The wheels of justice, at least in the commercial courts, grind exceedingly slowly - most will have forgotten the casualty to the big containership CMA CGM LIBRA
The CMA CGM LIBRA grounded when leaving the Chinese port of Xiamen in May 2011, after its Master took a short cut and unwisely departed from the buoyed fairway.
The owners declared General Average, to which the cargo interests declined to contribute and the case has been rumbling on ever since, finally reaching the UK Supreme Court recently. This confirmed the decision of both the Admiralty Court and Court of Appeal decisions that the ship was effectively unseaworthy on account of the ship’s deficient passage plan and charts which failed to note the warnings about shallow depths. Thus, said the three courts, these deficiencies made the vessel unseaworthy and the owner, being at fault, was not entitled to invoke GA under York-Antwerp rules.
The owner, all along had sought to suggest that the bad passage plan should not make the ship unseaworthy and the casualty was caused by errors by the crew in the navigation or management of the ship. They had, they maintained, provided the necessary equipment and a competent crew – what more could they have done? It is an interesting case, the ultimate result causing some disquiet among ship owners and managers as it seems to call into question what exactly an owner can delegate to the crew of a ship as represented by the Master.
The conclusion from the Admiralty Court that a prudent owner would not have allowed the ship to leave with a defective passage plan seems to make it clear that the owner must somehow monitor detailed matters of navigational management and decisions made on board the ship. So, is this yet another case where the law seems to rule that theory clearly diverts from practice, and emphasises once again that the Master’s professional expertise must be minutely overseen, to stay on the right side of the law?
It also emphasises once again the importance which the courts have put upon the ship’s passage plan, once lines drawn on the chart that really only meant anything outside pilotage waters, but now incorporating the dynamic situations of a berth-to-berth passage. It also begets important questions about the exact definition of what makes a passage plan “defective”. And how does this really reflect on the diligence of the owner, when the master, a human being (although this might be hard to believe) makes one or even several navigational errors?
Simple seafarers, like this writer, will confess to having a small percentage of the brain power available to these mighty lawyers, but surely there must be a admission that practicality should have a role in these matters. Are they really suggesting that if the owner is to be protected from the charge that the ship is unseaworthy – which is a very big deal – the owner or manager must scrutinise the passage plan and approve it, before the ship leaves the berth?
You can imagine the fuss - particularly in todays pressurised climate in ports-with the Master refusing to let go the lines as the necessary approval has yet to be given by some operative in the owner’s office, half a hemisphere away, who happens to be asleep.What can the wretched owner, in the light of such a case, reasonably delegate to the master or other senior officers aboard the ship, without leaving himself open to charges of a lack of due diligence? There are plenty of other operational plans or technical decisions which are taken by those aboard ship as the voyage progresses. Are we saying that the oversight of the owner must be total, if his position is to be legally protected from prejudice?
In these days of amazing communications, it might just about be feasible to monitor technical data from a ship in real time. But if this case shows us anything, it is that the decisions of the courts often strain the meanings of words such as “reasonable” and “practical”, as currently understood by seafarers.
Source : Michael Grey - Seatrade Maritime news