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London Maritime Arbitrators Association Law Review

The ‘CMA CGM Libra’

Passage Planning & Unseaworthiness - Where the line is drawn?

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In the CMA CGM Libra the Admiralty Court ruled that a defective or inadequately prepared Passage Plan, if causative of a loss during the relevant voyage, would not only render the vessel unseaworthy but, at the same time and without more, will also constitute a failure by the owner/carrier to exercise ‘due diligence’ before and at the commencement of the voyage to make the vessel seaworthy under the Hague/ Hague-Visby Rules. This would be owner’s/carrier’s actionable fault barring recovery in General Average (“GA”) from cargo. By the same token, a cargo owner claiming under a Bill of Lading would be able to recover its loss. The CMA CGM Libra shows that where a line is (literally) drawn on the navigational chart may turn out to be crucial as a shift of a cable’s difference on the chart may shift a liability between cargo and owner/carrier of many millions of dollars.

Introduction

On 8 March 2019, the Admiralty Court handed down its decision1 on a claim by the owners of the CMA CGM Libra (“Owners”) for recovery in GA of GA contributions due by certain cargo interests who denied any GA liability on grounds of causative unseaworthiness and lack of ‘due diligence’ by the Owners to make the vessel seaworthy before the commencement of the voyage.

Facts

Just after midnight of 17/18 May 2011, the CMA CGM Libra (“the Vessel”), a 131,235 mt DWT 2009-built container laden with 5,983 containers, departed from Xiamen, China destined for Hong Kong. After she dropped pilot, she sailed outbound the dredged channel marked by buoys and shown on the relevant BA Chart by a magenta pecked line. Buoy 14-1, which was the next in order after Buoy 15 outbound and before Buoy 14, was marking a shoal in the middle of, and extending along more than a half of the width of the lane marked by the magenta line on the chart.

After passing Buoy 15, the Master decided not to follow the route marked on the chart as set out in his approved Passage Plan and which would bring the Vessel to the starboard of Buoy 14-1 but to alter course to starboard, leaving Buoy 14-1 a cable or so to port and sailing through an area showing adequate water depths with the intention to return to his original route immediately afterwards. That was a split-second decision by the Master and it was accepted that, despite the falling tide and Master’s safety concerns, there was enough water for the Vessel to sail within the dredged channel as provided for by the Passage Plan. Following the starboard manoeuvre, the Master, during his attempt to alter to port, realised that the Vessel would not be able to return back to his original route in time between Buoys 14-1 and 14 and changed his manoeuvre. In the event, the Vessel run aground a few cables away from her intended route within an area identified as a “Former Mined Area”. The charted depth though at the grounding location was 35 metres and, as it transpired by a block chart correction issued by British Admiralty a couple of months later, there was an extensive shoal which was not shown on the Chart at the material time. The equivalent Chinese Chart, issued a few months before the grounding, was showing the shoal but there had been an apparent delay by a few months in the promulgation of this update.

Also, although the Vessel was equipped with a fully integrated Electronic Chart (“ECS”) in preparation to switch to paperless mode and its officers were using it, it was not an approved ECDIS as this was not mandatory at the time and the Owners’ SMS was to the effect that the SOLAS “carriage of charts” requirement was complied with by paper charts. The Vessel was to be navigated by reference to paper charts only, and ECS was to be used only to improve situational awareness. What turned out to be key feature of the case (although held not to be causative) was the fact the whilst the official British Admiralty paper chart did not show the relevant shoal (as the Vessel’s ECS provider’s updates did not) the relevant ENC cell for use in ECDIS did.

Salvage under LOF terms followed which was financed by the CMA CGM (“Owners”) who then sought to recover in GA. About 92% of the cargo interests settled their contribution but about 8% refused alleging Owners’ fault, namely causative unseaworthiness before the commencement of the voyage and lack of due diligence by Owners in this respect.

Please download the LMAA Law Review PDF below to read the full article.

  1. Alize 1954 & another -V- Allianz Elementar Versicherung AG & Others (The CMA CGM LIBRA) [2019] EWHC 481 (Admlty)