Seaworthiness
In March 2020, poor passage planning and inadequate systems for navigation were the root findings in two very different contexts. The first was a judgment from the Court of Appeal, relating to the grounding of a ship in 2011. The second was a report from the Marine Accident Investigation Branch (‘MAIB’), relating to the loss of a fishing vessel in 2019.
The court case followed an appeal by the Owners of a large container ship, (“CMA CGM LIBRA”). The ship had run aground in 2011, whilst attempting to leave the port of Xiamen in China. The Owners said the cause of the casualty was an uncharted shoal on which the vessel grounded. They brought a claim against the cargo interests, for contribution in general average. A minority of the cargo interests refused to pay, as they contended that the vessel was unseaworthy, because she had an inadequate passage plan.
The court heard that a Notice to Mariners, issued the previous year, warned that ‘depths less than charted’ existed outside of the buoyed channel. This warning had not been recorded in the vessel’s passage plan or the working chart. The vessel ran aground, when the master took her outside of the buoyed fairway.
The court found that, due to the chart not being updated, the passage plan and the working chart were defective. This, in turn, meant that the vessel was unseaworthy at the commencement of the voyage. The Owners had failed to exercise due diligence, before and at the beginning of the voyage, to make the ship seaworthy. The findings of the court meant that the claim against the cargo interests failed.
Giving judgment on 04 March 2020, the Court of Appeal judges unanimously affirmed that errors in navigation or management which occur before the start of a voyage, can mean the ship is unseaworthy. Seaworthiness extends to having the appropriate documentation on board, including an up-to-date chart. Owners are responsible for all acts of the master and crew in preparing the vessel for the voyage, even if they are acts of navigation – this is a non-delegable duty.
Similar root problems occurred in August 2019, when a UK registered fishing vessel, MFV “COELLEIRA” grounded on a low-lying reef off the west coast of the Shetland Islands, Scotland. The vessel broke up and sank and its 15 crew had to be evacuated by the coastguard rescue helicopter.
The MAIB report (no.08 2020), released on 20 March 2020, concluded that the passage had not been properly planned and the vessel’s position was not being closely monitored. Although the vessel had chart plotters, one of them was not working. The other chart plotter used electronic charts, but no records were available to indicate either which charts were installed or whether those installed had been updated. This meant that the fishing vessel’s primary means of navigation was paper charts – but the intended passage had not been drawn on the charts nor input into the working chart plotter.
The two incidents should highlight to Owners the importance of having a system to keep charts updated and of having proper passage plans in place, prior to commencing a voyage.
Paying lip service to this obligation could have consequences, not only to the safety of the vessel and her crew, but also to the recovery of any loss. Section 39 of the Marine Insurance Act 1906 relates to the seaworthiness of a vessel. Insurers may not be liable if a vessel is not seaworthy at the commencement of a voyage.
Particularly in the difficult times we are currently living in, it is to be anticipated that insurers may need to spend more time investigating the root cause of any reported casualty. Seaworthiness could become an increasingly common factor in marine insurance disputes.
Bartons Solicitors have a specialist marine department, based in Plymouth, Devon, with solicitors and barristers who not only have expertise in marine law but also have practical experience of the maritime environment. We are regularly instructed to advise and defend claims on behalf of the ship-owner and/or their insurer, and we will also accept instructions to investigate incidents and casualties at sea.
