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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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Showing 31 to 35 news of total 6871 |
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- Barasentosa Lestari - Indonesia
- Commonwealth Bank - Australia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- SMC Global Power, Philippines
- Bukit Makmur.PT - Indonesia
- Jindal Steel & Power Ltd - India
- Rashtriya Ispat Nigam Limited - India
- Indian Energy Exchange, India
- Leighton Contractors Pty Ltd - Australia
- Sindya Power Generating Company Private Ltd
- Essar Steel Hazira Ltd - India
- South Luzon Thermal Energy Corporation
- Formosa Plastics Group - Taiwan
- Ceylon Electricity Board - Sri Lanka
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Marubeni Corporation - India
- Baramulti Group, Indonesia
- Pendopo Energi Batubara - Indonesia
- Bhushan Steel Limited - India
- Ministry of Transport, Egypt
- The State Trading Corporation of India Ltd
- Makarim & Taira - Indonesia
- Globalindo Alam Lestari - Indonesia
- Kumho Petrochemical, South Korea
- Offshore Bulk Terminal Pte Ltd, Singapore
- Power Finance Corporation Ltd., India
- Georgia Ports Authority, United States
- Borneo Indobara - Indonesia
- Jaiprakash Power Ventures ltd
- Xindia Steels Limited - India
- Kartika Selabumi Mining - Indonesia
- Singapore Mercantile Exchange
- Meralco Power Generation, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- GMR Energy Limited - India
- Energy Link Ltd, New Zealand
- Madhucon Powers Ltd - India
- LBH Netherlands Bv - Netherlands
- GAC Shipping (India) Pvt Ltd
- Coalindo Energy - Indonesia
- CNBM International Corporation - China
- Simpson Spence & Young - Indonesia
- McConnell Dowell - Australia
- Kalimantan Lumbung Energi - Indonesia
- Directorate Of Revenue Intelligence - India
- Tamil Nadu electricity Board
- Vijayanagar Sugar Pvt Ltd - India
- Mjunction Services Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Australian Commodity Traders Exchange
- Gujarat Electricity Regulatory Commission - India
- TNB Fuel Sdn Bhd - Malaysia
- Planning Commission, India
- Salva Resources Pvt Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Mintek Dendrill Indonesia
- Bhoruka Overseas - Indonesia
- Eastern Energy - Thailand
- Deloitte Consulting - India
- Larsen & Toubro Limited - India
- Bharathi Cement Corporation - India
- Aboitiz Power Corporation - Philippines
- IHS Mccloskey Coal Group - USA
- OPG Power Generation Pvt Ltd - India
- Agrawal Coal Company - India
- SMG Consultants - Indonesia
- Mercator Lines Limited - India
- Karbindo Abesyapradhi - Indoneisa
- Global Coal Blending Company Limited - Australia
- Aditya Birla Group - India
- Coal and Oil Company - UAE
- GN Power Mariveles Coal Plant, Philippines
- New Zealand Coal & Carbon
- Maheswari Brothers Coal Limited - India
- Independent Power Producers Association of India
- Therma Luzon, Inc, Philippines
- Edison Trading Spa - Italy
- Dalmia Cement Bharat India
- Indika Energy - Indonesia
- Kepco SPC Power Corporation, Philippines
- Eastern Coal Council - USA
- Grasim Industreis Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Indogreen Group - Indonesia
- Renaissance Capital - South Africa
- Heidelberg Cement - Germany
- Cigading International Bulk Terminal - Indonesia
- Iligan Light & Power Inc, Philippines
- Indonesian Coal Mining Association
- Merrill Lynch Commodities Europe
- PTC India Limited - India
- CIMB Investment Bank - Malaysia
- ASAPP Information Group - India
- Semirara Mining and Power Corporation, Philippines
- Star Paper Mills Limited - India
- MS Steel International - UAE
- Bhatia International Limited - India
- Gujarat Sidhee Cement - India
- Trasteel International SA, Italy
- Thai Mozambique Logistica
- Manunggal Multi Energi - Indonesia
- India Bulls Power Limited - India
- Mercuria Energy - Indonesia
- Ind-Barath Power Infra Limited - India
- Bayan Resources Tbk. - Indonesia
- VISA Power Limited - India
- Posco Energy - South Korea
- Parliament of New Zealand
- Billiton Holdings Pty Ltd - Australia
- Siam City Cement PLC, Thailand
- Rio Tinto Coal - Australia
- Straits Asia Resources Limited - Singapore
- Global Business Power Corporation, Philippines
- Australian Coal Association
- Banpu Public Company Limited - Thailand
- Indian Oil Corporation Limited
- Cement Manufacturers Association - India
- Energy Development Corp, Philippines
- Holcim Trading Pte Ltd - Singapore
- Riau Bara Harum - Indonesia
- Minerals Council of Australia
- Ministry of Mines - Canada
- Kideco Jaya Agung - Indonesia
- Wilmar Investment Holdings
- Oldendorff Carriers - Singapore
- Ambuja Cements Ltd - India
- Sakthi Sugars Limited - India
- Miang Besar Coal Terminal - Indonesia
- Vizag Seaport Private Limited - India
- Electricity Authority, New Zealand
- Semirara Mining Corp, Philippines
- Sinarmas Energy and Mining - Indonesia
- San Jose City I Power Corp, Philippines
- Romanian Commodities Exchange
- Toyota Tsusho Corporation, Japan
- Malabar Cements Ltd - India
- Videocon Industries ltd - India
- Samtan Co., Ltd - South Korea
- Global Green Power PLC Corporation, Philippines
- Price Waterhouse Coopers - Russia
- Thiess Contractors Indonesia
- Wood Mackenzie - Singapore
- Bulk Trading Sa - Switzerland
- Africa Commodities Group - South Africa
- Central Electricity Authority - India
- Intertek Mineral Services - Indonesia
- The University of Queensland
- Electricity Generating Authority of Thailand
- ICICI Bank Limited - India
- Ministry of Finance - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Altura Mining Limited, Indonesia
- Medco Energi Mining Internasional
- Maharashtra Electricity Regulatory Commission - India
- Economic Council, Georgia
- Petron Corporation, Philippines
- Central Java Power - Indonesia
- IEA Clean Coal Centre - UK
- Bukit Asam (Persero) Tbk - Indonesia
- London Commodity Brokers - England
- International Coal Ventures Pvt Ltd - India
- Interocean Group of Companies - India
- Siam City Cement - Thailand
- Alfred C Toepfer International GmbH - Germany
- Lanco Infratech Ltd - India
- Pipit Mutiara Jaya. PT, Indonesia
- Bukit Baiduri Energy - Indonesia
- White Energy Company Limited
- Coastal Gujarat Power Limited - India
- Chamber of Mines of South Africa
- Bangladesh Power Developement Board
- PetroVietnam Power Coal Import and Supply Company
- AsiaOL BioFuels Corp., Philippines
- Karaikal Port Pvt Ltd - India
- PowerSource Philippines DevCo
- Attock Cement Pakistan Limited
- The Treasury - Australian Government
- Tata Chemicals Ltd - India
- Timah Investasi Mineral - Indoneisa
- Chettinad Cement Corporation Ltd - India
- Petrochimia International Co. Ltd.- Taiwan
- Vedanta Resources Plc - India
- Parry Sugars Refinery, India
- Standard Chartered Bank - UAE
- SN Aboitiz Power Inc, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Meenaskhi Energy Private Limited - India
- Anglo American - United Kingdom
- Uttam Galva Steels Limited - India
- Sree Jayajothi Cements Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Sical Logistics Limited - India
- Orica Australia Pty. Ltd.
- Antam Resourcindo - Indonesia
- Kobexindo Tractors - Indoneisa
- Kaltim Prima Coal - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Gujarat Mineral Development Corp Ltd - India
- Port Waratah Coal Services - Australia
- Orica Mining Services - Indonesia
- European Bulk Services B.V. - Netherlands
- Sarangani Energy Corporation, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Carbofer General Trading SA - India
- Asmin Koalindo Tuhup - Indonesia
- Sojitz Corporation - Japan
- Latin American Coal - Colombia
- Kohat Cement Company Ltd. - Pakistan
- Metalloyd Limited - United Kingdom
- Goldman Sachs - Singapore
- TeaM Sual Corporation - Philippines
- PNOC Exploration Corporation - Philippines
- GVK Power & Infra Limited - India
- Savvy Resources Ltd - HongKong
- Indo Tambangraya Megah - Indonesia
- Binh Thuan Hamico - Vietnam
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