MarIus

4.4.1 The Passage Plan:

Teare J noted that it was undisputable that the relevant passage plan was “defective in at least some respects”.^{(1)Libra [2019], 60} However, the objective of reviewing the passage plan was to determine whether the passage plan was causative of the grounding incidence. Hence, the crucial point of contention was whether the crew`s failure to annotate to NM 6274 in the passage planning documents rendered the passage plan defective.

The court was aided by the expert opinion of two master mariners engaged by the parties, Captain Whyte for the Owners and Captain Hart for the Cargo Interests.^{(2) Ibid, 6} Captain Whyte made several points indicating that the passage plan was adequate, reporting that “the vessel had a passage plan of "sufficient standard" and that "any deficiency in making all of the pencil amendments regarding Preliminary NM 6274) P)/10 to Admiralty Chart 3449 did not contribute to the grounding”^{(3) Ibid, 63} further emphasizing that “there was sufficient water where the vessel wished to navigate”.^{(4) Ibid, 64} He went on to maintain that “it was sufficient that NM 6274(P)/10 was attached to the chart or adjacent to the chart".^{(5)Libra [2019], 72} Captain Hart, on the other hand, suggested that “that there ought to have been noted on the chart that any area outside the charted fairway was a "no go" area”^{(6) Ibid, 62} and "the absence of the identification of "no go areas" on the working chart meant that there was no pre-assessed visualisation of "safe" and "unsafe" waters on the working chart."^{(7) Ibid, 65}

The court assessed the expert opinions and further evaluated the passage plan in light of the IMO Guidelines for Passage Planning, as adopted in the IMO Resolution of 1999. Teare J noted that, “The IMO Guidelines state that the appraisal of the intended passage should include "all areas of danger" and that the passage plan should include "all areas of danger". The presence of numerous depths less than the charted depths in the approaches to Xiamen must be, it seems to me, a source of danger.”^{(8) Ibid, 64} In reviewing various submissions and the evidence presented, Teare J ultimately found that, “In the present case neither the passage plan nor the chart contained the necessary warning. It was therefore defective or inadequate and imprudently so. A source of danger when leaving Xiamen was not clearly marked as it ought to have been.”^{(9) Ibid, 73} Accordingly, the Admiralty Court conclusively determined that the passage plan was defective. Thereupon, the court addressed the next issue, namely whether the defective passage plan rendered the vessel unseaworthy.

4.4.2 Seaworthiness:

In assessing the seaworthiness issue, Teare J applied the “prudent owner test” as first set out in McFadden v Blue Star Line, where the question to be put is “whether a prudent owner would have required the relevant defect, had he known of it, to be made good before sending his ship to sea”.^{(10) Ibid, 75 with reference to McFadden v Blue Star Line [1905] 1 KB 697, 706,} The question was, hence, whether a prudent owner would have required the defect passage plan to be made good before sending his ship to sea.

Counsel on behalf of owners made several arguments opposing the unseaworthiness assertion. In short, they contended that a defective passage plan does not make a vessel unseaworthy, distinguishing between errors in navigation and seaworthiness, arguing that passage planning is "part of navigation, albeit the planning takes place prior to the actual passage. Passage planning is not itself an aspect of seaworthiness."^{(11)Libra [2019], 76} Furthermore, they argued “that the production of a defective passage plan is an error of navigation, and it matters not that it occurred prior to the commencement of the voyage.”^{(12) Ibid, 80} Given the particular defect in question, Counsel also questioned the applicability of the “prudent owner test”, submitting that a, “"one-off defective passage plan" did not amount to unseaworthiness and that the traditional test of seaworthiness in McFadden v Blue Star Line was never intended to apply to such a matter”.^{(13) Ibid, 86}

The Admiralty Court ultimately rejected Owner’s arguments, confirming that that a defective passage plan could in fact render the vessel unseaworthy. In doing so, Teare J rejected the error of navigation defence stating that, “I am unable to accept this submission in the context of the Hague Rules. Article III r.1 places a seaworthiness obligation upon the carrier "before and at the beginning of the voyage". In this context the timing of the master's negligence therefore matters.”^{(14) Ibid, 80} Essentially, Teare J confirmed that “initial unseaworthiness” overrides the error of navigation defence. Justice Teare concluded as follows, “I am confident that by 2011 the prudent owner would have insisted on such a passage plan (adequate) before the voyage was commenced. The vessel was, in my judgment, unseaworthy at the beginning of the voyage.”^{(15) Ibid, 87}

4.4.3 Causation

Teare J went on to consider whether unseaworthiness was causative of the grounding, finding that, “it is more likely than not that the defect in the passage plan was causative of the master’s decision to leave buoy 14-1 to port.”^{(16) Ibid, 89} He decisively concluded that, “the defective passage plan and the master’s resulting negligence in deciding to navigate outside the buoyed fairway” was “a real and effective cause of the grounding.”^{(17) Ibid, 92} Effectively, Justice Teare established a causative relationship between the unseaworthy state of the vessel, due to the defective passage plan, and the grounding incidence.

4.4.4 Due Diligence

Counsel for owners argued that due diligence had been exercised to make the vessel seaworthy, referring to the vessels` adequate safety management system, explaining that it was “the well-established industry view that an owner/carrier has complied with its responsibilities if it establishes, implements and audits the SMS"^{(18)Libra [2019], 110} Furthermore, they argued that, “obligation to exercise due diligence to make the ship seaworthy only concerns things done (by Owners or their servants or agents) in the capacity of carrier”^{(19) Ibid, 102}and that “ The actions of the master and second officer in preparing the passage plan were matters of navigation rather than matters for Owners as carrier”^{(20) Ibid}

Justice Teare, however, rejected the owners’ arguments, referring to the non-delegable nature of the due diligence obligation, concluding that “in order to comply with Article III r.1 it is not sufficient that the owner has itself exercised due diligence to make the ship seaworthy. It must be shown that those servants or agents relied upon by the owner to make the ship seaworthy before and at the beginning of the voyage have exercised due diligence. That is because the duty is non-delegable.”^{(21) Ibid, 113} Accordingly, by reason of the crew`s failure to exercise sufficient due diligence when producing the passage plan, owners effectively failed to exercise due diligence, constituting a breach of the seaworthiness requirement under the Hague Rules, pursuant to Article III r. 1.

4.4.5 Admiralty Court: Conclusion

In reviewing abovementioned issues, Teare J ultimately delivered his judgment on the 8^th of March 2019, deciding in favour of the defendants, concluding that, “The Cargo Interests have established causative unseaworthiness, and the Owners have failed to establish the exercise of due diligence to make the vessel seaworthy. That is the consequence of applying to the facts of this case established propositions of law, namely, the traditional test of seaworthiness, the principle that documentation is an aspect of seaworthiness and the non-delegable nature of the duty to exercise due diligence”^{(22)Libra [2019], 114} Effectively, the Admiralty Court found that Owners had breached the seaworthiness requirement under the Hague Rules, constituting an “actionable fault”, allowing Cargo Interests to decline paying their contribution in GA.