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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
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Tuesday, 23 May 23
INDIA: COAL OUTPUT UP 8.9%, SUPPLY RISES 11.7% IN APRIL - FINANCIAL EXPRESS
India’s coal production jumped 8.85% to 73.14 million tonne (MT) in April 2023 and the total coal despatch during the month went up 11.66% to ...
Tuesday, 23 May 23
CHINA COAL OUTPUT UP 4.5 PCT IN APRIL - XINHUA
China’s raw coal output posted stable expansion in April, official data showed.
The country produced 380 million tonnes of raw ...
Saturday, 20 May 23
NON-OPEC OIL SUPPLY DEVELOPMENT - OPEC
In 2022, non-OPEC supply is estimated to have increased by 1.9 mb/d y-o-y. Out of this, US liquids production increased by 1.2 mb/d, mainly on the ...
Saturday, 20 May 23
GLOBAL COAL TRADE HAS REALLY PICKED UP PACE IN RECENT MONTHS, NOW FULLY BACK TO PRE-COVID LEVELS - BANCHERO COSTA
Global coal trade has really picked up pace in recent months, and is now fully back to pre-Covid levels. In Jan-Apr 2023, total global seaborne coa ...
Saturday, 20 May 23
MARKET INSIGHT - INTERMODAL
India is one of the world's largest coal producers and one of the world's largest importers of coal. The country uses coal mainly for power ...
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Showing 101 to 105 news of total 6871 |
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- Formosa Plastics Group - Taiwan
- Aditya Birla Group - India
- Essar Steel Hazira Ltd - India
- Holcim Trading Pte Ltd - Singapore
- Central Java Power - Indonesia
- Indika Energy - Indonesia
- PowerSource Philippines DevCo
- Chamber of Mines of South Africa
- Singapore Mercantile Exchange
- India Bulls Power Limited - India
- Simpson Spence & Young - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- London Commodity Brokers - England
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- Anglo American - United Kingdom
- Sakthi Sugars Limited - India
- Star Paper Mills Limited - India
- Heidelberg Cement - Germany
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- Interocean Group of Companies - India
- Maheswari Brothers Coal Limited - India
- Videocon Industries ltd - India
- International Coal Ventures Pvt Ltd - India
- CIMB Investment Bank - Malaysia
- White Energy Company Limited
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- Sree Jayajothi Cements Limited - India
- Petron Corporation, Philippines
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- The University of Queensland
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- Baramulti Group, Indonesia
- Minerals Council of Australia
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- Antam Resourcindo - Indonesia
- OPG Power Generation Pvt Ltd - India
- Goldman Sachs - Singapore
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- SMC Global Power, Philippines
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- Wilmar Investment Holdings
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- Rio Tinto Coal - Australia
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- Coastal Gujarat Power Limited - India
- Carbofer General Trading SA - India
- Trasteel International SA, Italy
- CNBM International Corporation - China
- Bukit Baiduri Energy - Indonesia
- San Jose City I Power Corp, Philippines
- Independent Power Producers Association of India
- Eastern Energy - Thailand
- AsiaOL BioFuels Corp., Philippines
- Indian Energy Exchange, India
- SN Aboitiz Power Inc, Philippines
- European Bulk Services B.V. - Netherlands
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Africa Commodities Group - South Africa
- Makarim & Taira - Indonesia
- Altura Mining Limited, Indonesia
- Sinarmas Energy and Mining - Indonesia
- Siam City Cement PLC, Thailand
- Gujarat Mineral Development Corp Ltd - India
- Iligan Light & Power Inc, Philippines
- Siam City Cement - Thailand
- Krishnapatnam Port Company Ltd. - India
- Pipit Mutiara Jaya. PT, Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Intertek Mineral Services - Indonesia
- Karaikal Port Pvt Ltd - India
- Globalindo Alam Lestari - Indonesia
- The State Trading Corporation of India Ltd
- Bahari Cakrawala Sebuku - Indonesia
- GVK Power & Infra Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Australian Commodity Traders Exchange
- Posco Energy - South Korea
- Pendopo Energi Batubara - Indonesia
- Coal and Oil Company - UAE
- Salva Resources Pvt Ltd - India
- Timah Investasi Mineral - Indoneisa
- Wood Mackenzie - Singapore
- Economic Council, Georgia
- Directorate General of MIneral and Coal - Indonesia
- Uttam Galva Steels Limited - India
- Riau Bara Harum - Indonesia
- Kartika Selabumi Mining - Indonesia
- Central Electricity Authority - India
- Jorong Barutama Greston.PT - Indonesia
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- Price Waterhouse Coopers - Russia
- Indonesian Coal Mining Association
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Meenaskhi Energy Private Limited - India
- Thiess Contractors Indonesia
- Meralco Power Generation, Philippines
- Deloitte Consulting - India
- Bangladesh Power Developement Board
- Semirara Mining Corp, Philippines
- Borneo Indobara - Indonesia
- Manunggal Multi Energi - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Malabar Cements Ltd - India
- Cigading International Bulk Terminal - Indonesia
- PetroVietnam Power Coal Import and Supply Company
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- Ministry of Finance - Indonesia
- Mintek Dendrill Indonesia
- Toyota Tsusho Corporation, Japan
- Billiton Holdings Pty Ltd - Australia
- Chettinad Cement Corporation Ltd - India
- IHS Mccloskey Coal Group - USA
- Barasentosa Lestari - Indonesia
- Sical Logistics Limited - India
- Tamil Nadu electricity Board
- Energy Development Corp, Philippines
- Coalindo Energy - Indonesia
- Gujarat Sidhee Cement - India
- Bulk Trading Sa - Switzerland
- Kapuas Tunggal Persada - Indonesia
- Directorate Of Revenue Intelligence - India
- Miang Besar Coal Terminal - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Sindya Power Generating Company Private Ltd
- GAC Shipping (India) Pvt Ltd
- Samtan Co., Ltd - South Korea
- Parry Sugars Refinery, India
- Australian Coal Association
- Thai Mozambique Logistica
- Alfred C Toepfer International GmbH - Germany
- Xindia Steels Limited - India
- Ministry of Mines - Canada
- Oldendorff Carriers - Singapore
- Madhucon Powers Ltd - India
- Orica Mining Services - Indonesia
- Metalloyd Limited - United Kingdom
- VISA Power Limited - India
- Leighton Contractors Pty Ltd - Australia
- Standard Chartered Bank - UAE
- Romanian Commodities Exchange
- Larsen & Toubro Limited - India
- Renaissance Capital - South Africa
- Global Coal Blending Company Limited - Australia
- Dalmia Cement Bharat India
- Savvy Resources Ltd - HongKong
- TNB Fuel Sdn Bhd - Malaysia
- Ind-Barath Power Infra Limited - India
- New Zealand Coal & Carbon
- Mercator Lines Limited - India
- Banpu Public Company Limited - Thailand
- The Treasury - Australian Government
- Grasim Industreis Ltd - India
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- Asmin Koalindo Tuhup - Indonesia
- Mjunction Services Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- McConnell Dowell - Australia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- PTC India Limited - India
- IEA Clean Coal Centre - UK
- Bukit Makmur.PT - Indonesia
- Lanco Infratech Ltd - India
- Therma Luzon, Inc, Philippines
- Tata Chemicals Ltd - India
- Indian Oil Corporation Limited
- Sojitz Corporation - Japan
- Cement Manufacturers Association - India
- Jaiprakash Power Ventures ltd
- Bayan Resources Tbk. - Indonesia
- Agrawal Coal Company - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Kumho Petrochemical, South Korea
- Rashtriya Ispat Nigam Limited - India
- TeaM Sual Corporation - Philippines
- Merrill Lynch Commodities Europe
- Marubeni Corporation - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Orica Australia Pty. Ltd.
- ICICI Bank Limited - India
- Edison Trading Spa - Italy
- Georgia Ports Authority, United States
- Ceylon Electricity Board - Sri Lanka
- Vedanta Resources Plc - India
- Global Business Power Corporation, Philippines
- Energy Link Ltd, New Zealand
- GMR Energy Limited - India
- Bhushan Steel Limited - India
- Eastern Coal Council - USA
- Global Green Power PLC Corporation, Philippines
- Gujarat Electricity Regulatory Commission - India
- Kaltim Prima Coal - Indonesia
- Attock Cement Pakistan Limited
- Planning Commission, India
- Ministry of Transport, Egypt
- ASAPP Information Group - India
- Electricity Generating Authority of Thailand
- Port Waratah Coal Services - Australia
- Electricity Authority, New Zealand
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