It was alleged by CMA CGM that the shoal was uncharted. The result was that the grounding took place in an area where the quality of the hydrographic survey had been affected by the presence of WWII mines, giving rise to a risk of there being uncharted shoals.
CMA CGM funded the successful salvage operation and declared General Average to recover salvage and General Average expenses from cargo interests, which reached the US $13 million, out of which the US $9.5 million was paid to the salvors.
The court found that:
- The absence of an adequate passage plan was causative of the grounding;
- The vessel owners did not exercise due diligence to make the vessel seaworthy as required by the Hague Visby Rules (Article III Rule 1);
- The passage plan prepared by the second officer did not refer to the existence of a crucial Preliminary Notice to Mariners alerting mariners to the presence of numerous depths less than charted in the approaches to Xiamen;
- The passage plan did not refer to any “no-go areas” which had not been marked or identified on the chart.
According to the Club,the court also found out that the absence of an adequate passage plan was another cause for the grounding, whereas the vessel owners didn't exercise due diligence to make the vessel seaworthy as required by the Hague Visby Rules (Article III Rule 1).
The court decided the conventional view that the burden of proof lies on the cargo interests to establish causative unseaworthiness and did not accept the cargo interest’s proposition that the recent Supreme Court decision in The Volcafe switched the burden on to the Owners. This was done so on the basis that the decision in the Volcafe was concerned with Article III r.2.
This is a decision of great importance as it marks the utmost importance of careful and accurate passage planning by the navigational officers on board.
It is worth noting that the incident occurred during a transition period from paper charts to electronic charts. In 2011, there was no SOLAS requirement for the vessel to carry UKHO electronic charts and the vessel was compliant with SOLAS by carrying UKHO paper charts.
Since July 2016, vessels engaged in international voyages are required to use electronic charts which should ensure that the charts are up to date with the latest UKHO chart corrections and would provide a visual notice of navigational hazards.
It is quite arguable therefore, that if this incident occurred in 2019 then, provided the passage plan includes a reference to the notice, it may not be defective and as a result the vessel may well have been seaworthy at the commencement of the voyage.
Whether ultimately this would have prevented the grounding is a moot point but it is notable that the Master did state in evidence that he would not have made such an alteration if he had known of the warning.