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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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Saturday, 29 December 18
DELIVERY OF CARGO WITHOUT PRODUCTION OF THE ORIGINAL BILL OF LADING - TT CLUB
KNOWLEDGE TO ELEVATE
As the bill of lading is a document of title, a person presenting it to the carrier or its agent is ostensibly entitled t ...
Friday, 28 December 18
BIMCO 2020 SULPHUR CLAUSES: "A FAIR ALLOCATION OF RESPONSIBILITIES AND LIABILITIES'? - INCE & CO.
To assist owners and charterers to address the legal issues arising under any time charterparties, which will span the 1 January 2020 implementatio ...
Thursday, 27 December 18
DRY BULKERS SPOT FREIGHT MARKET W/E 21 DEC - ALLIED SHIPBROKING
Capesize
A negative week for the Capesize sector, as activity remained at low levels, especially in the Pacific, with rumors regarding agreed r ...
Thursday, 27 December 18
SHIPPING IS ENTERING A NEW ERA OF EVER CHALLENGING CONDITIONS - ALLIED
As we move closer to the end of the year and we look forward into New Year, we are still finding ourselves looking deep into a market outlook full ...
Tuesday, 25 December 18
FUEL QUALITY AND SAFETY IN IMO CONVENTIONS: A GROWING CHALLENGE, EVEN PRIOR TO 1 JANUARY 2020 - IUMI
At the 100th session of the International Maritime Organization’s (IMO) Maritime Safety Committee (MSC) meeting discussions on fuel quality a ...
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Showing 1511 to 1515 news of total 6871 |
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- Merrill Lynch Commodities Europe
- Samtan Co., Ltd - South Korea
- Kalimantan Lumbung Energi - Indonesia
- The Treasury - Australian Government
- Intertek Mineral Services - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Vedanta Resources Plc - India
- ASAPP Information Group - India
- Energy Link Ltd, New Zealand
- Sree Jayajothi Cements Limited - India
- Savvy Resources Ltd - HongKong
- San Jose City I Power Corp, Philippines
- Deloitte Consulting - India
- Bulk Trading Sa - Switzerland
- PTC India Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Semirara Mining Corp, Philippines
- Metalloyd Limited - United Kingdom
- Eastern Energy - Thailand
- Thiess Contractors Indonesia
- Miang Besar Coal Terminal - Indonesia
- VISA Power Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- IEA Clean Coal Centre - UK
- Bank of Tokyo Mitsubishi UFJ Ltd
- Karbindo Abesyapradhi - Indoneisa
- Bhushan Steel Limited - India
- Antam Resourcindo - Indonesia
- Indika Energy - Indonesia
- Parliament of New Zealand
- Sojitz Corporation - Japan
- Eastern Coal Council - USA
- TeaM Sual Corporation - Philippines
- Central Electricity Authority - India
- Mintek Dendrill Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Maharashtra Electricity Regulatory Commission - India
- Commonwealth Bank - Australia
- Indian Energy Exchange, India
- Bharathi Cement Corporation - India
- Minerals Council of Australia
- Indian Oil Corporation Limited
- LBH Netherlands Bv - Netherlands
- Banpu Public Company Limited - Thailand
- Attock Cement Pakistan Limited
- Kumho Petrochemical, South Korea
- Cement Manufacturers Association - India
- CIMB Investment Bank - Malaysia
- Meralco Power Generation, Philippines
- Meenaskhi Energy Private Limited - India
- Riau Bara Harum - Indonesia
- Orica Mining Services - Indonesia
- Petron Corporation, Philippines
- Wilmar Investment Holdings
- Africa Commodities Group - South Africa
- Interocean Group of Companies - India
- Medco Energi Mining Internasional
- Ministry of Transport, Egypt
- London Commodity Brokers - England
- Price Waterhouse Coopers - Russia
- Coastal Gujarat Power Limited - India
- Singapore Mercantile Exchange
- OPG Power Generation Pvt Ltd - India
- Timah Investasi Mineral - Indoneisa
- India Bulls Power Limited - India
- Global Coal Blending Company Limited - Australia
- Anglo American - United Kingdom
- Binh Thuan Hamico - Vietnam
- Larsen & Toubro Limited - India
- Baramulti Group, Indonesia
- Independent Power Producers Association of India
- Aboitiz Power Corporation - Philippines
- Siam City Cement - Thailand
- Holcim Trading Pte Ltd - Singapore
- Pipit Mutiara Jaya. PT, Indonesia
- Salva Resources Pvt Ltd - India
- Wood Mackenzie - Singapore
- Formosa Plastics Group - Taiwan
- Simpson Spence & Young - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Kideco Jaya Agung - Indonesia
- Directorate Of Revenue Intelligence - India
- European Bulk Services B.V. - Netherlands
- Kobexindo Tractors - Indoneisa
- Alfred C Toepfer International GmbH - Germany
- Bangladesh Power Developement Board
- Therma Luzon, Inc, Philippines
- Siam City Cement PLC, Thailand
- PowerSource Philippines DevCo
- Parry Sugars Refinery, India
- IHS Mccloskey Coal Group - USA
- Billiton Holdings Pty Ltd - Australia
- Ambuja Cements Ltd - India
- White Energy Company Limited
- Jorong Barutama Greston.PT - Indonesia
- Agrawal Coal Company - India
- Chettinad Cement Corporation Ltd - India
- Ministry of Finance - Indonesia
- Globalindo Alam Lestari - Indonesia
- Bhatia International Limited - India
- SMG Consultants - Indonesia
- Thai Mozambique Logistica
- Standard Chartered Bank - UAE
- Barasentosa Lestari - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Romanian Commodities Exchange
- Sical Logistics Limited - India
- Posco Energy - South Korea
- Xindia Steels Limited - India
- Kaltim Prima Coal - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Uttam Galva Steels Limited - India
- Cigading International Bulk Terminal - Indonesia
- Lanco Infratech Ltd - India
- Global Business Power Corporation, Philippines
- Jindal Steel & Power Ltd - India
- GVK Power & Infra Limited - India
- CNBM International Corporation - China
- New Zealand Coal & Carbon
- The University of Queensland
- Rio Tinto Coal - Australia
- Grasim Industreis Ltd - India
- Electricity Generating Authority of Thailand
- ICICI Bank Limited - India
- AsiaOL BioFuels Corp., Philippines
- Indo Tambangraya Megah - Indonesia
- SMC Global Power, Philippines
- Toyota Tsusho Corporation, Japan
- Pendopo Energi Batubara - Indonesia
- PNOC Exploration Corporation - Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Vizag Seaport Private Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Heidelberg Cement - Germany
- Vijayanagar Sugar Pvt Ltd - India
- Sinarmas Energy and Mining - Indonesia
- Altura Mining Limited, Indonesia
- Economic Council, Georgia
- Marubeni Corporation - India
- Power Finance Corporation Ltd., India
- GN Power Mariveles Coal Plant, Philippines
- Aditya Birla Group - India
- Krishnapatnam Port Company Ltd. - India
- Mjunction Services Limited - India
- Videocon Industries ltd - India
- Essar Steel Hazira Ltd - India
- Sindya Power Generating Company Private Ltd
- Gujarat Sidhee Cement - India
- Jaiprakash Power Ventures ltd
- Borneo Indobara - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Australian Commodity Traders Exchange
- Bhoruka Overseas - Indonesia
- Indonesian Coal Mining Association
- Energy Development Corp, Philippines
- Central Java Power - Indonesia
- Tamil Nadu electricity Board
- The State Trading Corporation of India Ltd
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Trasteel International SA, Italy
- Ministry of Mines - Canada
- Coal and Oil Company - UAE
- Dalmia Cement Bharat India
- Asmin Koalindo Tuhup - Indonesia
- Bayan Resources Tbk. - Indonesia
- Bukit Makmur.PT - Indonesia
- Coalindo Energy - Indonesia
- Kepco SPC Power Corporation, Philippines
- Straits Asia Resources Limited - Singapore
- GMR Energy Limited - India
- Port Waratah Coal Services - Australia
- Bukit Baiduri Energy - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Carbofer General Trading SA - India
- Tata Chemicals Ltd - India
- McConnell Dowell - Australia
- Star Paper Mills Limited - India
- Planning Commission, India
- Georgia Ports Authority, United States
- Global Green Power PLC Corporation, Philippines
- Malabar Cements Ltd - India
- GAC Shipping (India) Pvt Ltd
- Semirara Mining and Power Corporation, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Gujarat Electricity Regulatory Commission - India
- International Coal Ventures Pvt Ltd - India
- Electricity Authority, New Zealand
- Ceylon Electricity Board - Sri Lanka
- SN Aboitiz Power Inc, Philippines
- MS Steel International - UAE
- Renaissance Capital - South Africa
- Rashtriya Ispat Nigam Limited - India
- Edison Trading Spa - Italy
- Indogreen Group - Indonesia
- Goldman Sachs - Singapore
- Australian Coal Association
- Oldendorff Carriers - Singapore
- Karaikal Port Pvt Ltd - India
- Maheswari Brothers Coal Limited - India
- Makarim & Taira - Indonesia
- Ind-Barath Power Infra Limited - India
- Chamber of Mines of South Africa
- Sakthi Sugars Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Latin American Coal - Colombia
- Sarangani Energy Corporation, Philippines
- Orica Australia Pty. Ltd.
- South Luzon Thermal Energy Corporation
- Madhucon Powers Ltd - India
- Mercator Lines Limited - India
- Kartika Selabumi Mining - Indonesia
- Manunggal Multi Energi - Indonesia
- Mercuria Energy - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Iligan Light & Power Inc, Philippines
- Directorate General of MIneral and Coal - Indonesia
- PetroVietnam Power Coal Import and Supply Company
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