CMA CGM LIBRA: UK Supreme Court upholds unseaworthy judgment following errors in passage planning

We previously reported on decisions by the UK Admiralty Court and Court of Appeal rejecting a shipowner’s claim for general average because the vessel was unseaworthy due to errors in the passage plan.  The case reached the Supreme Court, which upheld those decisions and has given guidance of general relevance to all cargo claims.

The case confirms that it remains important that Members ensure passage plans are carefully and properly prepared for every voyage.

Background

Whilst departing from the Chinese port of Xiamen, the container vessel CMA CGM LIBRA grounded on rocks after departing from the marked fairway.

General average was declared but some of the cargo interest refused to contribute voluntarily and argued that errors within the ship’s passage plan had rendered the vessel unseaworthy (i.e. there had been actionable fault for the purposes of Rule D of the York-Antwerp Rules).

Cargo interests criticised the passage plan in a number of aspects, but the critical error was the failure to record “all areas of danger” as per IMO guidelines for passage planning.  In particular, the passage plan did not reflect a recent Notice to Mariners advising that depths on the approaches to Xiamen were less than charted.

The decision of the UK Supreme Court

The Supreme Court agreed that the vessel was unseaworthy because she commenced her voyage with a defective passage plan.  The Admiralty Judge had decided that this was causative of the Master’s decision to leave the buoyed fairway resulting in the grounding.  Owners were unable to rely on a defence of due diligence to make the vessel seaworthy because the crew’s negligence in preparing the defective passage plan was attributable to the carrier.

Owners argued that a distinction should be drawn between acts of navigation, which were incapable of rendering a vessel unseaworthy, and aspects of a ship going to its seaworthiness and navigability.

This was part of a wider argument that unseaworthiness must arise from an attribute of the ship and not a navigational decision.  Whilst the Supreme Court did not say that there was no requirement that seaworthiness should result from an attribute of the ship, they thought that the concept must be widely and diversely drawn.

Seaworthiness is not limited to physical defects in the vessel or its equipment.  Negligent navigational decisions taken pre-voyage, including passage planning, can render a vessel unseaworthy.  It could though be useful in future cases to ask whether a defect is an attribute of the ship to illustrate whether or not a vessel was unseaworthy.

There was some recognition that the case represented an unusual result due to the serious nature of the defect in the passage planning and because the defective passage planning caused the grounding.  For instance, mistakes in passage planning can only result in actionable unseaworthiness when made during the appraisal and planning stages, rather than during the execution and monitoring stages.  The Supreme Court emphasised that:

“Most negligent navigation will occur during the voyage rather than before it and it is correct that the main burden of resulting cargo damage or general average claims is likely to fall on cargo owners and their insurers rather than shipowners and their P&I Clubs.” 

Other guidance

The Supreme Court also gave useful guidance on a number of important issues in the area of seaworthiness.

They confirmed the well-known rule that a carrier is not responsible for negligence by someone who is not entrusted by the carrier with the task of making the vessel seaworthy, such as a shipbuilder or shipper of cargo.

The Supreme Court also emphasised the need for cargo claimants to show that any defects are “sufficiently serious” before they constitute unseaworthiness in the sense that the vessel becomes unfit to carry the cargo safely.

The Court endorsed previous comments from judges that the duty of seaworthiness does not require a carrier to provide a perfect ship.  There may also be instances where defects at the commencement of the voyage do not render unseaworthy because the owner can reasonably expect them to be remedied on the voyage before the vessel or her cargo is exposed to danger.

Finally, the Supreme Court reiterated that a carrier is not responsible for a lack of due diligence occurring before the vessel and its cargo comes into its ownership or control (also known as the carrier’s ‘orbit’) unless a defect is reasonably discoverable afterwards.

Practical passage planning

The case has highlighted the importance of proper berth-to-berth passage planning. Remember that passage planning is much more than just putting courses on a chart or ECDIS.

Get it right by following the IMO guidelines and the A.P.E.M method.

Appraisal

Gather all relevant information for the intended passage.

Check that charts are up to date and all temporary and preliminary notices are read and noted as appropriate on the chart and in the passage plan. Navigation warnings are vital and important ones should also be noted in the plan and removed when no longer applicable.

Items that are often forgotten in this section include stability considerations and ensuring the crew are well-rested and competent for the passage to be undertaken.

Planning

Once armed with all the relevant information from the appraisal, a full and comprehensive plan must be made.

The plan must be clear and understood by all using it. Therefore, mark on the charts all the vital information considered in the appraisal. Such items must include all no-go zones, emergency anchorages, points of no-return and safe speeds. For a vessel operating with ECDIS only, safety limits must be set up correctly.

Execution

Once the entire bridge team have read and agreed the plan and the Master has endorsed it, it’s time to execute the plan.

Remember the plan isn’t set in stone – weather, unexpected traffic and new navigational hazards can raise the need for changes. Alterations to the plan should be made following a risk assessment and the changes agreed and logged. Record any additional mitigation measures needed, such as extra lookouts or lower than planned speed for restricted visibility.

Monitoring

The vessel’s passage must be closely monitored throughout the voyage. This is even more critical when under pilotage as the risks are often greater due to the proximity of navigational hazards. Close monitoring of the course using a variety of methods will show when the vessel is approaching alterations, no-go zones or other navigational hazards.

Find out more

Read the Supreme Court judgment: Click Here

See our ‘QuickFacts’ on Voyage Planning with ECDIS: https://www.nepia.com/publications/voyage-planning-with-ecdis-poster/

Authors

David Richards – Director (Claims)

John Southam – Loss Prevention Executive