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UK Supreme Court CMA CGM Libra ruling on ‘seaworthy’ criteria sets nerves jangling

Photo - Bill Oxford, Unsplash Gavel-bill-oxford-unsplash.jpg
The November 10 judgement handed down by the UK’s Supreme Court on the validity of CMA CGM Libra’s passage plan, prepared for the containership’s departure from China’s Xiamen Port in May 2011, has upset long-held principles of navigation management and rocked the marine insurance world.

Bound for Hong Kong, the 11,356 teu vessel ran aground outside the port and so began a series of legal disputes that have lasted more than a decade.

Quick off the mark last week with a ‘Stop Press’ bulletin commenting on the Supreme Court ruling, London law firm HFW said it was “the most sought after judgement concerning the legal test for seaworthiness” and had a warning for shipowners. “Coupled with the now forensic scrutiny of the exercise of owners’ due diligence, it places them in an unenviable position … The burden on owners to live and breathe ISM values intrinsically between their shoreside and shipboard operations is arguably tipping the balance of what is practically achievable,” the lawyers declared.

The legal issues are complex, hence the lengthy series of court cases over the years, but the UK Supreme Court’s judgement that the ship’s ‘defective’ passage plan rendered the vessel ‘unseaworthy’ has seriously disturbed maritime lawyers. The ruling was based on the fact that the passage plan did not take account of an existing Notice to Mariners that water depths in the chosen channel could be less than those charted.

The judgement raises a series of issues with respect to navigation, but also opens a multitude of other ‘unseaworthy’ possibilities. There is, for example, the fraught question of pilot accountability. Master mariners often breathe a sigh of relief when pilots board. They are, after all, familiar with local waters, tides and currents. They are often only too ready to hand over navigational charge before going below to finish paperwork prior to arrival.

But pilots often arrive with their own passage plans which replace those prepared by navigating officers. This, despite the fact that the pilot may not know the ship’s exact dimensions, her current draught, or the propulsive efficiency of her engines. In the case of a subsequent grounding, the pilot’s passage plan was clearly flawed, but with whom would the liability lie?

The judgement also raises the broader question of general due diligence. What about the carriage of dangerous goods on board ship? Did the carrier exercise sufficient due diligence prior to taking said cargo on board? And what about latest digital system updates – were they installed in a timely manner and were seafarers on board provided with appropriate user updates?

For the world’s only form of essential bulk transport, there are many questions. What are the implications for due diligence practice amongst owners, operators and managers? Where do marine insurers stand? And what about the growing challenge of enticing disillusioned seafarers, many of them abused through long, miserable months of pandemic, to return to sea. Some experts were already predicting a full-scale manning crisis across the shipping industry ... even before the Supreme Court’s judgement.     

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