For a ship to be deemed seaworthy it must pass all relevant safety tests. At the end of the day these compliance requirements are all designed to ensure a vessel completes it’s journey without incident. While the notion of seaworthiness encompasses ideas such as precise engineering in construction and observance of health and safety rules in chartering and shipping contracts it also extends to passage planning. If a plan contains errors or is not followed correctly, the vessel could be considered unseaworthy with all the financial implications that holds for the ship owner.
The UK Supreme Court’s judgment in CMA CGM Libra (November 2021), which will be heavily influential in cases decided here in the Bahamas makes clear that passage plans are not just a paper or box-ticking exercise. They have huge practical implications too. ParrisWhittaker is a leading maritime law firm based in the Bahamas. Our specialist team provide comprehensive advice to ship and yacht owners and others on their obligations when it comes to passage plans, due diligence and seaworthiness checks and compliance.
The Concept Of Seaworthiness
The concept of seaworthiness applies to vessels large and small, and it permeates all aspects of shipping and maritime law. For example:
· In voyage insurance policies the person seeking insurance warrants that the vessel is seaworthy
· A party using a vessel to ship goods will insist on a similar warranty of seaworthiness from the carrier
· A ship owner will warrant to anyone chartering its ship that it is seaworthy
· A shipbuilder will warrant that a ship will be constructed in a manner that renders it seaworthy
Background To The CMA CGM Libra Case
If a passage plan is defective – as in the CMA case – it can have the effect of rendering a vessel unseaworthy in the same way that defective construction of a vessel can. The case of CMA has already had huge implications, with insurers UKP&I reporting a significant increase in claims against ship owners based on defects in passage plans – even before the Supreme Court examined the issues.
The incident that gave rise to CMA litigation took place in 2011. The decade it took to reach a final decision is proof indeed of the cost, delay and uncertainty complex maritime disputes like this can cause.
The CMA CGM Libra was a large container ship with almost 6000 containers on board. Shortly after its departure from a Chinese port in May 2011 it deviated from the pre agreed route, sailing outside of an area marked by safety buoys. It grounded almost immediately.
Crucially, the CMA CGM Libra grounded next to a shallow shelf whose existence had been the subject of a formal Notice to Mariners (NTM) just weeks before. However the ship’s electronic charts did not indicate the shallowness of the water in the relevant area and the paper charts the crew used to navigate failed to show the full extent of the shallow shelf.
An older NTM, dating from 2010 also cautioned that depths outside of the area marked by buoys were inconsistent and potentially shallower than indicated on the relevant charts. Significantly the CMA CGM Libra passage plan and paper charts onboard the vessel did not reflect this warning.
The cost of refloating the ship ran to $13 million, and the ship owners claimed general average against all those with cargo on the vessel at the time of the grounding. While some of those with cargo interests discharged their general average obligations, others refused. These parties argued that:
The defective passage plan meant the vessel was unseaworthy
The defects had caused the grounding
This meant they had a legitimate defence to the claim for general average
What Did The Supreme Court Decide In CMA CGM Libra?
When the case reached the Supreme Court the main issue for the judges to decide was whether or not a defective passage can of itself render a ship unseaworthy.
In a unanimous decision the court agreed with the High Court and Court of Appeal that the defective passage plan in this case (the omission of warnings about the shallow waters outside the buoyed area) was a result of the ship owners lack of due diligence to ensure the vessel was seaworthy.
Passage planning is crucial for safety in navigation. If a ship leaves port with a defective passage plan the Court indicated it is likely to be unseaworthy. As one judge noted:
“A source of danger when leaving (port) was not clearly marked as it ought to have been.”
The link between the omission of the NTM on the passage plan and the grounding of the ship was made clear by the ship’s Master in his evidence. In court he confirmed that had he known of the NTM contents he would not have left the channel marked by the safety buoys.
Comment
The requirement for carriers to exercise due diligence at the start of a voyage to ensure a vessel is seaworthy applies to vessels large and small. The CMA case demonstrates that this principle applies as much to passage planning as it does to any other element of seaworthiness.
A passage plan is not simply a compliance document prepared ahead of sailing. . It is an important process encompassing appraisal, planning, execution and monitoring that enables those in charge to make rational and informed decisions about the ship’s navigation.
As we mentioned above the ramifications of the decision for ship owners and carriers was felt even before the decision of the Supreme Court. Following the lower court’s decision (which the Supreme Court upheld) UKP&I noted that more than $100million worth of claims relating to passage planning had been made.
Contact Us
We represent a wide range of shipping interests including charterers and owners. For advice on passage planning, seaworthiness requirements and other aspects of maritime safety law please schedule a meeting with a lawyer at ParrisWhittaker today.
