How Important Is Passage Planning?

On 8 March, the English Admiralty Court in a judgment (ALIZE 1954 &  CMA CGM SA v  ALLIANZ ELEMENTAR VERSICHERUNGS AG AND OTHERS [2019] EWHC 481 (Admlty)) highlighted the utmost importance of careful passage planning by navigational officers on board vessels.

In this case, a large container vessel "CMA CGM LIBRA" laden with cargo with a value in excess of US$500 million as well as about 8,000 tons of bunkers, grounded on a shoal whilst sailing out Xiamen port, China through a recognised dredged channel marked by lit buoys.  The vessel's Owners (CMA CGM) alleged the shoal was uncharted. 

It turned out that the grounding had been in an area where the quality of the hydrographic survey had been affected by the presence of WWII mines, giving rise to a risk of there being uncharted shoals.

CMA CGM funded the successful salvage operation and declared General Average to recover salvage and General Average expenses from cargo interests.

The total amount of General Average expenditure was in excess of US$13 million, of which US$9.5 million was paid to the salvors.

About 8% of cargo interests refused to pay cargo's contribution to General Average expenses of approximately US$800,000 on the grounds that the Master was at fault for the grounding.  Specifically, cargo interests alleged there were failures in the passage planning for the voyage.

The Court held that the passage plan was inadequate. In particular, the passage plan prepared by the second officer did not refer to the existence of a crucial Preliminary Notice to Mariners (NM6274/P10) that had been issued by the UKHO (United Kingdom Hydrographic Office) approximately 5 months before the grounding, alerting mariners to the presence of numerous depths less than charted in the approaches to Xiamen and confirming that the charted depths within the dredged channel were sufficient for the vessel.

In addition, contrary to industry standards, the passage plan did not refer to any "no-go areas" which had not been marked or identified on the chart. The Master confirmed in evidence that had the chart been marked up with the appropriate "no-go areas" he would not have left the channel and attempted to execute the manoeuvre that led to the grounding.

This led the court to find that the absence of an adequate passage plan was causative of the grounding, and that vessel owners did not exercise due diligence to make the vessel seaworthy as required by the Hague Visby Rules (Article III Rule 1).

In doing so, the court affirmed the conventional view that the burden of proof lies on the cargo interests to establish causative unseaworthiness and did not accept the cargo interest's proposition that the recent Supreme Court decision in The Volcafe switched the burden on to the Owners. This was done so on the basis that the decision in the Volcafe was concerned with Article III r.2.

Accordingly, cargo interests successfully defended the vessel Owner's claim and were not required to contribute in General Average.

This is an important decision which highlights rather than materially alters the utmost importance of careful and accurate passage planning by the navigational officers on board.

It is worth noting that the incident occurred during a transition period from paper charts to electronic charts. In 2011, there was no SOLAS requirement for the vessel to carry UKHO electronic charts and the vessel was compliant with SOLAS by carrying UKHO paper charts.

Since July 2016, vessels engaged in international voyages are required to use electronic charts which should ensure that the charts are up to date with the latest UKHO chart corrections and would provide a visual notice of navigational hazards.

It is quite arguable therefore, that if this incident occurred in 2019 then, provided the passage plan includes a reference to the notice, it may not be defective and as a result the vessel may well have been seaworthy at the commencement of the voyage.

Whether ultimately this would have prevented the grounding is a moot point but it is notable that the Master did state in evidence that he would not have made such an alteration if he had known of the warning.

Ben Johnson

Senior Claims Executive