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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, 19 December 18
GLOBAL SHIPPING SCOUTS FOR FUTURE GROWTH - PETER SAND, BIMCO
Where do we go to find economic growth that spurs shipping demand in the next five years? According to the International Monetary Fund (IMF), we sh ...
Wednesday, 19 December 18
SHIPPING MARKET INSIGHT - INTERMODAL
As another year is coming to an end, it is interesting to look at the main shipping markets and how these performed compared to 2017.
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Tuesday, 18 December 18
COAL DEMAND WILL REMAIN STEADY THROUGH 2023, INTERNATIONAL ENERGY AGENCY SAYS - TOM DICHRISTOPHER, CNBC
Coal consumption is on the rise but will remain roughly stable over the next five years, the International Energy Agency forecasts.
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Tuesday, 18 December 18
DRY BULK: IN ABSOLUTE TERMS, ALL MAIN SIZE SEGMENTS SAW THEIR ACTUAL VOLATILITY FIGURES DECREASE - ALLIED
Since the beginning of 2016, when the dry bulk market reached its absolute bottom, freight rates have been ever since on an upward trajectory. Taki ...
Tuesday, 18 December 18
COAL OUTLOOK BULLISH DESPITE WEAK CHINESE IMPORT DATA - HEREN, ICIS
Coal prices may appreciate over the remainder of 2018 even despite recent data showing falling imports from the world’s largest producer and ...
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Showing 1521 to 1525 news of total 6871 |
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- Aboitiz Power Corporation - Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Price Waterhouse Coopers - Russia
- Port Waratah Coal Services - Australia
- Mercator Lines Limited - India
- Energy Development Corp, Philippines
- Riau Bara Harum - Indonesia
- Timah Investasi Mineral - Indoneisa
- Leighton Contractors Pty Ltd - Australia
- Globalindo Alam Lestari - Indonesia
- Heidelberg Cement - Germany
- IEA Clean Coal Centre - UK
- Central Java Power - Indonesia
- Sree Jayajothi Cements Limited - India
- Posco Energy - South Korea
- Sindya Power Generating Company Private Ltd
- Electricity Authority, New Zealand
- Gujarat Mineral Development Corp Ltd - India
- PowerSource Philippines DevCo
- Sarangani Energy Corporation, Philippines
- Indika Energy - Indonesia
- New Zealand Coal & Carbon
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Planning Commission, India
- Jorong Barutama Greston.PT - Indonesia
- Banpu Public Company Limited - Thailand
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- OPG Power Generation Pvt Ltd - India
- Trasteel International SA, Italy
- Videocon Industries ltd - India
- Bhushan Steel Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- London Commodity Brokers - England
- Meenaskhi Energy Private Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Parliament of New Zealand
- India Bulls Power Limited - India
- Interocean Group of Companies - India
- Thai Mozambique Logistica
- Formosa Plastics Group - Taiwan
- Pendopo Energi Batubara - Indonesia
- Indogreen Group - Indonesia
- Altura Mining Limited, Indonesia
- The University of Queensland
- Rashtriya Ispat Nigam Limited - India
- Cement Manufacturers Association - India
- Makarim & Taira - Indonesia
- Bukit Baiduri Energy - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Jaiprakash Power Ventures ltd
- Chamber of Mines of South Africa
- Central Electricity Authority - India
- Wood Mackenzie - Singapore
- Ceylon Electricity Board - Sri Lanka
- Semirara Mining and Power Corporation, Philippines
- Bangladesh Power Developement Board
- Bukit Makmur.PT - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Medco Energi Mining Internasional
- Indo Tambangraya Megah - Indonesia
- Rio Tinto Coal - Australia
- VISA Power Limited - India
- Eastern Energy - Thailand
- Bank of Tokyo Mitsubishi UFJ Ltd
- PetroVietnam Power Coal Import and Supply Company
- Miang Besar Coal Terminal - Indonesia
- GAC Shipping (India) Pvt Ltd
- Ambuja Cements Ltd - India
- Latin American Coal - Colombia
- SN Aboitiz Power Inc, Philippines
- Bharathi Cement Corporation - India
- Global Coal Blending Company Limited - Australia
- Ind-Barath Power Infra Limited - India
- Commonwealth Bank - Australia
- Renaissance Capital - South Africa
- Cigading International Bulk Terminal - Indonesia
- Minerals Council of Australia
- AsiaOL BioFuels Corp., Philippines
- Chettinad Cement Corporation Ltd - India
- Siam City Cement - Thailand
- South Luzon Thermal Energy Corporation
- Mercuria Energy - Indonesia
- Meralco Power Generation, Philippines
- Economic Council, Georgia
- Ministry of Transport, Egypt
- LBH Netherlands Bv - Netherlands
- Coal and Oil Company - UAE
- Electricity Generating Authority of Thailand
- Metalloyd Limited - United Kingdom
- Australian Coal Association
- Bukit Asam (Persero) Tbk - Indonesia
- Therma Luzon, Inc, Philippines
- McConnell Dowell - Australia
- Directorate Of Revenue Intelligence - India
- Agrawal Coal Company - India
- Power Finance Corporation Ltd., India
- Lanco Infratech Ltd - India
- Marubeni Corporation - India
- Petron Corporation, Philippines
- Alfred C Toepfer International GmbH - Germany
- Gujarat Electricity Regulatory Commission - India
- Attock Cement Pakistan Limited
- ASAPP Information Group - India
- Mintek Dendrill Indonesia
- Uttam Galva Steels Limited - India
- Edison Trading Spa - Italy
- Anglo American - United Kingdom
- Kepco SPC Power Corporation, Philippines
- IHS Mccloskey Coal Group - USA
- Xindia Steels Limited - India
- Orica Mining Services - Indonesia
- Romanian Commodities Exchange
- International Coal Ventures Pvt Ltd - India
- The State Trading Corporation of India Ltd
- European Bulk Services B.V. - Netherlands
- Sakthi Sugars Limited - India
- Tata Chemicals Ltd - India
- Coalindo Energy - Indonesia
- SMC Global Power, Philippines
- Vedanta Resources Plc - India
- CNBM International Corporation - China
- Iligan Light & Power Inc, Philippines
- Standard Chartered Bank - UAE
- Malabar Cements Ltd - India
- Straits Asia Resources Limited - Singapore
- Global Green Power PLC Corporation, Philippines
- TeaM Sual Corporation - Philippines
- Grasim Industreis Ltd - India
- Dalmia Cement Bharat India
- Georgia Ports Authority, United States
- Indonesian Coal Mining Association
- Sical Logistics Limited - India
- Bhatia International Limited - India
- Kumho Petrochemical, South Korea
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Baramulti Group, Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Directorate General of MIneral and Coal - Indonesia
- CIMB Investment Bank - Malaysia
- Ministry of Finance - Indonesia
- Antam Resourcindo - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Madhucon Powers Ltd - India
- Energy Link Ltd, New Zealand
- Independent Power Producers Association of India
- Eastern Coal Council - USA
- Oldendorff Carriers - Singapore
- GVK Power & Infra Limited - India
- Merrill Lynch Commodities Europe
- GN Power Mariveles Coal Plant, Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Karbindo Abesyapradhi - Indoneisa
- Samtan Co., Ltd - South Korea
- Indian Energy Exchange, India
- Billiton Holdings Pty Ltd - Australia
- Binh Thuan Hamico - Vietnam
- The Treasury - Australian Government
- Tamil Nadu electricity Board
- Thiess Contractors Indonesia
- PNOC Exploration Corporation - Philippines
- Manunggal Multi Energi - Indonesia
- Singapore Mercantile Exchange
- Offshore Bulk Terminal Pte Ltd, Singapore
- Global Business Power Corporation, Philippines
- Salva Resources Pvt Ltd - India
- Aditya Birla Group - India
- SMG Consultants - Indonesia
- ICICI Bank Limited - India
- San Jose City I Power Corp, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Kaltim Prima Coal - Indonesia
- Semirara Mining Corp, Philippines
- Essar Steel Hazira Ltd - India
- Bayan Resources Tbk. - Indonesia
- Orica Australia Pty. Ltd.
- Parry Sugars Refinery, India
- Kartika Selabumi Mining - Indonesia
- Siam City Cement PLC, Thailand
- Ministry of Mines - Canada
- Jindal Steel & Power Ltd - India
- Holcim Trading Pte Ltd - Singapore
- Coastal Gujarat Power Limited - India
- Star Paper Mills Limited - India
- Gujarat Sidhee Cement - India
- Indian Oil Corporation Limited
- Kalimantan Lumbung Energi - Indonesia
- Savvy Resources Ltd - HongKong
- Borneo Indobara - Indonesia
- Barasentosa Lestari - Indonesia
- Toyota Tsusho Corporation, Japan
- Wilmar Investment Holdings
- Kobexindo Tractors - Indoneisa
- Maheswari Brothers Coal Limited - India
- Krishnapatnam Port Company Ltd. - India
- Karaikal Port Pvt Ltd - India
- Deloitte Consulting - India
- Vizag Seaport Private Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Simpson Spence & Young - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- GMR Energy Limited - India
- Mjunction Services Limited - India
- Goldman Sachs - Singapore
- Africa Commodities Group - South Africa
- White Energy Company Limited
- Bulk Trading Sa - Switzerland
- Larsen & Toubro Limited - India
- Carbofer General Trading SA - India
- Sojitz Corporation - Japan
- Petrochimia International Co. Ltd.- Taiwan
- MS Steel International - UAE
- PTC India Limited - India
- Intertek Mineral Services - Indonesia
- Bhoruka Overseas - Indonesia
- Kideco Jaya Agung - Indonesia
- Australian Commodity Traders Exchange
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