We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
Monday, 31 August 20
DEFECTIVE PASSAGE PLANNING: UNSEAWORTHINESS OR A NAVIGATIONAL DECISION? THE CMA CGM LIBRA QUESTION SAILS ON TO THE UK SUPREME COURT - GARD
 KNOWLEDGE TO ELEVATE
The UK Supreme Court has granted leave to appeal the recent decision in Alize 1954 v Allianz Elementar Versicherungs AG (The “CMA CGM LIBRA”). While the decision involved General Average, we discuss the ramifications of the finding of unseaworthiness as it applies to the allocation of risk and liabilities in the wider context of the marine transport of goods.
International law aims to apportion risk in the transport of goods between the ship interests and cargo interests. Simply put, shipowners are responsible for cargo claims caused by unseaworthiness of the ship but are exempt from liability for cargo claims caused by certain risks, including navigational errors. The decision in Alize 1954 v Allianz Elementar Versicherungs AG (The “CMA CGM LIBRA”) [2020] EWCA Civ 293 shifts the established boundary between what is considered “seaworthiness” and “navigation” resulting in shipowners bearing a greater portion of the risk of the adventure. While the CMA CGM LIBRA case involved General Average, it comes as no surprise that decision led to an increase in claims by cargo interests alleging unseaworthiness on the basis of navigational decisions. The vessel owners recently obtained permission to appeal the decision to the UK Supreme Court and the International Group of P&I Clubs supports the vessel owners’ position.
Background to the case
On 17 May 2011, M/V “CMA CGM LIBRA”, a 6,000 TEU container ship, grounded while leaving the port of Xiamen, China. The ship’s charts had failed to record a warning derived from a Notice to Mariners that depths shown on the chart outside the fairway were unreliable and waters were shallower than recorded on the chart. The grounding occurred when the master sailed the vessel outside of the fairway, expecting the waters to be deeper than they actually were. The owners claimed general average contributions from the cargo interests.
The first instance judgment
In Teare J’s first instance decision dated 8 March 2019, he held that the passage plan and working charts were defective due to the failure to record the warning required by the Notice to Mariners, and these defects rendered the vessel unseaworthy at the commencement of the voyage. The owners’ claims were therefore dismissed.
The first instance decision gave rise to significant controversy in maritime law circles. Some commentators held the view that the decision confused issues of unseaworthiness with issues of navigation. They argued that the preparation of passage plans is a matter of navigation, the neglect of which would entitle a carrier to defences under Article IV Rule 2(a) of the Hague or Hague-Visby Rules. By considering passage planning as falling within the orbit of seaworthiness rather than navigation, the court is disrupting the well-established division of risk between the ship and cargo. It has also been commented that applying a strictly temporal approach, i.e. that all acts or omissions prior to the commencement of the voyage relate to seaworthiness may have wider implication to re-distributing risk between the ship and cargo than the question of passage planning.
Other commentators saw the decision as a correct application of principles concerning a carrier’s duties in respect of seaworthiness, based on the traditional definition of seaworthiness laid down in McFadden v Blue Star Line (1905): “Would a prudent owner have required that [the relevant defect] should be made good before sending his ship to sea, had he known of it? If he would, the ship was not seaworthy.” On this view, given that no prudent shipowner would knowingly send his vessel to sea with a defective passage plan and defective charts that had not been properly updated, these commentators argued that it therefore follows that the vessel was not seaworthy at the commencement of the voyage.
The Court of Appeal decision
The first instance judgment was appealed, and for a time, it seemed that the controversy had been resolved following the handing down of the Court of Appeal’s judgment on 4 March 2020. In a unanimous decision by a 3-member panel of experienced shipping judges, the Court of Appeal upheld the first instance judgment. The Court confirmed that errors in navigation or management can render a vessel unseaworthy if they occur prior to the commencement of the voyage. The Court rejected the vessel owners’ argument that the passage plan and working chart were not “attributes of the ship”, but records of navigational decisions taken by the crew.
The Court also found that once the owners assumed responsibility for the cargo as the carrier, all acts of the master and crew in preparing the vessel for the voyage (even if they are acts of navigation performed before or at the commencement of the voyage) are performed qua carrier and not qua navigator. Thus, the owners are responsible for all such acts, and the crew’s failure to exercise due diligence to make the vessel seaworthy would be imputed to the owners.
Leave to appeal to the Supreme Court
In late July 2020, the owners obtained permission to appeal the Court of Appeal’s decision to the UK Supreme Court. The owners’ position remains that the crew’s decision as to what to mark on the chart was a navigational decision rather than an “attribute of the ship” and was therefore not an issue of seaworthiness. It is anticipated that the appeal will take place in late 2021.
Concluding comments
Given the importance of this case regarding the allocation of risk between ship and cargo in a maritime adventure, the International Group of P&I Clubs welcome the UK Supreme Court’s decision to hear the case, and has backed the application made seeking leave to appeal to the Supreme court. Gard will continue to provide updates on developments in this case as they unfold.
Source: Gard
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Wednesday, 21 October 20
INDIA: THE COMMERCIALISATION OF COAL BLOCKS WILL BENEFIT THE ECONOMY - HINDU BUSINESS LINE
As the government of India receives 76 bids for 23 coal mines against the 38 up on auction, what does this commercialisation of coal block allocati ...
Wednesday, 21 October 20
MARKET INSIGHT - INTERMODAL
The second wave of COVID-19 is now a reality; offices are closing again, and stricter rules and regulations are being implemented in public spaces. ...
Tuesday, 20 October 20
CHINA TAIYUAN COAL TRANSACTION PRICE INDEX UP 0.82 PCT - XINHUA
China Taiyuan coal transaction price index stood at 127.49 points Monday, up 0.82 percent week on week.
The index, released by China ...
Tuesday, 20 October 20
BIMCO 'SHIPLEASE' TERM SHEET - WATSON FARLEY & WILLIAMS
KNOWLEDGE TO ELEVATE
The ever-growing importance of sale and leaseback transactions as an alternative to financing ships by way of loan, makes ...
Friday, 16 October 20
KOMIPO ON BEHALF OF K GENCO'S INVITED BIDS FOR TOTAL 715,000 MT MIN. 5,700 NAR COAL FOR DECEMBER
COALspot.com: Korea Midland Power Co., Ltd (KOMIPO) on behalf of EWP, KOSPO, KOSEP and KOWEPO has issued an international tender for total 715,000& ...
|
|
|
Showing 756 to 760 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Holcim Trading Pte Ltd - Singapore
- International Coal Ventures Pvt Ltd - India
- Altura Mining Limited, Indonesia
- Ministry of Mines - Canada
- Meenaskhi Energy Private Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Independent Power Producers Association of India
- Sakthi Sugars Limited - India
- Indo Tambangraya Megah - Indonesia
- Bhoruka Overseas - Indonesia
- Petron Corporation, Philippines
- Bhushan Steel Limited - India
- Ind-Barath Power Infra Limited - India
- Electricity Authority, New Zealand
- PowerSource Philippines DevCo
- Indian Oil Corporation Limited
- Neyveli Lignite Corporation Ltd, - India
- Renaissance Capital - South Africa
- Larsen & Toubro Limited - India
- Thai Mozambique Logistica
- LBH Netherlands Bv - Netherlands
- Maharashtra Electricity Regulatory Commission - India
- Indonesian Coal Mining Association
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Malabar Cements Ltd - India
- Interocean Group of Companies - India
- Directorate Of Revenue Intelligence - India
- Coalindo Energy - Indonesia
- European Bulk Services B.V. - Netherlands
- Australian Commodity Traders Exchange
- Bukit Asam (Persero) Tbk - Indonesia
- Intertek Mineral Services - Indonesia
- CIMB Investment Bank - Malaysia
- Directorate General of MIneral and Coal - Indonesia
- Sical Logistics Limited - India
- Samtan Co., Ltd - South Korea
- Uttam Galva Steels Limited - India
- Heidelberg Cement - Germany
- Bangladesh Power Developement Board
- Billiton Holdings Pty Ltd - Australia
- Marubeni Corporation - India
- Kohat Cement Company Ltd. - Pakistan
- Karaikal Port Pvt Ltd - India
- Aboitiz Power Corporation - Philippines
- Parry Sugars Refinery, India
- Asmin Koalindo Tuhup - Indonesia
- Bulk Trading Sa - Switzerland
- Sojitz Corporation - Japan
- White Energy Company Limited
- Medco Energi Mining Internasional
- Energy Link Ltd, New Zealand
- Orica Australia Pty. Ltd.
- Indika Energy - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Leighton Contractors Pty Ltd - Australia
- IHS Mccloskey Coal Group - USA
- Rashtriya Ispat Nigam Limited - India
- Simpson Spence & Young - Indonesia
- Australian Coal Association
- Iligan Light & Power Inc, Philippines
- Global Business Power Corporation, Philippines
- TNB Fuel Sdn Bhd - Malaysia
- Singapore Mercantile Exchange
- Semirara Mining and Power Corporation, Philippines
- Vedanta Resources Plc - India
- Bharathi Cement Corporation - India
- Planning Commission, India
- Power Finance Corporation Ltd., India
- Oldendorff Carriers - Singapore
- Pendopo Energi Batubara - Indonesia
- Grasim Industreis Ltd - India
- Semirara Mining Corp, Philippines
- PTC India Limited - India
- Edison Trading Spa - Italy
- The Treasury - Australian Government
- Binh Thuan Hamico - Vietnam
- PNOC Exploration Corporation - Philippines
- Merrill Lynch Commodities Europe
- Trasteel International SA, Italy
- Alfred C Toepfer International GmbH - Germany
- Agrawal Coal Company - India
- Mintek Dendrill Indonesia
- Bhatia International Limited - India
- Indogreen Group - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Metalloyd Limited - United Kingdom
- Borneo Indobara - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Antam Resourcindo - Indonesia
- Indian Energy Exchange, India
- Thiess Contractors Indonesia
- Eastern Coal Council - USA
- Therma Luzon, Inc, Philippines
- Africa Commodities Group - South Africa
- Offshore Bulk Terminal Pte Ltd, Singapore
- Central Java Power - Indonesia
- Kaltim Prima Coal - Indonesia
- Coastal Gujarat Power Limited - India
- Electricity Generating Authority of Thailand
- Essar Steel Hazira Ltd - India
- Maheswari Brothers Coal Limited - India
- South Luzon Thermal Energy Corporation
- Krishnapatnam Port Company Ltd. - India
- Timah Investasi Mineral - Indoneisa
- Kepco SPC Power Corporation, Philippines
- Orica Mining Services - Indonesia
- Wilmar Investment Holdings
- PetroVietnam Power Coal Import and Supply Company
- Eastern Energy - Thailand
- The State Trading Corporation of India Ltd
- Posco Energy - South Korea
- Bank of Tokyo Mitsubishi UFJ Ltd
- Economic Council, Georgia
- India Bulls Power Limited - India
- Toyota Tsusho Corporation, Japan
- Rio Tinto Coal - Australia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Sinarmas Energy and Mining - Indonesia
- Ambuja Cements Ltd - India
- Coal and Oil Company - UAE
- Anglo American - United Kingdom
- Baramulti Group, Indonesia
- Port Waratah Coal Services - Australia
- IEA Clean Coal Centre - UK
- Vizag Seaport Private Limited - India
- GAC Shipping (India) Pvt Ltd
- Chamber of Mines of South Africa
- Aditya Birla Group - India
- Jindal Steel & Power Ltd - India
- Gujarat Sidhee Cement - India
- Parliament of New Zealand
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Wood Mackenzie - Singapore
- Energy Development Corp, Philippines
- Savvy Resources Ltd - HongKong
- SMC Global Power, Philippines
- Mjunction Services Limited - India
- Deloitte Consulting - India
- Gujarat Electricity Regulatory Commission - India
- Sree Jayajothi Cements Limited - India
- Cement Manufacturers Association - India
- Straits Asia Resources Limited - Singapore
- Standard Chartered Bank - UAE
- Central Electricity Authority - India
- The University of Queensland
- Kartika Selabumi Mining - Indonesia
- Commonwealth Bank - Australia
- San Jose City I Power Corp, Philippines
- Tamil Nadu electricity Board
- Pipit Mutiara Jaya. PT, Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Kapuas Tunggal Persada - Indonesia
- McConnell Dowell - Australia
- Manunggal Multi Energi - Indonesia
- Bukit Baiduri Energy - Indonesia
- GMR Energy Limited - India
- Kumho Petrochemical, South Korea
- Star Paper Mills Limited - India
- TeaM Sual Corporation - Philippines
- Latin American Coal - Colombia
- ASAPP Information Group - India
- Sarangani Energy Corporation, Philippines
- Jorong Barutama Greston.PT - Indonesia
- Riau Bara Harum - Indonesia
- Kideco Jaya Agung - Indonesia
- MS Steel International - UAE
- Lanco Infratech Ltd - India
- Jaiprakash Power Ventures ltd
- Formosa Plastics Group - Taiwan
- Global Coal Blending Company Limited - Australia
- SMG Consultants - Indonesia
- Mercuria Energy - Indonesia
- Price Waterhouse Coopers - Russia
- Minerals Council of Australia
- Salva Resources Pvt Ltd - India
- CNBM International Corporation - China
- OPG Power Generation Pvt Ltd - India
- Ceylon Electricity Board - Sri Lanka
- Ministry of Transport, Egypt
- Kobexindo Tractors - Indoneisa
- Vijayanagar Sugar Pvt Ltd - India
- Ministry of Finance - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- New Zealand Coal & Carbon
- Kalimantan Lumbung Energi - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Siam City Cement - Thailand
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Xindia Steels Limited - India
- Carbofer General Trading SA - India
- Bukit Makmur.PT - Indonesia
- Meralco Power Generation, Philippines
- VISA Power Limited - India
- ICICI Bank Limited - India
- Mercator Lines Limited - India
- Banpu Public Company Limited - Thailand
- Chettinad Cement Corporation Ltd - India
- London Commodity Brokers - England
- Makarim & Taira - Indonesia
- Romanian Commodities Exchange
- Siam City Cement PLC, Thailand
- Georgia Ports Authority, United States
- Sindya Power Generating Company Private Ltd
- Barasentosa Lestari - Indonesia
- Global Green Power PLC Corporation, Philippines
- Globalindo Alam Lestari - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Attock Cement Pakistan Limited
- SN Aboitiz Power Inc, Philippines
- Videocon Industries ltd - India
- Goldman Sachs - Singapore
- Bayan Resources Tbk. - Indonesia
- Tata Chemicals Ltd - India
- Cigading International Bulk Terminal - Indonesia
- GVK Power & Infra Limited - India
- Madhucon Powers Ltd - India
- Dalmia Cement Bharat India
|
| |
| |
|
