Papera Traders Company Ltd v Hyundai Merchant Marine Company Ltd; The Eurasian Dream (No.1)
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 2002 |
| Neutral Citation | [2002] EWHC 118 (Comm) |
| Docket Number | Case No: 1999 Folio No. 943 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 07 February 2002 |
[2002] EWHC 118 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
The Honourable Mr. Justice Cresswell
Case No: 1999 Folio No. 943
Mr. C. Priday and Mr. S. Kerr (instructed by Richards Butler for the Claimants).
Mr. G. Charkham (instructed by Hill Taylor Dickinson for the Defendants).
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
INTRODUCTION
On 23 July 1998, a fire started on Deck 4 of the pure car carrier 'Eurasian Dream' whilst in port at Sharjah. The fire, which was not contained or extinguished by the Master and crew, eventually destroyed or damaged the vessel's cargo of new and second-hand vehicles and rendered the vessel itself a constructive total loss. In this action, the claimants, who are the relevant cargo interests, claim against the carriers in respect of destruction or damage to the vehicles.
The claimants' case is that the Eurasian Dream was unseaworthy in many respects and that there was a wholesale failure by the vessel's technical managers, Univan Ship Management of Hong Kong ("Univan") to exercise due diligence. Unseaworthiness and lack of due diligence are, say the claimants, inextricably intertwined in the present case. The serious failings of Univan led to a ship and a crew unfitted for the foreseeable eventualities of the voyage. The negligence and incompetence of Univan's Management resulted in an incompetent crew and an unseaworthy ship. The claimants say that the first defendants (bill of lading carriers) were in breach of their obligations under Art. III.1 of the Hague/Hague-Visby Rules. As to the alternative case under Art. III.2, the claimants say that the evidence shows the fault or privity of Univan for the purposes of the fire exception. The claimants point to the fact that a single fire was allowed to result in the total loss of the vessel and her cargo. They say that this fact has been thrown into even greater relief by the evidence of Captain Haakansson (an expert called by the claimants) that car fires on pure car carriers are far from uncommon yet such fires, in Captain Haakansson's considerable experience, have never led to the loss of a vessel (in all but two cases fires were immediately controlled with hand extinguishers). Thus say the claimants it is clear that the crew of the Eurasian Dream must have got things seriously wrong.
The Chain of Charters
The chain of charters in the present case was as follows:
(1) Bareboat charter (Barecon 89) between Dream International Navigation SA of Panama and Crescent Shipping & Chartering Corporation of Manila ("Crescent") dated 6 May 1994.
(2) Time charter (NYPE 46) between Crescent and Maritime Cargo Express SA of Panama ("Maritime Cargo") dated 6 May 1994.
(3) Time charter (NYPE 46) between Maritime Cargo and Hyundai Merchant Marine Co Limited, the first defendants dated 25 March 1994.
By agreement between the parties Hyundai Merchant Marine Co. Ltd ("Hyundai" or "the defendants") are to be treated as the bill of lading carriers. By letter dated 20 December 2001, Hill Taylor Dickinson (solicitors for the defendants) confirmed that title to sue issues are not pursued in these proceedings. Hyundai dispute the claimants' case set out in paragraph 2 above.
In a letter dated 19 December 2001, Hill Taylor Dickinson and Richards Butler (solicitors for the claimants) helpfully set out the agreement reached as to quantum issues. They enclosed:—
(1) Revised Quantum Schedule 1 listing each of the claims; and
(2) Quantum Schedule 2 indicating the agreement reached on the value of the claimants' cars on each deck of the vessel and each fire zone.
The solicitors have agreed package limitation for both the new and secondhand cars. This is reflected in the agreed values per deck and zone. No point is taken on the sum of US$500,000 agreed by W. K. Webster with Williamson and Horrocks for salvage of the Hyundai cars and this has been agreed with owners' solicitors. The only item in the claimants' claim which remains in dispute is the fee of W. K. Webster.
Claims between Maritime Cargo and Hyundai are being arbitrated. Hyundai has pleaded a case of unseaworthiness in the arbitration. It is of course unsatisfactory that similar issues are being considered by two separate tribunals.
The Characteristics and Layout of the Vessel
Beneath its boat deck, the vessel had 12 car decks, numbered in descending order.
External access to these car decks was provided by means of 3 ramps, one located at the stern and one on either side of the vessel. Internal access between car decks was provided by internal ramps.
The decks were internally segregated into five Fire Zones lettered A to E, separated by the solid decks or horizontally by the transverse bulkheads. The Zones were as follows: A (the Boat Deck, Car Decks 1 & 2); B (Car Decks 3 & 4); C (Car Decks 5, 6 & 7), D (Car Decks 8 to 12, hold 2), E (Car Decks 8 to 12, hold 3). Further, the internal ramps leading from one Zone to another were fitted with gas-tight doors, manually operated by a wire-pull mechanism and air cylinders. Thus, Zone B had 4 gas-tight fire doors: 2 on the fore and aft ramps up to Deck 2 (Zone A) and 2 on the fore and aft ramps down to Decks 5/6 (Zone C).
The Timetable Prepared by the Master
A timetable prepared by the Master after the casualty is set out below.
"1530 Disch started 3 p.m. 313 units [?] used cars
Bunkering started
C/o informed by 3/o about fire
/50 Fire alarm sounded
Fire pump started by 2/E
Muster the crew
Master went to car deck
Master went back to bridge
Master instructed to shut blowers
Bunker barge full away
2 tugs came started spraying water
Master informed port control
Master informed Univan
Master called Univan again
Evacuated first group (19 crew)
Master informed C/E to release CO2
Evacuated 2nd group (3 crew Master C/E E/O)"
This timetable should be read subject to my findings set out below.
The Evidence Generally
The account of the Master, crew and managers cannot in my judgment be relied upon for, among others, the reasons set out below.
Further, in my view the "briefings" of the crew by Univan and others after the incident went beyond what was proper in the circumstances. Indications of this are found in the contemporary documents:—
"I interviewed crew asap. Simon Scott put on job… Police have requested all 22 crew to visit police station tonight for inquiry… Khan was trying to avoid same by telling them that some crew have gone out etc… Please check if P & I lawyer can brief crew before they are sent to police station today. (Mr. Pereira) said he will assemble them and brief them… Police want full crew to be interviewed and their statements taken tonight… Tell everyone [? regarding] stevedores… [Vroon] called [Mr. Pereira] and informed that they are sending lawyers to interview… CID now on scene. Minimum information given to them…
Khan… what statements already made Naseeb.
RS Anand Crew stories… What statements already made…
Khan told that if anyone asked he should tell about stevedores being the cause for fire… CID is now on scene. Minimum required information given to them… Captain was informed about Pereira's and RS Anand's arrival Dubai and not to give statements to third parties prior to their arrival."
There are further matters that have caused me concern.
First, the Chief Engineer said in cross-examination that he spoke to Mr Pereira (a Univan representative) four days after the fire and was told to go back on board to open the CO 2 pneumatic valve (which Mr. Pereira had found shut). The Chief Engineer accepted that Mr. Pereira had told him that a fire investigator was going to inspect the ship. I find that the most likely explanation is that Mr. Pereira recognised that the Chief Engineer had not operated the valves properly, and wanted the investigator to find them fully opened. In trying to force the pneumatic valve into the open position, the Chief Engineer and the Electrical Officer broke the spindle. The Chief Engineer conceded in cross-examination that Univan realised he had not shut off the air to the pneumatic valve. This episode is an example of an attempt to interfere with evidence before the vessel was inspected.
Second, Dr. Alan Craggs (on behalf of the claimants) conducted an inspection of the vessel between 31 July and 2 August. Access was granted to the vessel on the condition that no evidence was disturbed. Owners' representatives provided the minimum information necessary for a safe tour of the vessel and a request for plans of the vessel was refused. Guidance was however provided to certain areas in which the fire experts expressed an interest.
Third, none of the personnel who were sent out to Dubai/Sharjah following the casualty were called to give evidence, namely Mr. David Pereira, Mr. R. S. Anand, Mr. Khan and Mr. Simon Scott. Further, Dr. Goudsmit (the fire expert who inspected the vessel for the vessel's owners and P & I Club with Dr. Craggs) was not called by the defendants as an expert witness.
Fourth, the managers and owners did not provide timely disclosure. The transcript of the trial evidences the various times at which (throughout the trial) highly relevant documents were disclosed piecemeal. A considerable number of documents were disclosed as final speeches were due to start. The parties asked the Court to press on with the trial despite deficiencies in disclosure. So far as I could tell the solicitors acting for the owners/managers made considerable efforts to ensure that full disclosure was provided. These...
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