'CMA CGM LIBRA' General Average Defence

In a recent case before the English Admiralty Court, we successfully defended a shipowner's claims for contributions in General Average.

On the night of 17/18 May 2011 the large container vessel "CMA CGM LIBRA" departed from the Chinese port of Xiamen bound for Hong Kong and Europe laden with 8,950 TEU of containerised cargo with a value in excess of US$500 million. She also had on board almost 8,000 tons of bunkers.

Shortly after dropping the pilot, the vessel's Master sailed out of the recognised dredged channel marked by lit buoys, resulting in the vessel grounding at a speed of around 12 knots on a shoal that the vessel's Owners (CMA CGM) allege was uncharted.

The grounding site was within an area identified as being a Former Mined Area, where although there is no longer any direct threat to surface craft due to mines remaining from the Second World War and/or Korean War, mariners are warned that the former presence of those mines has inhibited hydrographic surveying giving rise to a risk of there being uncharted shoals.

The vessel was subsequently refloated by professional salvors operating under a Lloyd's Open Form salvage contract and following an underwater inspection was found to have suffered little or no damage. She proceeded on her voyage to Hong Kong and then Europe.

CMA CGM funded the salvage operation in the first instance and declared General Average to recover the amount of the salvors' remuneration (together with other elements of General Average expenditure said to have been incurred) that would otherwise be paid by Cargo Interests.

The total amount of General Average expenditure was in excess of US$13 million, of which US$9.5 million was paid to the salvors.

Approximately 92% of Cargo Interests agreed to pay General Average in full, alternatively with a very small discount of 1.5%. The remaining (approximately) 8% chose not to pay, alleging there was actionable fault (Rule D of the York-Antwerp Rules) on the part of CMA CGM, which would give them a complete defence to the General Average claim. We acted for those Cargo Interests.

CMA CGM refused to accept that they were responsible for the casualty and commenced legal proceedings in the Admiralty Court to recover approximately US$800,000 from the non-paying Cargo Interests.

At the time of the casualty, "CMA CGM LIBRA" was a recent new building having entered into service less than a year earlier. Although she was equipped with an electronic charting system (ECDIS) she...