Negligence or Incompetence: Grounding of the CMA CGM Libra

Author:Glenn John Mathias
Position:Captain Glenn Mathias, Master Mariner. Graduate Diploma in Law, University of Sydney
Pages:55-59
 
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(2020) 34 A&NZ Mar LJ 55
NEGLIGENCE OR INCOMPETENCE: GROUNDING OF THE CMA CGM LIBRA
Glenn Mathias*
1 Facts
On 8 March 2019, Justice Nigel Teare of the Admiralty Court in England, handed down his decision in Alize 1955
& Anor v Allianz Elementar Versicherungs AG & Ors.1 It concerned the grounding of the laden container vessel
CMA CGM Libra outside the buoyed channel during its outward passage from the port of Xiamen, China, shortly
before 0235 hrs on 18 May 2011. Justice Teare found the vessel’s master to be negligent. Alth ough the majority
of cargo interests paid their General Average contributions, a small minority refused to contribute based upon,
inter alia, unseaworthiness, lack of due diligence and negligent navigation. If the master had been found to be
incompetent, the vessel would have been unseaworthy at the start of the voyage and the minority of cargo interests
would have been successful. The purpose of this casenote is to consider the master’s actions leading to the
grounding; the finding that the master was negligent and to offer a reasoned argument as to why the master should
have been found incompetent.
The buoyed channel which the vessel had navigated, incorporated a fairway marked on the char t by pecked
magenta lines on both sid es.2 The vessel had sufficient “UKC in the channel”.3 (Under Keel Clearance is the
depth of water below a vessel’s keel and it ensures that a vessel has sufficient water for safe nav igation). The
master had deliberately navigated the vessel out of the buoyed channel resulting in the vessel grounding outside
the channel. (The judge and the two experts used the terms buoyed chan nel and buoyed fairway interchangeably;
fortunately, nothing turns on these terms; this casenote uses the term buoyed channel). The passage plan had been
prepared by the second officer4 and it recorded the master’s approval on 17 May 2011.5 The courses to be m ade
good had been laid within the buoyed channel.6
2 The Judgment
The master gave oral evidence at the trial in January and February 2019.7 The passage plan required the vessel to
pass buoy 14-1 to starboar d; however, the master’s decision to pass buoy 14-1 to port was explained in the
judgement as:8
The master is reported as having explained his decision on the very day of the grounding in these terms:
Approaching the buoy no. 14-1, I decided to leave it in Port side (because upon arrival in Xiamen the day before,
north-west bound, the VTS warned me that there is shallow water ahead on the East o f the channel). When I tried
to re-enter the channel today, nearby Buoy 14-1, the vessel was steering with difficulty due to the deep draught and
with trim zero. I noticed that the vessel is not responding fast enough to come back to port and in order to avoid
the awash rocks ahead I tried to go ahead and remain west of the Jiujia rocks, to follow a route outside the channel
as the chart was showing depths of 40-35 metres ahead, with the intention to rejoin the channel after that.
The master’s decision to deliberately navigate outside the buoyed channel is d ifficult to accept because he had to
know that, neither the chart, nor the port authority responsible for the chart, guaranteed the depths of water outside
the buoyed channel.
While the judgment referred to notice NM 6274(P)/10 regarding minimum depths in the buoyed channel,9 the
content of the notice was not relevant to the grounding. Its inclusion is to illustrate the opinions of the two experts:
* Captain Glenn Mathias, Master Mariner. Graduate Diploma in Law, University of Sydney.
1 [2019] EWHC 481 (Admlty).
2 Ibid [14] (Teare J).
3 Ibid [35] (Teare J).
4 Ibid [25] (Teare J).
5 Ibid [28] (Teare J).
6 Ibid [30] (Teare J).
7 Ibid [4] (Teare J).
8 Ibid [45] (Teare J).
9 Ibid [51] (Teare J).

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