5.3 Concluding Remarks Regarding the CMA CGM Libra Judgement
As reflected upon in chapter 5.1, it is questionable if the seaworthiness requirement was intended to extend to matters of navigation. It appears, when reviewing the preparatory works of the Hague Rules, that the shipowner was to be exempted from all matters of navigation. This was a result of a pragmatic compromise between shipowners and cargo owners at the Hague Conference, which was intended to standardize the risk allocation between the common parties to the maritime venture. It might therefore be argued that the Supreme Court have not sufficiently appreciated this aspect of the Hague Rules in their interpretation of the seaworthiness obligation and its relationship with the nautical fault exemption. Furthermore, as reflected upon in chapters 5.1.7 to 5.2.1, it could be argued that when addressing navigational errors at the commencement of the voyage, a more functional approach would be more appropriate than the formalistic, and rather simple approach imposed by the “prudent owner test”, the “non-delegable” nature of the due diligence obligation.
In 2023, trial judge, Sir Nigel Teare, published an article titled, Seaworthiness, negligent navigation and safer ships, where he explained the rationales underlying his judgement. Interestingly, he reflected on the navigational fault exemption, to which he commented, “To the modern eye it seems curious that an employer can seek to avoid liability by proving that the cause of the damage was the negligence of his own employee»(1) Teare (2023), p. 566 Nevertheless, he clarifies that the error in navigation exception is explained “by the circumstance that when the vessel was at sea the shipowner was no longer in control of the vessel and communication with the master was not possible.»(2) Ibid, p. 567 However, Teare then goes on to indicate that the negligent navigation exception is less compatible with modern shipping, referring to the Hamburg Rules of 1978 and Rotterdam Rules of 2008 which sought to end the exception of negligent navigation. Reference is then made to the Hague/ Hague Visby Rules, Teare holding that “the reality is that the scope of the seaworthiness duty is not fixed in stone but is capable of adapting to and encompassing changes in the practice of shipping. Thus, a vessel which in 1924 was regarded as a seaworthy ship may in fact and in law be regarded as an unseaworthy ship in the twenty-first century. In this way, the reach of the negligent navigation exception can be progressively reduced as changes in the practices of shipowners increase the reach of the seaworthiness obligation.»(3) ibid p. 568
The latter quote from Sir Nigel Teare potentially sheds light on the rationale underlying the CMA CGM Libra judgement. The judgement may have been an attempt to reconcile the Hague Rules with contemporary views on the nautical fault exemption. It could however be argued that it is not the prerogative of the courts to alter the meaning of the nautical fault exemption, for which the parties to the contract of carriage have relied on, particularly when structuring their respective insurance arrangements. It may well be that the nautical fault exemption is outdated(4) Ziya (2020), but it is nevertheless a valid exemption under the Hague Rules, for which shipowners are entitled to rely on.
On the other hand, while it is not entirely convincing that the due diligence obligation to provide a seaworthy ship under the Hague Rules extends to matters of navigation, the shipowner is ultimately in the best position to ensure the vessel’s safety, including in matters of navigation. Owners now know that a prudent owner is expected to follow up on matters related to navigation, even at the commencement of the voyage. This may result in inefficiencies, as it likely requires additional safety procedures onshore and offshore, but this is likely to benefit the safety of the vessel, its crew and cargo. So, whilst this author maintains that the CMA CGM Libra judgement is difficult to reconcile with the underlying rationales of the Hague Rules, it might be argued that the Supreme Court have extended the seaworthiness obligation in a constructive manner, that will contribute to the promotion of safer shipping. As held by Sir Nigel Teare, “Seaworthiness is the hand maiden of beneficial changes in ship management designed to promote safety at sea.»(5) Teare (2023), p. 574