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Sunday, 07 April 19
SHIP PASSAGE PLANS - NO ROOM FOR ERROR! - WATSON FARLEY & WILLIAMS
 KNOWLEDGE TO ELEVATE
The English High Court’s judgment in Alize 1954 v Allianz Elementar Versicherungs AG (The CMA CGM Libra) is an important decision involving the application of longstanding principles as to a shipowner’s liability for actionable fault following a casualty. In finding that a defective passage plan rendered a vessel unseaworthy, the English High Court has demonstrated how traditional tests will be applied to update the law into the modern day world.
Prior to this decision, there had been no case whereby a defective passage plan rendered a vessel unseaworthy. However, it is now clear that just as the standard of seaworthiness must rise with improved knowledge of shipbuilding, so must the standard of seaworthiness rise with improved knowledge of the documents required to be prepared to ensure safe navigation. Following the IMO’s recognition in 1999 of the need for passage planning to be adopted by “all ships engaged on international voyages”, The CMA CGM Libra shows that by 2011 the English courts expected an adequate passage plan to have been prepared. If it was defective, the consequences could be severe.
The Case
The case concerned a laden container vessel which grounded by virtue of the master negligently navigating outside of the buoyed fairway when leaving the port of Xiamen in China. The owner had known this to be a difficult port to navigate, especially as various Notices to Mariners had been issued advising that areas existed in the Xiamen Gang (though not in the fairway) that had depths less than those charted.
Cargo interests refused to pay the owner their proportion of the total claim in general average and denied liability under Article III r.1 of the Hague Rules on the basis that the casualty was caused by the owner’s actionable fault. In particular, they alleged that the vessel was unseaworthy because she had an inadequate passage plan, that inadequacy was a cause of the casualty and due diligence was not exercised by the owner to make the vessel seaworthy.
The Decision
Before considering the substantive matters of unseaworthiness, causation and due diligence, Mr Justice Teare addressed the issue of which party bears the burden of proof in relation to Article III r.1. He affirmed the conventional view that the burden lies on the cargo interests to establish that the vessel was unseaworthy and such unseaworthiness caused the grounding. If those matters are established, the burden then lies on the owners to prove that due diligence was exercised to make the vessel seaworthy.
Unseaworthiness
Mr Justice Teare held that neither the formal passage plan, nor the working chart, contained the necessary warning of the potential danger arising outside the buoyed fairway from the existence of areas with lower depths than charted. The necessary warning should have been such that, when the navigator was faced with a decision whether to remain in the buoyed fairway or to navigate outside, he had in mind the warning that charted depths outside the buoyed fairway may be unreliable.
The judge affirmed that the long-established and authoritative test of unseaworthiness is whether a prudent owner would have required the relevant defect, had he known of it, to be made good before sending his ship to sea. He found it inconceivable that a prudent owner would allow the vessel to depart from Xiamen with a passage plan that lacked the necessary warning, especially given that IMO Resolution of 1999 states that a “well planned voyage” is of “essential importance for safety of life at sea, safety of navigation and protection of the marine environment”.
The owner argued that passage planning is simply the preparation for safe navigation and is not itself an aspect of seaworthiness. In making these arguments, the owner sought to benefit from the negligent navigation exception under Article IV r.2(a) of the Hague Rules, which provides that (assuming there is no failure by the owners to make the vessel seaworthy) a shipowner will not be responsible for loss caused by neglect in the “navigation or in the management of the ship”.
However, Mr Justice Teare rejected this, stating that seaworthiness extends to having the appropriate documentation on board, including the appropriate charts. Firstly, he noted that Article III r.1 places a seaworthiness obligation upon the shipowner “before and at the beginning of the voyage” and that passage planning before the beginning of the voyage is necessary for safe navigation during voyage. Secondly, he pointed out that it is well recognised that if a vessel’s charts are not up to date that is an “attribute” of the vessel which can render her unseaworthy – and that a proper passage plan is now like an up to date and properly corrected chart.
Mr Justice Teare also suggested that a “one-off” failure to correct a chart in a material manner before the beginning of the voyage is capable of rendering a vessel unseaworthy, even if the shipowner has put in place proper systems to ensure that the prerequisite materials were on board to prepare an adequate chart. He explained that concentrating upon the shipowner’s own actions to the exclusion of those of his servants or agents, confuses the issue of seaworthiness with the issue of due diligence, which in any event is a non-delegable duty.
Finally, Mr Justice Teare observed that the negligent navigation exception applied only to Article III r.2 and not Article III r.1. Therefore, a shipowner will not be protected from liability for failing to exercise due diligence to make the vessel seaworthy by the fact that a cause of the casualty was negligent navigation.
Conclusion
In conclusion, this case found that an appropriate passage plan is a matter of seaworthiness under Article III r.1 of the Hague Rules. This is not the type of chart that might traditionally have been expected to affect the seaworthiness of a vessel, especially as a passage plan relates principally to navigation of the ship. Nevertheless, following this judgment, shipowners will have to ensure that, through its agents and servants, due diligence is exercised to produce a non-defective passage plan that clearly contains the necessary warnings. Failure to do so, if causative of a casualty, will not be saved by the negligent navigation exception under Article IV r 2(a) of the Hague Rules, which cannot be applied where a shipowner has failed to exercise due diligence to make the vessel seaworthy.
Source: Watson Farley & Williams
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Friday, 28 June 24
INDIAN POWER STATIONS STOCKED WITH BUMPER COAL SUPPLY AS TRANSPORT WOES EASE - BUSINESS STANDARD
Even as power demand has touched a historic high of 250 gigawatts (Gw) amid sweltering heat this June, India’s power stations are stocked wit ...
Friday, 28 June 24
INDIA'S CY23 COAL USE LARGER THAN NORTH AMERICA, EUROPE COMBINED - THE HINDU
For the first time, India’s coal consumption surpassed that of North America and Europe combined in the calendar year 2023, said Energy Insti ...
Monday, 24 June 24
PLN'S FINANCIAL SUSTAINABILITY RESTS ON ACCELERATED COAL RETIREMENT AND RENEWABLES DEPLOYMENT - MUTYA YUSTIKA
On 28 May 2024, Indonesia’s national electricity utility, PT Perusahaan Listrik Negara (PLN), released its financial report for 2023. Althoug ...
Monday, 24 June 24
INDIA'S COAL-BASED POWER DEMAND AT ALL-TIME HIGH, GOVERNMENT SAYS - REUTERS
India’s demand for coal-based power has risen by 7.3% this fiscal year to an all-time high, the government said in a statement on Wednesday.
...
Monday, 24 June 24
CHINA'S COAL INDUSTRY TURNS GREENER THROUGH INNOVATIVE APPROACHES - PEOPLE'S DAILY
At an opencast mine operated by Inner Mongolia Pingzhuang Coal Group Co. Ltd., a subsidiary of CHN Energy Investment Group (CHN Energy), a 14-meter ...
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Showing 11 to 15 news of total 6871 |
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- Altura Mining Limited, Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Sakthi Sugars Limited - India
- Posco Energy - South Korea
- Kalimantan Lumbung Energi - Indonesia
- Meenaskhi Energy Private Limited - India
- Aboitiz Power Corporation - Philippines
- Larsen & Toubro Limited - India
- PNOC Exploration Corporation - Philippines
- Makarim & Taira - Indonesia
- SMC Global Power, Philippines
- McConnell Dowell - Australia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Karaikal Port Pvt Ltd - India
- Africa Commodities Group - South Africa
- Sarangani Energy Corporation, Philippines
- CIMB Investment Bank - Malaysia
- Directorate General of MIneral and Coal - Indonesia
- Metalloyd Limited - United Kingdom
- Salva Resources Pvt Ltd - India
- Ministry of Transport, Egypt
- Miang Besar Coal Terminal - Indonesia
- Marubeni Corporation - India
- Cement Manufacturers Association - India
- GAC Shipping (India) Pvt Ltd
- Medco Energi Mining Internasional
- Energy Development Corp, Philippines
- Carbofer General Trading SA - India
- Gujarat Mineral Development Corp Ltd - India
- Coal and Oil Company - UAE
- Parry Sugars Refinery, India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bhatia International Limited - India
- ASAPP Information Group - India
- Oldendorff Carriers - Singapore
- Semirara Mining and Power Corporation, Philippines
- Maheswari Brothers Coal Limited - India
- Kobexindo Tractors - Indoneisa
- White Energy Company Limited
- Latin American Coal - Colombia
- Timah Investasi Mineral - Indoneisa
- TeaM Sual Corporation - Philippines
- Indika Energy - Indonesia
- Port Waratah Coal Services - Australia
- Iligan Light & Power Inc, Philippines
- Siam City Cement PLC, Thailand
- Agrawal Coal Company - India
- Bulk Trading Sa - Switzerland
- Bhushan Steel Limited - India
- Chettinad Cement Corporation Ltd - India
- Sree Jayajothi Cements Limited - India
- Goldman Sachs - Singapore
- Maharashtra Electricity Regulatory Commission - India
- Baramulti Group, Indonesia
- Mjunction Services Limited - India
- New Zealand Coal & Carbon
- Essar Steel Hazira Ltd - India
- Asmin Koalindo Tuhup - Indonesia
- Thai Mozambique Logistica
- Orica Mining Services - Indonesia
- Ministry of Finance - Indonesia
- Parliament of New Zealand
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Indonesian Coal Mining Association
- VISA Power Limited - India
- Formosa Plastics Group - Taiwan
- Orica Australia Pty. Ltd.
- Indogreen Group - Indonesia
- SMG Consultants - Indonesia
- Directorate Of Revenue Intelligence - India
- Krishnapatnam Port Company Ltd. - India
- Georgia Ports Authority, United States
- Petrochimia International Co. Ltd.- Taiwan
- ICICI Bank Limited - India
- Globalindo Alam Lestari - Indonesia
- Aditya Birla Group - India
- Australian Commodity Traders Exchange
- Electricity Generating Authority of Thailand
- Intertek Mineral Services - Indonesia
- Petron Corporation, Philippines
- IEA Clean Coal Centre - UK
- Bahari Cakrawala Sebuku - Indonesia
- The State Trading Corporation of India Ltd
- Leighton Contractors Pty Ltd - Australia
- The Treasury - Australian Government
- Tamil Nadu electricity Board
- Kohat Cement Company Ltd. - Pakistan
- Sical Logistics Limited - India
- Kumho Petrochemical, South Korea
- Kartika Selabumi Mining - Indonesia
- Antam Resourcindo - Indonesia
- Thiess Contractors Indonesia
- Coastal Gujarat Power Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- The University of Queensland
- Siam City Cement - Thailand
- Xindia Steels Limited - India
- LBH Netherlands Bv - Netherlands
- Star Paper Mills Limited - India
- Barasentosa Lestari - Indonesia
- Coalindo Energy - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Vijayanagar Sugar Pvt Ltd - India
- Eastern Energy - Thailand
- Riau Bara Harum - Indonesia
- Energy Link Ltd, New Zealand
- Kaltim Prima Coal - Indonesia
- Planning Commission, India
- Kapuas Tunggal Persada - Indonesia
- Manunggal Multi Energi - Indonesia
- San Jose City I Power Corp, Philippines
- Ceylon Electricity Board - Sri Lanka
- International Coal Ventures Pvt Ltd - India
- Sojitz Corporation - Japan
- Jindal Steel & Power Ltd - India
- Renaissance Capital - South Africa
- Edison Trading Spa - Italy
- Sinarmas Energy and Mining - Indonesia
- Grasim Industreis Ltd - India
- CNBM International Corporation - China
- Lanco Infratech Ltd - India
- Bukit Makmur.PT - Indonesia
- London Commodity Brokers - England
- Pipit Mutiara Jaya. PT, Indonesia
- Interocean Group of Companies - India
- Billiton Holdings Pty Ltd - Australia
- Romanian Commodities Exchange
- Indian Energy Exchange, India
- Global Green Power PLC Corporation, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Mintek Dendrill Indonesia
- Tata Chemicals Ltd - India
- Bharathi Cement Corporation - India
- MS Steel International - UAE
- Savvy Resources Ltd - HongKong
- GN Power Mariveles Coal Plant, Philippines
- Anglo American - United Kingdom
- AsiaOL BioFuels Corp., Philippines
- Neyveli Lignite Corporation Ltd, - India
- Rashtriya Ispat Nigam Limited - India
- Standard Chartered Bank - UAE
- Central Electricity Authority - India
- Kepco SPC Power Corporation, Philippines
- Binh Thuan Hamico - Vietnam
- Semirara Mining Corp, Philippines
- Wilmar Investment Holdings
- South Luzon Thermal Energy Corporation
- Central Java Power - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Minerals Council of Australia
- Straits Asia Resources Limited - Singapore
- Therma Luzon, Inc, Philippines
- Pendopo Energi Batubara - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Eastern Coal Council - USA
- European Bulk Services B.V. - Netherlands
- Bayan Resources Tbk. - Indonesia
- Vizag Seaport Private Limited - India
- Uttam Galva Steels Limited - India
- Holcim Trading Pte Ltd - Singapore
- Borneo Indobara - Indonesia
- Independent Power Producers Association of India
- Karbindo Abesyapradhi - Indoneisa
- Simpson Spence & Young - Indonesia
- Indian Oil Corporation Limited
- OPG Power Generation Pvt Ltd - India
- Indo Tambangraya Megah - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Wood Mackenzie - Singapore
- SN Aboitiz Power Inc, Philippines
- Malabar Cements Ltd - India
- Singapore Mercantile Exchange
- Australian Coal Association
- Electricity Authority, New Zealand
- PTC India Limited - India
- Deloitte Consulting - India
- Vedanta Resources Plc - India
- Jaiprakash Power Ventures ltd
- Attock Cement Pakistan Limited
- Ambuja Cements Ltd - India
- Heidelberg Cement - Germany
- Madhucon Powers Ltd - India
- IHS Mccloskey Coal Group - USA
- Kideco Jaya Agung - Indonesia
- Mercator Lines Limited - India
- Commonwealth Bank - Australia
- Economic Council, Georgia
- India Bulls Power Limited - India
- Meralco Power Generation, Philippines
- Ministry of Mines - Canada
- Global Business Power Corporation, Philippines
- Dalmia Cement Bharat India
- PowerSource Philippines DevCo
- Bukit Asam (Persero) Tbk - Indonesia
- Price Waterhouse Coopers - Russia
- Ind-Barath Power Infra Limited - India
- Trasteel International SA, Italy
- GVK Power & Infra Limited - India
- Mercuria Energy - Indonesia
- Bangladesh Power Developement Board
- Global Coal Blending Company Limited - Australia
- Jorong Barutama Greston.PT - Indonesia
- Toyota Tsusho Corporation, Japan
- Bhoruka Overseas - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Cigading International Bulk Terminal - Indonesia
- Sindya Power Generating Company Private Ltd
- Power Finance Corporation Ltd., India
- Banpu Public Company Limited - Thailand
- Videocon Industries ltd - India
- Merrill Lynch Commodities Europe
- Samtan Co., Ltd - South Korea
- Chamber of Mines of South Africa
- Bukit Baiduri Energy - Indonesia
- Rio Tinto Coal - Australia
- GMR Energy Limited - India
- Gujarat Sidhee Cement - India
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