2 Introduction
Seaworthiness is a key doctrine integral to the legal framework governing the carriage of goods by sea. As well established through caselaw in various jurisdictions, and through the development of international and national rules, a carrier is under an obligation to provide a seaworthy ship. The undertaking to provide a seaworthy ship has been described as “one of the most complex of contractual undertakings. It embraces obligations with respect to every part of the hull and machinery, stores and equipment and the crew itself. It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which must inevitably result in a total loss of the vessel”.(1) Bennett (2017) at 3-081 referring to the passage of Diplock LJ in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd[1962] 2 QB 26 at 71 Hence, whilst the doctrine of seaworthiness is fundamental to the law related to the carriage of goods by sea, the extent and meaning of seaworthiness is still a contentious topic.
The Hague Rules, as adopted in 1924, sought to provide a uniform international approach to the terms of contracts of carriage by sea.(2) Rogers (2020) p. 389 In doing so, the Rules standardized the responsibilities and liabilities of a carrier, including the seaworthiness obligation. The Hague Rules were, however, a product of compromise, and the seaworthiness obligation under the Hague Rules reflects said compromise.(3) Djadjev (2016), p. 32 Therefore, whilst it is accepted that the carrier has a due diligence obligation to make the vessel seaworthy at the commencement of the voyage, it is also accepted that there are exemptions to a carrier’s liability, including, the so-called “error of navigation” exemption. Effectively, a carrier will not be held liable for loss or damage resulting from an error in navigation.
The seaworthiness obligation under the Hague Rules is understood to be an overriding obligation, “so that if the unseaworthiness was a cause of cargo damage the shipowner is unable to rely upon an exception from liability unless it can point to a specific damage caused by the excepted cause and not by unseaworthiness.”(4) Bennett (2017, at 3-103 Whilst this is well understood, an issue may present itself when the unseaworthiness in question is caused by an exemption, such as an error in navigation. The Hague Rules do not provide an obvious solution to such a scenario. Consequently, the interplay between the seaworthiness obligation and the error in navigation exemption has historically been somewhat contentious and not clearly defined.(5)Solvang (2020)
This very issue presented itself in the CMA CGM Libra case, where the courts were tasked with determining if a defective passage plan could render the vessel unseaworthy at the commencement of the voyage. The UK Supreme Court accepted that the preparation of a passage plan is a matter of navigation but nevertheless held that the relevant defective passage plan rendered the vessel unseaworthy. Accordingly, the Supreme Court decisively affirmed that if an error in navigation is the cause of initial unseaworthiness, then owners cannot avail of the error in navigation exemption.(6)Libra [2021]
Whilst the judgement in CMA CGM Libra provided clarification with regards to the interplay between initial unseaworthiness and the error in navigation exemption, the judgement has not been free of controversy. The Supreme Court adopted a stringent approach to the seaworthiness obligation which arguably, in effect, limited the scope of the nautical fault exemption. This has prompted diverse reactions, some concerned that the judgement has distorted the compromise that was achieved through the Hague Rules with regards to the allocation of risk and liability in the context of carriage contracts. The judgment thus provides an interesting basis for legal analysis.
This thesis seeks to provide a critical examination of the UK Supreme Court's decision in CMA CGM Libra, focusing on the Court`s interpretation of the Hague Rules' due diligence requirement to ensure seaworthiness and its interaction with the nautical fault exemption. To provide a thorough analysis, the judgments rendered at each judicial stage of the case—the Admiralty Court, the Court of Appeal, and the Supreme Court—will be examined. The Supreme Court's judgement will be analyzed in the context of relevant case law, legal literature, and the historical objectives underpinning the Hague Rules. Ultimately, the thesis aims to contribute to the ongoing discussion surrounding the legal treatment of seaworthiness and navigational errors in contemporary maritime law.