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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Briggs Marine Contractors v Deft Shipping Co (Motor Vessel Toby S) [2004] ScotCS 110 (04 May 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/110.html Cite as: [2004] ScotCS 110 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF T G COUTTS, Q.C. (Sitting as a Temporary Judge) in the cause BRIGGS MARINE CONTRACTORS LIMITED Pursuers; against THE MOTOR VESSEL "TOBY S" AND DEFT SHIPPING COMPANY Defenders:
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Act: Weir for pursuer; Dundas & Wilson
Alt: Smith QC et Simpson; Maclay Murray & Spens
4th May 2004
Introduction
[1] In this action the pursuers claim that the defenders are liable to make reparation to them for the sinking of their barge. The pursuers claim that there is jurisdiction because the sinking was the result of a collision between a crane grab which was part of the "Toby S" and the barge during loading operations off Burntisland in the Firth of Forth. The "Toby S" was formerly known as the "Norbay". She at the time in question was owned by Baal Maritime SA, 80 Broad Street, Monrovia, Liberia. Defenders' counsel stated that the ownership of the Norbay is now different in that the present defenders, who also have a place of business at 80 Broad Street, Monrovia, are the present owners. Unless the pursuers can establish that there was a collision, there is no jurisdiction.The events of November 2001
[2] In November 2001 the pursuers owned a hopper barge "WH113" which was then located in the West Dock, Burntisland. That barge they had acquired from Balfour Beatty who had used it and a sister barge in operations for reinforcing piling of the piers at the Forth Road Bridge. The two barges were subject to fairly robust handling by Balfour Beatty being used to transport large stones as infill material. The sister barge sank. The pursuers acquired WH113 from Balfour Beatty around 2000 seemingly as part of a settlement of liabilities between them but did not use it nor was it engaged in any maritime activity between the time it was acquired and the events in question. [3] At that time the Norbay was discharging bauxite to the then Aluminium Works at Burntisland. The method of discharge was that the vessel anchored at sea and the cargo was unloaded into two large barges, Bulkhandling 5 and 6. These barges were sufficiently large that their decks were level with the deck of the Norbay. [4] The bauxite was discharged into the Bulkhandling barges by cranes on the Norbay using special grabs. Due to the inadequate control of one of those grabs, a fuel oil tank in the second hold of the Norbay was fractured and a quantity of bauxite contaminated with fuel oil. Under no circumstances would the managers of the Aluminium Smelting Works accept such contaminated bauxite, which could have resulted in damage to their operation. [5] As a result of the contamination it was therefore essential for the cargo to be separately off-loaded so that such bauxite as remained uncontaminated could be supplied to the Aluminium Company. It was in the interests of the owners of the vessel and the barge master to achieve such unloading. [6] Accordingly, Mr Jamieson, Marine Surveyor of A Adamson & Co, acting on behalf of the owners of the vessel, set about enquiring about the availability of any vessel to assist in the unloading. At Burntisland he located the pursuers' barge then lying in dock containing rainwater and assorted rubbish but Mr Jamieson, having expressed an urgent requirement set about obtaining a hire. The pursuers' responsible employees undertook clearance and pumping out. Their evidence was that the water pumped out from the cargo hold or cargo hopper of the barge was rainwater. Their pumps did not require any attention afterwards; this would have been needed if seawater had been involved. Water was pumped out of the hopper until only some 2 inches or so remained. Only the hopper was pumped out however, none of the ballast tanks were either pumped or even looked at. Mr Jamieson having thought that this barge would be suitable, hired it and engaged the pursuers' vessel "Sylvester" to pull it to the Norbay. The persons involved were the pursuers' employees Mr Gilzean and Mr David Fletcher, the skipper of the Sylvester. They took the barge to the Norbay hitched to the side of the Sylvester. At the Norbay, Mr Gilzean attended to the mooring but had scarcely completed that task when the crane of the Norbay began to unload the contaminated material. Mr Gilzean smartly removed himself from the barge and he and the Sylvester left shortly thereafter, at about 6pm. [7] The barge, having been loaded, sank stern first at about 11pm. When salvaged some days later considerable damage to the stern section of the barge was apparent.
Pursuers' Pleadings
[8] The pursuers' pleadings about the sinking were in the first instance that they had ascertained subsequently that the barge was loaded in excess of a stated capacity. They aver that the barge was struck in her stern section on her deck and hull while in this loaded condition by one of the large grabs belonging to the vessel. As a result of being struck by one of the large grabs the deck was heavily indented and torn and the hull severely set in. The impact from the grab caused the barge to founder. The pleadings continue by averring that it was particularly vulnerable to foundering under the impact of being struck because it was so heavily laden and by virtue of its inevitably reduced freeboard. It came to rest in an almost vertical position with its bow section clear of the water. The pursuers found on that assumed event as the whole basis of their case.Events when the barge was alongside the Norbay
[9] Because the discharging company did not wish to contaminate their grabs, they instructed that the operation of unloading the contaminated bauxite be dealt with by a coal grab which was not used in the normal discharge of bauxite. Contaminated bauxite was taken by this coal grab, lowered the 30 feet or so to the hopper of the barge and deposited there. Apart from the evidence of the pursuer's employees as to the first load above recorded the only evidence before the Court in relation to the particular unloading of the operation was that of the barge master, Captain Graham Fletcher. He gave a detailed account of events shortly after the incident. His reliability and credibility is critical in the resolution of the case. He said that he had seen most if not all of the unloading operation and incorporated his observations in a near contemporaneous log. The Court took into account the whole circumstances. These included the special matter that Captain Fletcher required to provide an explanation not only of the event, but also that he had to explain to the Forth Ports Authority about their not being informed about the discharge of such contaminated cargo in this manner. The Authority could be expected to be unhappy at the turn of events. In addition Captain Fletcher was maintaining supervision of the discharge into the large Bulkhandling barges while the contaminated cargo was being off loaded. Accordingly his evidence that he was able to, and did, observe all the loads that were put into the pursuers' barge and the condition of the barge when unloading ceased and his evidence about the amount of material actually loaded had to be scrutinised with care. [10] The only other item of evidence in that regard was from Mr Jamieson speaking to hearsay from the Sylvester Captain, who, he said, told him that the loading had been professionally done. I did not accept that evidence. The Sylvester Captain denied having said that and in any event there was no practical opportunity for him to have observed the unloading, since he had departed for Burntisland as soon as it began. Mr Jamieson's evidence on this matter is in my view mistaken and accordingly I did not accept it. That leaves Captain Fletcher's evidence standing alone. [11] The evidence he gave followed that of his log excerpt in the report 7/25.3 of process. In relation to the evening in question it narrates as follows."1810 Barge/Sylvester alongside vessel no 2 s/s. All fast. Visual inspection by C/O indicates small non pressure leak s/s hopper side just aft amidships. Sylvester crew advise that leak is residual rainwater. Sylvester departs.
1815 Comm disch contaminated cargo no 2 to barge, C/O and Bargemaster monitoring.
1930 Telephoned surveyor Jamieson reporting 16 grabs disch.
2000 Ceased disch no 6 (due barge trim) Comm trimming no 6
2210 Comp ldg small barge, 25 grabs, estimate 1 mtr freeboard slight aft trim, Comm change grab
2240 Barge sinks alongside vessel no 2 s/s, bow up, Bargemaster at no 6, c/o attending to grab change"
Was there a collision?
[14] The pursuers sought to establish that the barge must have been struck by the grab of the crane by an examination of the damage sustained by the barge as it appeared after it had been salvaged and returned to Burntisland. [15] All the experts were agreed that for the barge to sink, its rear compartment must have been filled with water and that there must also have been further water in the other tanks. [16] The dimensions of the grab are of considerable importance. Apart from the indentation on the deck of the barge there were no other signs of an impact visible on examination on barge or grab. Any blow struck by the grab required to be very precisely located within a restricted space in order to avoid damaging or leaving traces of a collision upon the various items protruding from the deck of the barge. Such location would need to be accurate within a few centimetres. The damage was extensively photographed by all the experts. No particularly severe rupture in the hull of the vessel was discovered at examination which could account for a very substantial inrush of water. [17] Various experts supplied reports and gave evidence with a view to determining why the hopper barge sank. For the pursuers, Mr Brian Graham, a marine surveyor from the consulting firm Pirie & Smith Limited, a surveyor of experience in an established firm, made an examination of the barge and reported in May 2001. For the defenders in addition to Mr Jamieson, Mr Ross Hunter also of Messrs Adamson & Co of Leith, examined the barge. They are experienced surveyors in a firm which, it must be noted, did have an association with the defenders' insurers and had been involved in the arrangement for the discharge of the contaminated bauxite in question. Mr Jamieson did so at the time of the salvage and also had an opportunity to do so when commissioning and hiring the barge. Mr Hunter made a special examination on 11 April 2002. Both provided reports and photographs. Finally Captain Keith Hart, a director of Aquarius International Consultants Limited, possessing both academic and practical qualifications and having had wide practical experience in damage surveys and of acting as an expert witness in marine incidents, assisted the Court by his general evidence and his opinion on the reports and photographs which had been provided as well as by making an examination of his own in April 2003. The summary by Captain Hart of the probable cause of the sinking at 5.1.1 of his report reads "I have been unable to establish with any degree of certainty the mechanism that lead to the hopper barge sinking". [18] In that situation there requires to be an examination of the evidence to ascertain whether the pursuers have proved, on a balance of probabilities, the averments that the cause of the sinking was a collision between the grab of the crane of the Norbay and the stern section of the barge. [19] Captain Hart in his report and in evidence discussed other possible causes of sinking. Counsel could suggest no others. The five possibilities were:"i. The barge was struck by another vessel unrelated to the lightering operation
ii. The barge was struck by the NORBAY or her equipment
iii. The barge suffered a loss of stability unrelated to her being struck
iv. The barge was girted by excessive tension in the mooring arrangement
v. The barge suffered a loss of buoyancy unrelated to her being struck"
Can a collision be deduced from the damage found after salvage?
[21] Mr Graham gave the only evidence in support of such a deduction. The others took the view that a collision was an unlikely cause having regard to the damage alone without consideration of the eyewitness evidence from Captain Fletcher. [22] The damage to the barge is amply illustrated in the countless photographs which were produced. All the examinations were conducted with the barge in a tidal dock either afloat or beached, moored starboard side to the quay. No tests were carried out. Physical examination was limited by the starboard side being inaccessible externally and by various deposits of mud and water within the barge buoyancy tanks both at mid-section and at the stern. Each expert said these were limitations to his opinion. [23] The deck of the barge was noted to be subject to considerable corrosion wastage with a number of small holes and missing items. A fracture was found on the starboard side on the horizontal weld seam between the vertical and sloping plates of the hopper side. Accordingly the hopper was not watertight. The after vertical bulkhead of the hopper was bowed towards the stern with a deformation at the upper edge of the mid-section of about 250 millimetres. The port and starboard wing tanks and a void space between the hopper and the hull were examined. No fractures or holes which could give access to sea water were noted. Although the bottom section could not be examined the spaces were thought to be watertight below the waterline when floating empty at the quayside. [24] The stern section was severely damaged with the deck heavily inset. The port side was heavily indented aft of the hopper bulkhead. The deck was heavily indented torn and inset on the port side forward to a depth in excess of 1 metre extending upwards to the starboard side and towards the stern straight across the aft beam at the stern. The deck plating was torn from the hopper bulkhead from the port side to about the centre line of the barge. Much of the deck plate was torn at the weld seam of the hopper bulkhead and the deck plate torn from deck fittings and fixtures. The deck aft of the starboard side wing tank was torn across the width of the wing tank from the hopper bulkhead to the barge side. The hull on the port side of the barge aft of the port wing tank was severely inset over the depth of the barge deepening from the bottom of the barge hoppers. There was a hole of about 50 millimetres by 10 millimetres on the port side situated behind a damaged cope bar at the 4 foot draft mark. The stern section was generally buckled in an upward direction. Deck head stiffeners were severely buckled up to the rafter beam which was fully intact but the vertical frames were in good order apart from those in way of the severely indented port side. A central column supporting the deck head from the hull bottom was buckled. Mr Graham considered that it was severely buckled in an S shape. The other experts did not accept that, taking the view that it was buckled more in the shape of a C. The item in question is shown in a photograph. The Court has no expertise to assist in resolving this dispute and furthermore that item of damage is not specifically described. [25] Although his report does not say so, Mr Graham, accepted that there was no localised damage to any of the items situated on the deck of the stern section of the barge. These consisted of a hatch cover with a protruding hinge and a bollard situated partially over a strengthening member below deck. There was no evidence of any contact with these items. Mr Graham thought that the bollard could have been forced downwards by a blow if it had been contacted by the grab. [26] All the experts, having considered the dimensions of the grab were of the view that although it was possible that the grab could have missed any of the protuberances on deck that would have required such an accurate disposition as to be highly unlikely. The grab could barely fit in the space between the deck furniture. [27] The damage to the deck was of a severe V shaped indentation about a sharp crease rather than a setting in. The size and shape of the damage did not match that of the grab. [28] Mr Graham's view was that the damage seen after the salvage was a combination of both impact with the grab and the impact with the seabed when the barge sank. He conceded in cross-examination that it was possible that the damage observed was due to seabed contact alone. [29] Mr Jamieson gave evidence to the effect that after the event no damage was seen on the grab itself. It had been detached when the loading of the contaminated bauxite was complete so that the standard bauxite grabs could be used to deposit bauxite in the bulk handling barges. [30] Captain Hart's opinion was that, given the wasted and perforated condition of the after deck plating, if it had been impacted by a laden grab it was to be expected that plating would have failed catastrophically with splits and tears over the area of that impact.Did the barge suffer a loss of stability or buoyancy unrelated to being struck?
[31] Some considerable time was expended by way of calculations based on the assumed load, the unladen weight and the observed freeboard when loading ceased. Counsel for the defenders described these calculations, which were mainly those of the defenders' witnesses, as inconclusive. Captain Hart was unable to corroborate the calculations made by Mr Hunter and spent some time while giving evidence trying and failing to reconcile those calculations with the various tables which were produced. The witnesses all gave evidence to the effect that there must have been at least 55 tons of water in the ballast tanks of the barge, perhaps more, depending upon how much cargo had been loaded. Mr Graham's simplistic calculation at page 10 of his report arrived at a calculation of about 240 tons of load but made no assumption about nor or allowance for the amount of water admittedly still present in the ballast tanks. That there was such water present in the ballast tanks is established by the ingress into the hopper of water which was observed when the barge was at the Norbay. On the various calculations, the barge might well have been overloaded in respect only that it was loaded in excess of the 80 tons specified by the pursuers before hire but to what extent if any can not be considered to have been established. [32] Mr Graham's evidence that the initial damage caused by the grab was exacerbated by contact with the seabed would indicate that sufficient damage was caused by the first impact to allow the ingress of water but that that damage did not extend to or explain the post salvage visible damage. On that view it would not matter at which stage in the loading process the collision occurred.
Conclusion
[33] I am unable to hold that the pursuers have established on the balance of probabilities that a collision took place. [34] The damage to the deck of the barge was even on Mr Graham's theory not that presently seen on the photographs but less extensive. As a result, such a collision as he envisaged might well not have caused the barge to spring a leak. It is clear, however, that the pursuers' case as pled fails. The collision if any did not cause an overloaded barge to founder. For the pursuers to succeed, that result of a collision must, have been to cause sufficient damage to the plating of the barge to allow seawater to enter the ballast tanks. In view of the consequent collision with the seabed, the shifting of the load to such an extent as to buckle the aft bulkhead and the concession by Mr Graham that seabed contact could have caused all the damage the pursuers must fail in the primary task, which was to show that a collision caused the barge to sink. [35] No collision means no jurisdiction and it is accordingly not necessary to determine why the barge sank. That would be a task of extreme difficulty. That it sank because water entered the ballast tanks in some manner goes without saying. That no pre-sinking damage could be precisely ascertained on examination does not necessarily rule that out. No particular assistance could be derived even if Captain Fletcher's evidence about the loading was disbelieved. He may not have observed everything or he may have over or underestimated but I accept his evidence that he saw no damage before or after the time of the last load and that he could and would have been aware of a collision had it happened. In these circumstances there has been a failure of proof and the defenders are entitled to absolvitor. I shall sustain the defenders second and third and fifth pleas-in-law, repel the pursuers second plea and grant decree of absolvitor.
