Nautilus has raised questions about the potential impact of a precedent-setting UK court case, which found that a ship was rendered unseaworthy by a deficient passage plan
Following a six-day hearing earlier this year, the UK Admiralty Court has upheld a claim by cargo interests resisting payment of costs related to the grounding of the 131,332gt containership CMA CGM Libra while departing the Chinese port of Xiamen in May 2011.
The 11,356TEU vessel was carrying cargo valued at more than US$500m and had almost 8,000 tons of bunkers onboard when it left the dredged channel shortly after dropping the pilot and grounded at a speed of around 12 knots on a shoal in an area where there were charted depths of over 30 metres.
The Maltese-flagged vessel was subsequently refloated by salvors operating under a Lloyd's Open Form (LOF) salvage contract. An underwater inspection found that the ship had suffered little or no damage, and it was given the all-clear to continue the voyage to Hong Kong and Europe.
CMA CGM funded the successful US$9.5m salvage operation and sought to recover some of the US$13m general average claim from cargo interests. The operator argued that the grounding had been the result of an uncharted shoal, but some of the cargo interests refused to pay – on the basis that the vessel was unseaworthy before and at the beginning of the voyage because it carried a defective passage plan. They also claimed that due diligence was not exercised by the owners because the master and second officer failed to exercise reasonable skill and care when preparing the passage plan, and that the defective passage plan caused the grounding.
The owners sought to defend the master’s navigational decisions as reasonable in the circumstances and also defended the passage plan, maintaining that it was sufficient that the relevant Notice to Mariners was attached or adjacent to the vessel’s working chart. But the court supported the cargo interests, with Justice Nigel Teare ruling that the vessel was unseaworthy because the passage plan was defective and because the master had navigated negligently by taking the ship outside the marked fairway.
The master said he had decided on the route because he had been warned by VTS on the inbound transit of shallow water on the east of the channel. But Justice Teare ruled that this decision was negligent and that the master’s reliance upon charted depths outside the buoyed fairway 'was not prudent'.
This is an extremely interesting case, which raises many important questions about the responsibility for safe shipping operations. Whilst it might be seen as increasing the exposure of shipmasters and officers, it could also be interpreted as being beneficial if non-adherence to IMO resolutions is held to mean that a vessel is unseaworthy
The shoal was not marked on the paper Admiralty charts available at the time, but recent Notices to Mariners had warned that numerous depths less than the charted depths existed in the approaches to the port. CMA CGM Libra grounded in an area where the quality of the hydrographic survey had been affected by the presence of Second World War and Korean war mines, which had raised the risk of uncharted shoals.
The court noted that the passage plan prepared by the second officer did not refer to the existence of the Notice to Mariners issued by the UK Hydrographic Office some five months before the grounding to alert seafarers about the presence of numerous depths less than charted in the approaches to Xiamen.
It also noted that the passage plan did not refer to any 'no-go areas' which had not been marked or identified on the chart. The master confirmed in evidence that, had the chart been marked up with the appropriate no-go areas, he would not have left the channel and attempted to execute the manoeuvre that led to the grounding.
Justice Teare said it was 'improbable' that the master – who had 30 years of seagoing experience and eight years in command of containerships – was incompetent. He said there had been evidence that the master had been working long hours, but was not ‘so tired that it materially affected his decision-making’.
The owners' lawyers argued that a defective passage plan did not make the vessel unseaworthy and that passage planning is part of navigation and not itself an aspect of seaworthiness. They contended that their duty of care had been discharged by putting proper systems in place and material onboard to ensure that the master and navigating officer could prepare an adequate passage plan.
But Justice Teare pointed out that the same could be said about chart corrections and updating.
‘Yet if the officer charged with correcting the chart fails to do so in a material respect before the beginning of the voyage, then his “one-off” failure is capable of rendering the vessel unseaworthy,’ he added.
The court rejected the owners' argument that due diligence had been exercised because the safety management system contained appropriate guidance for passage planning. It noted that the defective plan had not been a ‘one-off’ incident, with evidence that the navigation warning had not been included in the passage plan on the ship’s previous visit to Xiamen.
Justice Teare also dismissed the argument that there had been no previous ruling that a ship is unseaworthy as a consequence of having a defective passage plan.
'Just as the standard of seaworthiness may rise with improved knowledge of shipbuilding, so may the standard of seaworthiness rise with improved knowledge of the documents required to be prepared prior to a voyage to ensure, so far as reasonably possible, that the vessel is safely navigated,' he stated.
The law firm Clyde & Co, which represented the cargo interests, commented: 'This is a significant judgment and highlights the need for shipowners to ensure that careful, accurate passage planning is carried out, particularly when an intended voyage includes navigating in confined and difficult waters. On this occasion, the shipowners were very lucky that there was no damage to the environment, little or no damage to the vessel, and no physical damage to cargo.'
Nautilus professional and technical officer David Appleton commented: 'This is an extremely interesting case, which raises many important questions about the responsibility for safe shipping operations. Whilst it might be seen as increasing the exposure of shipmasters and officers, it could also be interpreted as being beneficial if non-adherence to IMO resolutions is held to mean that a vessel is unseaworthy.'