The recent Admiralty Court decision of Alize 1954 v Allianz Elementar Versicherungs AG (The CMA CGM LIBRA) [2019] EWHC 481 (Admlty) (8 March 2019) may develop into a common opinion that a defective passage plan makes a vessel unseaworthy. By looking at the case, the Club would like to draw members’ attention on their duties of exercising due diligence at the commencement of voyage.

The incident

The northbound vessel grounded whilst leaving the port of Xiamen. The passage plan (planned route is marked blue in the chart below) had not provided for the vessel to leave the fairway, but the master, believing that there was shallow water on the east side, decided to deviate west of buoy 15 where there were charted depths of over 30 m.

However, Notice to Mariners NM 6274(P)/10 had advised that “numerous depths less than the charted exist within, and in the approaches to Xiamen Gang”. Notice to Mariners 1691/11 also referenced a depth of 4.8 m and a depth of 1.2 m outside the fairway. No such information was marked on the charts nor mentioned in the passage plan, prompting the master to make the negligent decision of deviation.

Cargo interests refused to contribute to general average, contending that the passage plan was defective and has rendered the vessel unseaworthy. Accordingly, whether the passage plan was defective and whether defective passage plan makes a vessel unseaworthy became the key for debate.

The decision

1.      Whether the passage plan was defective?

In the Court’s opinion, the requirement on passage plan has been long established since the 1999 IMO guidance to include “all areas of danger” for safe navigation. Then the question in the present case was as to the manner in which it was prudent to note the danger identified by NM 6274(p)/10.

The cargo interests maintained that the owner was obliged to clearly mark no-go areas on the charts, but was rejected by the Court for it could have made the charts too busy. (Note that such opinion is based only on this specific case and no-go areas are actually marked by most prudent masters in practice.)

Some believed that attaching relevant notices to the vessel’s working chart would make an adequate passage plan, but was not supported by the Court for attachment cannot serve to remind the master of the warnings.

In the present case neither the passage plan nor the chart contained the necessary warning. A source of danger was not clearly marked as it should have been, and the passage plan and the chart was therefore defective.

2.      Whether the defective passage plan has made the vessel unseaworthy?

The owner argued that passage planning is simply the preparation for safe navigation and is not itself an aspect of seaworthiness.

The Court rejected this, stating that seaworthiness extends to having the appropriate documentation on board, including the appropriate charts. Further, where the Admiralty gives notice of a correction to the appropriate chart a vessel will not be seaworthy unless the chart has been corrected. If the vessel’s navigating officer fails to correct the chart, the vessel is thereby rendered unseaworthy. It’s now well recognized that a passage plan, like an up to date and correct chart, is an attribute of the vessel.

Counsel for the owner also submitted that a one-off defective passage plan did not amount to unseaworthiness and that in relation to matters like passage planning, a carrier’s duty 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 at the beginning of the voyage.

The Court further stated that if the officer fails to prepare a complete passage plan, then his one-off failure is capable of rendering the vessel unseaworthy. Furthermore, whilst the lack of proper systems can render a vessel unseaworthy, counsel’s submission, by concentrating upon the carrier’s own actions to the exclusion of those servants or agents, confuses the issue of seaworthiness with the issue of due diligence, which is a nondelegable duty.

In response to Owner’s position that there was no previous case that held a defective passage plan rendered a vessel unseaworthy, the Court responded “but just as the standard of seaworthiness may rise with improved knowledge of shipbuilding (see Scrutton at paragraph 7-205) so may the standard of seaworthiness rise with improved knowledge of the documents required to be prepared prior to a voyage to ensure, so far as reasonably possible, that the vessel is safely navigated.”

3.      Whether the defective passage plan was causative of the grounding?

The cargo interests submitted that it was because had the master or the second officer appreciated that charted depths outside the fairway could not be relied upon the master would not have attempted to navigate beyond the fairway.

The owner argued that it was not causative for four reasons. First, the master had reviewed NM 6274(P)/10 prior to sailing and so had cognizance of its contents. (Negligent navigation can exempt the owner from liabilities for the damage.) Yet, the Court found no indications that the master had the contents of the notice in mind.

Second, a note on the chart reminding the officer navigating the vessel of the warning in NM 6274(P)/10 would not have stopped the master from choosing in real time to deviate from the fairway, which was not accepted by the Court.

Third, the grounding was caused by poor execution of the maneuver; it was started too late. In this regard, the Court stated that the decision to leave the fairway cannot be divorced from the manner in which the master intended to leave the fairway. They were part of the same navigational decision. His initial decision gave rise to the risk that the vessel might ground on an uncharted shoal and that is what happened.

Fourth, the cause of the grounding was the failure of the hydrographic authorities properly to promulgate information about the shoal upon which the vessel grounded, which was supported by the Court as a possible cause of the grounding. However, it does not follow that the defective passage plan and the master’s resulting negligence was not also a real and effective cause of the grounding.

4.      Whether due diligence has been exercised?

The Hague Rules provides that the carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence.

The Court concluded that the master and the second officer failed to exercise due diligence as they should have considered the aforementioned notices when preparing the passage plan. And the purpose of a passage plan was, as the master must have known, to ensure safe navigation.

The owner argued that the owner’s obligation to exercise due diligence to make the ship seaworthy only concerns things done (by owners or their servants or agents) in the capacity of carrier and does not concern things done by the crew in some other capacity, including their capacity as navigators.

It was further submitted that due diligence was exercised because the owners’ SMS contained appropriate guidance for passage planning in compliance with the ISM Code.

Yet, the Court stated that it is not sufficient that the owner has itself exercised due diligence to make the ship seaworthy. It must be shown that those servants or agents relied upon by the owner to make the ship seaworthy before and at the beginning of the voyage have exercised due diligence. That is because the duty is non-delegable.

Accordingly, the owner’s claim failed as it had failed to establish the exercise of due diligence to make the vessel seaworthy. The cargo interests were therefore not liable to contribute in general average.

Conclusion

As the judge observed, with the standard of seaworthiness rising passage planning has been regarded as an element of it. A complete and accurate passage plan is not only about whether the vessel is seaworthy, but also about whether good seamanship is practiced by the master, which is a vital consideration in handling claims for safe port related incidents. Actually, many other deficiencies have been observed in this particular case, but were not brought up for not being causative of the grounding.

In the Club’s experience, shipowners are prone to neglect the importance of proper passage planning in practice. The Club has reasons to believe that there might be a general consensus that a defective passage plan may render a vessel unseaworthy, as supported by a recent case handled by the Club where lots of efforts were taken by the arbitral tribunal to explain the passage plan deficiencies.

Additionally, irrelevant but also mentioned by the judge in the case is the role of electronic charts in evaluating seaworthiness and good seamanship. Shipowners are advised to be careful with “the use by ships of electronic charts displayed on an Electronic Chart Display and Information System (ECDIS)”.

The above information is based on the Admiralty Court judgement and for members’ reference only. For further consultation, please contact CPI FD&D team.