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.
|
|
Monday, 28 September 20
NEW LNG PROJECTS - ALL DRESSED UP AND NO PLACE TO GO - WOOD MACKENZIE
It was meant to be another boom year. After a record 70 mmtpa of new LNG capacity was sanctioned in 2019, at least as much capacity was lined up fo ...
Thursday, 24 September 20
SUPRAMAX: INDO TO INDIA FIXING AROUND US$13,000 - FEARNLEYS
Cape
Over the last week the iron ore segment from Brazil to China has picked up, and we see freight rates up USD 2 (12%) week on week Fearnleys ...
Thursday, 24 September 20
KOREA MIDLAND POWER TO BUY 1.92 MILLION TONS OF 4,300-4,700 NCV COAL FOR THREE YEARS
COALspot.com: Korea Midland Power Co. Ltd, has issued an International tender for 640,000 MT 4,300-4,700 kcal/kg NCV coal per year.
...
Wednesday, 23 September 20
VIETNAM'S NEW POWER DEVELOPMENT PLAN MUST OPTIMIZE RENEWABLES AND AVOID FOSSIL FUEL LOCK-IN: IEEFA
EVN’s financial constraints leaves the utility with little room for error
Implementing Vietnam’s soon-to-be-launched next Power De ...
Wednesday, 23 September 20
MARKET INSIGHT - INTERMODAL
Undoubtedly, this year (ongoing) will never be forgotten because in a matter of months it has managed to severely affect and shape our day to day p ...
|
|
|
Showing 776 to 780 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Chamber of Mines of South Africa
- Bukit Asam (Persero) Tbk - Indonesia
- Kideco Jaya Agung - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Heidelberg Cement - Germany
- Rio Tinto Coal - Australia
- Orica Australia Pty. Ltd.
- Metalloyd Limited - United Kingdom
- Salva Resources Pvt Ltd - India
- Xindia Steels Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Aditya Birla Group - India
- Georgia Ports Authority, United States
- Central Java Power - Indonesia
- Sindya Power Generating Company Private Ltd
- Interocean Group of Companies - India
- Bangladesh Power Developement Board
- Jindal Steel & Power Ltd - India
- Vizag Seaport Private Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Mercuria Energy - Indonesia
- Bukit Makmur.PT - Indonesia
- Semirara Mining Corp, Philippines
- Price Waterhouse Coopers - Russia
- McConnell Dowell - Australia
- Anglo American - United Kingdom
- Indian Oil Corporation Limited
- Wilmar Investment Holdings
- Altura Mining Limited, Indonesia
- Carbofer General Trading SA - India
- Binh Thuan Hamico - Vietnam
- Savvy Resources Ltd - HongKong
- Banpu Public Company Limited - Thailand
- Goldman Sachs - Singapore
- Planning Commission, India
- Trasteel International SA, Italy
- Ambuja Cements Ltd - India
- Global Green Power PLC Corporation, Philippines
- Meralco Power Generation, Philippines
- Posco Energy - South Korea
- Siam City Cement - Thailand
- Maheswari Brothers Coal Limited - India
- Intertek Mineral Services - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- The State Trading Corporation of India Ltd
- Iligan Light & Power Inc, Philippines
- Medco Energi Mining Internasional
- Pendopo Energi Batubara - Indonesia
- Coal and Oil Company - UAE
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Kartika Selabumi Mining - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- OPG Power Generation Pvt Ltd - India
- Leighton Contractors Pty Ltd - Australia
- Kaltim Prima Coal - Indonesia
- Indian Energy Exchange, India
- San Jose City I Power Corp, Philippines
- Gujarat Sidhee Cement - India
- Pipit Mutiara Jaya. PT, Indonesia
- SMG Consultants - Indonesia
- Uttam Galva Steels Limited - India
- Simpson Spence & Young - Indonesia
- PowerSource Philippines DevCo
- Coalindo Energy - Indonesia
- CIMB Investment Bank - Malaysia
- Thai Mozambique Logistica
- Essar Steel Hazira Ltd - India
- Ministry of Transport, Egypt
- Kohat Cement Company Ltd. - Pakistan
- ASAPP Information Group - India
- New Zealand Coal & Carbon
- SN Aboitiz Power Inc, Philippines
- India Bulls Power Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Bhoruka Overseas - Indonesia
- Kumho Petrochemical, South Korea
- Electricity Generating Authority of Thailand
- Central Electricity Authority - India
- Siam City Cement PLC, Thailand
- Mercator Lines Limited - India
- Indo Tambangraya Megah - Indonesia
- Energy Development Corp, Philippines
- PNOC Exploration Corporation - Philippines
- Alfred C Toepfer International GmbH - Germany
- Sical Logistics Limited - India
- The Treasury - Australian Government
- Straits Asia Resources Limited - Singapore
- Deloitte Consulting - India
- Australian Commodity Traders Exchange
- Tamil Nadu electricity Board
- Sarangani Energy Corporation, Philippines
- Merrill Lynch Commodities Europe
- Baramulti Group, Indonesia
- Star Paper Mills Limited - India
- Indogreen Group - Indonesia
- Barasentosa Lestari - Indonesia
- Sinarmas Energy and Mining - Indonesia
- VISA Power Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Bhushan Steel Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- White Energy Company Limited
- Globalindo Alam Lestari - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Sojitz Corporation - Japan
- Attock Cement Pakistan Limited
- Maharashtra Electricity Regulatory Commission - India
- Krishnapatnam Port Company Ltd. - India
- Lanco Infratech Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Madhucon Powers Ltd - India
- Directorate Of Revenue Intelligence - India
- Bukit Baiduri Energy - Indonesia
- Meenaskhi Energy Private Limited - India
- Edison Trading Spa - Italy
- Orica Mining Services - Indonesia
- Bulk Trading Sa - Switzerland
- Africa Commodities Group - South Africa
- Mjunction Services Limited - India
- PTC India Limited - India
- Mintek Dendrill Indonesia
- Riau Bara Harum - Indonesia
- Agrawal Coal Company - India
- Standard Chartered Bank - UAE
- Romanian Commodities Exchange
- Indonesian Coal Mining Association
- Aboitiz Power Corporation - Philippines
- Renaissance Capital - South Africa
- Electricity Authority, New Zealand
- MS Steel International - UAE
- Bayan Resources Tbk. - Indonesia
- Timah Investasi Mineral - Indoneisa
- Ministry of Finance - Indonesia
- Coastal Gujarat Power Limited - India
- GAC Shipping (India) Pvt Ltd
- Formosa Plastics Group - Taiwan
- Neyveli Lignite Corporation Ltd, - India
- Holcim Trading Pte Ltd - Singapore
- Vijayanagar Sugar Pvt Ltd - India
- Gujarat Electricity Regulatory Commission - India
- London Commodity Brokers - England
- Eastern Coal Council - USA
- IHS Mccloskey Coal Group - USA
- Cement Manufacturers Association - India
- Port Waratah Coal Services - Australia
- Australian Coal Association
- Therma Luzon, Inc, Philippines
- Cigading International Bulk Terminal - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Ceylon Electricity Board - Sri Lanka
- Makarim & Taira - Indonesia
- Larsen & Toubro Limited - India
- Petron Corporation, Philippines
- Tata Chemicals Ltd - India
- Eastern Energy - Thailand
- Kapuas Tunggal Persada - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Vedanta Resources Plc - India
- Oldendorff Carriers - Singapore
- Global Coal Blending Company Limited - Australia
- Videocon Industries ltd - India
- Independent Power Producers Association of India
- Singapore Mercantile Exchange
- TeaM Sual Corporation - Philippines
- GMR Energy Limited - India
- Energy Link Ltd, New Zealand
- Bhatia International Limited - India
- Latin American Coal - Colombia
- South Luzon Thermal Energy Corporation
- AsiaOL BioFuels Corp., Philippines
- IEA Clean Coal Centre - UK
- Karaikal Port Pvt Ltd - India
- Miang Besar Coal Terminal - Indonesia
- CNBM International Corporation - China
- Malabar Cements Ltd - India
- Indika Energy - Indonesia
- Bharathi Cement Corporation - India
- Sakthi Sugars Limited - India
- European Bulk Services B.V. - Netherlands
- International Coal Ventures Pvt Ltd - India
- SMC Global Power, Philippines
- Commonwealth Bank - Australia
- Dalmia Cement Bharat India
- Minerals Council of Australia
- Samtan Co., Ltd - South Korea
- Thiess Contractors Indonesia
- Jaiprakash Power Ventures ltd
- LBH Netherlands Bv - Netherlands
- Borneo Indobara - Indonesia
- Ind-Barath Power Infra Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Economic Council, Georgia
- ICICI Bank Limited - India
- Ministry of Mines - Canada
- Semirara Mining and Power Corporation, Philippines
- Petrochimia International Co. Ltd.- Taiwan
- Parliament of New Zealand
- GVK Power & Infra Limited - India
- Toyota Tsusho Corporation, Japan
- Wood Mackenzie - Singapore
- Sree Jayajothi Cements Limited - India
- The University of Queensland
- Jorong Barutama Greston.PT - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Manunggal Multi Energi - Indonesia
- Antam Resourcindo - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Power Finance Corporation Ltd., India
- Global Business Power Corporation, Philippines
- Kepco SPC Power Corporation, Philippines
- Grasim Industreis Ltd - India
- Chettinad Cement Corporation Ltd - India
- Marubeni Corporation - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Kobexindo Tractors - Indoneisa
- Parry Sugars Refinery, India
|
| |
| |
|
