The UK Supreme Court made a ruling regarding a situation in which a container vessel, the CMA CGM LIBRA, ran aground in the Chinese port of Xiamen after leaving the marked fairway.
A declaration of general average was made, but some of the cargo interests declined to contribute voluntarily, alleging that errors in the ship’s passage plan made the vessel unseaworthy.
The cargo interests criticized the passage plan for not including all areas of danger, as per IMO guidelines, and for failing to reflect a recent notice to mariners that depths in the approaches to Xiamen were shallower than charted.
The Supreme Court agreed that the vessel was unseaworthy because it started its voyage with a flawed passage plan, which caused the master to leave the buoyed fairway and led to the grounding. The owners of the vessel were unable to defend themselves by claiming due diligence to make the vessel seaworthy, as the crew’s negligence in preparing the defective passage plan was attributed to the carrier.
The Supreme Court noted that seaworthiness is not limited to physical defects in the vessel or its equipment, but also includes negligent navigational decisions, such as those made in passage planning.
The Court emphasized that, in future cases, it may be useful to ask if a defect is an attribute of the ship to determine if a vessel was unseaworthy. The Court recognized that this case was unusual due to the serious nature of the defect in the passage planning and the fact that it caused the grounding. The Court also gave guidance on several other important issues in the area of seaworthiness, including the carrier’s responsibility for negligence by someone other than the crew, the need for cargo claimants to show that defects are sufficiently serious to render the vessel unseaworthy, the duty of seaworthiness not requiring a perfect ship, and the carrier’s responsibility for a lack of due diligence before coming into its ownership or control.
The case highlights the importance of proper berth-to-berth passage planning, as per IMO guidelines and the A.P.E.M method (Appraisal, Planning, Execution, Monitoring). The method requires gathering all relevant information, making a comprehensive plan that is clear and understood by all, executing the plan, and monitoring it for changes. The plan should include up-to-date charts, navigation warnings, and noted items such as stability considerations and crew competency. The plan should also include all no-go zones, emergency anchorages, points of no-return, and safe speeds. The plan should be reviewed and updated as needed throughout the voyage.