Prekookeanska Plovidba v Felstar Shipping Corporation (Carnival)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST |
| Judgment Date | 03 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0303-8 |
| Date | 03 March 1994 |
| Court | Court of Appeal (Civil Division) |
[1994] EWCA Civ J0303-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION ADMIRALTY COURT
(Order Sheen J)
Before: Lord Justice Russell Lord Justice Farquharson Lord Justice Hirst
MR. N. TEARE Q.C. and MR. L. PARSONS (instructed by Messrs. Lloyd & Co., London EC3N 4AA) appeared on behalf of the First Appellant.
MR. C. HANCOCK (instructed by Messrs. Ince & Co., London EC3R 5EN) appeared on behalf of the Second Appellant.
MISS B. BUCKNALL Q.C. (instructed by Messrs Ingledew Botterell, Newcastle upon Tyne) appeared on behalf of the Respondents.
( )
Wednesday 3rd March 1994
The judgment I am about to deliver is the judgment of the court.
This is an appeal by the first defendants Felstar Shipping Corporation and the second defendants Sotramar SRL against the judgment given on 20th December 1991 by Sheen J. in favour of the plaintiffs, Prekookeanska Plovidba, in which he adjudged:-
(i) That the first defendants were liable to the plaintiffs in negligence arising out of damage to the vessel "Danilovgrad" at the Setramar berth in Ravenna on 28th January 1987;
(ii) That the second defendants were liable to the plaintiffs for breach of a safe berth warranty.
(iii) That the first and the second defendants should pay the plaintiffs' costs.
(iv) That liability as between the first and second defendants be apportioned as to two thirds and one third respectively.
(v) That the first defendants should pay one third of of the second defendants' costs.
The judgment is reported at 1992 1 Lloyd's Law Reports 449.
The plaintiff respondents are a Yugoslav company and are the owners of the vessel Danilovgrad.
By a voyage charter dated 27th November 1986 the plaintiffs let the vessel to the second defendants for a voyage from her loading port to one safe berth Ravenna.
The first defendants are the owners of the vessel Carnival.
Hereafter we shall refer to the two vessels as D and C respectively, and we shall, when convenient, personify them in the same manner as Sheen J. in his judgment.
On the morning of 28th January 1987 D had just arrived at the Setramar berth on the east side of the Canale Candiano on the approaches to Ravenna and was preparing to moor. Shortly after D was alongside her berth and before she was securely moored, D was subjected to the forces of interaction which were created by C as that vessel passed D in the canal. These forces caused D to surge and yaw, and during this movement the hull of the D on her port side aft came in contact with the edge of the quay, and also, and critically, at some point during this movement her shell plating in way of frame No 49 pressed against a fender which penetrated the hull below the waterline, causing a hole with a length of some 400 millimetres and a maximum width of 100 millimetres; in consequence water flowed into hold No 7 at a rate of about 200 tons per hour until it was level with the water in the canal, causing severe damage to part of her cargo of bulk diammonium phosphate, which has led to a substantial claim in Italy by the cargo insurers. Thus a comparatively minor accident has now led to a very heavy claim by the plaintiffs in the present action, amounting to several hundred thousand dollars before making any allowance for interest.
The fender in question, which was suspended from No 7 mooring bollard on the berth, was composed of four second-hand lorry tyres each of which had a diameter of approximately 1.13 metres, through which ran a steel shaft, with a steel retaining plate at each end. This fender, unlike the others on the berth, was completely submerged below the surface of the water. The damage was caused when the tyres were compressed to such a degree that one of the end plates of the fender came into contact with the quay on one edge and with D's shell plating on the opposite edge.
There was no evidence as to the pressure required to penetrate the vessel's shell plating, but the learned Judge held in an unchallenged finding that the displacement of D was about 40,000 tons, so that movement of that mass when arrested by the edge of a steel end plate which had a thickness of no more than 16 millimetres must have caused very high pressure over a very small area.
So far as the forces of interaction between the two vessels were concerned, the learned Judge, again in an unchallenged finding, found that C, which was proceeding at a speed of about 3.5 knots, with her average draught being close to the maximum of 8.5 metres in a canal whose depth is less than 10 metres in some places, and with a load of over 32,000 tonnes of soya bean meal, had a headway which caused such movement of the waters of the canal as to give rise to powerful forces of interaction which could not be tolerated safely by a vessel alongside, if the latter was not securely moored.
It is now common ground between the plaintiffs and the first defendants, as the learned Judge held, that there can be no criticism of the speed at which C proceeded along the canal, which was the minimum for safe steering, nor of her position in the canal. It was also common ground at the trial that it was not good seamanship for a vessel of the size of C to pass D before the latter was securely moored with all lines out and made fast. The nub of the plaintiffs' complaint against the first defendants is that C failed to wait until such time as her master had ascertained that D had been properly made fast at her berth, and that as a result C passed D at a time when the master of C knew or ought to known that D was still in the process of making fast.
Both vessels had been boarded by pilots some two hours or so before the incident, C by Pilot Straulino (hereinafter called Pilot S) and D by Chief Pilot Bongiovanni (hereinafter called Pilot B). The crucial issue between the plaintiffs and the first defendants was whether, as the first defendants contended and the plaintiffs deny, Pilot B, who was in VHF radio communication with Pilot S, expressly authorised C to pass D, it not being in dispute that Pilot B had contacted Pilot S earlier, and that they had agreed that D should be overpassed only after Pilot B had given such consent.
Neither pilot gave evidence at the trial, though their contemporary reports were available, and the resolution of the dispute turned primarily on the interpretation of these and other statements made by them and other witnesses; the learned Judge, having considered all this documentary evidence, found as a fact that no such authorisation had been given by Pilot B to Pilot S, and the main thrust of the first defendants' appeal is that this conclusion was erroneous.
In addition, the first defendants attack the Judge's conclusion that it was foreseeable that D would suffer damage if C passed her before she was securely moored, and contend that it was not reasonably foreseeable that a fender would penetrate the hull rather than protect it, and that in consequence the kind of damage suffered was too remote.
The plaintiffs claim against the second defendants is based on the safe berth warranty in the charterparty which, as is well settled, amounted to a promise that the berth or berths nominated would be prospectively safe for the vessel.
The learned Judge held that this warranty was broken by the second defendants in that there should never have been any possibility of the shell plating of a ship being pressed against the sharp edge of immovable steel in the fender, and that consequently a ship lying at the Setramar berth was at risk of suffering damage despite ordinary prudent navigation of the vessel and of any passing vessel, and that accordingly the berth was unsafe. This conclusion is challenged by the second defendants on the grounds that the learned Judge's conclusion as to the safety of the berth was wrong, and that there was a break in the chain of causation of the damage which exonerates the second defendants from liability. They also rely on a clause in the charterparty potentially excluding their liability, should the first defendants' appeal succeed.
So far as the contribution proceedings are concerned (which of course only arise if the learned Judge was right in concluding that both defendants were liable), the first defendants challenge the apportionment of two-thirds against them, while the second defendants effectively seek to maintain their apportionment.
THE FACTS IN MORE DETAIL.
The port area at Ravenna.
The entrance to the port area which leads to the Canale Candiano, in which the Setramar berth is situated on the east bank, is via a short canal called the Canale Baiona, and the Largo Baiona, where there is a turn of some 30 degrees to port into the Canale Candiano. Approximately two miles from the entrance the Canale Candiano widens into the Largo Trattaroli, which is a convenient waiting point. The Setramar berth is approximately one mile beyond the Largo Trattaroli. The berth itself is 200 metres in length, and the south end is closed off by a ro-ro abutment. At the time D arrived at the berth another vessel was already moored in the next door berth to the north, thus of course limiting her area of manoeuvre to the length of the berth.
The navigable width of the canal at the Setramar berth is 110 to 133 metres, and in consequence C, navigating in mid-channel, would pass D at a distance of...
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