Airworthiness test | Hellenic expedition news around the world
The Supreme Court recently granted an owner leave to appeal the decision of the Court of Appeal in the CMA CGM Libra case. The appeal will raise questions regarding the scope of a shipowner’s obligation under Article III, Rule 1 (a) of The Hague and The Hague-Visby Rules to exercise due diligence to make the vessel seaworthy before and at the start of the voyage.
The appeal represents the first time in nearly 60 years that the legal airworthiness test will be reviewed by the UK’s highest court. While the outcome will therefore be of notable general importance, it will be particularly important for those who are currently in the process of advocating cases where airworthiness issues arise.
To date, the lower court decisions have generated considerable interest within the shipping industry, including from the International Group of P&I Clubs which supported the owner’s appeal request, having seen an increase in the number of cargo interests alleging unseaworthiness on the basis of navigation errors.
In May 2011, the container ship CMA CGM Libra ran aground on an unexplored shoal as it left the port of Xiamen, China. About 8% of the cargo interest refused to pay the owner’s claim for general average contributions, alleging a punishable fault on the part of the owners.
There were flaws in the passage plan and the corresponding work card. Neither document had recorded a warning, contained in a Notice to Mariners, indicating that the depths shown on the chart outside a channel were unreliable and that the waters were shallower than those indicated. on the map. The captain had deviated from the crossing plan and had sailed outside the channel where the vessel had run aground.
At first instance, in March 2019, the Admiralty Court ruled that the passage plan and the defective map made the vessel unseaworthy. Since the master and second mate could have, with reasonable care and skill, prepared an appropriate passage plan, it was further concluded that the owner had not exercised due diligence reasonable. As the violation of Rule 1 (a) of Article III was the original basis, the general average claim failed under the York-Antwerp rules.
A year later, in March 2020, the Court of Appeal unanimously ruled in favor of freight interests and upheld the Admiralty Court’s decision. It was decided that a ship can be made unseaworthy by negligence in the navigation or management of the ship. As for due diligence, the Court of Appeal also held that once the owner had assumed responsibility for the cargo as carriers, all acts of the captain and crew in preparing for the voyage were accomplished. as the carrier, and the obligation to exercise due diligence in rendering the ship seaworthy was a mandatory obligation.
The owner is appealing the Court of Appeal’s decision on the grounds that the planning of the crossing is a navigation decision rather than a “vessel attribute”, and therefore the failure to record the warning was a typical navigation error which could not render the vessel seaworthy. Further, the owner appeals on the grounds that the duty to exercise due diligence was limited to the acts of third parties as carrier, and that the failure of the master and crew to navigate prudently was outside ‘l owner’s ‘orbit of responsibility’.
The appeal to the Supreme Court is notable as it will address issues relating to airworthiness and the non-delegable duty of due diligence under The Hague and The Hague-Visby Rules. It will also impact the ability of freight interests to defend against general average claims based on poor passage planning and navigation errors. Further developments in this area are expected. It is expected that the date for the Supreme Court appeal hearing will not be until the end of 2021.
Source: by Andrew Chamberlain of HFW, Claire Womersley and Ruth Allan De Maldonado