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One-off pilot error does not breach safe port warranty

Bulk carrier that grounded at Chinese port was unseaworthy owing to lack of proper charts, tribunal holds

‘A single mistake, or even more than one mistake, does not necessarily render an individual incompetent,’ say lawyers

ONE-OFF pilot error does not breach the safe port warranty contained in most time charterparties, a tribunal in London has ruled.

This decision, produced by a London Maritime Arbitrators Association panel including two experienced master mariners, is being hailed as offering useful guidance in unsafe port cases involving pilot error.

While the hearing agreed that the bulk carrier that grounded at the entrance of a Chinese port under compulsory pilotage was unseaworthy, because of a lack of proper charts, it found on the facts that this was not causative of the grounding.

According to an analysis produced jointly by Quadrant Chamber’s Thomas Macey-Dare KC and two Ince lawyers who acted for the charterers, the matter centres on a panamax bulk carrier that loaded coal at Muara Satui and discharge at Chaozhou.

Because of the vessel’s laden draft, the vessel had to remain within the dredged deepwater channel at the Chinese port. Channel buoys mark the fairway, which is wider than the dredged channel.

The vessel was also required under Safety of Life at Sea Convention to navigate with paper charts, and during loading at Muara Satui, the master procured a copy of the latest UKHO chart covering Chaozhou. But this chart was too small scale for navigation, lacked important details, and was evidently out of date.

Instead of obtaining a large-scale, up to date, Chinese chart, he downloaded a mid-scale electronic chart, which did not show the limits of the dredged deepwater channel or make clear that the buoys marked the fairway rather than the deepwater channel.

The vessel entered the port with a compulsory pilot on board, and three tugs made fast to manoeuvre her onto the berth. Weather and visibility were good. It proceeded along the approach channel without difficulty, but failed to make the starboard turn successfully, and grounded on a charted rocky shoal patch.

It was common ground that the grounding was caused by the pilot’s negligent navigation of the vessel.

The owners claimed the port was unsafe on the basis that the pilot was incompetent. They pointed to his failure to deploy the stern tug in “indirect” mode to bring the stern of the vessel around to port and her head around to starboard.

They alleged that this demonstrated disabling lack of skill or knowledge amounting to incompetence, according to the precedent set by the Eurasian Dream (IMO: 8318910) case in 2002.

But the tribunal rejected the contention for two reasons. First, indirect towage is a specialist technique which requires regular practice by the pilot and the tugs involved.

It was not a technique usually needed at Chaozhou, and thus no reason why the pilot and tugs should be expected to know it. Therefore this did not amount to a disabling lack of skill or knowledge on their part, as they had other techniques at their disposal.

Nor was there any other evidence that the highly experienced pilot was incompetent. Indeed, he demonstrated the ability to control the vessel and the tugs in other respects during this incident.

The tribunal concluded that this was a one-off mistake by an otherwise competent pilot, and not a defect in the set-up of the port. Therefore, the owners’ claim for breach of the safe port warranty failed, as did their supplementary claim under the implied indemnity.

The charterers contended that the vessel was unseaworthy before as well as at the beginning of the voyage to Chaozhou, because it lacked the proper charts and therefore could not prepare an effective berth-to-berth passage plan.

The owners were in breach of Article III.1 of the Hague Rules, incorporated into the charterparty by a paramount clause, and this breach was an effective cause of the grounding.

The tribunal agreed, also found that, as a consequence, the master and deck team failed to alert the pilot to his errors and failed to attempt any action to avoid the grounding. Nevertheless, it held that the unseaworthiness was not an effective cause of the grounding.

“The present decision, however, demonstrates the importance of the second part of Leggatt LJ’s dictum, that anyone can make a mistake, and a single mistake or even more than one mistake does not necessarily render an individual incompetent,” Mr Macey-Dare and his colleagues said.

London Arbitration 2/23, (2023) 1129 LMLN 2 was first published in Lloyd’s Maritime Law Newsletter

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