Admiralty Court revisits seaworthiness in General Average case

In an earlier article in February 2022 (The UK Supreme Court considers seaworthiness under the Hague Rules - the CMA CGM LIBRA (Alize 1954 v Allianz Elementar Versicherungs A G (the CMA CGM LIBRA) ([2021] UKSC 51))) we commented on the subject of seaworthiness. This subject has again been considered by the English Admiralty court in connection with a claim for a contribution in General Average arising out of the grounding of the bulk carrier “HAPPY ARAS” (Unity Ship Group SA v Euroins JSC, The HAPPY ARAS [2026] EWHC 7 (Admlty)).

Factual background

The “HAPPY ARAS” was a small bulk carrier with a gross tonnage of 2,659. On 20th March 2023 she was on the eighth day of a passage from Reni, Ukraine, to Mersin, Turkey with a cargo of soya beans. At 20.58 she grounded on the north shore of Datca peninsula in southern Turkey. As a result of serious damage to the vessel a salvage, lightering and transhipment operation took place that ran until June 2023. The vessel owners declared General Average and later claimed a GA contribution from cargo interests of US$1,271,095.89.

Cargo interests refused to pay on the grounds that the vessel was unseaworthy in that:

• She was not manned by a competent crew, or more specifically, master; and
• There was a failure to exercise due diligence in planning the passage.

It was clear that the grounding occurred because the master, who was on watch at the relevant time, failed to follow the passage plan. Specifically:

• Neither the master, nor the officer on watch before him, had fixed the position of the vessel as required under the passage plan;
• The master did not follow the planned track and in particular failed to make a planned course alteration that led to the grounding;
• The master sent the seaman on lookout below to make tea and himself failed to keep a proper lookout despite the fact that the prominent land of the Datca peninsula rising to nearly 280m should have been clearly visible to eye and on radar.

Later the master made, or caused to be made, exculpatory entries in the deck and engine room log books.

In the words of the judgment:

“The grounding was not the product of an isolated error. The errors were numerous and egregious and can be characterized as a complete dereliction of duty.”

The passage plan itself was described by the court experts as of “a basic type”. However they agreed that, despite its defects, if it had been followed the grounding would not have occurred.

The law

It was stated by the UK Supreme Court in the CMA CGM Libra (discussed in our earlier article) that

“A shipowner is not entitled to recover general average contributions from the owners of the cargo where the loss or expenditure was caused by its ‘actionable fault’ which includes any causative breach of the terms of the relevant contract of carriage” (The CMA CGM Libra [2021] UKSC 51 at paragraph 21.).

The actionable fault here is the breach of the carrier’s duty under Hague Rules. Article III rule 1 to exercise due diligence before the beginning of the voyage to make the vessel seaworthy.

The Supreme Court confirmed in the CMA CGM LIBRA that a defective passage plan can render a vessel unseaworthy. A vessel may also be considered unseaworthy if the owners fail to prove a competent crew.

However the unseaworthiness must be a cause of the casualty.

Conclusions

In the present case the court held that the master was incompetent as demonstrated by the events leading up to the grounding. As stated by the court:

“The Master made multiple, serious errors; he made those errors in a context where he had, through his own actions or inactions, removed many of the checks and balances intended to maintain the safety of the vessel and the voyage; he then (I regret to find) made inaccurate and misleading entries in the vessel’s records. These were systemic failings, a description applied, albeit with differences of emphasis, by both experts. It seems to me that the test of unseaworthiness is made out. A prudent owner would have required the relevant defect (in this case the competence of the Master), had he known of it, to be made good before sending his ship to sea.”

The vessel was thus considered unseaworthy.

In contrast the passage plan, whilst possibly defective, was not a cause of the grounding and thus did not itself render the vessel unseaworthy for the purposes of this claim.