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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Demand Shipping Co. Ltd. v Ministry of Food, Government of the People's Republic of Bangladesh & Anor [2001] EWHC 524 (Comm) (26 June 2001) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2001/524.html Cite as: [2001] EWHC 524 (Comm)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 June 2001

The Background, the Issues and the Relevant Legal Principles

1. The m.v. "Lendoudis Evangelos II" was built in 1974. The vessel was originally classed with American Bureau of Shipping ("ABS"), but was transferred to Bureau Veritas ("BV") in about September 1989.
2. At about 0640 hours on 7 March 1990 the "Lendoudis Evangelos II" departed from Montreal carrying a part cargo of wheat destined for Bangladesh. The vessel was due to call at Quebec to load additional cargo. The vessel was in class at the time of the incident, with a full set of valid certificates.
3. At about 1730 hours on 7 March, whilst en route to Quebec, the vessel suffered a complete electrical failure which resulted in the stoppage of the main engine. Following the electrical blackout the crew dropped the anchor but, despite this action, the vessel grounded in the St. Lawrence River and sustained serious bottom damage.
4. The power failure occurred because a member of the crew moved the control lever of the fuel tank's emergency shut-off system through 180°. As a consequence the quick-closing outlet valve of the generator daily service tank, in use at that time supplying the generator engines with diesel oil by gravity, closed causing both the Nos. 2 and 3 generator engines to stop.
5. A Canadian Marine Casualty Investigations Report dated May 1991 found inter alia that "... A member of the crew either intentionally or accidentally moved the control lever of the fuel tank's emergency shut-off system... The control lever for the quick-closing valves was not adequately protected from being activated..." It should be noted that the finding that a member of the crew might accidentally have moved the control lever cannot be supported.
6. It is common ground that

(i) the crew member could not have activated the emergency shut-off system accidentally;

(ii) on a balance of probabilities the person concerned did not intend to cause any damage to the ship.

7. The activation of the emergency shut-off device was (I find) a grossly irresponsible act by an unknown member of the crew. There is no evidence as to the reason for this grossly irresponsible act.
8. The owners of the vessel ("the claimants") declared General Average ("GA") and, in due course:

(i) the cargo owners ("the first defendants") provided GA security in the form of a Lloyd's Average Bond; and

(ii) the cargo insurers ("the second defendants") provided GA security in the form of an Average Guarantee.

9. On the 7 December 1990 the average adjusters (Richards Hogg Ltd. and Giles Adams) issued a letter certifying that cargo interests could reasonably be asked to make a payment on account in the sum of US$625,000.
10. By an average adjustment dated 15 June 1992 the average adjusters indicated that the total sum of US$1,137,024.23 was due from cargo interests.
11. On the 23 November 1994 the second defendants paid the sum of US$547,798.24 to the claimants by way of an interim payment on account of GA.
12. In these proceedings the claimants seek to claim the sum of US$562,226 (plus interest), being the additional sum allegedly due from the defendants in respect of GA. The defendants deny liability for GA (on the basis that the casualty was caused by the claimants' actionable fault) and seek to recover the sum of US$547,798.24 (plus interest) referred to above.
13. There are disputes between the parties both as to (i) the defendants' liability in principle for GA and their right to recover the interim payment, and (ii) the quantum of GA. The present hearing is concerned solely with the issue of liability to pay GA in principle and the recoverability of the interim payment.
14. It is common ground that under the terms of the contract of carriage:

(i) The claimants were obliged before and at the commencement of the voyage to exercise due diligence to make the vessel seaworthy; and

(ii) GA is not payable by cargo interests if the casualty was caused by the claimants' actionable breach of this obligation.

15. The GA bond and guarantee both provided for the payment of such GA contribution as might be "properly and legally due" in respect of the cargo. Thus, in the event that the casualty was caused by a breach of the claimants' obligations under the contract of carriage, the claimants would have no entitlement to payment of GA under the bond or guarantee.
16. The defendants say (i) that the fact that the glass panel in the front of the control box (which housed the emergency shut-off device) was missing at the commencement of the voyage, rendered the vessel unseaworthy; and (ii) that had the glass been in place, the casualty would not have occurred. The claimants dispute both of these contentions.
17. The contract of carriage was contained in a bill of lading dated 6 March 1990. The contract provided that General Average was to be payable according to the York Antwerp Rules 1974 and incorporated the Canadian Water Carriage of Goods Act 1936 (which gives effect to the Hague Rules).
18. The Canadian Water Carriage of Goods Act 1936 provides, inter alia, that:

"Schedule

Article lll Responsibilities and Liabilities

The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to -

(a) make the ship seaworthy;

(b) properly man, equip and supply the ship; ...

Article lV Rights and Immunities

Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied...

Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from -

(a) act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship; ..."

19. The burden of proving that the ship was not seaworthy and that unseaworthiness caused or contributed to the loss or damage complained of, lies on the defendants. Once the defendants have proved these matters, the burden lies on the claimants to prove that the unseaworthiness was not caused by want of due diligence on the part of the claimants, their servants or agents.
20. The classic definition of seaworthiness/unseaworthiness is that of Mr. Carver in the passage approved by Lord Justice Scrutton in F.C. Bradley & Sons Ltd v Federal Steam Navigation Co (1926) 24 Ll. L. Rep. 446 at page 454:

"The ship must have that degree of fitness which an ordinary careful owner would require his vessel to have at the commencement of her voyage having regard to all the probable consequences of it. Would a prudent owner have required that it should be made good before sending his ship to sea, had he known of it?"

21. A reasonable difference of opinion does not amount to want of due diligence (The Amstelslot [1963] 2 Lloyd's Rep. 236).
22. The doctrine of seaworthiness does not demand protection against a unique case which, if it occurred, would be against not only the probabilities, but against general experience (The Liepaya [1999] 1 Lloyd's Rep. 649 at 669, Rix J). Such a unique case would be entirely discounted by a prudent shipowner.
23. Seaworthiness must be judged by the standards and practices of the industry at the relevant time, at least so long as those standards and practices are reasonable.
24. The undertaking of seaworthiness is an innominate term.
25. Whether a vessel is seaworthy is a question of fact.

The Evidence

26. I heard oral evidence from Mr. Nicholas Pantelias, Operations Manager of Evalend Shipping Co S.A. (the managers of Lendoudis Evangelos ll) and the expert witnesses referred to below. In addition there was an affidavit and a witness statement from Mr. Nicholas Graydon, a partner in Clyde & Co. The primary facts in paragraphs 21 - 31 of his affidavit were uncontroversial. Further it was agreed between the parties that the statements and documents and other materials in the bundles were "capable of being evidence of the facts stated, subject to either party's right to make submissions as to what weight...ought to be given" to any such evidence.

The Fuel Tank Emergency Shut-Off Device

27. The fuel oil emergency shut-off system was surveyed at transfer of class in about September 1989, and annually as part of the Safety Equipment Survey.
28. The emergency shut-off was a safety device which could be used, in the event of a fire, to stop fuel flowing out of fuel tanks located in the engine room.
29. The emergency shut-off device was housed in a control box situated inside the engine room crew changing room.
30. I refer to the photographs of the control box and shut-off device. Photograph 17 shows the box. At the time when this photograph was taken the front of the box was fitted with a glass panel and entry into the box was restricted (unless the glass panel was removed) by a padlock. Photograph 18 shows the emergency shut off-device. It was operated by turning a handle located on top of a ball valve (shown in the centre of photo 18, painted silver). A close up of the operating handle appears at photograph 21.
31. The valve located inside the control box did not, itself, shut off the fuel at the vessel's fuel tanks. Instead, the valve was used to control the supply of compressed air to a number of pneumatically operated valves located on the fuel lines leading from the vessel's fuel tanks.
32. In the "ordinary" or "safe" position, the handle pointed towards the rear of the cabinet (as shown in photos 18 and 21). To activate the shut-off device the handle was moved clockwise through 90 degrees, so that it was parallel with the pipe shown in photo 18. In this position, air would be supplied (from an air bottle) to the pneumatically operated valves located on the fuel lines leading from the fuel tanks. The air bottle is shown on the left of the cabinet in photo 17.
33. If the handle was turned to the "emergency" or "activate" position, it ought to have shut off six fuel tanks (and not just the fuel tank serving the ship's generators). Tests after the casualty showed that if the handle was turned beyond the "activate" position (i.e. to the position shown in photo 20) the effect of passing through the "activate" position might be to cause the shut-off valve of only one tank to operate. As designed, movement of the handle beyond the "activate" position was prevented by two retaining lugs.
34. Inside the housing of the box was a plaque with a guide to operation of the shut-off device. This included the following - "In case of emergency, to be opened the lever to the right as shown the above drawing. There fore the emergency shut-off valves is shut completely."
35. Investigations immediately following the casualty revealed that the state of the shut off device on 7 March 1990 differed in two respects from that set out above:

(i) There was no glass in the front cover of the box. As a result, there was unrestricted access to the shut-off device.

(ii) The retaining lugs referred to above were bent and had moved – thereby allowing the handle to move beyond the "activate" position. These lugs are shown in photo 21.

36. It was common ground between the experts that all of the vessel's engineer officers ought to have been familiar with the purpose and mode of operation of the shut-off device. However, so far as the engine room ratings were concerned, they would not have been expected to have any knowledge regarding such devices – although they would probably appreciate (from the fact that the box was red) that the control box contained a safety device.

The Defendants' Case and Submissions

37. Mr. Timothy Brenton QC for the defendants submitted as follows.
38. The fact that the protective glass panel in the front of the control box was missing at the commencement of the voyage from Montreal rendered the vessel unseaworthy. Had the glass been in place, the casualty would not have occurred.
39. Once the court is appraised of the purpose, operation and effect of the emergency shut-off device, the court is as well placed as the experts to form a view as to whether the absence of the glass panel rendered the vessel unseaworthy. This is because the issue is essentially one of common sense.

(i) Unauthorised operation of the shut-off device could cause serious damage, personal injury and death;

(ii) The risk of unauthorised operation was no doubt low - but not so low that a prudent shipowner would ignore it;

(iii) Replacing the glass would not have compromised the principle of ease of access. No one could reasonably suggest the opposite;

(iv) For these reasons the vessel was plainly unseaworthy. Any prudent shipowner, who had been made aware of the fact that the glass panel was missing, would have required it to be replaced as soon as possible.

40. As to other considerations (the impact and design of the system, the cost and time involved in refitting the glass, the Chief Engineer's perception, the reaction of the investigating authority, the claimants' reaction after the incident, the practice on other vessels, the pros and cons of protection, other devices on board the vessel and the history of the panel), none of these considerations detract from the common sense conclusion that the vessel was unseaworthy. A number of the considerations reinforce the submission that the vessel was unseaworthy.
41. As to causation, this issue should be approached on the hypothesis that there would have been glass in the door (because this was what was required to render the vessel seaworthy) and that the door would have been locked (because this would have been the case as a matter of fact). The defendants recognise that the answer to the causation issue is likely to depend upon the reason why the perpetrator operated the handle.
42. The court should find that the perpetrator acted out of curiosity.
43. The removal of the glass "diminished" the importance of the shut-off device and presented it as a temptation to any curious individual. Had the glass panel been in place it is highly unlikely that the incident would have occurred. The shut-off device would have been behind a barrier and out of the "orbit" of the perpetrator. This is so whether or not the lock had been in place.
44. As to due diligence, if the court accepts the defendants' case as to unseaworthiness, there can be no scope for a defence of due diligence.
45. For completeness I should record that the defendants abandoned the allegation in paragraph 8A(B) (ii) of the Amended Points of Defence ("... the vessel was unseaworthy in that: ...

(ii) The vessel's crew had not been instructed in the proper use of the emergency fuel shut-off system and/or were ignorant as to the purpose and/or proper operation of the aforementioned handle.")

The Claimants' Case and Submissions

46. Mr. Coburn for the claimants submitted as follows.
47. This case involves the balancing of competing considerations. On the one hand, there is the suggested risk of unauthorised non-accidental operation. This is apparently wholly unprecedented; the risk is premised on a peculiar and particular degree of notional irresponsibility on the part of a crewman. On the other hand, there is the risk of delay in the operation of a crucial piece of equipment in the case of real emergency, particularly fire. The latter risk is far greater, and the consequences are likely to be more serious.
48. If there was a clear answer one way or another, one would expect it to be reflected in the practices of shipbuilders over the years. But no set pattern emerges; on the contrary, the evidence discloses various different sorts of arrangement covering a range of degrees of accessibility. The tendency, in fact, is for arrangements involving a greater rather than lesser degree of accessibility: "break glass in case of emergency" arrangements appear to be very much in a minority.
49. The balance comes down in favour of a greater rather than a lesser degree of accessibility. However, if the balance requires to be struck at all, it is a matter for individual judgment. The implications of a prescriptive judgment by the court in this case (i.e. to the effect that any one arrangement is necessarily better than any other) are far-reaching, and the court should be slow to prescribe in this field. Shipowners and shipbuilders should be left to judge the balance for themselves.
50. Since a remote emergency fuel shut-off valve is required on all ships, a rough statistical sample derived from the material in this case will have to be extrapolated over, effectively, the entire merchant shipping fleets of the world. Even in relation to categories characterised as in a minority, an extremely large number of vessels are involved.
51. Two features of the evidence are particularly to be noted: (i) the number of vessels where there is no barrier to the operation of the emergency shut-off valve; and (ii) the number of vessels where the arrangement involves a door, but one secured only by a simple latch or similar.
52. For present purposes there is no practical difference between the arrangement on board the Lendoudis Evangelos II on 7 March 1990 and either (i) a no-barrier arrangement involving either a recess or a doorless box, or (ii) an arrangement involving a door which is secured only by a latch or similar.
53. It is not credible to suggest that there is any significant additional "deterrent" effect created by having a door (including a glass door, with the valve inside on display) which can be opened as easily as opening an ordinary cupboard door.
54. The pattern of ship-building practices over the years does not disclose any perception of the risk which the defendants say should have been catered for.
55. The negligible level of the risk relied on by the defendants is demonstrated by the fact that, notwithstanding the use by any number of vessels over many decades of accessible arrangements, the present case is unprecedented.
56. If the Lendoudis Evangelos II was unseaworthy by reason of her emergency shut-off valve arrangements, then so were any number of other vessels sailing the seas in 1990, and so are any number of vessels still today. The defendants' position involves serious criticism of numerous shipbuilders and shipowners over the years.
57. The particular arrangement on board the Lendoudis Evangelos II was designed to have a glass panel, but many others were not so designed, and in the majority (or at least in a very significant number) of cases, the arrangement presented an equivalent degree of accessibility.
58. The supposed risk identified by the defendants is one artificially constructed with the benefit of hindsight. Vessels have to be constructed assuming a certain basic level of responsible behaviour on the part of her crew; otherwise, it is hard to know where to stop.
59. Any crewman would realise that deliberate unauthorised operation of the valve would be a serious offence. Mr. Boorman accepted that the action of the person who pulled the handle on 7 March 1990 was, on any view of the motive, grossly irresponsible.
60. The glass panel had not been there for some considerable time prior to the grounding; and had not been there at the time of the surveys associated with the change of class in September 1989.
61. The likelihood is that the surveyor noticed the absence of the glass, but did not consider it something which merited any adverse comment.
62. The absence of any reference to a requirement of a protective barrier in the class rules is not decisive, but is instructive. Moreover there is no published material of any sort whatsoever which records or refers to the need for or desirability of such protection.
63. The parties have had a wealth of experience to draw on and yet neither party has come across any previous remotely similar incident, even by way of anecdotal or multiple hearsay evidence.
64. In June 1990 Mr. Boorman attended the vessel with the express remit of (among other things) investigating the cause of the casualty on behalf of cargo interests. He was plainly at pains to do so with some care, as his photographs demonstrate. His photographs also demonstrate, and he accepted, that he knew in June 1990 that the glass panel had not been present at the time the handle was turned. It did not occur to him even to consider whether the vessel might have been unseaworthy until this aspect was suggested to him in 1998 by Messrs. Clyde & Co.
65. It would not naturally have occurred to any marine engineer to consider the Lendoudis Evangelos II unseaworthy (in any sense) simply because of the absence of a glass panel in the door of the box housing her emergency fuel shut-off valve.
66. The submission that the vessel was unseaworthy by reason of the absence of the glass panel should be rejected.
67. As to causation, it cannot be proved, on a balance of probabilities, that the person in question would have been deterred by a glass panel.
68. As to due diligence, a reasonable difference of opinion does not amount to a want of due diligence.

Common Ground between the Expert Witnesses

69. The following was common ground between the expert witnesses:-
70. It is likely that any crew member who normally used the engine crew changing room, where the fuel oil tank emergency shut-off valve was located in a red painted box, would have recognised it as a safety device.
71. It was not possible for the fuel oil tank emergency shut-off valve to be operated accidentally (for example, by brushing against the valve), with the glass panel present or not present.
72. There is no Class requirement for any form of guard against unauthorised operation of such a safety device as the fuel oil tank emergency shut-off valve.
73. In an emergency, such as an engine room fire, it can be important that the fuel oil tank emergency shut-off valve be operated without delay.

Expert evidence as to fuel tank emergency shut-off systems

74. Mr. Alan Carney of Gordon Giles & Company Ltd (called by the claimants) and Mr. Brian Boorman of Burness, Corlett & Partners (London) Ltd (called by the defendants) helpfully provided a memorandum on the subject of fuel tank emergency shut-off systems.
75. The main fuel tank emergency shut-off system types are:-

(a) Wire pull.

(b) Hydraulic.

(c) Pneumatic.

76. The experts had encountered the following arrangements:-

(a) All tank valves operated by a single device.

(b) Each individual tank valve operated by its own operating device.

(c) Groups of tank valves operated by one single device. (There may be several such groups.)

77. Mr. Boorman was of the opinion that most vessels have type (b), a few have type (c) and he had not come across type (a) before this case.
78. Mr. Carney was of the opinion that the relative numbers of the operating devices outlined above are roughly:-

(a) 30%

(b) 50%

(c) 20%.

79. Whilst the experts had not carried out any statistical analysis of the various forms of housing, they had encountered the following:-

(a) a box mounted on a bulkhead;

(b) a recess in a bulkhead;

(c) a separate compartment or locker;

(d) Mr. Carney had experience of such controls in open spaces without any form of housing.

80. Of the above the experts agreed that:-

(a) will usually (but not always) have a door;

(b) Mr. Carney believed this type is evenly divided between housings with doors and without doors. Mr. Boorman believed the majority of this type also have doors ("more with covers than without");

(c) would have a door.

81. As to the housings referred to above:-

Mr. Carney was of the opinion that around the early to mid 1970's type (d) became uncommon.

The experts agreed that up to the mid 1970's types (a) and (c) were in the minority and type (b) was more common. Thereafter the situation was reversed. However all three types are still commonly found on ships today. The type of housing fitted is often related to the location on the vessel and the shipbuilder's preference.

With respect to the type of systems listed above, both experts agreed that the mid 1970's saw wire pull devices becoming less common and an increased use of hydraulic and pneumatic systems, with pneumatic being predominant. However, all three types of systems may still be encountered on ships today.

82. If doors are fitted to housings, as to locks:-

Mr. Carney was of the opinion that any unit fitted with a door should not be locked and that locks are seldom seen.

Mr. Boorman was of the opinion that units fitted with doors may be locked or latched, but where locked a key should be available, and that about 50% of units fitted with doors have locks.

83. Mr. Carney said that he had served on many vessels, and had visited many more, where the fuel oil shut-off valve actuators were located in public spaces such as passageways, the crew laundry, or the poop deck near the gangway. Many of these actuators were simple levers or wire pulls, none of which had any means to prevent unauthorised operation.
84. In his report dated 5 June 2001 he referred to two ships he visited at Hamburg last year, the Chiquita Brenda and the Filoktitis.
85. At least 4 of the ships referred to in Mr. Boorman's report dated 30 May 2001 did not have a cover protecting the fuel tank quick closing valve operating controls.
86. I also refer to Mr. Pantelias' evidence in this connection.

Was the Ship Seaworthy?

87. (1) The Lendoudis Evangelos II was built in 1974 under ABS Rule requirements and then transferred to BV in 1989. According to BV's 1985 Rules section 15-43-22:-

"In the case of bunkers and oil fuel storage, settling or daily service tanks other than those in the double-bottom, the valves are to be fitted directly on the plating of these bunkers and tanks and are to be so arranged that they can always be remotely closed in the event of fire taking place in the compartment where they are situated. If the valves are fitted outside the tanks and bunkers they supply, they are to include, in addition to the remote control mentioned above, a local control. Indicators are to be provided on the remote and local controls to show whether they are open or shut."

(BV's 1996 Rules are in identical terms - chapter 15 20-044-22).

It is common ground that there is no Class requirement for any form of guard against unauthorised operation of such a safety device as the fuel oil tank emergency shut-off valve.

(2) I accept Mr. Carney's evidence that the primary requirement in regard to the remote operating panel is accessibility and ease of operation in case of an emergency, particularly fire (with safeguards to prevent its accidental operation). These requirements were fulfilled in the present case. I refer to and accept Mr. Carney's evidence as to real life experience in the case of fire on a ship. In a fire on a ship what would otherwise be a relatively simple task, can become extremely difficult. Safety equipment on a ship must be easily accessible. Mr. Carney explained that on most ships equipment such as fire hoses and extinguishers, fuel oil pump stop buttons, intake fan shut-downs, fire dampers etc are all accessible.

(3) The fuel oil emergency shut-off system would have been inspected and tested during the annual Safety Equipment Survey. Although it is difficult to determine at this remove in time, given conflicting accounts, whether there was glass in the front cover of the box in and after September 1989, there is considerable support in certain crew statements for the contention that there was not. I reject the defendants' suggestion that Mr. Pantelias (or any other representative of the claimants) influenced these statements.

(4) It was common ground that it is likely that any crew member who normally used the engine crew changing room, would have recognised the fuel oil tank emergency shut-off handle (located in a red painted box) as a safety device.

(5) Mr. Carney wrote in his report dated 5 June 2001:-

"With reference to the increased use of protected devices since the mid-1970s or so, this is by no means universal practice even now and most certainly does not reflect an industry wide consensus that protected devices are preferable. There has been no such debate or shift in opinion, rather the change reflects current shipbuilding practice, where whole systems are purchased in modular form from sub-contractors. In these cases doors on the protecting boxes are, in my opinion, merely a design option."

I consider that on balance, on the material before me, this explanation is plausible. Mr. Boorman said that he did not know why the change occurred, because he lacked the necessary experience. When asked whether Mr. Carney's explanation of the change was plausible, he replied that in the mid-1970s it was possible.

I consider that there was considerable force in Mr. Carney's suggestion that the glass panel was originally designed not to prevent unauthorised operation of the valve, but so that a person could see through it to the pressure gauge.

(6) Mr. Boorman accepted that if the glass panel had been in place and the door had simply been latched (not locked) the vessel would have been seaworthy. It seems to me that Mr. Boorman's opinion involves drawing an unrealistically fine line. The vessel would have been seaworthy according to Mr. Boorman if:-

(a) the glass panel had been in place with the door on a latch; or

(b) there had been a door (with no glass panel) on a latch.

(7) Mr. Carney said that in 30 years in shipping he had never come across an incident of the type in the present case. He added "It is, in my experience, unique." Mr. Boorman said that he and his office colleagues (who had a wealth of experience between them) had not come across a case in which a seaman had disabled a vessel by the unauthorised operation of an emergency fuel shut-off device.

(8) Mr. Carney provided examples of other essential pieces of equipment on a ship which in practice are not protected from a grossly irresponsible act by a member of the crew, such as occurred in the present case. I consider that there was force in this point.

(9) In my judgment the lugs were probably bent by the perpetrator of the casualty, as suggested by Mr. Carney.

(10) The defendants' case was that of the various forms of housing of fuel tank emergency shut-off systems encountered, ships with the following would be unseaworthy:-

- those with systems in a box mounted on a bulkhead, without a door; and

- those with systems in a recess in a bulkhead without a door; and

- those with systems in open spaces without any form of housing

(in all cases if found in a part of the ship to which there was not limited access).

(11) The issue whether the fact that there was no glass panel in the front of the control box rendered the vessel unseaworthy, must be judged through the spectacles of 1990.

(12) There was no Class requirement for any form of guard. Care must be taken, however, not to place too much emphasis on this point. Mr. Carney accepted that in this area Class Rules do not lay down the standard of a prudent shipowner. It is, however, to be noted that no published material from any industry or other source was placed before the court which mentioned the need for, or desirability of, any particular form of protection. The primary requirement in regard to the remote operating panel was accessibility and ease of operation in case of an emergency, particularly fire (with safeguards to prevent accidental operation). These requirements were met in the present case. The activation of the emergency shut-off device was a grossly irresponsible act by an unknown member of the crew. The experts (drawing on wide experience) had never heard of a similar incident. To this extent the incident was unprecedented.

(13) A prudent owner would have been entitled to take the view in 1990 (a) that the primary requirement was accessibility and ease of operation in case of emergency, particularly fire and (b) that there would be greater accessibility and ease of operation in case of fire, if there was no glass in front of the box. Such a view in 1990 would have been respectable, responsible and reasonable. It would have had a logical basis. It would have involved weighing comparative risks.

(14) The defendants' case involves the conclusion that a very significant (but unidentifiable) number of vessels in 1990 were unseaworthy. Any court would naturally be hesitant before reaching this conclusion. The better view in my judgment is that there were different schools of thought (and no industry standard). I repeat that the primary requirement was accessibility and ease of operation in case of emergency, particularly fire.

(15) I prefer the evidence of Mr. Carney to that of Mr. Boorman to the extent, and for the reasons, indicated above. Mr. Carney may have had wider relevant experience than Mr. Boorman. In fairness to Mr. Boorman, however, I should reiterate that in the absence of consistent industry practice, there was room for different schools of thought.

(16) In all the circumstances I find that the ship was seaworthy at the material time.

Did Unseaworthiness Cause or Contribute to the Loss or Damage Complained of?

88. The activation of the emergency shut-off device was (I find) a grossly irresponsible act by an unknown member of the crew. There is no evidence as to the reason for this grossly irresponsible act. It is a matter of speculation whether the unknown crew member would or would not have been deterred from acting as he did if the glass panel had been in place (whether the door was locked or unlocked). As there is no evidence as to the reason for the grossly irresponsible act, I am not prepared to say that the defendants have proved on a balance of probabilities that the unknown crew member would have been deterred by a pane of glass.

Other Issues

89. In view of my conclusions set out above it is not necessary to consider the defendants' claim to recover the interim payment on account.