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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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Wednesday, 20 March 19
COAL EXPORT FEARS RESURFACE AS RESTRICTIONS HIT MORE CHINESE PORTS AND AUSTRALIAN PRICES COP A 'BELTING' - ABC
Australian thermal coal exports to China are under increasing pressure, with indications import restrictions are spreading to other key ports.
...
Monday, 18 March 19
A 56,000DWT SHIP FIXED DELIVERY FOR A SINGAPORE TRIP VIA INDONESIA, RE-DELIVERY CHINA, AT $10,000 - BALTIC BRIEFING
Capesize
The Baltic Capesize market shrugged off its recent negative sentiment to post daily incremental improvements over the last week. Pacif ...
Saturday, 16 March 19
AUSTRALIAN COAL STILL FACING CHINESE DELAY - AAP
Australian coal exports to China are still facing delays, with protectionism and environmental checks blamed for the slowdown.
Coal ...
Thursday, 14 March 19
SUPRAMAX: INDO COAL CARGOES GETTING FIXED AT AROUND US$ 12000 TO CHINA - FEARNLEYS
Capesize
Average daily earning still well below operating costs, and owners keep bleeding - but nevertheless finally some bright spots for the ...
Monday, 11 March 19
SUPRAMAX: A 61,000 DWT VESSEL WAS BOOKED SINGAPORE FOR A TRIP VIA INDONESIA TO CHINA AT $10,500 - BALTIC BRIEFING
Capesize
A faint glimmer of hope with the suggestion the market may have finally bottomed out, with owners attempting to resist further cuts in ...
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Showing 1446 to 1450 news of total 6871 |
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- Jorong Barutama Greston.PT - Indonesia
- CNBM International Corporation - China
- Sree Jayajothi Cements Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- South Luzon Thermal Energy Corporation
- Economic Council, Georgia
- TNB Fuel Sdn Bhd - Malaysia
- Formosa Plastics Group - Taiwan
- Manunggal Multi Energi - Indonesia
- The University of Queensland
- Orica Mining Services - Indonesia
- Tata Chemicals Ltd - India
- Energy Link Ltd, New Zealand
- Eastern Energy - Thailand
- GVK Power & Infra Limited - India
- Kartika Selabumi Mining - Indonesia
- Thiess Contractors Indonesia
- Kapuas Tunggal Persada - Indonesia
- Commonwealth Bank - Australia
- Indonesian Coal Mining Association
- Uttam Galva Steels Limited - India
- Salva Resources Pvt Ltd - India
- Eastern Coal Council - USA
- Sarangani Energy Corporation, Philippines
- Singapore Mercantile Exchange
- MS Steel International - UAE
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Coastal Gujarat Power Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Coal and Oil Company - UAE
- Medco Energi Mining Internasional
- Global Green Power PLC Corporation, Philippines
- Directorate Of Revenue Intelligence - India
- Mjunction Services Limited - India
- Jaiprakash Power Ventures ltd
- Parliament of New Zealand
- San Jose City I Power Corp, Philippines
- Leighton Contractors Pty Ltd - Australia
- Binh Thuan Hamico - Vietnam
- Mercator Lines Limited - India
- New Zealand Coal & Carbon
- Anglo American - United Kingdom
- Kideco Jaya Agung - Indonesia
- London Commodity Brokers - England
- Meralco Power Generation, Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Marubeni Corporation - India
- Vizag Seaport Private Limited - India
- Bhushan Steel Limited - India
- Deloitte Consulting - India
- Maharashtra Electricity Regulatory Commission - India
- Timah Investasi Mineral - Indoneisa
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Globalindo Alam Lestari - Indonesia
- Chamber of Mines of South Africa
- Krishnapatnam Port Company Ltd. - India
- CIMB Investment Bank - Malaysia
- Carbofer General Trading SA - India
- Petron Corporation, Philippines
- Dalmia Cement Bharat India
- Savvy Resources Ltd - HongKong
- Indo Tambangraya Megah - Indonesia
- Straits Asia Resources Limited - Singapore
- Electricity Generating Authority of Thailand
- Sojitz Corporation - Japan
- Coalindo Energy - Indonesia
- VISA Power Limited - India
- Intertek Mineral Services - Indonesia
- Parry Sugars Refinery, India
- Billiton Holdings Pty Ltd - Australia
- Meenaskhi Energy Private Limited - India
- Kobexindo Tractors - Indoneisa
- Central Electricity Authority - India
- Altura Mining Limited, Indonesia
- Sakthi Sugars Limited - India
- Ministry of Transport, Egypt
- Toyota Tsusho Corporation, Japan
- Asmin Koalindo Tuhup - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- OPG Power Generation Pvt Ltd - India
- PowerSource Philippines DevCo
- Barasentosa Lestari - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Semirara Mining and Power Corporation, Philippines
- PNOC Exploration Corporation - Philippines
- Therma Luzon, Inc, Philippines
- Semirara Mining Corp, Philippines
- Orica Australia Pty. Ltd.
- Sindya Power Generating Company Private Ltd
- Simpson Spence & Young - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Ministry of Mines - Canada
- Independent Power Producers Association of India
- Global Coal Blending Company Limited - Australia
- Cigading International Bulk Terminal - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Minerals Council of Australia
- Gujarat Sidhee Cement - India
- ASAPP Information Group - India
- Indian Oil Corporation Limited
- Iligan Light & Power Inc, Philippines
- Mercuria Energy - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- GAC Shipping (India) Pvt Ltd
- Kalimantan Lumbung Energi - Indonesia
- Jindal Steel & Power Ltd - India
- SMG Consultants - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Bukit Baiduri Energy - Indonesia
- Cement Manufacturers Association - India
- Energy Development Corp, Philippines
- ICICI Bank Limited - India
- Sical Logistics Limited - India
- Larsen & Toubro Limited - India
- Indika Energy - Indonesia
- Latin American Coal - Colombia
- Ceylon Electricity Board - Sri Lanka
- LBH Netherlands Bv - Netherlands
- Aboitiz Power Corporation - Philippines
- Bulk Trading Sa - Switzerland
- Star Paper Mills Limited - India
- McConnell Dowell - Australia
- Grasim Industreis Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Planning Commission, India
- Port Waratah Coal Services - Australia
- Africa Commodities Group - South Africa
- Bangladesh Power Developement Board
- Australian Coal Association
- Bharathi Cement Corporation - India
- Gujarat Electricity Regulatory Commission - India
- Karaikal Port Pvt Ltd - India
- Chettinad Cement Corporation Ltd - India
- Heidelberg Cement - Germany
- Samtan Co., Ltd - South Korea
- Gujarat Mineral Development Corp Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- PTC India Limited - India
- Bhoruka Overseas - Indonesia
- Banpu Public Company Limited - Thailand
- Miang Besar Coal Terminal - Indonesia
- Siam City Cement PLC, Thailand
- The State Trading Corporation of India Ltd
- Kumho Petrochemical, South Korea
- GMR Energy Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- The Treasury - Australian Government
- Kepco SPC Power Corporation, Philippines
- Bhatia International Limited - India
- Lanco Infratech Ltd - India
- Agrawal Coal Company - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Videocon Industries ltd - India
- SN Aboitiz Power Inc, Philippines
- Mintek Dendrill Indonesia
- Wilmar Investment Holdings
- Siam City Cement - Thailand
- Central Java Power - Indonesia
- IEA Clean Coal Centre - UK
- Interocean Group of Companies - India
- Australian Commodity Traders Exchange
- Goldman Sachs - Singapore
- Thai Mozambique Logistica
- Georgia Ports Authority, United States
- Pendopo Energi Batubara - Indonesia
- Power Finance Corporation Ltd., India
- Ambuja Cements Ltd - India
- TeaM Sual Corporation - Philippines
- Aditya Birla Group - India
- Borneo Indobara - Indonesia
- Indian Energy Exchange, India
- Vedanta Resources Plc - India
- SMC Global Power, Philippines
- Merrill Lynch Commodities Europe
- Global Business Power Corporation, Philippines
- Oldendorff Carriers - Singapore
- Baramulti Group, Indonesia
- Bukit Makmur.PT - Indonesia
- Xindia Steels Limited - India
- Maheswari Brothers Coal Limited - India
- Standard Chartered Bank - UAE
- European Bulk Services B.V. - Netherlands
- Malabar Cements Ltd - India
- Rashtriya Ispat Nigam Limited - India
- Metalloyd Limited - United Kingdom
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- India Bulls Power Limited - India
- Essar Steel Hazira Ltd - India
- Kaltim Prima Coal - Indonesia
- Makarim & Taira - Indonesia
- Price Waterhouse Coopers - Russia
- Posco Energy - South Korea
- Offshore Bulk Terminal Pte Ltd, Singapore
- Bayan Resources Tbk. - Indonesia
- Edison Trading Spa - Italy
- Renaissance Capital - South Africa
- White Energy Company Limited
- Indogreen Group - Indonesia
- Trasteel International SA, Italy
- Riau Bara Harum - Indonesia
- Antam Resourcindo - Indonesia
- Wood Mackenzie - Singapore
- Rio Tinto Coal - Australia
- Romanian Commodities Exchange
- Vijayanagar Sugar Pvt Ltd - India
- Madhucon Powers Ltd - India
- Attock Cement Pakistan Limited
- Ind-Barath Power Infra Limited - India
- Sinarmas Energy and Mining - Indonesia
- Ministry of Finance - Indonesia
- IHS Mccloskey Coal Group - USA
- Electricity Authority, New Zealand
- Tamil Nadu electricity Board
- Directorate General of MIneral and Coal - Indonesia
- International Coal Ventures Pvt Ltd - India
- Karbindo Abesyapradhi - Indoneisa
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