CV Scheepvaartonderneming Flintermar v Sea Malta Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Sir Martin Nourse,Lord Justice Waller |
| Judgment Date | 25 January 2005 |
| Neutral Citation | [2005] EWCA Civ 17 |
| Date | 25 January 2005 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2004/0933 |
[2005] EWCA Civ 17
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London County Court, Mercantile Court
His Honour Judge Hallgarten QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Rix and
Sir Martin Nourse
Case No: B2/2004/0933
Ms Poonam Melwani (instructed by Messrs Rayfield Mills) for the Appellant
Mr John Kimbell (instructed by Messrs Clyde & Co) for the Respondant
The issue in this appeal raises the question whether an injury to a ship's chief officer was the responsibility of its owners or its charterers. The injury occurred while the chief officer was engaged in the closing of the ship's hatch, but it was caused by the negligence of the charterers' stevedores in the overall course of loading and discharging operations. Afficianados of the shifting balance of responsibilities for such hatch and cargo operations will know that the incident was liable to lead to a dispute.
The parties and the vessel
The shipowners are C V Scheepvaartonderneming Flintermar, of Groningen in Holland. They are claimants in these proceedings and appellants in this appeal. I shall call them the "owners". They chartered their vessel Flintermar under a time charter on the Baltime 1939 form dated 13 January 1995 (the "charter") to Med Feeder Co Ltd of Malta. By an Addendum No 1 to the charter of the same date as the charter it was agreed that Sea Malta Company Limited would guarantee the obligations of Med Feeder Co Ltd. In any event, Sea Malta Company Limited are named as the charterers in box 4 of the charter. They are defendants in these proceedings and respondents to this appeal. I shall call them the "charterers".
The Flintermar was at the time of its charter a very modern vessel of 4200 dwt. It was built in 1994 and designed for flexible, multi-purpose operations. It had a single double-skinned hold capable of being sub-divided by removable bulkheads into two or three single-deck holds. It had the capacity of carrying 112 containers under deck and 133 containers on deck: the latter could be stacked up to three tiers in height in lines of five athwartship.
The hatch cover to the hold comprised eleven interlocking pontoons with a uniform length athwartship of 10.85 metres. Ten of the pontoons were 5.45 metres wide, while the central or "baby" pontoon was narrower, measuring 2.4 metres at its base and 2.2 metres at deck level. The purpose of the baby pontoon was to strengthen the vessel by remaining in place during loading and discharging operations, but in certain circumstances, which prevailed in the present case, it needed to be removed. The interlocking arrangements of the pontoons meant that they had to be opened in a fixed order. In particular, if the central section of the hold needed to be accessed, pontoons had to be removed as follows (numbering from forwards): 4, 7, 5, 6 and then the baby pontoon. The vessel was equipped with a hatch gantry crane which moved on rails which ran either side of the hold. The crane was ordinarily situated aft of the hold. Its sole purpose was the opening and closing of the hatch. When pontoons were removed in the course of opening the hatch, they were stowed on a level area of the deck forward of the hold. The gantry crane had no role in the movement of containers or other cargo, for it could only move fore and aft on its rails.
The trade and the accident
The vessel was delivered into the charter on 29 January 1995, initially for a period of six months, but the option to renew for a further six months was exercised. The incident in which the vessel's chief officer was injured occurred on 16 September 1995, at Gioia Tauro in Calabria, Italy. The chief officer concerned was Mr T'Lam. The vessel was then under the command of Master de Jong.
The trade limits indicated in box 17 of the charter were within the Mediterranean intention Italy-Malta. A pattern was established for a series of round voyages featuring in particular Malta and Salerno, but also other Italian ports. The vessel was used as a "feeder" service whereby containers were fed, in large part for clients operating substantial liner services, on initial or final legs of longer voyages. The nature of the service meant that at any port containers might be both discharged and loaded, and might be taken from or placed either under or on deck. Where the full sequence of operations was required, it took place as follows:
1. Containers on deck would be discharged first.
2. Pontoons would be opened to the extent that it was necessary to access containers below deck.
3. The containers below deck would be discharged.
4. Containers would be loaded into the hold.
5. The pontoons would be closed.
6. Any containers to be placed on deck would be loaded last.
Sometimes containers stowed on deck not due to be discharged at a particular port would have to be temporarily discharged to give access to the pontoons and the hold: they would then be reloaded as part of operation 6 above.
Limitations on the use of the gantry crane rendered alternative means of operation attractive. Thus the crane was only capable of passing over a single tier of containers three containers wide, ie with no container in either wing. If there was any other configuration of deck stowage due to survive discharging at a particular port, then the removal or replacing of pontoons forward of the "blockage" had to be achieved in one of two ways: either (1) by using a shore crane to remove the blockage and to reload it subsequently, in which case the gantry crane could reach the pontoons; or (2) by leaving the blockage in place and using a shore crane (instead of the gantry crane) to remove (and replace) the pontoons. When shore cranes were used, the pontoons were temporarily stowed ashore before being replaced.
In practice, the owners and charterers reached what was described by the trial judge, HHJ Hallgarten QC, as an "accord" to deal with such circumstances, namely the use of charterers' stevedores in the operation of a shore crane to deal both with the containers and the pontoons. I gratefully adopt his account of the facts to which I refer above and below. The practice seems to have already commenced under a previous master and, whether or not Captain de Jong knew of that, was continued by him during his command. He had discussed it with a representative of the charterers, probably Mr Machionetto who was in charge at Salerno where the bulk of the operations involving use of shore cranes to lift pontoons took place. Although the majority, even possibly the great majority, of operations did not, as it seems, necessitate the use of shore cranes to handle the pontoons, the accord was an established practice and occurred on some seven recorded occasions.
The judge did not deal expressly with the question of the payment of stevedores for this use of shore cranes to handle the pontoons, but it is common ground that on the evidence at trial no payment was demanded from or made by the owners. The stevedores were paid by shift and, provided the cargo operations were completed within the shift, the fact that pontoons were handled as well as containers led to no extra payment. Although the stevedores may in practice have been appointed and paid by the charterers' major clients, nevertheless as between owners and charterers they were the charterers' stevedores: as the charter stated in standard terms in its clause 4, the charterers were "to arrange and pay" for all cargo operations.
The judge had to consider nevertheless whether, for the purpose of the operations concerning the use of shore cranes to handle the pontoons, the stevedores became pro tanto the owners' contractors. He dealt with that question both generally and with respect to the incident of 16 September in the following passage at para 32 of his judgment:
"…as I see it, the upshot of that accord was that there was no question of stevedores' role changing—of stevedores being Charterers' contractors for some purposes and Owners' for others. I believe that, as between Owners and Charterers (Owners, of course not being privy to the actual arrangements made by Charterers with shipping lines or others), stevedores remained contractors of Charterers throughout. The consequence of this, as I see it, is that in respect of the removal and replacement of pontoons by the shore-crane, Owners were indeed providing customary assistance in cooperating with those actually conducting the operations. In the present case, that cooperation was given by the vessel adopting the slings method of attaching the baby pontoon to the spreader with the Chief Officer's involvement, including, of course, detachment of slings once the pontoon was at rest."
Quotation of that passage leads conveniently to the facts relating to the incident of 16 September in which the chief officer came to be injured. The vessel arrived at Gioia Tauro that day from Salerno. It had containers for discharge at Gioia Tauro stowed both on deck and within the centre of the hold. There were five other containers destined for later ports but stowed above those pontoons which needed to be accessed. There was also a "blockage" of a further sixteen containers, also destined for later ports, which prevented the gantry crane from reaching the pontoons in question. If those sixteen containers had been removed ashore and later reloaded, a two to three hour delay was liable to be incurred. So the accord was put into effect and the shore crane was used instead of the gantry crane to handle...
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