no difference that the delegated task of making the vessel seaworthy involves navigation".  

Thus, negligent navigation, in certain circumstances, may constitute in itself unseaworthiness attributable to the owner who cannot rely on the "error in navigation defence" to avoid liability (in this particular case because the shipowner did not provide the crew with an accurate passage plan).

A similar reasoning is being applied by the Spanish courts who regard the concept of unseaworthiness as not limited to be an attribute of the vessel which threatens her safety or her cargo, but may be expanded, depending on the circumstances of the case, to encompass negligent navigation or ship management as well.

A case in point is the judgment nº 175/2017 handed down by the Pontevedra Court of Appeal on 20 April 2017, which became final after an appeal lodged before the Spanish Supreme Court (Tribunal Supremo) was dismissed on 10 March 2020.

Even though the case does not revolve around the seaworthiness duty of a carrier under a carriage of goods contract, but rather it is a dispute between the shipowner of a fishing vessel and her H&M insurer, the ruling is relevant because the question of seaworthiness is analyzed in depth.

The factual context is the sinking of a fishing vessel in international waters off the coast of Cabo Verde. The cause of the sinking was unknown. The hull insurer responded to the claim put forward by the shipowner arguing that the ship was unseaworthy at the time of the sinking due to several irregularities, prime among which was the fact that the Master lacked the qualification required to navigate such waters.

At paragraph 43, the Court stated:

“Starting from the proven fact that Mr. Eugenio was the Captain of the ship, and that he did not have sufficient qualifications to carry out such a task, we consider that this constitutes a violation that affects navigability, in the broad sense in which we have interpreted the term above (see paragraph 25), to the extent that it increases the risk of navigation, to the point of constituting a serious breach of maritime safety and protection according to administrative regulations.

...if the shipping company, for whatever reasons - the explanation that it is not easy in the market to find workers with the appropriate qualifications is clearly unsatisfactory as a justification - assumed the risk of placing the ship in command of a person without the regulatory qualifications, acted outside the limits of loyalty established in the insurance contract against maritime risks.” [Emphasis added]

As can be seen, in assessing the intensity of the seaworthiness requirement, the Spanish courts have not only broadened its traditional meaning, going beyond the vessel herself^[4], but also, in line with the recent ruling by the UK Supreme Court, have interpreted extensively the concept of “prudent owner” so that the error in navigation defense may become less effective over time.

Juan Montenegro

Lawyer

PEREZ ALBORS & CO

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^[1] “Alize 1954 and another (Appellants) v Allianz Elementar Versicherungs AG and others (Respondents)”. 

^[2] “The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to make the ship seaworthy”.

^[3] “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from act, neglect or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship”

^[4] UK Marine Insurance Act 1906, art. 39: “A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured”.