PASSAGE PLAN : Matter of Employment or Matter of Navigation
A Brief on Passage Planning
A Passage Plan or Voyage Plan is developed and used by a Ship's Bridge team to find the safest and the most favourable & Economical route. This comprehensive plan which covers the voyage from berth to berth and is adapted into the bridge management practices should be detailed and easy to understand.
SOLAS Chapter V Regulation 34, Annex 24 & 25 - Guidelines for Voyage Planning (IMO Resolution 893(21)) and STCW Code Section A VIII/2 Part 3-1-provide the guidance for Passage Planning.
The 4 Stages for Passage Planning :
1) Appraisal : Appraising all relevant Information.
2) Planning : Plan the intended Voyage
3) Executing : Execute the plan taking account of Prevailing conditions
4) Monitoring : Monitor the Vessel's progress against the Plan Continuously.
Key Point to notes
The line drawn between employment and navigation is a fine one. Orders to send a ship to a particular port will be orders as to employment. Likewise, orders as to port rotation.
But, What about the route the ship takes ?
IS ROUTING ALSO A MATTER OF EMPLOYMENT OR A MATTER OF NAVIGATION ?
THE DILEMMA BROKEN - CASE STUDY HILL HARMONY!!!
The above question comes under scrutiny in the case of the HILL HARMONY.
The Vessel HILL HARMONY was time chartered down a chain of NYPE Charters which contained the usual employment clauses but no special routing clauses. The time charterers, on the advice of Ocean Routes, ordered the ship to proceed from Vancouver to Japan by the Northerly, great circle route.
The Master had experienced heavy weather on a similar voyage some months before. He Disregarded the Charterers orders and insisted on taking the longer, Southerly rhumb line route.
The Charterers refused to pay for the extra time taken and the bunkers consumed. The Disponent Owners Claimed these sums in London Arbitration.
THE DISPUTE
The Dispute focused on the employment provisions of the Charter. The Charterers argued that the Master's Decision was a breach of their orders as to the employment of the ship; or alternatively a breach of the obligation to proceed with utmost despatch.
The Tribunal agreed, The Arbitrators held that the routing instructions were "Employment" orders which the Master was bound to follow unless he could justify his refusal to do so. They further found that his refusal, based on his experience on the particular voyage some months before was unjustified.
The Owners appealed. Both the High Court and Court of Appeal found in the Owners favour.
" The High Court ruled that routing was a decision as to Navigation. Once that was established any route taken by the Master, Whether justified or not would suffice. The Court of Appeal largely agreed and held that in absence of any special provisions, the Master could take any reasonable route."
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The case was finally referred to the House of Lords. The Highest English appeal court restored the decision of the arbitration tribunal and found in favour of the charterers.
The House of Lords ruled that "An order as to routing is an employment order. Time charterers are therefore entitled to give routing orders to the Master which, unless they compromise the safety of the ship, must be followed. In addition, it was held that the Master must follow the shortest and quickest route unless there are navigational reasons for not doing so."
Navigation is still the Master's Responsibility. He is at liberty to change course for safety reasons. He can refuse to enter a port he considers to be unsafe and can, similarly leave port if it becomes unsafe.
The HILL HARMONY decision does not alter these principles. Neither does it give the time charterers Carte Blanche to Order the the ship to take any route, however unsafe.
The Time Charterers have the right to use the ship in a commercially advantageous way and can determine the route the ship takes as a matter of employment. However they cannot place the ship, her Cargo and crew in danger.
ACT REASONABLY
The Master must act reasonably - He has (And this is not new) the right to exercise his discretion and refuse orders on safety or other Navigational grounds but he must be prepared to justify his decision.
In case of HILL HARMONY, Over a period of 3 Months - 360 vessels had followed the same Northerly Route. This was evidence that the Northerly route was usual route to follow. There was no Evidence that any other route was the usual route.
The Master has always been contractually obliged to proceed with the "Utmost despatch" to take a longer route without justification is a breach of that Contractual obligation,
The Master Remains responsible for the Safety of the Vessel, Her Crew and Her Cargo. If an order is given compliance with which exposes the vessel to a risk which the Owners have not agreed to bear, the Master is entitled to refuse to obey it.
In the HILL HARMONY case, This exception did not provide a defence.
Firstly, the Breach of Contract was the Breach of both aspects of the Owners Obligations under Clause 8 of the Time Charter- to prosecute the voyage with the 'utmost despatch' and to comply with the orders and directions of the charterers as regards the employment of the vessel.
Secondly, Any error which the Master made in that connection was not an error in the Navigation or Management of the Vessel; It did not concern any matter of Seamanship.
Thirdly, The owners failed to discharge the burden of proof which lay upon them to bring themselves within exception.
THE REACTION
The Industry reactions to the Lord's Decision have been diverse with some saying that......
" The Decision simply clarifies the law in accordance with commercial reality"
Whilst Other have commented that.....
" Owners should insist upon additional routing clause in the Charter party allowing Charterers to provide advice or recommendations to the Master on the choice of Route, but excluding matters of routeing from the scope of the employment clause "
SO, WHAT DOES IT ME ?
The circumstances in which a Master disagrees with the routing of an entire voyage will probably be rare. When a Master does Disagree, he must have a sound reason linked to safety which justifies a different route. Owners who cannot justify their Master's decision will bear the risk of that decision. In the words of the leading judgements.
" The Choice of Ocean route was, in the absence of some overriding factor, a matter of the employment of the Vessel, her scheduling, her trading, so as to exploit her earning capacity.."
So in absence of Navigational or other reasons for not taking the shortest and quickest route, the Master was contractually obliged to take it.
But subject to safety considerations and the specific terms of the charter, Charterers may. not only order the vessel to sail from A to B, but may also direct the route to be followed between the two.