If a ship is suitably equipped to safely navigate and is manned by competent crew, then can the crew’s failure to properly plan a passage leading to loss/damage amount to ‘lack of due diligence’ by the owner? In other words, can a negligent navigational act cause unseaworthiness? In The CMA CGM Libra [2021], UK’s Supreme Court considered the question. Much of the marine industry was waiting for the decision.
Vessel exited the buoyed fairway and ran hard aground on uncharted shallows off Xiamen. Owners made a general average claim of $13m against the cargo owners. A few did not oblige saying loss was caused by unseaworthiness. B/Ls incorporated the Hague Rules whereby, in a nutshell, owner would be liable if loss was caused by unseaworthiness stemming from lack of due diligence by them.
The court accepted that failure to mark the uncharted depths warnings mentioned in T&P notices - in the passage plan and on the working chart can be considered as an ‘error in navigation’. However, the consequent defective passage planning and an inappropriately marked working chart amounted to unseaworthiness. The defect in the passage plan had a decisive influence on the master’s critical decision to leave the fairway. This was not a case about execution and monitoring of the voyage where an ‘error in navigation’ defence would stand, but about the planning stage before the voyage started. An owner remains responsible for actions/inactions of the crew onboard.
What does this decision mean in practice for navigating officers? It is not enough to just staple a bunch of T&P notices to the chart or simply put the notice no. as a footnote. Information relevant to the passage should be distilled from the notices and be presented in a way that would alert the OOW of the risk(s).
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