Crossing and Narrow Channel Which rule applies

In the recent case of the “CMA CGM LIBRA”(1) Mr Justice Teare ruled that the ship was unseaworthy as a result of a failure by the crew to exercise due diligence when preparing and updating the passage plan. On 17 May 2011 the vessel grounded on a shoal as she sailed out of the port of Xiamen in China. At the time, the vessel was sailing through a buoy-marked dredged channel and the charted depths were over 30 metres. There was no mention on the vessel’s charts of any shoals in the channel in which the vessel grounded. 

Five months before the grounding, a Notice to Mariners had been issued by the United Kingdom Hydrographic Office. The Notice warned seafarers that the port’s approaches contained numerous areas where the depth was less than the charted depth.  

The passage plan prepared by the vessel made no reference to the Notice to Mariners or the areas where the depth was less than the charted depth identified in that Notice.

The grounding led to the need for salvage services and General Average was declared. Following adjustment, some cargo interests and their insurers refused to contribute to General Average on the grounds that the Master’s passage planning for the voyage was negligent, rendered the vessel unseaworthy, and caused the casualty.

The Admiralty Judge agreed with cargo interests and held that the passage planning had been defective, a problem which had caused the vessel to run aground.  The Owners were found not to have exercised due diligence to make the vessel seaworthy.  Specifically, had the passage plan been marked with the appropriate areas where the depth was less than the charted depth as per the Notice to Mariners, then the Master would not have attempted the manoeuvre which gave rise to the incident. It was noted by the Court that the Notice was also not referred to in the passage plan for the vessel’s previous trip to Xiamen in March 2011.

This was a blow for Owners and their P&I insurers who absorb unrecoverable GA. It demonstrates how crucial it is for crews to produce accurate and up-to-date passage plans and that it is dangerous to rely on old plans without properly checking the latest Notices to Mariners and considering if the plan ought to be updated or revised. It is important to note that this incident occurred prior to the compulsory use of electronic charts which should ensure that vessel’s charts are kept up to date and provide visual warnings of any such navigational hazards. There will however always remain the possibility of human error in the use of these new systems.

This case also touched on another topical issue. Notwithstanding the questions raised in the recent Volcafe case (see our recent blog article here), the Court decided to endorse the traditional approach to burden of proof in respect of the relevant provision of the Hague-Visby Rules (Article III, Rule 1), which is that the burden lies with cargo interests to prove causative unseaworthiness.

(1) Alize 1954 and Another v Allianz Elementar Versicherungs AG and Others (The “CMA CGM Libra”) – QBD (Comm Ct) (Teare J) [2019] EWHC 481 (Admlty) – 8 March 2019

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