“7. The vessel arrived at Dakar and tendered Notice of Readiness at 1500 on 10 July. Shortly afterwards a pilot came on board and the vessel began manoeuvring towards the M’bao sea berth with the assistance of two tugs. 8. The M'bao sealine berth at which vessels discharge into the terminal of SAR is in the Port of Dakar roads in the middle of the Bay of Gorée. On the western side of the bay is the Port of Dakar and on the eastern side is the town of M’bao. The sealine runs from the SAR oil terminal, slightly north of M’bao on the coast of the Bay, to the sealine berth. The pipeline extends from the SAR terminal about 2.3 nautical miles south west and then 0.7 nautical miles south. The pipeline is made of a series of sections of API 5L x 24 inch steel pipe, coated in polyethylene of about 2cms, which in turn is encased in a concrete sleeve of 5-10cm thickness. For about the first 200 metres the sealine is buried underground but then it runs along the seabed rather than being buried beneath it. At the end of the pipeline is the pipeline end manifold or “PLEM” which forms a connection between the pipeline and two 16 inch diameter flexible hoses. The PLEM is not and has never been anchored to the seabed. The hoses are 60 metres long and are made of six lengths of flexible hose each ten metres long which are fitted together. They are made by reputable companies such as Dunlop and Trelleborg and have a breaking point of 42 tonnes. In July 2001 the sealine was in poor condition. It was poorly maintained and corroded and had leaked on earlier occasions. In about November 1999 the PLEM was pulled westwards either by a tug or by a ship. This movement bent the sealine out of position severely weakening it. No repairs were then carried out. In October 2000 when the vessel Front Driver was at the sealine there was a very considerable leak of oil from the pipeline, as a result of the hoses being pulled too far by the handling tug. I should explain that on each berthing there are potentially two opportunities for such damage to occur. Firstly, the hoses might be picked up by the tug and pulled clear of the area where the vessel is to moor in advance of her arrival. This operation would be unnecessary if the hoses were found already to be in the correct position, or at any rate not in a position whereby they were likely to be fouled by the mooring vessel. Then, after the vessel was secured to the buoys the hoses would again be lifted by the tug and brought for connection to the ship’s manifold. After the incident involving Front Driver the last 20 metre section of the pipeline was replaced and the PLEM repaired. However there was again a serious leak during the visit of Cabo De Hornos in November or December 2000. Following that incident no proper repairs were carried out. 9. In July 2001 the M’bao sea berth consisted of 6 mooring buoys beneath which, on the seabed, lay the end of the pipeline to which two 16 inch diameter flexible hoses were attached. Each hose was marked by its own buoy. The PLEM itself had originally been marked by its own buoy, but this was missing in July 2001. There was no jetty or other structure on the surface. 10. As the vessel approached the sea berth, the Master observed oil on the surface of the sea, indicating a leak in the sealine. As I shall explain in more detail hereafter the Master nevertheless agreed to connect up the hoses and to test whether it was possible to discharge the cargo. 11. By 1900 on 10 July the vessel was all fast at the sea berth and time began to run again pursuant to clause 6 of the charterparty. Laytime was due to expire at 1427 on 11 July. 12. Discharge commenced at 2245 on 10 July but, after a short time, increased amounts of oil were observed coming to the surface, and discharging was suspended by order of the terminal at 2300. The vessel remained at the sea berth during 11 July while divers inspected the sea line and made an attempt to repair the leak. 13. A diving inspection revealed the source of the leak to be a gap in the flange connecting the last section of the pipeline before the PLEM to its neighbour, at a distance of about 20 metres back from the PLEM. The last 20 metre section before the PLEM was also found to be bent. This damage is consistent with the final 20 metre section of the pipeline having been pulled in a direction roughly perpendicular to its original attitude by tugs used to handle the hoses attached to the PLEM. In the absence of a buoy marking the position of the PLEM those on board the handling tugs were unable accurately to gauge its position. 14. Attempts were made to carry out temporary repairs to the pipeline during 11 July. These repairs involved tightening the bolts which held the flanges of the two pipe sections together. The temporary repairs were not successful. The vessel was eventually ordered off the sea berth at 1100 hours on 12 July. By 1430 hours on 12 July a pilot and tugs were in attendance in order to shift the vessel to the anchorage. By 1700 hours the vessel was clear of the sealine berth. The further repairs which now took place involved the application of wedges and quick drying cement. 15. The vessel remained at the anchorage until 21 July. At 1100 hours that day she was ordered back to the sea berth to resume discharge. She re-berthed at 1600 hours and connected up to two hoses as before. At 2000 hours she resumed discharging, but after about forty minutes this was stopped as oil was again observed to be leaking from the pipeline. She was again ordered off the sea berth at 0900 hours on 22 July, and by 1130 hours on the same day a pilot and tugs were in attendance in order to shift the vessel to the anchorage. The vessel was clear of the sealine berth by 1300 hours. 16. The vessel remained at the anchorage until 29 July. During this time the last 20 metre section of the pipeline was removed altogether, along with the PLEM, and a single 16 inch diameter flexible hose, 90 metres long, was attached to the new end of the pipeline. 17. At 1130 on 29 July the vessel was ordered back to the sea berth. She re-berthed at 1730. Discharging recommenced at 2015. This time, no leakage was observed. However, the rate of discharge was reduced, because now only one hose could be used, and then only with a reduced pressure. The vessel took 18 hours and 57 minutes to complete discharging her first parcel of cargo at 1512 on 30 July. 18. For a week or perhaps a little more before Afrapearl came to Dakar the Dakar Port Authority (Port Autonome de Dakar) received complaints from residents on Gorée Island that oil pollution had been found on the island. The source of this pollution was never exactly ascertained. However as I have already indicated the Master observed oil on the surface of the sea when he was two cables distant from the mooring position. Small bubbles of oil were breaking the surface of the sea in the vicinity of the sealine and a noticeable film of oil extended away from the mooring area following the slight north westerly current. The loading Master made a half-hearted attempt to pass this off as dirt coming to the surface following the earlier disturbance caused to the seabed by divers surveying the berth. He also said to the Master that in any event, whether or not there was a light leak from the sealine, he wanted to berth the ship and connect up the hoselines in order to test whether it was possible to discharge her. After discharge had been suspended for the first time the loading Master acknowledged that the leak was the result of pre-existing damage to the pipeline which had not been properly repaired since the visit of Cabo De Hornos. 19. I find that the sealine was already leaking before the arrival of the vessel at Dakar, indeed even before the charterparty was concluded and/or Dakar was added to the permitted discharge range. It is unclear whether the hoses were in fact manoeuvred clear prior to the vessel’s approach to the mooring area. If they were the earlier damage may have been exacerbated as indeed it may have been by the operation to bring the hoses to the ship’s manifold. The opportunity for such exacerbation was presented by the poor condition of the pipeline, the product of earlier damage and neglect.”
“Here of course I am concerned with a pipeline which no doubt functioned in the sense that it was capable of conveying oil along its length but which also malfunctioned in that it permitted a leak of such significance as to render it unusable. A smaller leak would, depending obviously upon its size, either have remained undetected or would even perhaps, if sufficiently insignificant, have been tolerated, at any rate for the duration of this discharge operation. I find support for this latter observation in the reported comments of the loading Master to which I have made reference in paragraph 18 above.”
“Whether it is appropriate so to describe it is a matter of impression, to which the duration of the problem, its cause and its magnitude can in my judgment all properly contribute, as can the remedial measures necessary. Here tightening of bolts securing the flange was to no avail as equally was sealing with quick drying cement. What ultimately was required was removal and replacement of the last twenty metre section of the fixed pipeline, albeit this vessel was able to complete her discharge following a temporary repair involving removal but not replacement of that length and the connection of additional flexible hosing to the flange left at the end of the pipeline. In my judgment it is neither natural nor appropriate to describe as a breakdown the gap in the flange which permitted the leak, caused in the manner and over the period which it was. Nor do I regard the context in which the word is here used as compelling the conclusion that it must be regarded as a breakdown. It may be that in certain circumstances a problem which pre-dates the making of the charterparty can properly be described as a breakdown, but it must be obvious that the longer a problem has gone unremedied the more difficult it will be to characterise it as a breakdown in the context of a charterparty executed long after its initial occurrence. One can perhaps test the point by asking what would have been the position here had the sealine belonged to or been the responsibility of the Charterers of this vessel? The exception in clause 8 does not import any reference to a necessity for the relevant breakdown to be beyond the Charterers’ control. Commercial men would in such circumstances surely demur to the suggestion that what here occurred could properly be described, in the context of this charter and as between Owner and Charterer, as a breakdown of equipment. In my judgment the word breakdown introduces some element of perceived fortuity even if the underlying cause demonstrates inevitability. I do not think that anything said by Sellers or Willmer LJJ in Reardon Smith Line v Ministry of Agriculture, Fisheries and Food[1962] 1 QB 42 (The Vancouver Strikes case) detracts from this conclusion. I simply do not think that informed commercial men would say, in the context of this laytime and demurrage exception, agreed 18 months after the initial damage was apparently done, and in the light of the subsequent problems and inaction, that there had been a breakdown of the consignee’s equipment. I think that they would say that, Owners having agreed to discharge at Dakar, Charterers had then directed the vessel initially to discharge at a damaged and unusable sealine. Given that the vessel had too deep a draft to enter the port, the Charterers could of course have required the vessel to discharge into lighters. It would be very surprising in the light of the allocation of risk and responsibility in this charter as a whole to find that in such circumstances charterers were entitled to a reduction in the rate at which time counts for all the time lost as a consequence of their commercial decision to require discharge at the sealine.”
“No doubt the words ‘breakdown of machinery’ might be limited, in the appropriate context, to the colloquial expression ‘breakdown’ when used, for example, in relation to the breakdown of a motor car. But I find it very difficult to apply that expression in relation to equipment other than machinery. In the case for example of an oil jetty, the relevant equipment may include not merely machinery, but, for example, pipes; and it seems to me that piping can legitimately be called equipment in or about the plant of the supplier or consignee of the cargo in the context of a charterparty for a tanker. As I read the words ‘breakdown of machinery or equipment’ they must in the present context go beyond the ordinary example of a machine breaking down due to its own inherent defect. Where there has been a breakdown of equipment in the context of this clause I can see no reason why it should not include, for example, a breakage in a pipe, and in those circumstances it is difficult to see why breakdown should be limited in this clause to something involving an inherent defect in the machinery or equipment. …. The cause of the breakdown is immaterial. It could be some external agent, or it could be some internal defect in the machinery or equipment, but if the machinery or equipment does not function, and possibly also if it malfunctions, then there is a breakdown of the machinery or equipment.”
“9. SAFE BERTHING – SHIFTING. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival… The Charterer shall have the right of shifting the vessel at ports of loading and/or discharge from one safe berth to another on payment of all towage and pilotage shifting to next berth, charges for running lines on arrival at and leaving that berth, additional agency charges and expenses, customs overtime and fees, and any other extra port charges or port expenses incurred by reason of using more than one berth. Time consumed on account of shifting shall count as used laytime except as otherwise provided in Clause 15.”
“In my judgment using the same berth three times over must on the facts of this case be regarded as an exercise by the Charterers of their right to require the vessel to shift from one safe berth to another. No one would have any difficulty with that that conclusion where, for example, the Charterers simply asked the Owners to cease discharge at berth A, to proceed to berth B and there to discharge 50 per cent of the cargo and to return to berth A to discharge the balance. In my judgment what occurred here is in substance no different. The vessel was required to use the same berth three times, and to shift off and on to it again on two separate occasions, with waiting time in between as might have occurred in a shift from berth A to berth B. That must and in my judgment can for present purposes be regarded as a shift from one berth to another. Again, were it not so, arbitrary and capricious distinctions might follow. The Charterers might, for example, have reacted to the problem by directing the vessel to discharge into lighters. In other circumstances had there not been a draft restriction the Charterers might have directed the vessel to proceed to a fixed berth in substitution for the sealine. It would to my mind be odd if the expense associated with these latter shifts were recoverable by the Owners but not the expenses which they incurred by reason of being required to shift backwards and forwards as they did.”