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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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Monday, 24 June 24
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Friday, 14 June 24
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Showing 16 to 20 news of total 6871 |
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- Mintek Dendrill Indonesia
- Mercuria Energy - Indonesia
- McConnell Dowell - Australia
- Altura Mining Limited, Indonesia
- Leighton Contractors Pty Ltd - Australia
- Cigading International Bulk Terminal - Indonesia
- Makarim & Taira - Indonesia
- Renaissance Capital - South Africa
- Orica Australia Pty. Ltd.
- Meralco Power Generation, Philippines
- Salva Resources Pvt Ltd - India
- Electricity Authority, New Zealand
- Intertek Mineral Services - Indonesia
- Trasteel International SA, Italy
- Orica Mining Services - Indonesia
- Australian Coal Association
- PNOC Exploration Corporation - Philippines
- European Bulk Services B.V. - Netherlands
- Interocean Group of Companies - India
- Bhushan Steel Limited - India
- GAC Shipping (India) Pvt Ltd
- Formosa Plastics Group - Taiwan
- Global Coal Blending Company Limited - Australia
- Gujarat Electricity Regulatory Commission - India
- Price Waterhouse Coopers - Russia
- Bharathi Cement Corporation - India
- Edison Trading Spa - Italy
- SMG Consultants - Indonesia
- London Commodity Brokers - England
- Australian Commodity Traders Exchange
- Kalimantan Lumbung Energi - Indonesia
- Economic Council, Georgia
- Kumho Petrochemical, South Korea
- Iligan Light & Power Inc, Philippines
- Sakthi Sugars Limited - India
- Gujarat Sidhee Cement - India
- Madhucon Powers Ltd - India
- Essar Steel Hazira Ltd - India
- Latin American Coal - Colombia
- Alfred C Toepfer International GmbH - Germany
- Timah Investasi Mineral - Indoneisa
- Parry Sugars Refinery, India
- Independent Power Producers Association of India
- Riau Bara Harum - Indonesia
- Thiess Contractors Indonesia
- Billiton Holdings Pty Ltd - Australia
- New Zealand Coal & Carbon
- Bulk Trading Sa - Switzerland
- ASAPP Information Group - India
- Antam Resourcindo - Indonesia
- Indian Energy Exchange, India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Siam City Cement PLC, Thailand
- Pipit Mutiara Jaya. PT, Indonesia
- South Luzon Thermal Energy Corporation
- Kartika Selabumi Mining - Indonesia
- Aditya Birla Group - India
- Sree Jayajothi Cements Limited - India
- The State Trading Corporation of India Ltd
- Kapuas Tunggal Persada - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Jindal Steel & Power Ltd - India
- International Coal Ventures Pvt Ltd - India
- ICICI Bank Limited - India
- Goldman Sachs - Singapore
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Chettinad Cement Corporation Ltd - India
- Tata Chemicals Ltd - India
- Vizag Seaport Private Limited - India
- Indika Energy - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Kobexindo Tractors - Indoneisa
- OPG Power Generation Pvt Ltd - India
- Indian Oil Corporation Limited
- Mjunction Services Limited - India
- Energy Development Corp, Philippines
- Karbindo Abesyapradhi - Indoneisa
- Energy Link Ltd, New Zealand
- Therma Luzon, Inc, Philippines
- IEA Clean Coal Centre - UK
- Banpu Public Company Limited - Thailand
- Posco Energy - South Korea
- Indogreen Group - Indonesia
- Standard Chartered Bank - UAE
- Merrill Lynch Commodities Europe
- Toyota Tsusho Corporation, Japan
- Bangladesh Power Developement Board
- Chamber of Mines of South Africa
- Krishnapatnam Port Company Ltd. - India
- Bukit Baiduri Energy - Indonesia
- Star Paper Mills Limited - India
- CIMB Investment Bank - Malaysia
- CNBM International Corporation - China
- Bayan Resources Tbk. - Indonesia
- Ministry of Finance - Indonesia
- Manunggal Multi Energi - Indonesia
- Attock Cement Pakistan Limited
- Deloitte Consulting - India
- Xindia Steels Limited - India
- Tamil Nadu electricity Board
- Planning Commission, India
- SMC Global Power, Philippines
- Karaikal Port Pvt Ltd - India
- Commonwealth Bank - Australia
- GMR Energy Limited - India
- Marubeni Corporation - India
- Semirara Mining and Power Corporation, Philippines
- Petron Corporation, Philippines
- Malabar Cements Ltd - India
- Metalloyd Limited - United Kingdom
- Binh Thuan Hamico - Vietnam
- Vijayanagar Sugar Pvt Ltd - India
- Minerals Council of Australia
- GN Power Mariveles Coal Plant, Philippines
- Ministry of Transport, Egypt
- Ministry of Mines - Canada
- Central Java Power - Indonesia
- Agrawal Coal Company - India
- Bukit Asam (Persero) Tbk - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Ind-Barath Power Infra Limited - India
- Power Finance Corporation Ltd., India
- Semirara Mining Corp, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Uttam Galva Steels Limited - India
- PTC India Limited - India
- Global Green Power PLC Corporation, Philippines
- Samtan Co., Ltd - South Korea
- Neyveli Lignite Corporation Ltd, - India
- Miang Besar Coal Terminal - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Anglo American - United Kingdom
- Grasim Industreis Ltd - India
- Sical Logistics Limited - India
- Eastern Coal Council - USA
- Sindya Power Generating Company Private Ltd
- Eastern Energy - Thailand
- Jaiprakash Power Ventures ltd
- Maheswari Brothers Coal Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Ambuja Cements Ltd - India
- Wood Mackenzie - Singapore
- Parliament of New Zealand
- IHS Mccloskey Coal Group - USA
- Videocon Industries ltd - India
- VISA Power Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Singapore Mercantile Exchange
- Africa Commodities Group - South Africa
- Coalindo Energy - Indonesia
- Port Waratah Coal Services - Australia
- India Bulls Power Limited - India
- PowerSource Philippines DevCo
- Maharashtra Electricity Regulatory Commission - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Ceylon Electricity Board - Sri Lanka
- Wilmar Investment Holdings
- Kohat Cement Company Ltd. - Pakistan
- Thai Mozambique Logistica
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Cement Manufacturers Association - India
- Borneo Indobara - Indonesia
- White Energy Company Limited
- Savvy Resources Ltd - HongKong
- Romanian Commodities Exchange
- Baramulti Group, Indonesia
- Globalindo Alam Lestari - Indonesia
- Coal and Oil Company - UAE
- Sojitz Corporation - Japan
- Indonesian Coal Mining Association
- Sinarmas Energy and Mining - Indonesia
- Coastal Gujarat Power Limited - India
- Rio Tinto Coal - Australia
- PetroVietnam Power Coal Import and Supply Company
- Oldendorff Carriers - Singapore
- Sarangani Energy Corporation, Philippines
- Indo Tambangraya Megah - Indonesia
- Straits Asia Resources Limited - Singapore
- MS Steel International - UAE
- Central Electricity Authority - India
- SN Aboitiz Power Inc, Philippines
- Kideco Jaya Agung - Indonesia
- Vedanta Resources Plc - India
- Jorong Barutama Greston.PT - Indonesia
- Dalmia Cement Bharat India
- Barasentosa Lestari - Indonesia
- The University of Queensland
- Medco Energi Mining Internasional
- AsiaOL BioFuels Corp., Philippines
- Bhatia International Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Kepco SPC Power Corporation, Philippines
- San Jose City I Power Corp, Philippines
- Offshore Bulk Terminal Pte Ltd, Singapore
- Heidelberg Cement - Germany
- Holcim Trading Pte Ltd - Singapore
- GVK Power & Infra Limited - India
- Bukit Makmur.PT - Indonesia
- Mercator Lines Limited - India
- Electricity Generating Authority of Thailand
- Siam City Cement - Thailand
- Meenaskhi Energy Private Limited - India
- Georgia Ports Authority, United States
- Kaltim Prima Coal - Indonesia
- Bhoruka Overseas - Indonesia
- Aboitiz Power Corporation - Philippines
- Global Business Power Corporation, Philippines
- Lanco Infratech Ltd - India
- Simpson Spence & Young - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- The Treasury - Australian Government
- Carbofer General Trading SA - India
- Larsen & Toubro Limited - India
- Pendopo Energi Batubara - Indonesia
- Directorate Of Revenue Intelligence - India
- LBH Netherlands Bv - Netherlands
- TeaM Sual Corporation - Philippines
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