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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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Tuesday, 18 December 18
TOBA BARA ACQUIRES SHARES OF PT BATU HITAM PERKASA
PT Toba Bara Sejahtra Tbk, through its subsidiary PT Toba Bara Energi (“TBE”), has acquired shares ...
Monday, 17 December 18
SUPRAMAX THERE WAS STRONGER DEMAND FROM SOUTHEAST ASIA, WITH MORE COAL BEING SHIPPED - BALTIC BRIEFING
Capesize
A positive end to last week after a somewhat uncertain start as some gains made were eroded. Rates recovered later for West Australia/ ...
Monday, 17 December 18
SOUTH KOREA STATE-OWNED UTILITY KOREA EAST-WEST POWER CO. LTD ISSUED A TENDER FOR MAX 3.220 MILLION TONS OF 4200 TO 5900 NAR COAL
COALspot.com: South Korea state-owned utility Korea East-West Power Co. Ltd (EWP) issued a tender for max 3,220,000 Metric Tons of coal to be loade ...
Saturday, 15 December 18
COMING CHANGES IN MARINE FUEL SULFUR LIMITS WILL AFFECT GLOBAL OIL MARKETS - EIA
International regulations limiting sulfur in fuels for ocean-going vessels, set to take effect in January 2020, have implications for vessel operat ...
Friday, 14 December 18
KOSPO INVITED BIDS FOR 320,000 MT OF LOW CALORIFIC VALUE COAL
COALspot.com: South Korea state-owned utility Korea Southern Power Co. Ltd (KOSPO) issued a tender for 320,000 MT of min 4,300 kcal/kg NCV coal per ...
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Showing 1526 to 1530 news of total 6871 |
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- Central Java Power - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Sical Logistics Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Central Electricity Authority - India
- Krishnapatnam Port Company Ltd. - India
- European Bulk Services B.V. - Netherlands
- The University of Queensland
- PetroVietnam Power Coal Import and Supply Company
- Toyota Tsusho Corporation, Japan
- Sinarmas Energy and Mining - Indonesia
- Deloitte Consulting - India
- Therma Luzon, Inc, Philippines
- Posco Energy - South Korea
- Minerals Council of Australia
- Sojitz Corporation - Japan
- SN Aboitiz Power Inc, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Wood Mackenzie - Singapore
- Orica Mining Services - Indonesia
- Kobexindo Tractors - Indoneisa
- CIMB Investment Bank - Malaysia
- Antam Resourcindo - Indonesia
- Binh Thuan Hamico - Vietnam
- SMC Global Power, Philippines
- Karaikal Port Pvt Ltd - India
- Bangladesh Power Developement Board
- Electricity Authority, New Zealand
- India Bulls Power Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- GMR Energy Limited - India
- Oldendorff Carriers - Singapore
- Kohat Cement Company Ltd. - Pakistan
- Neyveli Lignite Corporation Ltd, - India
- Lanco Infratech Ltd - India
- McConnell Dowell - Australia
- Meenaskhi Energy Private Limited - India
- Vedanta Resources Plc - India
- Kideco Jaya Agung - Indonesia
- The State Trading Corporation of India Ltd
- Bulk Trading Sa - Switzerland
- Australian Coal Association
- Uttam Galva Steels Limited - India
- OPG Power Generation Pvt Ltd - India
- Manunggal Multi Energi - Indonesia
- Globalindo Alam Lestari - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Merrill Lynch Commodities Europe
- AsiaOL BioFuels Corp., Philippines
- Renaissance Capital - South Africa
- Bhatia International Limited - India
- Tata Chemicals Ltd - India
- Energy Link Ltd, New Zealand
- White Energy Company Limited
- Straits Asia Resources Limited - Singapore
- Grasim Industreis Ltd - India
- Thai Mozambique Logistica
- Sindya Power Generating Company Private Ltd
- Baramulti Group, Indonesia
- VISA Power Limited - India
- Savvy Resources Ltd - HongKong
- Xindia Steels Limited - India
- Simpson Spence & Young - Indonesia
- Ministry of Transport, Egypt
- Maheswari Brothers Coal Limited - India
- Energy Development Corp, Philippines
- Indonesian Coal Mining Association
- Iligan Light & Power Inc, Philippines
- Global Green Power PLC Corporation, Philippines
- Gujarat Mineral Development Corp Ltd - India
- Goldman Sachs - Singapore
- Anglo American - United Kingdom
- Vizag Seaport Private Limited - India
- Sakthi Sugars Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Mercator Lines Limited - India
- Videocon Industries ltd - India
- Kaltim Prima Coal - Indonesia
- Carbofer General Trading SA - India
- Timah Investasi Mineral - Indoneisa
- Vijayanagar Sugar Pvt Ltd - India
- Thiess Contractors Indonesia
- Altura Mining Limited, Indonesia
- PowerSource Philippines DevCo
- Billiton Holdings Pty Ltd - Australia
- Heidelberg Cement - Germany
- PNOC Exploration Corporation - Philippines
- Banpu Public Company Limited - Thailand
- The Treasury - Australian Government
- Bukit Makmur.PT - Indonesia
- Australian Commodity Traders Exchange
- Agrawal Coal Company - India
- Sree Jayajothi Cements Limited - India
- Eastern Energy - Thailand
- Bayan Resources Tbk. - Indonesia
- Intertek Mineral Services - Indonesia
- Romanian Commodities Exchange
- GN Power Mariveles Coal Plant, Philippines
- IHS Mccloskey Coal Group - USA
- Dalmia Cement Bharat India
- Gujarat Electricity Regulatory Commission - India
- Indogreen Group - Indonesia
- Cement Manufacturers Association - India
- International Coal Ventures Pvt Ltd - India
- Jindal Steel & Power Ltd - India
- MS Steel International - UAE
- Siam City Cement PLC, Thailand
- Latin American Coal - Colombia
- Marubeni Corporation - India
- Indika Energy - Indonesia
- Parry Sugars Refinery, India
- Indo Tambangraya Megah - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- PTC India Limited - India
- Sarangani Energy Corporation, Philippines
- Bukit Baiduri Energy - Indonesia
- Eastern Coal Council - USA
- Ambuja Cements Ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Singapore Mercantile Exchange
- ASAPP Information Group - India
- Jaiprakash Power Ventures ltd
- GVK Power & Infra Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Planning Commission, India
- SMG Consultants - Indonesia
- Power Finance Corporation Ltd., India
- Coastal Gujarat Power Limited - India
- Standard Chartered Bank - UAE
- Chettinad Cement Corporation Ltd - India
- Parliament of New Zealand
- Karbindo Abesyapradhi - Indoneisa
- Malabar Cements Ltd - India
- Interocean Group of Companies - India
- Africa Commodities Group - South Africa
- Ministry of Finance - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- GAC Shipping (India) Pvt Ltd
- Port Waratah Coal Services - Australia
- LBH Netherlands Bv - Netherlands
- Kapuas Tunggal Persada - Indonesia
- CNBM International Corporation - China
- Indian Energy Exchange, India
- Semirara Mining Corp, Philippines
- Mercuria Energy - Indonesia
- Aboitiz Power Corporation - Philippines
- IEA Clean Coal Centre - UK
- Orica Australia Pty. Ltd.
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Tamil Nadu electricity Board
- Makarim & Taira - Indonesia
- Directorate Of Revenue Intelligence - India
- Maharashtra Electricity Regulatory Commission - India
- Riau Bara Harum - Indonesia
- Ind-Barath Power Infra Limited - India
- Attock Cement Pakistan Limited
- Coalindo Energy - Indonesia
- Medco Energi Mining Internasional
- Coal and Oil Company - UAE
- Leighton Contractors Pty Ltd - Australia
- Trasteel International SA, Italy
- Barasentosa Lestari - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Ceylon Electricity Board - Sri Lanka
- Kepco SPC Power Corporation, Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Edison Trading Spa - Italy
- Cigading International Bulk Terminal - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Kartika Selabumi Mining - Indonesia
- Bhushan Steel Limited - India
- Bharathi Cement Corporation - India
- Rashtriya Ispat Nigam Limited - India
- Chamber of Mines of South Africa
- TNB Fuel Sdn Bhd - Malaysia
- Star Paper Mills Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Petron Corporation, Philippines
- Electricity Generating Authority of Thailand
- Alfred C Toepfer International GmbH - Germany
- Mintek Dendrill Indonesia
- London Commodity Brokers - England
- Larsen & Toubro Limited - India
- Ministry of Mines - Canada
- Global Business Power Corporation, Philippines
- Global Coal Blending Company Limited - Australia
- South Luzon Thermal Energy Corporation
- ICICI Bank Limited - India
- Essar Steel Hazira Ltd - India
- Georgia Ports Authority, United States
- Commonwealth Bank - Australia
- San Jose City I Power Corp, Philippines
- Formosa Plastics Group - Taiwan
- Siam City Cement - Thailand
- Price Waterhouse Coopers - Russia
- Aditya Birla Group - India
- Salva Resources Pvt Ltd - India
- Indian Oil Corporation Limited
- Samtan Co., Ltd - South Korea
- Mjunction Services Limited - India
- TeaM Sual Corporation - Philippines
- Rio Tinto Coal - Australia
- Bhoruka Overseas - Indonesia
- Madhucon Powers Ltd - India
- New Zealand Coal & Carbon
- Holcim Trading Pte Ltd - Singapore
- Pendopo Energi Batubara - Indonesia
- Economic Council, Georgia
- Kumho Petrochemical, South Korea
- Gujarat Sidhee Cement - India
- Meralco Power Generation, Philippines
- Wilmar Investment Holdings
- Independent Power Producers Association of India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Metalloyd Limited - United Kingdom
- Borneo Indobara - Indonesia
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