"Beyond The Libra": Perspectives On Passage Planning In The Digital Age

• Published date: 10 August 2021
• Subject Matter: Transport, Marine/ Shipping
• Law Firm: Hill Dickinson
• Author: Mr Ian Teare, Tony Goldsmith and Peter Thornton

It would be fair to say that the decision of the High Court in 2019 (upheld by the Court of Appeal in 2020) in the "CMA CGM LIBRA" divided opinion across the shipping industry in relation to the central issues as to whether the vessel should be considered unseaworthy by virtue of a defect in the passage plan and whether owners had exercised due diligence in that regard. The industry now eagerly awaits the decision of the Supreme Court, which we may see in the latter part of 2021.

Whichever side of the "CMA CGM LIBRA" divide you sit on, there are broader and equally significant issues relating to passage planning which presently lie, like the proverbial iceberg, just below the surface. Within the last decade the Marine Accident Investigation Branch (MAIB) has investigated a number of groundings in circumstances where the use of ECDIS was at least a contributory factor. That led the MAIB to team up with its counterparts in Denmark and conduct a joint investigation into these trends. It is understood that their report is expected to be published in late spring / early summer 2021. In the meantime, in November 2020, with exactly the same trends in mind, the Oil Companies International Marine Forum (OCIMF) produced the first edition of its own guide entitled Recommendations on Usage of ECDIS and Preventing Incidents. We reflect on some of the points from that report in the context of our own recent experiences and consider what these trends may mean for the broader industry.

As touched upon in the opening above, the legal context here is the possibility of facing the same arguments as in the "CMA CGM LIBRA" and the string of similar cases which preceded that matter. Whether or not a particular vessel may be said to be unseaworthy is often an emotive subject, perhaps because it conjures up images of something which is literally derelict and on the verge of sinking. One needs to set aside such thoughts, however, because, in English law anyway, the authorities come at the issue in a logical and succinct way, as we discuss below.

It will be recalled that in the "CMA CGM LIBRA" it was held that a vessel could be deemed unseaworthy if the passage plan was defective in such a way as to fall short of the long established test (McFadden -v- Blue Star Line [1905] 1 KB 697) that a prudent owner, had they known about the defect in advance, would have required it to be made good before the vessel sailed. It is equally well established that a vessel can be unseaworthy by virtue of the competency / efficiency of her master and/or crew as much as by the condition of the hull and equipment (The Eurasian Dream [2002] 1 Lloyds Rep 719). Likewise, the authorities are...