You shoal not pass!

The English Admiralty Court recently released a judgment illustrating the application of established principles regarding seaworthiness following the grounding of a cargo ship. For the first time, a Court held that a defective passage plan prepared prior to the commencement of the voyage rendered the vessel unseaworthy. The Owners were held to have failed to exercise due diligence to make the vessel seaworthy.  Consequently, Cargo Interests successfully defended a claim for general average contributions.

• The decision of the UKSC in Volcafe v CSAV [2018] UKSC 61, did not change the burden of proof in cases of seaworthiness.
• Passage planning is not simply part of navigation. It is an aspect of seaworthiness.
• Although the Master’s decision to depart from the passage plan and navigate outside the buoyed fairway was negligent navigation, the cause of that negligence was the defective passage plan.
• The duty of due diligence is a personal obligation and non-delegable. Owners are responsible for the acts of their servants or agents, who they rely on to make the vessel seaworthy.
• In such circumstances, there was an actionable fault of the Owners that meant the Cargo Interests were not liable to make a general average contribution.

The port of Xiamen is entered and departed through a fairway, marked on each side by buoys.  The paper chart recorded depths both within and outside the fairway.  However, the chart also showed that beyond both sides of the fairway was an area marked “Former Mined Areas”.  These areas were not considered hazardous to surface navigation, but the existence of the minefields had inhibited hydrographic surveying.  As a result, the Admiralty Sailing Directions recorded that outside the swept fairway there may be uncharted wrecks and isolated shoals.

Prior to the grounding, some chart corrections had been required to adjust charted depths along the fairway to significantly less than on the official charts.  Most relevant to the present case was a “Notice to Mariners” issued in December 2010 which advised “numerous depths less than the charted exist within, and in the approaches to Xiamen Gang”.  The Owners were aware and had included on the ship file the particular difficulties navigating in Xiamen.

Passage planning is an essential element of navigation to ensure safe transit along the intended route.  It involves preparing a detailed plan of the intended route and identifying hazards and unsafe areas which the crew need to be aware of.  Prior to departing the port of Xiamen the Second Officer prepared a passage plan, which the Master approved.  The planned route was within the buoyed fairway.  Neither the chart nor the passage plan included a warning about the unreliability of charted depths outside the fairway.

While leaving the port of Xiamen the container ship CMA CGM Libra departed from the passage plan, navigated outside the buoyed fairway, and then ran aground on an uncharted shoal.

The Owners declared general average for approximately USD$13 million.  Some Cargo Interests refused to contribute towards general average, arguing they were not required to contribute because the reason the ship ran aground was the fault of the Owners, which provides a defence under the York-Antwerp Rules.  The Owners brought this claim against those Cargo Interests for the outstanding contribution, and said the cause of the casualty was the uncharted shoal.

The first issue the Court had to determine was which party had the burden of proof.  Art III(1) of the Hague-Visby Rules requires the carrier to exercise due diligence before and at the beginning of the voyage to make the ship seaworthy.  The conventional view is that the burden of proof lies on the Cargo Interests to establish that the vessel was unseaworthy and that this caused the damage.  If this is established, then the burden shifts to the Owners to establish that the damage was not caused by want of due diligence.

Here, Cargo Interests said that following the recent decision of the Supreme Court in Volcafe,¹ the burden lay on the Owners to prove that general average expenditure had not been caused by breach of Art III(1) of the Hague-Visby Rules, by proving that the vessel was seaworthy, or if it was not, that due diligence had been exercised.

The Court rejected that submission.  It distinguished the decision in Volcafe as only being relevant to the burden of proof under Art III(2) of the Hague-Visby Rules, while the present case was concerned with Art III(1).  The Court concluded that the conventional view remains good law.  Article IV(1) specifically deals with the burden of proof for the purpose of Art III(1). Under Article IV(1) the  burden is on the shipowner to prove due diligence and it assumes the Cargo Interests have already established unseaworthiness.

To read our summary of the Volcafe decision, click here

The passage plan was contained in two documents, the first a document provided by the Owners in which the plan was recorded, and the second being the vessel’s working chart.  The Second Officer prepared the passage plan prior to the commencement of the voyage.  The Master approved it.  It was defective in many respects.  Of most relevance here, it omitted to include warning of dangerous areas despite the Notice to Mariners, which advised “numerous depths less than the charted exist within, and in the approaches to Xiamen Gang”.  The passage plan gave no warning of the unreliability of charted depths outside the buoyed fairway.

The Court stated that the purpose of a passage plan is to ensure the vessel is navigated safely.  It referred to IMO guidelines that said a passage plan should include all areas of danger.  The Court was open to the different ways this warning could have been recorded, however, it was necessary for the warning to be contained in the working chart as this was the primary navigational document.  Neither the passage plan nor the working chart on which the plan was recorded contained any warning of the danger posed outside the marked fairway.  On this basis the passage plan was inadequate and defective.

The Owners maintained that passage planning was not an aspect of seaworthiness but part of preparation for navigation, albeit that which takes place before the voyage. While the Owners accepted the vessel would be unseaworthy if they had failed to provide the vessel with the means and material to enable a proper passage plan to be developed, they said they were not responsible for the crew’s negligent preparation of a passage plan. The Owners relied on a line of authorities pointing out that there was no previous case in which it had been held that a defective passage plan rendered a vessel unseaworthy.

In dealing with this issue, Teare J referred to the established test of unseaworthiness summarised in The Cape Bonny,² which asked:

Whether a prudent owner would have required the relevant defect, had he known of it, to be made good before sending his ship to sea.

Teare J thought it “inconceivable” a prudent owner would have allowed the vessel to depart from Xiamen with a passage plan which was defective in the manner found.

While the Court accepted that passage planning is part of the preparation for safe navigation, it did not accept this meant it was not also an aspect of seaworthiness.  In reaching this view, Teare J drew analogies to other forms of documentation required onboard, in particular the requirement to carry appropriate charts, which is both ‘preparation’ for safe navigation and a well-accepted aspect of seaworthiness.

Likewise, the Court said preparation of an adequate passage plan is now another form of documentation required to ensure the vessel is reasonably fit to safely carry the cargo to its destination.  In the same way that a vessel will be unseaworthy where a necessary correction to a chart has not been made at the commencement of a voyage, a vessel will not be seaworthy if a passage plan is defective and lacks required warning of danger areas.  The suggestion that a one-off defect could not amount to unseaworthiness was rejected on the same basis.

At trial, the Master admitted that had the chart been marked with appropriate “no go” areas, he would not have left the fairway and attempted to execute a passage that ultimately led to the grounding.  The Court, therefore, held the defective passage plan was causative of the Master’s negligent navigation.  Even if other matters, such as the fact the shoal was not charted, was a cause, the defective passage plan and resulting negligence was still a real and effective cause of the casualty.

Once the Cargo Interests had discharged their burden of establishing causative unseaworthiness, it then moved to the Owners to establish they had exercised due diligence.  It is long established that due diligence duty is a personal obligation and non-delegable, with Teare J citing the duty as described in The Eurasian Dream:³

The duty of “due diligence” is an “inescapable personal obligation”… the carrier will therefore be responsible for negligence of those whom it delegates due diligence.

In practice this means that Owners are responsible for the acts of those to whom it delegates the due diligence responsibility.  The Court referred to a number of cases where the carrier had been found not to have exercised due diligence because of failures by the Master or Chief Engineer before the commencement of the voyage.

The Owners argued that due diligence had been exercised by virtue of having an effective Safety Management System, to ensure that the Master and Second Officer could prepare an appropriate passage plan before the beginning of the voyage. The Owners maintained that if an effective SMS was in place the ‘well established’ industry view was they had complied with all responsibilities.

The Court disagreed. It said it was not sufficient for the Owner to say they have discharged their duty, when the servants or agents who they rely on to make the vessel seaworthy fail to exercise reasonable care or skill.  That is the nature of a non-delegable duty of due diligence.

In the present case, if the Master and Second Officer had exercised reasonable care, they would have prepared a passage plan which prudently marked on the chart the necessary warning.  They did not.  This failure to exercise reasonable skill and care when preparing the passage plan meant the Owner failed to exercise due diligence at the commencement of the voyage to ensure the vessel was seaworthy.  Consequently, the Owners failed in their claim for general average contribution.

This case serves as a useful reminder of the application of established principles regarding seaworthiness.  In particular, the traditional test for the burden of proof and the nature of vessel owners’ non-delegable duties relating to seaworthiness.  The decision also gives a clear indication that seaworthiness is not a static concept.  The Court expressly noted that just as the standard of seaworthiness may rise with improved knowledge of shipbuilding, that will also occur with improved knowledge and developments around the documents which must be prepared prior to the voyage to ensure the vessel is safely navigated.

1. Volcafe v CSAV [2018] UKSC 61
2. The Cape Bonny [2018] 1 Lloyd’s Rep. 356
3. Papera Traders v Hyundai Merchant Marine (The Eurasian Dream) [2002] 1 Lloyd’s Rep. 719