Arun Kasi & Co | Malaysia | Maritime & Shipping Lawyers

The CMA CGM Libra loaded cargo at Xiamen. The working chart was defective in that they did not contain a warning of the danger that the depths shown in the chart outside the fairway was not reliable and can be shallower than that shown in the chart. A Notice to Mariners were issued to this effect. The second officer prepared a passage plan that, following the defective chart, did not note the danger. The vessel, seemingly for some reason, was navigated outside the fairway. This resulted in the vessel ending up in a shallow waters and grounding. The owners incurred salvage expenditure and had the vessel re-floated, and claimed a general average contribution from the cargo interests for this pursuant to York-Antwerp Rules in the sum of about USD13 million. While more than 90% of the cargo interest paid the contribution, a small portion of the cargo interests refused to pay. Hence, the owners’ action against the small portion of the cargo interests. The Rule D of the York-Antwerp Rules, while providing that a party will be entitled to the general average contribution for the relevant sacrifices/expenditures made by it even if the sacrifices/expenditures were necessitated by the fault of the party, does not prejudice any remedy available to the party against whom a general average contribution claim has been made against the party fault for that fault. In effect, this excludes general average contribution claim by a party at actionable fault. The arguments of the owners that updating charts and preparing passage plan, though done prior to commencement of the voyage, are matters of navigation, performed by the members of the crew quo navigator rather than the carrier, one-off matters as opposed to systematic failure and not attributes of the vessel were rejected after considering numerous authorities presented on both sides. The court reiterated that the navigation exception in Art IV(2) of the Hague-Visby Rules is not available where the breach is of the Art III(1) obligation to exercise due diligence to ensure seaworthiness up the commencement of the voyage. Flaux LJ, with whom Males LJ and Haddon-Cave LJ agreed, held that the vessel was unseaworthy as a result of carrying defective chart and passage plan. It followed that the owners were not entitled to the general average contribution from the cargo interests, upholding the judgment of Teare J. An extract from the chart used is available at https://www.bailii.org/ew/cases/EWHC/Admlty/2019/481.html.