Passage planning – an incident of unseaworthiness or if done badly an example of negligent navigation?
Myton Law recently acted for cargo owner and their insurers in an arbitration in which this was an issue. At the time there was no precedent.
Well now we have it – the “CMA CGM LIBRA” – a recent decision of the Admiralty Court.
It was reassuring and pleasing to see that the judgement reflected the submission made Myton Law in the arbitration.
In May 2011, the CMA CGM LIBRA grounded whilst leaving the port of Xiamen, China. Salvage and other general average expenses totalling US$13 million were incurred..
The vessel had been navigated outside the buoyed fairway and ran aground on a shoal in an area where there were charted depths of over 30 metres. The shoal was not marked on the paper Admiralty charts available at the time, but recent Notices to Mariners had warned that numerous depths less than the charted depths existed in the approaches to the port.
The vessel’s passage plan had not provided for the vessel to leave the buoyed fairway, but neither did it contain a clearly marked warning of the danger created by the presence of depths less than those charted.
As a result cargo owners argued that the unsafe and negligently prepared passage plan rendered the vessel unseaworthy and caused the casualty, and, therefore, that they had a defence of actionable fault to the vessel owners claim for general average expenditure.
The vessel owners defended the master’s navigational decisions as reasonable in the circumstances and also defended the passage plan, maintaining that it was sufficient that the relevant Notice to Mariners was attached or adjacent to the vessel’s working chart.
The cargo owners submitted that (1) the vessel was unseaworthy before and at the beginning of the voyage because of the defective passage plan; (2) due diligence to make the vessel seaworthy was not exercised by the vessel owners because the master and second officer failed to exercise reasonable skill and care when preparing the passage plan; and (3) that the defective passage plan was causative of the grounding.
The court found that the navigation of the vessel had been negligent, that the passage plan was defective and that the defective passage plan was causative of the grounding. But as there is the negligent navigation exception in the Hague Rules, to provide a defence of actionable fault to the GA expenditure claim, the cargo owners had to prove that the defective passage plan rendered the vessel unseaworthy.
Vessel owners argued that passage planning is part of navigation and not itself an aspect of seaworthiness.
The judge held:
“Given that, as stated in the IMO Resolution of 1999, a "well planned voyage" is of "essential importance for safety of life at sea, safety of navigation and protection of the marine environment" one would expect that the prudent owner, if he had known that his vessel was about to commence a voyage with a defective passage plan, would have required the defect to be made good before the vessel set out to sea.”
Seaworthiness extends to having on board the appropriate documentation - so a proper passage plan is now, like an up to date and properly corrected chart, a document which is required at the beginning of the voyage.
The court rejected the owner’s assertion that, in relation to matters like passage planning, a carrier's seaworthiness obligation in Article III r.1 of the Hague Rules was discharged by putting in place proper systems and ensuring that the requisite materials were on board to ensure that the master and navigating officer were able to prepare an adequate passage plan. The judge observed that the same could be said about correcting or updating the charts, but that if the officer charged with correcting the chart fails to do so in a material respect before the beginning of the voyage, then his failure is capable of rendering the vessel unseaworthy.
So far as the exercise of due diligence was concerned, the court rejected the owners submission that this was exercised because their SMS contained appropriate guidance for passage planning and their due diligence obligation did not concern things done by the crew in their capacity as navigators. The actions of the master and second officer in preparing the passage plan were matters of navigation, it was submitted, rather than matters for owners as carrier.
The court said “no” - the due diligence obligation was non-delegable. It must be shown that those servants or agents relied upon by the owner to make the ship seaworthy have done so. The provision of a proper passage plan is necessary to ensure, so far as reasonably possible, that the vessel will be safely navigated. The master and relevant deck officer could, if they had exercised reasonable care and skill, have prepared a proper passage plan and as such due diligence was not exercised.
In conclusion, cargo owners had established causative unseaworthiness and vessel owners had failed to establish the exercise of due diligence to make the vessel seaworthy - proper navigational documentation including a passage plan is an aspect of seaworthiness and the duty to exercise due diligence is non-delegable.