Carisbrooke Shipping CV5 v Bird Port Ltd [2005] EWHC 1974 (Admlty)

Case No 2004 Folio 772Neutral Citation Number: [2005] EWHC 1974 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 September 2005
Before
Mr.Nigel Teare QC
Between
CARISBROOKE Shipping CV5ClaimantBIRD PORT LIMITEDDefendant
MV CHARLOTTE C
Richard Waller (instructed by Clyde and Co.) for ClaimantStewart Buckingham (instructed by Ince and Co.) for DefendantHearing Hearing dates : 7-8,11-13 and 15 July 2005
Judgment

Mr Nigel Teare QC:

[1]This is an action for damages by the Claimant, the owner of the motor vessel CHARLOTTE C, against the Defendant, the owner and operator of Bird Port which is in Newport. The claim is brought under the Occupiers’ Liability Act 1957 and in negligence. It is said that whilst berthed at Bird Port between 8 and 12 May 2003 the vessel sat upon a steel coil causing indentations and fractures in her bottom shell plating and buckling of her internals. The Claimant seeks to recover as damages for breach of the Defendant’s duty of care the costs of repairing the damage and loss of hire initially in the sum of £168,485. The Defendant denies liability and essentially puts the Claimant to proof of its claim.[2]In essence the issue between the parties can be shortly stated. What caused the vessel to suffer damage ? Was the damage caused at Bird Port or at another port ? Was the cause of the damage a steel coil on the dock bottom at Bird Port ? In order to resolve this apparently simple dispute oral evidence was adduced from eleven factual witnesses and from two expert surveyors. At the end of 6 days of evidence the Claimant and Defendant submitted very detailed written submissions. The parties may once have sought a solution to their dispute at a cost which was proportionate to the amount at issue. But those attempts had clearly come to an end sometime before the trial.[3]Whether or not the Claimant has proved on the balance of probabilities that the damage was caused by a steel coil on the bottom of the berth at Bird Port will necessarily depend upon a consideration of the totality of the evidence though some categories of evidence may be more cogent than others. The essence of the Claimant’s case is that the evidence as to the nature of the damage, as to the behaviour of the vessel at Bird Port and as to the time when leakages were detected on board is cogent and convincing proof that on the balance of probabilities the damage was caused by a steel coil on the bottom of the berth at Bird Port. The Claimant has no direct evidence that a particular coil had fallen into the berth or that a coil had been removed from the berth after CHARLOTTE C had left the berth. However, it is said that it can safely be inferred from the above evidence that the damage must have been caused by a steel coil which had fallen onto the bottom of the berth before CHARLOTTE C arrived at Bird Port and was removed after CHARLOTTE C had left Bird Port.[4]If the Claimant is unable to discharge the burden of proof upon it then the claim fails; see The Popi M [1985] 1 WLR 948.[5]If the Court concludes, on the balance of probabilities, that the damage was caused by a steel coil on the bottom of the berth at Bird Port it is then necessary to decide whether the servants or agents of the Defendant were negligent to have permitted a steel coil to lie on the bottom of the berth. Finally, there are several issues to be resolved concerning the quantum of the Claimant’s claim.[6]There were several categories of evidence and associated topics which it was necessary to consider. They are as follows:(i) The vessel (paragraphs 7-8);(ii) Bird Port (paragraphs 9-17);(iii) The nature of the damage (paragraphs 18-23);(iv) The perceived behaviour of the vessel and the discovery of leakages (paragraphs 24-41);(v) The actual behaviour of the vessel (paragraphs 42-66);(vi) The damage and the expert surveying evidence (paragraphs 67-84);(vii) Discussion and conclusions with regard to the expert surveying evidence (paragraphs 85-95);(viii) The possibility of a steel coil finding its way into the bottom of the berth (paragraphs 96-111);(ix) Removal of the coil (paragraphs 112-124);(x) Conclusion as to the cause of the damage (paragraphs 125-131);(xi) Damage in way of frames 11 and 12 (paragraph 132);(xii) Negligence (paragraphs 133-141);(xiii) Quantum (paragraphs 142-171);(xiv) Overall conclusion (paragraph 172).

The vessel

[7]CHARLOTTE C is a single-decked multi-purpose geared general cargo vessel of 2,999 grt and 1,714 nrt built in 2000. She is 94.95 metres in length overall, 13.17 metres in breadth and has a summer draft of 6.191 metres. She has a single hold forward of the accommodation and machinery space and is double skinned. Her double bottom is divided transversally into three tanks. The wing tanks are for ballast water as are the forward centre tanks. The three aft centre tanks are for fuel oil. Double bottom ballast tanks nos. 2 and 4 starboard run from frame 24 to frame 86. The transverse bulkhead between the tanks is at frame 52. Double bottom fuel oil tank no.3 centre is adjacent to those tanks running from frame 46 to frame 62.[8]Prior to arrival off Bird Port on 6 May 2003 CHARLOTTE C had loaded and discharged cargo at Haifa and St.Malo. The ballast tanks are routinely sounded and stripped after deballsating. No ingress of water into the ballast tanks (or into the fuel tanks) had been reported prior to arrival at Bird Port and no unusual trim had been observed at sea.

Bird Port

[9]The berth at Bird Port is within an enclosed dock which was originally constructed as a dry dock. The dock is 225m. in length and 19.8m. wide. It has a flat reinforced concrete bottom. Photographs of the dock bottom indicated that the dock bottom sloped up from the gates inwards. However, the gradient was unknown. The dock gates, instead of being used to keep water out, are used to keep water in. However, they leak with the result that water can enter the dock during the flood tide and can escape during the ebb tide. Just inside the gates is a sill which is about 0.5m. in height above the dock bottom. On one of the gates is a depth gauge which records the depth of water above the sill.[10]Vessels are berthed bow in, starboard side to. The berth is known as a NAABSA berth, that is, “not always afloat but safely aground”. Thus it is expected that vessels will or may take the ground at low water. However, the bottom of the berth is typically covered with a layer of silt or mud which comes in with the tide. The mud was described as gelatinous and not of a solid composition like compacted river beds. From time to time, and when operational considerations permitted, dredging operations were carried out in the dock.[11]Steel coils, amongst other products, are loaded and discharged at Bird Port. Indeed, between 7 February and 20 May 2003 14 vessels discharged coils and 22 vessels loaded coils at Bird Port. The steel coils imported in March and April 2003 varied in width from 0.72m. to over 2m., although over 99% exceeded 0.9m. in width. The width of the coil represented the height of the coil in the event that the coil lay on its side. There was no evidence of the width of coils exported.

Depth of mud or silt

[12]On 19 June 2005 the mud or silt was observed by the parties’ surveyors to have reached the level of the first ledge at the side of the dock which was 1.7m. above the dock bottom. It was therefore concluded that the mud or silt was 1.7m. deep. However, this was the depth in June 2005 rather than between 8 and 12 May 2003 when CHARLOTTE C was at Bird Port.[13]In a report dated 11 April 2003 by C F Spencer and Co. Ltd., which was issued following an inspection by Mr.Spencer and Mr.Robert Watson, the dock is described as retaining a considerable volume of mud, approximately 1.5 metres. On 12,13 and 14 May 2003 Mr.Watson visited Bird Port following the departure of CHARLOTTE C from Bird Port on 12 May 2003. In his report dated 29 May 2003 Mr.Watson described the mud or silt on 13 May as being approximately 1 metre in depth at its shallowest point. Mr.Watson recalled in his oral evidence, which was given by video link from the United States, that the mud was a little less than half a metre or one to one and a half feet below the level of the first ledge. Given the height of that ledge (1.7m.) that would indicate that the depth of the mud or silt was about 1.2 – 1.4m. However, in his report he also noted that on 12 May mud was being grabbed and deposited in the area where CHARLOTTE C had been berthed. Thus the position observed on 13 May was not identical to that which prevailed prior to 12 May. A month later, on 13 June 2003, Mr.Williams of LGSA Marine reported that the depth of mud in way of the operational part of the dock “is expected to be within half to approximately 1 metre depth.” Mr.Gibson of Brookes Bell who attended on that day reported that the depth of silt where CHARLOTTE C had been berthed appeared to be approximately 1m. deep.[14]The depth of the mud or silt between 8 and 12 May 2003 cannot be known for certain. On the evidence which was adduced before me I find that the depth was probably between 1 and 1.5m. It was said by Mr.Allen, the General Manager of Bird Port, that for a period of 10-11 days prior to the arrival of CHARLOTTE C there had been no dredging. This suggests that the depth was probably closer to the top end of the likely range than the bottom end.

Tides and depth of water in the dock

[15]During the period 8-10 May 2003 the tide level at high water was falling. From 11 May the tide level at high water was increasing. Allowing for the facts that the height of the dock sill was 5.2m. above chart datum and that the sill was 0.5m. above the dock bottom (and assuming that water was able to flow in and out of the dock unimpeded) the predicted depth of water in the dock at high water between 8 and 12 May was as follows: 8 May 1149 6.5m 9 May 0009 6.5m 1247 6.0m 10 May 0114 6.0m 1403 5.8m 11 May 0240 6.1m 1534 6.2m 12 May 0406 6.8m[16]However, when the dock gates were closed they prevented a free flow of water into and out of the dock, although they did allow some water to flow in and out depending upon the state of the tide. Thus, although low water was over 7m. below high water on 8 May 2003, there was still a depth of 4.3m. in the dock at low water on 8 May according to the master. For this reason the above predicted depths of water at high water cannot be an accurate assessment of the depth of water in the dock at the stated high tides (until at any rate the gates were opened so that the water level inside the dock would be at the same level as the water outside.) Further there was evidence (from ABP at Newport) that tide gauge readings indicated that the actual height of tide was not necessarily the same as the predicted height. On 12 May 2003 it was 0.1m, higher than predicted.[17]From 8 until 10 May 2003 the predicted level of low water was increasing and from 11 May it was falling. As already stated, based upon the evidence of the master, there was at low water on 8 May a depth of water in the dock of 4.3m. However, there can be no certainty as to the depth of water in the dock on subsequent low waters since the gates were not watertight and the level of low water was increasing until 10 May and thereafter falling. It was not until 12 May that the predicted level of low water was the same as on 8 May.

The nature of the damage

[18]CHARLOTTE C arrived at Bird Port on 8 May 2003 and, having loaded a cargo of steel coils, left on 12 May for Spain. Shortly thereafter, after several soundings revealed an increasing amount of water in her ballast tanks, CHARLOTTE C altered course to Falmouth. Whilst at Falmouth a divers’ survey was conducted. CHARLOTTE C was permitted by Class to proceed to Barcelona. Thereafter she was permitted by Class to proceed to Sagunto and thence to Cadiz for repairs. In the event she was ultimately repaired at La Linea where she arrived on 28 May 2003.[19]The following damage was found:(i) On the bottom shell plating in way of frame 52 and the longitudinal bulkhead between no.3 centre double bottom tank and nos.2 and 4 starboard double bottom tanks there was a circular indentation about 80mm in depth causing damage over a diameter of about 1.5-1.6m. This was about 2.760 metres to starboard of the centreline. At the centre of the circular indent there was what has been described as a nipple or dimple. This feature, coupled with the circular shape of the indent, has caused the indented section to be described as being like a “Mexican hat” in shape.(ii) There were also circular marks around the nipple or dimple. They were described by Mr.Davies, a senior superintendent of the Claimant who inspected the damage at La Linea, as “concentric rings similar to the growth rings seen when you fell a tree”. He described them as being around the nipple and pushed up into the paint. There were no markings which suggested that the vessel had been underway during contact.(iii) The indentation was associated with buckling of the internals in way, namely, the longitudinal bulkhead and transverse floors. Mr.Davies observed that the fillet welds in way of the damaged ballast tanks and fuel tank had failed. When crawling through one of the ballast tanks he was able to put his little finger between the ballast tank and the fuel tank and two fingers between one ballast tank and the other. He observed cracks in the internals but did not notice whether they had gone right through the steel.(iv) The bottom shell plating was also cracked. One crack was at the aft end of the indentation in way of a “pinnacle”. It was to port of the weld seam in the bottom shell plating and was 130mm. in length, of which about 80mm was open to a width of 9mm. Towards the end of the trial there was some doubt, based upon a reading of the transcript of the divers’ survey, as to whether there were two additional cracks, or only one additional crack, in about the centre of the indentation. However, the divers’ survey report refers to “at least two more splits and gouges in the shell plating within the set up area.” All cracks were in the fore-aft direction.(v) The starboard double bottom ballast tanks nos.2 and 4 and the centre fuel oil double bottom tank no.3 were common and open to the sea.(vi) There were also two localised adjacent areas of indentation damage further aft in way of frames 11 and 12.[20]This damage was the subject of expert comment by independent surveyors. Mr.David Spence, a marine engineer with a degree in nautical studies, was called by the Claimant and Dr.Medhurst, a marine engineer with a doctorate in naval architecture, was called by the Defendant. They were agreed on some matters. The damage was consistent with the vessel settling on to an obstruction on a single occasion and then rising vertically off it. It was inconsistent with the vessel settling onto an obstruction more than once. It was also agreed that the object which damaged the vessel must have been circular, regularly shaped, flat or slightly convex and about 1.2m. in diameter.[21]At the opening of the trial there was a dispute between the experts as to the mechanism which was likely to have given rise to the cracks. Mr.Spence was of the opinion that the cracks were caused when the vessel settled on the obstruction. Dr.Medhurst did not accept that that was necessarily so. He said there was another possibility, namely, that when the vessel settled on an obstruction, prior to arrival at Bird Port, the shell plating and internal structure was plastically deformed causing incipient cracks which opened up to cause leakage when the vessel took the ground at Bird Port.[22]There was also a dispute between the experts as to whether the vessel could have been prevented from rising with the tide at Bird Port by the phenomenon known colloquially as “mud suction”.[23]There was also some discussion as to whether water was able to pass through the crack in way of the pinnacle into the tanks in way. This arose because neither Mr.Davies (the Claimant’s superintendent) nor Mr.Sacaluga (the hull underwriter’s surveyor) referred to this crack. However, there is no dispute that there was such a crack. What is suggested is that it was not mentioned because it was not leaking. It is odd that neither Mr.Davies nor Mr.Sacaluga referred to it but I do not follow why a belief that it was not leaking was a reason for not mentioning it. I therefore do not consider that it is reasonable to infer that water was not able to leak through that crack. Having regard to the severity of the tear it is very likely that water was able to leak through it. The perceived behaviour of the vessel and the discovery of fuel oil and water in the vessel’s ballast tanks[24]The master, chief officer, second officer and chief engineer were called to give oral evidence.[25]The master was John Cornwall who has held a foreign going master’s certificate of competence since 1986 and has served as master for about 20 years. He was first employed by the Claimant in 2002 and joined CHARLOTTE C in March 2003 in Istanbul. When he assumed command no problems relating to the ballast tanks or fuel tanks were reported to him. Prior to arrival at Newport the vessel had loaded or discharged at Haifa and St.Malo without any ingress of water or unusual trim being reported to him.[26]His account of the events at Bird Port is as follows. On 8 May 2003 CHARLOTTE C berthed at Bird Port, starboard side to, at about 1200 just after high water. Loading of steel coils commenced at about 1320 and was completed at about 1755. Low water was predicted for 1805. The vessel’s deck log recorded as follows :
“Water level in dock dropped to 3.8m V/L on bottom.”
The master gave evidence that the basis of this entry was that the tide gauge in the dock showed about 3.8m. and that the vessel’s draft was about the same. The vessel’s engine log records that certain tanks were deballasted.[27]The next high water was 0009 on 9 May. The master said that CHARLOTTE C refloated. The engine log again records that certain tanks were deballasted and also that all ballast tanks were stripped. No water ingress was reported to the master and no fuel oil leakage was evident. Loading re-commenced at 0615 and continued until about 1800. Low water was at 0630, high water was at 1247 and the second low water was at 1857. The master said in his witness statement (which had been signed on 22 March 2005 but had been taken about 18 months to two years earlier) that at high water his vessel did not rise with the tide, despite the discharge of all ballast.[28]Loading was completed at about 1515 on 10 May (high water having been at 0114 and 1404) and the vessel, according to the master, remained “on the dock bottom.” The master planned to sail on the morning high water of 12 May.[29]On 11 May there were no cargo operations. The engine log records that soundings were taken from the ballast tanks and that traces of fuel oil were found in ballast tanks nos.2 and 4 starboard. It was decided to transfer the fuel oil in no.3 centre aft to double bottom no.4 centre. It was considered that the fuel oil could only have come from double bottom no.3 centre. The master discussed the matter with the Claimant’s “Designated Person Ashore” Captain Smith and it was decided that the vessel could sail but that the situation should be monitored closely. The deck log records departure drafts of forward 6.05m. and aft 5.85m. with a mean draft 5.95m.[30]On 12 May the pilot boarded at 0215 and at 0310 the dock gates were opened. High water was predicted for 0406. The master said in his statement that “CHARLOTTE C was still lying on the dock bottom, despite the rising waters. As the main engine was running I gave a kick astern to help break the suction.” By 0345 the vessel was afloat and she sailed.[31]At about 0845 the master received a report that water had been found in the starboard ballast tanks nos.2 and 4 and in the adjacent fuel tank no.3 centre double bottom. This discovery was noted in the log. Captain Smith was informed and further soundings were taken at 0900, 1050, 1420, 1810, and 2330 which showed the water level in those tanks to be increasing. The vessel began to take a noticeable list to starboard. It was apparent that the hull had been breached. At 2200 the vessel was diverted to Falmouth.[32]Whilst at Falmouth the master prepared a short report. Several points arose from that report in cross-examination. The master stated in his short report made at Falmouth that in the afternoon of 11 May it was concluded that the vessel, which was showing a draft of 6.3m., was either overloaded or stuck to the bottom. Soundings were taken to ensure that all ballast was out. It was at this time that fuel oil was found in the nos.2 and 4 starboard double bottom tanks. In the light of this almost contemporaneous statement the master accepted that the ballast tanks were checked in the afternoon of 11 May, not because of a usual pre-sailing check, but in reaction to a perceived problem.[33]It was also suggested to the master, on the basis of his own report, that the first time he noticed that the vessel was “stuck” was in the afternoon of 11 May to which suggestion the master agreed.[34]The master was also challenged as to his evidence that he considered the vessel held by suction until the suction was broken by giving the engines a kick astern on 12 May. He replied very firmly that at the time he was sure that the vessel was stuck in the mud and that it was the kick astern that freed her. That evidence is consistent with his statement made at Falmouth in which he referred to the “suction” being broken. However, he fairly accepted that it was possible that she did not float because there was insufficient water and that she refloated when there was sufficient water which, by coincidence, was when he gave the engines a kick astern.[35]My impression of the master was that he was an honest witness although one who, quite understandably, did not have a firm recollection of precisely when certain events had occurred. He responded very fairly to questions put to him in cross-examination.[36]I also heard evidence from the chief officer, Piotr Borowiecki. In his statement he described the vessel as not rising with the tide on 9 May in identical terms to those used by the master in his statement and in cross-examination he maintained this evidence. But when giving evidence he continuously referred to his statement. He did not appear to have any real recollection of what happened on 9 May and the fact that his statement was expressed, in this regard, in identical terms to that of the master suggests to me that he had no independent recollection of what had happened on 9 May when he made his statement. The second officer, Bryan Holmes, gave similar evidence to that of the master and chief officer as to the vessel not rising with the tide on 9 May. However, the notes of his interview, on which his statement was based, do not make reference to this happening on 9 May. I do not consider that either the chief officer or the second officer was able to give reliable evidence of what did or did not happen on 9 May.[37]The chief engineer also gave evidence but whilst at Bird Port he spent most of his time in the engine room working on an overhaul of the main engine cylinder. For these reasons his evidence as to the behaviour of the vessel at any particular time is not reliable. He was, however, involved in checking the discovery of traces of fuel oil in ballast tanks nos 2 and 4 starboard on 11 May and in the decision to transfer fuel oil aft. He also said in his written statement that shortly before departure from Birdport water was noted in the ballast tanks. He said that it was thought that this was the result of ballast water becoming detectable due to the vessel’s change in trim. A breach of the hull was not considered possible and so the vessel sailed but the tanks were to be monitored closely. But in cross-examination he said it was not true that water had been found in the ballast tanks before departure.[38]The log book records that the vessel sat on the dock bottom on 8 May. Nothing is mentioned about the vessel failing to rise with the tide on 9 May. But equally nothing is mentioned about the vessel failing to rise with the tide on 10 May (when it is accepted by the Defendant that the vessel failed to rise with the tide due to a lack of water). It follows that little, if anything, can be inferred from the absence of an entry in the log that the vessel failed to rise with the tide on 9 May.[39]In the result I find, on the basis of the master’s first report dated 13 May 2003 and his fair acceptance of matters put to him in cross-examination, that the master believed on 8 May that the vessel had rested on the dock bottom on that day, that it was only on 11 May that he first concluded that the vessel may have been stuck in the mud and that on 12 May he gave the engines a kick astern in the belief that this would break the suction, which, in his opinion, it did. Whether the vessel in fact rested on the dock bottom on 8 May and whether the vessel ever failed to come up with the tide by reason of “mud suction” are questions to which I return in the next section of this judgment.[40]I also find that prior to arrival at Bird Port no water ingress had been discovered despite soundings having been taken. Fuel oil was discovered in nos. 2 and 4 starboard double bottom tanks on the afternoon of 11 May. Shortly after departure from Bird Port on 12 May soundings indicated water in those tanks and in the adjacent fuel oil tank. The water level in those tanks continued to increase.[41]Finally, I should record that no ship’s witness observed that vessel listed to port whilst berthed at Bird Port. The actual behaviour of the vessel at Bird Port 8 May

The actual behaviour of the vessel at Bird Port

[42]It is first necessary to consider whether CHARLOTTE C in fact sat on the dock bottom on 8 May.[43]The master’s belief that the vessel rested on the dock bottom on 8 May was based upon his belief that the vessel’s draft was about 3.8m and that the water depth in the dock was about 3.8m. just before low water. However, a water depth reading of 3.8m. from the gauge in fact represents a depth of 4.3m. in the dock when allowance is made for the height of the sill at the entrance to the dock (or a little less if allowance is made for the gradient on the dock bottom). The vessel was probably trimmed by the stern; the chief officer made a rough estimate that on completion of loading on 8 May the vessel would have been drawing about 3.75m. aft and about 2.95m. forward, giving a mean draft of 3.35m. Thus, contrary to the opinion formed by the master at the time, the vessel was probably not resting on the dock bottom on 8 May but was afloat.

Mud suction

[44]Next, it is necessary to consider whether CHARLOTTE C was ever held by “mud suction”.[45]The draft of the vessel after loading on 9 and 10 May was estimated by Dr.Medhurst (based upon the chief officer’s rough estimate of the draft after completion of loading on 8 May) at 4.9m (mean) and 5.95m (mean). The deck log also records a mean departure draft of 5.95m. These estimates did not, as I understood them, allow for the effect of mud.[46]On 8 May at low water the vessel, assuming a draft of about 3.8m., a depth of water and mud of about 4.3m. (or a little less allowing for the inclination of the dock) and a depth of mud of 1-1.5m., must have settled into the mud to some extent. It is common ground that she rose with the tide early on 9 May. Since further cargo was loaded on board CHARLOTTE C on 9 May it is also likely that she settled into the mud at low water in the evening, but since low water was 0.7m. higher than on 8 May the extent to which she sank further into the mud is uncertain. In the light of the master’s report dated 13 May 2003 I consider it likely that the vessel rose with the tide early on 10 May.[47]Loading of cargo was completed on 10 May at 1515. Low water was predicted for 2019 that evening (though now with 1m. more water predicted than at the low water on the evening of 8 May). The chief officer calculated that the vessel’s floating draft would have been about 6m. It is likely that she settled into the mud. On 11 May the predicted high water over the sill at 0240 and 1534 was 5.6m. and 5.7m. (6.1m and 6.2m. in the dock) respectively. Departure was therefore delayed until the next appropriate high water which was due in the early morning of 12 May when a high water over the sill of 6.3m was predicted (6.8m. in the dock).[48]In his report dated 13 May 2003 the master stated that at “1600 high water” on 11 May the vessel was drawing 6.3m. (High water had been predicted for 1534 on 11 May.) 6.3m. was in excess of the vessel’s expected floating draft of about 6m. There is no reason to doubt the master’s statement in his report dated 13 May that the vessel was drawing 6.3m. on 11 May at 1600. It exceeds the predicted high water level in the dock of 6.2m. but, for the reasons already given, the predicted level of water may not be an accurate assessment of the level of water in the enclosed dock. There was no evidence that the vessel had been overloaded and the vessel’s recorded refloating drafts of 5.98m forward and 5.96m. aft in the master’s report show that she was not. Why then was the vessel drawing 6.3m. when her calculated draft was somewhat less ?[49]Such a draft can be explained by the phenomenon known as mud suction. “Mud suction” occurs when the mud in which the vessel sits forms a seal around the vessel’s bottom such that the vessel receives no buoyancy up-thrust from the water. It was the opinion of the vessel’s experienced master that the vessel was held by suction. In his oral evidence the master described how the vessel “popped up” when he gave the engines a kick astern. I see no reason to doubt the opinion formed by the master at the time that the vessel was held by mud suction.[50]In his report Dr.Medhurst challenged the master’s opinion on the basis that, had the vessel been held by suction when the depth of water in the dock was 6.6m. (the depth noted by the master when the vessel refloated) the vessel’s freeboard would have been reduced alarmingly and there would have been a substantial buoyancy upthrust of 725 mt. which it was not plausible to suggest was overcome by mud suction. However, the master said that he was not alarmed by the reduction in freeboard and Dr.Medhurst’s calculation of upthrust was challenged by Mr.Spence on the grounds that it took no account of the effect that mud has on buoyancy and in particular on the correct immersion factor to use for mud or silt. There seemed to me to be force in Mr.Spence’s criticism of Dr.Medhurst’s calculations. Dr Medhurst accepted in cross-examination that his calculations ignored the effect on buoyancy of mud.[51]Dr.Medhurst said in his oral evidence that a rapid reduction in pressure was also required for mud suction. However, this was not mentioned in his report where he discussed the master’s opinion in some detail. Nor was it suggested to Mr.Spence in cross-examination. I was not persuaded that this was a necessary requirement of mud suction.[52]It was also suggested that mud suction was unlikely given that the mud or silt moved in and out of the dock at high water in suspension rather than becoming compacted on a river bed. However, although Dr.Medhurst and Mr.Spence expressed differing views on this matter neither was an expert on the subject of mud or soil mechanics. Moreover, Mr.Allen, the General Manager of Bird Port, could recall one or two instances when a vessel in the dock experienced a “slight suction of the vessel to the mud”.[53]There is therefore no compelling reason for disregarding the opinion of the experienced master that the vessel was held by mud suction from at least the afternoon of 11 May until the early hours of 12 May.[54]It appears from the terms of the master’s report dated 13 May that mud suction was first observed at high water on the afternoon of 11 May when the vessel’s draft was observed to exceed her expected draft. There is no direct evidence that, over the prior high water at 0240 on 11 May, the vessel’s draft exceeded her expected draft. That was during the hours of darkness. It is however possible (and for the reasons which I express later in this judgment probable) that she did so.

Proximity of vessel’s bottom to dock bottom

[55]The extent to which the vessel sank through the mud and, in particular, whether she sank through the mud to within a few inches of the dock bottom or, at any rate to at least 0.5m. of the dock bottom, was investigated with the experts. The experts’ memorandum said that it was agreed that “the vessel would be supported by the mud and that the vessel would partially displace it” but added that Dr.Medhurst was “of the view that the mud would remain a fluid.”[56]Mr.Spence was not an expert in mud or soil mechanics and did not know the mechanical properties of the mud or silt in question. However, he considered it likely that the mud or silt was more dense than water and so it was likely that the vessel’s draft would be less in mud than in water. It was submitted on behalf of the Defendant that the evidence of water depth, mud depth and drafts strongly suggested that the mud, whatever its mechanical properties, did not prevent the vessel from assuming her “natural” draft, by which I understood counsel to mean her draft in water. Put another way it was said that the increased density of the mud did not provide any significant additional buoyancy.[57]Several matters support the suggestion that the mud or silt was more dense than water. Firstly, the photographs of the mud suggest that the mud was more dense than water. Secondly, the observation of Mr.Watson of C F Spencer on 4 April 2003 that two vessels which he had seen in the dock on 28 March 2003 left “indentations” in the mud also supports that suggestion. Thirdly, the fact that when Mr.Boyd of Brookes Bell walked into the mud it was thick enough to cause his boot to become stuck in the mud such that his heel peeled out when he lifted his leg also suggests a density greater than water.[58]The Defendant relied upon a number of contrary indications.[59]The first point was that Bird Port’s literature advertises a depth of 6.2m. within the gates (that is, above the sill) and that vessels drawing in excess of 6.2m. will sit NAABSA. It was said that this envisages vessels sinking to at least the sill level. That is true but I do not find this convincing evidence of the extent to which vessels may sink in the mud or silt. There was no evidence that those who prepared the literature gave thought to the question of sinkage.[60]The second point was based upon evidence that on 28 March 2003 Mr.Watson of CF Spencer visited Bird Port and saw 2 vessels in the dock aground on soft mud. The vessels showed a draft of 2m and the mud was estimated to be 2m. in depth. It was therefore said that these vessels had sunk to the dock bottom. Perhaps they had (and Mr.Watson agreed in cross-examination that they had) but it does not follow that CHARLOTTE C would have done the same. Much must depend upon the amount of cargo on board and the displacement of the vessels seen on 28 March 2003 compared with CHARLOTTE C between 8 and 12 May 2003.[61]The third point derives from the events of 8 May. It is said that since the observed draft was similar to that calculated after the event by the chief officer the vessel must have sunk as far in the mud as she would have done in water. There is some force in this point but the chief officer only made what he described a rough estimate. There is therefore a limit to the reliance which can be placed on this point.[62]The fourth point derives from the events of 12 May. It was said that since the vessel’s sailing draft was 5.95m. at about 0300 when the depth of water in the dock was, according to the tidal predictions and graph, about 5.9m. the vessel must have sunk to within a few inches of the dock bottom. However, the master, in his report dated 13 May 2003, stated that when the vessel refloated at about 0310 (with a mean draft of 5.97m.) the water in the dock was 6.6m. There is thus a discrepancy between the predicted depth of water and the observed depth. In those circumstances this fourth point cannot carry much weight.[63]The fifth point was merely a statement of the desired conclusion, namely, that the mud did not prevent the vessel from assuming her natural draft and so it does not advance the argument any further than points 1-4, which for the reasons given, is not far.[64]In conclusion I consider it likely that the vessel’s draft in the mud or silt in the dock was less than it would have been in water. However, the precise extent to which the vessel sank in the mud compared with water cannot be assessed on the evidence before the court. I did not find the attempts to assess the extent to which the vessel might sink into the mud by reference to the extent to which Dr.Medhurst sank into the mud (whether with a single Wellington boot or two) at or near the gate end of the dock helpful. It seemed a somewhat crude analysis and in any event the mud was shallower and more liquid in the vicinity of the gate end.[65]What can be said is that if the depth of water and mud on 8 May just before low water was about 4.3m. and the vessel was drawing about 3.8m aft (based upon the evidence of the master) then there was about 0.5m clearance aft above the dock bottom, or a little less if allowance is made for the inclination of the dock. (Dr.Medhust suggested that the depth would be 0.1m. less in way of the vessel’s midships point but this was only an estimate based upon photographs.) However, if the vessel was trimmed by the stern, as suggested by the chief officer’s rough estimate of the draft, then the clearance above the dock bottom in way of the damaged area will have been in excess of 0.5m. The mean draft based upon the chief officer’s rough estimate was 3.35m., which would suggest a clearance of 0.85m., or a little less if allowance is made for the inclination of the dock. It is likely, since the location of the damage was about two-thirds of the distance between stern and midships that the draft in way of the damaged area was about 3.5m., which would suggest a clearance of 0.8m., or a little less if allowance is made for the inclination of the dock.[66]On 9 and 10 May additional cargo was loaded which would have increased the vessel’s floating draft in water by about 2m. This would suggest that the clearance would have been less. However, the height of tide at low water was increasing from 8-10 May (by about 1 metre) so that there may have been more water in the dock at low water than there was on 8 May and it is clear from what Mr.Spence observed of the vessel’s bottom in La Linea that the vessel did not take the ground overall at Bird Port. Moreover, there was evidence from Mr. Boyd of Brookes Bell that the mud was denser below the uppermost layer of 6-12 inches. This is probably reflected in the experts’ agreement that the mud was softer towards the surface than the underlying part. Thus the vessel might well not sink at a uniform rate through the mud. In the result the clearance above the dock bottom on 9 and 10 May cannot be known with any accuracy, though it was probably less than on 8 May.

The damage and the expert surveying evidence

[67]At this stage it is necessary to consider whether the evidence of the damage, of the behaviour of the vessel at Bird Port and of the circumstances in which leakages were detected on board is cogent evidence that the damage was caused by an object on the bottom of the berth at Bird Port. It is sensible to begin with a consideration of this evidence because that is the evidence on which the Claimant relies to prove its case.[68]The most important question is whether the cracks on the vessel’s bottom shell plating are likely to have been caused on the same occasion as the circular indentation.[69]By the time of the hearing it was common ground that, having regard to the evidence that no leakage had been detected prior to arrival of CHARLOTTE C at Bird Port, the state of the hull on arrival in way of the damage cannot have been such as to permit leakage of fuel oil into the ballast tanks or to allow the entry of seawater into the ballast tanks or fuel tank. It is also recorded in the experts’ memorandum that it was highly unlikely that any of the damage was caused after the departure of CHARLOTTE C from Bird Port.[70]It was not, as I understood the expert evidence, disputed that the cracks could have been caused on the same occasion as the circular indentation. Rather, it was said that there was a plausible possibility of a two stage process whereby plastic deformation had caused incipient cracks (stage 1, prior to arrival at Bird Port) which opened up to cause leakage on a later occasion (stage 2, whilst at Bird Port). Much of the expert evidence was directed to considering whether there was such a plausible possibility. Dr.Medhurst said there was. Mr.Spence said there was not.[71]In his report dated 9 June 2005 Dr.Medhurst said “it is likely that the indentation occurred on a previous occasion, before the call at Bird Port, without penetration of the hull, and that one or more cracks later appeared under moderate longitudinal stresses probably increased by loading aground at Bird Port and that these stresses caused the incipient cracks to open up.” Dr.Medhurst explained in his oral evidence that an incipient crack is one which is visible by means of an X-ray examination but not otherwise and has not caused leakage.[72]In responding to Dr.Medhurst’s incipient crack theory set out in his report Mr. Spence relied upon the nature and appearance of the damage in support of his opinion that the cracks must have occurred at the same time as the indentation damage. His evidence was not based upon a visual inspection of the damage (because the temporary doubler plate over the damage had not been removed when he inspected the vessel in dry dock). His opinion was based upon inspection of the divers’ video and photographs.[73]Firstly, he relied upon the nature of the crack or tear in way of the pinnacle. He described it as being at the apex of the pinnacle. His description of what appears to have happened is as follows:
“the shell plating has been plastically deformed across an internal until the yield strength of the metal has been exceeded and the plate ruptured outwards.”
This type of mechanism was put to Dr.Medhurst in cross-examination and he accepted it. Mr. Spence said that he could not envisage any way in which a fracture of this nature could have occurred in a previously damaged plate by the application of stress to the hull form arising from the forces associated with loading aground. He firmly repeated this opinion when cross-examined. This opinion seemed to me to make sense. Moreover, under cross-examination Dr.Medhurst’s preferred cause of the crack in way of the pinnacle was not the incipient crack theory.[74]Secondly, Mr. Spence relied upon the fact that the splits were aligned fore and aft, that is, at right angles to the direction in which one would expect from the longitudinal stresses postulated by Dr.Medhurst in his report. Longitudinal stress generally causes fractures in a transverse direction,[75]This was not challenged by Dr.Medhurst but, although he had in his report identified longitudinal stresses as those which would cause cracks later to appear, he said in his oral evidence that such stresses “might not necessarily be exclusively longitudinal.” However, he accepted that the large stresses tend to be longitudinal and accepted that longitudinal stress generally cause fractures in a transverse direction, though he qualified his acceptance by adding that this was so in the case of an initially sound hull. However, he could recall no instance in his experience of longitudinal stress causing longitudinal cracks in the bottom shell plating of a vessel.[76]Dr. Medhurst then said in his oral evidence that longitudinal cracks could be caused in the absence of transverse stresses by the movement of a longitudinal girder which was already severely compromised by buckling. He had not dealt with this mechanism in his report because “it seemed, to me, self-evident that with that degree of damage, further damage could occur in the way of the severely buckled longitudinal girder.” He further said that “buckling is an unstable phenomenon that can do strange things” but accepted that he had made no reference to this in his report.[77]Mr. Spence was not cross-examined as to his opinion that longitudinal stresses generally cause transverse cracks. Nor was it put to him that there might have been transverse stresses operating on the vessel at Birdport. What was suggested to him was that “once you have got an area of plate or structure which has been damaged, it is very difficult to predict how that damaged structure is going to react to stresses.” Mr. Spence replied that that was “entirely incorrect”. When asked whether a crack which has not penetrated all the way through the plating might not penetrate all the way through when the welds fail, he replied that he had not come across that but that it would be entirely improbable in relation to the crack in way of the pinnacle which was a rupture and not an extension of an existing crack. As I have already said, in cross-examination Dr.Medhurst’s preferred cause of the crack in way of the pinnacle was not the incipient crack theory.[78]Thirdly, Mr. Spence noted that there were three fractures and expressed the opinion that he would have expected there to have been only one and not multiple fractures had cracking resulted from the application of stress to an already damaged area. This was not challenged in cross-examination. What was suggested was that a single event may have caused both indentations and fractures in way of the pinnacle and in the centre of the indentation, with which Mr. Spence agreed, but that the welds in way of the internals remained intact, with which Mr. Spence disagreed. When asked why he disagreed, he said that because of the extent of the deformation and the very nature of the damage the internals would have been disrupted and buckled and the welds would have been detached.[79]Fourthly, Mr. Spence relied upon the overall appearance of the damage as indicative of very recent damage. Scrape marks extended through the plating and exposed the steel but the steel was not corroded. It was grey rather than red or orange which colours are associated with the onset of corrosion. The painting was flaked but had not been worn away by the movement of the ship through water. Finally, he also relied upon the bright and shiny surface of the tear in way of the pinnacle which he regarded as indicating that the tear was very recent. He thought it was a matter of hours old.[80]Mr. Spence maintained these views when cross-examined. When asked about signs of corrosion he said it was very difficult to detect whether there was some light corrosion in way of the scrapes on the bottom plating. He accepted that there was some blistering of paint but he suggested that this was unrelated to the damage. Dr.Medhurst gave evidence that he could see, in photographs taken from the divers’ video, small areas of corrosion where the paint had been disturbed. However, he said that it was difficult to tell the difference between corrosion and anti-corrosive layers of paint because of the artificial light. He agreed that the tear in way of the pinnacle appeared to be bright and shiny with very little sign of corrosion but he disagreed that it was hours old.[81]On the morning of Day 5 of the trial, on which day Mr. Spence gave evidence, the Defendants produced diagrams prepared by Dr.Medhurst illustrating the two stages in which damage was caused. These diagrams illustrated the vessel arriving at Bird Port with cracks already fully opened. However, no leakage was caused by the cracks because the fillet welds between the longitudinal girder and the shell plating were intact. Leakage only occurred when the fillet welds failed by “alternating stresses”. This was a different theory from the incipient crack theory advanced in his report. When cross-examined he explained that he proposed the intact weld theory after having had access to the divers’ video. He also mentioned in this context Mr.Davies’ description of the damage. He further explained that this theory was a possibility which applied to the crack in way of the pinnacle. He agreed that this crack could well be described as a tear in the shell plating where the shell plating had been pushed upwards and wrapped around the longitudinal. Sufficient force had been generated to tear the shell plating and to deform the welds severely but there was a possibility that the welds might remain intact. He did not accept that this was highly improbable but he said that it was unusual. When asked why he said it would be unusual he replied “because normally you would expect the welds to fail.” A little later he said that the more the shell plating bent round the longitudinal, the more likely it was that the welds would remain intact.[82]With regard to the two cracks in way of frame 52 Dr.Medhurst thought that the more plausible cause was his first theory, an incipient crack being opened up.[83]Mr. Spence was asked in cross-examination whether it was possible that a weld which joins a longitudinal to the shell plating might remain intact notwithstanding that the shell plating is fractured under the longitudinal. This theory had not been advanced in either of Dr.Medhurst’s reports and so this was the first occasion on which Mr. Spence had to consider the question. He replied that it struck him as being a bit improbable and not a situation which he had knowingly come across. With reference to the crack or tear in way of the pinnacle he said that “if you had such disruption of the plating ….. I cannot imagine the fillet welds remaining in place.” He was asked about this several times and was unwavering in his replies.[84]Dr.Medhurst sought to support his intact weld theory by reference to “short cycle fatigue.” He accepted that this phenomenon required “substantial loads”. Discussion and conclusions with regard to the expert surveying evidence One event or two

Discussion and conclusions with regard to the expert surveying evidence

[85]Although Dr.Medhurst was not putting forward any theory as the probable explanation of the damage (at any rate in his oral evidence) but was only seeking to put forward plausible possibilities I was left with the distinct impression that he was putting forward explanations which might assist the Defendant’s case without giving any real consideration as to whether or not they were realistic possibilities. I was not impressed by his attempts to counter the objection that longitudinal cracks would not be the result of longitudinal stresses. He accepted that he was well aware of the longitudinal direction of the cracks and yet did not put forward either of his explanations in his written reports. His intact weld theory seemed to me both surprising and deeply improbable. It seemed to me unlikely, at the very least, that the upward pressure which caused the substantial crack or tear in way of the pinnacle could leave the fillet welds in way of the longitudinal intact. This was very obviously the opinion of Mr. Spence and even Dr.Medhurst accepted that intact welds in such circumstances would be unusual “because normally you would expect the welds to fail.” His reliance on short cycle fatigue seemed to me to be ill thought out because he made no attempt to identify the substantial loads which he accepted were required for this theory. In his sketches he referred to “alternating loads” but he explained that that phrase envisaged the “loads applied during loading which will alternate as the vessel takes the ground and comes off the ground again.” In that context he referred to a “small hogging stress” which might turn into a “moderate sagging stress”. It was not explained how such small or moderate stresses might amount to the substantial loads required for short cycle fatigue.[86]In considering the expert engineering evidence I reached the clear conclusion that the expert opinion of Mr.Spence was to be preferred to that of Dr.Medhurst. Mr. Spence, I thought, gave his evidence with care and was measured in his responses. He accepted many matters put to him, thought other suggestions were possible and in a few cases firmly disagreed with the suggestions put to him. Where he disagreed he explained why. The reasons he gave always appeared to me to make sense. By contrast Dr.Medhurst put forward possibilities which seemed to me, and more importantly to Mr. Spence, highly improbable and implausible. Thus the suggestion that the shell plating could have been torn in way of the pinnacle and that internals in way could have been buckled but that the fillet welds in way remained intact was, at its lowest, most improbable. Yet Dr.Medhurst was unable to accept that it was improbable even though he said it was unusual “because normally you would expect the welds to fail.” His suggestion that, the more the shell plating was bent round the longitudinal, the more likely it was that the welds would remain intact seemed to me implausible; for it meant that the more severe the indentation of the shell plating in way of the longitudinal the more likely it was that the welds would retain their integrity. Although this was said in the Defendant’s closing submissions to be the “obvious explanation” for the tear in way of the pinnacle not being the source of a leakage it was not, I think, suggested to Mr. Spence. It seemed to me that Dr.Medhurst was too enthusiastic in his suggestion of possibilities and, unwittingly, failed to give a measured and objective view unaffected by the exigencies of the litigation in which he was involved.[87]Mr.Spence’s opinion that the overall appearance of the damage was indicative of very recent damage was supported by the evidence of Mr.Davies who saw the bottom damage in La Linea. He said there was hardly any light corrosion on the shell plating. He described it as being “very very slight” and concluded from this that the damage was very recent. He also noted that paint flakes were evident both fore and aft of the damage. This also suggested to him that the damage was very recent. Internally he saw no corrosion. His observations were made, initially, when he was crawling through the damaged aft starboard ballast tank and had the use of a torch and then later, after the tanks had been cleaned and the doubler plate removed. He did not think cleaning would have affected any corrosion which was there or that heat damage caused by removal of the doubler plate would have obscured any signs of corrosion.[88]My conclusion as to the overall appearance of the damage is that if there was any corrosion it was slight, that the surface of the tear in way of the pinnacle was bright and shiny indicating a very recent tear and the similar flaking of paint fore and aft of the damage also suggested a very recent event.[89]I therefore consider, relying upon the expert evidence of Mr. Spence, that the nature of the damage is cogent evidence that the indentation on the bottom shell plating, the distortion of the internals in way, the fractures of the shell plating and the failure of the fillet welds occurred in one event, namely, when the vessel settled on to a circular, regularly shaped, flat or slightly convex object. There is no realistic possibility that the fractures or weld failures were caused at a later time than the indentation and buckling damage.[90]Since it is accepted that the damage which permitted leakage into the vessel’s double bottom tanks was not present before arrival at Bird Port and that it is, at the very least, highly unlikely that the damage occurred after the vessel left Bird Port the nature of the damage is cogent evidence that the damage was caused whilst the vessel was alongside the berth in Bird Port.

The object which caused the damage

[91]In the expert’s memorandum it was agreed that the indentation was circular and regularly shaped. In his oral evidence Dr. Medhurst appeared to be reluctant to confirm this when he described the circumference as not being “a perfect circumference”. However, he accepted it was one of the most symmetrically damaged areas he had ever seen. In the centre of the damage was the nipple or dimple indicating that whatever caused the damage did not cause pressure to be applied at its centre. Those features, together with the circular rings, are strongly suggestive of a steel coil, which is a commodity loaded and discharged in great quantity at Bird Port.[92]Dr.Medhurst’s suggested in his second report that the object which caused the damage could have been a massive circular object such as a boiler or heat exchanger end plate, a circular concrete culvert cover or the top surface of a cylindrical concrete pile. However, cross-examination on these suggestions revealed them to be unlikely contenders. The boiler or heat exchanger end plate would need a missing inspection plate in the middle to explain the nipple or dimple and the vessel, in order to contact such an object, would need to take the bottom “pretty much completely”. It is known that she did not. As to the concentric rings it was suggested that these would have to be “scuff marks of some kind”. The marks described as concentric rings did not suggest to me the irregular marks which might be generated by scuffing. Regarding the circular concrete culvert cover Dr.Medhurst said that it would have to have some kind of circular recess in the middle but said that he did not have much experience or knowledge of circular concrete culvert covers. For a vessel to contact such an object he accepted that the vessel would again have to take the bottom, which it did not. The circular rings had to be explained by abrasions, which seems unlikely given the regular nature of the rings. So far as the top surface of a cylindrical concrete pile was concerned he accepted that it would not explain the dimple if it was a standard piece of reinforced concrete. Again the circular rings had to be explained by some kind of abrasion.[93]In his oral evidence Dr.Medhurst suggested a coil of wire rope. This had the advantage that it could explain both the nipple or dimple and the circular rings. However, the fact that this object was mentioned by Dr.Medhurst in his oral evidence emphasises the striking circumstance that steel coils, which are loaded and discharged at Bird Port in great quantity, match the characteristics of the object which must have caused the damage. By contrast, it seems improbable that the vessel would sit down upon and rise up vertically from a coil of wire rope whilst the vessel was “away from a port or harbour [or] not actually at a berth”, which was Dr.Medhurst’s preferred venue for the incident if it occurred before the vessel arrived at Bird Port.[94]Since there is, for the reasons which I have sought to explain, cogent evidence that the damage was caused at Bird Port and since the characteristics of a steel coil, many of which are loaded and discharged at Bird Port, match the striking features of the indentations on the bottom of the vessel, there are cogent grounds for inferring that the object which caused the damage at Bird Port was a steel coil.[95]There are, however, other parts of the evidence which are said, on behalf of the Defendant, to show that that the damage was not caused by a steel coil at Bird Port. I shall deal with each of these in turn and finally turn to consider the submission highlighted by Counsel for the Defendant, namely, that the Claimant’s case cannot succeed given the evidence of Mr. Allen and Mr. Marles that no steel coil has gone missing from Bird Port and that no steel coil has been removed from Bird Port.

The possibility of a steel coil finding its way onto the bottom of the berth

[96]The Claimant has no direct evidence that a steel coil was seen to drop into the dock bottom or that the Defendant’s records contain evidence of a missing coil. They base their case on the other evidence to which I have referred which, it is said, clearly indicates that it is more probable than not, that the CHARLOTTE C was damaged by coming into contact with a steel coil. For this case to succeed it is necessary for there to be, at the least, a realistic possibility that a steel coil could find its way onto the dock bottom without a record being made of the loss of that steel coil.[97]It is first necessary to consider whether there exists a realistic mechanism by which a steel coil could find its way onto the bottom of the berth, a sufficient distance off the side of the berth to contact the bottom of CHARLOTTE C in the location of the damage. Two suggestions were made on behalf of the Claimant. The first was that a coil, which had been temporarily stored on the quay, might have been struck by a fork lift truck or low loader, causing it to roll to the edge and bounce down the tiered side of the dock into the dock. The second was that a coil, whilst being carried in a vehicle around the top of the dock might have been dislodged, fallen off the vehicle and rolled into the dock. Mr.Marles, the dock manager, accepted that the first suggestion was possible. He thought the second extremely improbable and pointed out that when a coil is transported it sits in a coil well on the vehicle.[98]On the basis of this evidence there is a possibility that a coil temporarily stored on the quay might have been knocked by a vehicle causing it to roll into the dock. Mr.Marles accepted that agency labour, who might be driving the vehicle, might not report such an accident. However, he thought that Bird Port employees on site, such as the foreman or crane driver, were likely to have seen such an accident. There is force in this latter point though it remains possible that the accident might not be reported by agency labour or observed by Bird Port labour.[99]Dr.Medhurst expressed the view that a coil falling into the dock in this way would reach at most one or two metres out from the dock side, not the four metres which would be required to reach the position consistent with the damage on the bottom of CHARLOTTE C. However, he had not carried out any studies of bouncing coils.[100]It is next necessary to consider whether it is realistic to suppose that a steel coil could have been lost without a record of such loss being made. Mr.Anthony Allen, the General Manager of Bird Port, gave evidence that it was, in his view, impossible for a steel coil to be lost between ship and warehouse. Although he gave evidence of the stock control procedures in use in Bird Port his opinion was not based upon an exhaustive review of the documents produced by the stock control procedures but upon the absence of an insurance claim for the loss of a coil and the absence of a complaint from a customer that a coil which should have been delivered had not been delivered. There is obviously some force in this point because steel coils are valuable. However, the making of a complaint by a customer leading to an insurance claim assumes that the customer has accurate and reliable systems of recording the receipt of steel coils. Given the quantity of steel coils imported and exported through Bird Port it is possible that human error might cause a missing coil to be undetected. Further, there was no evidence of the records kept or checks made by those who imported and exported coils through Bird Port. Reference was made in the oral evidence of Mr.Allen to an audit carried out in February 2004 by Corus, who exported steel through Bird Port. Mr.Allen said that the audit showed that every coil delivered to Bird Port had been loaded on board a ship or returned to Corus when the business relationship between Corus and Bird Port came to an end. However, Bird Port did not have a copy of that audit and there was no evidence as to the manner in which the audit was carried out.[101]At the trial it became apparent many of the documents generated by the Defendant’s stock control systems which it would be necessary to study to see whether any coil had gone missing in March or April 2003 had not been disclosed. Mr.Allen was asked questions arising out of the documents which had been disclosed. After he had given his evidence he supplied some further documents and it was submitted on behalf of the Defendant that those documents answered all the questions raised during his cross-examination.[102]I have studied the detailed points made by both Counsel with regard to these documents. It seems that the additional documents do provide answers to the questions raised with Mr.Allen in cross-examination. On the other hand they prompt further questions as to what some of the documents generated by the Defendant’s stock control procedures are intended to represent. In circumstances where(i) the Claimant cannot point to clear evidence of a lost coil,(ii) the Defendant has not disclosed all of its stock control documents (referred to in the evidence as the “ship’s files”) and(iii) the Defendant itself has not carried out a review of those documents in order to establish that all coils can be accounted for but has instead relied upon the inference to be drawn from the absence of an insurance claim or complaint from a customer I do not consider that it is necessary for me to lengthen this already long judgment by considering in detail the documents which have been disclosed.[103]Finally, it is necessary for there to be a realistic explanation as to why none of the ships using Bird Port before CHARLOTTE C reported damage caused by sitting on the steel coil. Of the seven vessels (including CHARLOTTE C) which called at Bird Port between 18 April and 8 May 2003 CHARLOTTE C was the largest. After CHARLOTTE C the next most deeply drafted was ANNE MARIE (with a draft of 5.3m.) but it is likely that she did not berth at the berth occupied by CHARLOTTE C. (The dock security log shows that ANNA MARIE berthed at 1820 on 28 April followed by PETERSBERG at 1835. This suggests that ANNA MARIE was berthed further inward than CHARLOTTE C.) The next most deeply drafted was LADY GRETA with a draft of about 5m. The drafts of the other vessels ranged between 3.3m. and 4.3m.[104]LADY GRETA loaded steel coils between 6 and 7 May 2003. Her departure draft was of the order of 5m., that is about 1m. less than the departure draft of CHARLOTTE C. Mr.Spence accepted in his very first report that there was a possibility that she contacted the same obstruction as did CHARLOTTE (if it was there) but that the contact is likely to have been slight. It was submitted on behalf of the Defendant that LADY GRETA would almost certainly have hit the coil (had it been there on 7 May). In support of this submission reliance was placed on the proposition that GRETA C would sink to within a few inches of the dock bottom or at any rate to within 0.5m. This raises the issue of “sinkage” with which I have already dealt. For the reasons I have given it cannot be assumed that a vessel would assume her “natural draft” (ie the draft she would have in water) when sitting in the mud in Bird Port. I consider that Mr.Spence put the matter fairly when he accepted that there was a possibility that she contacted the obstruction (if it was there) but that the contact is likely to have been slight. Equally, she might not have done so. I therefore reject the submission made on behalf of the Defendant that, if a coil did fall into the dock, it must have done so between 2200 on 7 May (when LADY GRETA left the berth) and 1315 on 8 May (when CHARLOTTE C arrived).[105]On 15 May PUR NAVALOK berthed and loaded steel coils. It is submitted on behalf of the Defendant that her draft was likely to have been of the order of 5m. since her draft with a full cargo was 5.498m. and she loaded 520 mt less than her deadweight. Again, it is submitted that she would have assumed her natural draft and sunk to the dock bottom or to within 0.5m. of it and, if the steel coil was still there, would have struck it. I accept that it must be possible that, if the steel coil was still there, PUR NAVALOK would have struck it. But equally she may not have done so.

Single or multiple contact

[106]It was submitted that since the pattern of damage suggested a single contact the damage cannot have occurred at Bird Port because the vessel must have contacted the steel coil (if there was one at Bird Port) more than once.[107]Whether it can be said that the vessel is likely to have contacted a steel coil more than once at Bird Port (if there was a steel coil in the mud) depends upon several unknown factors. Firstly, there is the extent to which the vessel could sink through the mud or silt in the dock. That is unknown. Secondly, there is the depth of water in the dock at low water. The various calculations which were presented in evidence assumed that the depth of water in the dock at low water on 9 and 10 May would have been the same as at low water on 8 May (when it was observed by the master). But since the height of low water was increasing during this period and the level of water in the dock must have been affected by the tides because the gates were leaking that assumption may not represent reality. Thirdly, there is the size of the alleged coil. There is no evidence of the size of coils which were exported through Bird Port. The imported coils ranged in size from 0.7 to in excess of 2m., though over 99% exceeded 0.9m. The Defendant invited the Court to assume that the coil was no less than 0.9m. However, a smaller coil is possible, especially having regard to the lack of any evidence as to the size of coils which were exported.[108]In the light of these unknown factors it cannot be said that the vessel was likely to have contacted the coil (if it was there) on 8 May or on 9 May. It is possible that the vessel contacted the coil on 10 May and that she did not refloat at high water on 0240 on 11 May by reason of mud suction since there is evidence, which I have accepted, that she did not refloat at high water at 1534 on 11 May by reason of mud suction. Thus it is possible that the vessel contacted the coil and remained in contact with it until the mud suction was broken shortly after 0300 on 12 May.[109]What makes it probable that that is what occurred is that there is, on my assessment of the expert surveying evidence, no realistic possibility that the damage occurred before Bird Port and every likehihood that it occurred at Bird Port. That evidence cannot be ignored when assessing the probability of there having been a single contact at Bird Port. That evidence, coupled with the pattern of damage suggesting a single contact, makes it very probable that the contact at Bird Port was a single contact.

Different damage

[110]A related point was made on behalf of the Defendant, namely, that if the vessel sank to within 0.5m. of the dock bottom, the damage seen on the vessel’s bottom would have been different. This was accepted by Mr.Spence. However, for the reasons which I have given the clearance above the dock bottom on 9 and 10 May cannot be known with accuracy. Moreover, since on the expert surveying evidence, there is no realistic possibility that the damage occurred before Bird Port and every likelihood that it occurred at Bird Port, it is unlikely that the vessel to sank within 0.5m. of the bottom. That evidence cannot be ignored when assessing the probability of the vessel sinking to within 0.5m. of the dock bottom. It makes it most improbable that the vessel sank to within 0.5m. of the dock bottom.

List

[111]Finally there is the question of the list, or rather the lack of a list. It was submitted that the overwhelming probability is that had there been a coil in the dock CHARLOTTE C would have heeled noticeably. Dr.Medhurst said in his cross-examination that this was the main reason based upon his surveying expertise for his opinion that the vessel had not sat on a steel coil at Bird Port. However, since neither the height of the coil nor the extent to which the vessel sank in mud is known it cannot be said to be probable that there must have been a list had a coil been in the mud. No list was observed. Since on the expert surveying evidence there is no realistic possibility that the damage occurred before Bird Port and every likelihood that it occurred at Bird Port it is probable that the height of the coil and the extent to which the vessel sank were not such as to cause a noticeable list.

Removal of the coil

[112]The absence of any evidence that a steel coil was discovered in the dock was relied on strongly by the Defendant. In this regard the Claimant’s case was that the coil must have been removed at some time between the morning of 12 May (when CHARLOTTE C left) and the morning of 15 May (when PUR NAVALOK arrived), alternatively, before 13 June 2003. It was put to Mr.Marles, the manager of the dock, that a search of the dock was conducted prior to the arrival of PUR NAVALOK and a coil removed. This suggestion was denied by Mr.Marles; “definitively not. Categorically no.”[113]On behalf of the Defendant it was said that there was no evidence which would justify a finding to the effect that this answer was untrue. On behalf of the Claimant it was submitted this answer was untrue.[114]Mr.Marles had been dock manager since 1996. One of his tasks was to oversee dredging operations in the dock in order to maintain the depth of water in the dock and to ensure that vessels may lie safely aground. He was present on 12 May 2003 when Mr.Watson arrived. He had been told by Mr.Allen that CHARLOTTE C had reported that she had suffered damage and that surveyors were coming to look at the dock. He thought that he was informed either by Mr.Watson or by Mr.Allen that CHARLOTTE C had suffered bottom damage. He accepted that all Mr.Watson had done was to carry out a visual search assisted by some probings and that therefore it was possible that if an item had been in the mud when Mr.Watson arrived it was still there when he left.[115]Although he accepted that if there was something substantial hidden in the mud that should have been a cause for concern, that his responsibility was to conduct a search before the next vessel arrived and that it would have been wholly negligent on his part if he had not carried out a search, he could not remember whether he conducted a search. Yet he said that he was absolutely certain on 12 May that there was not a coil in the dock. It is not obvious why he was so certain when he could not remember what investigations he put in train to investigate the possibility that there was a coil in the dock. For the same reason it is not obvious why he was able to deny categorically that a search was conducted and a coil was removed when he could not remember whether he had conducted a search.[116]I accept that Mr.Marles answered questions concerning the possibility of a coil falling into the dock fairly. But his evidence concerning his actions between 12 and 15 May was, at the very least unpersuasive, because it was vague (claiming that he could not remember whether he had carried out a search) but at the same time positive and clear (denying categorically that he conducted a search and removed a coil).[117]It was suggested that there “very good reasons” why no search was carried out. But I do not think there were. It could not be said that the activities of Mr.Watson on 12, 13 and 14 May rendered a search unnecessary. On 12 May Mr. Watson merely observed mud being grabbed and deposited where CHARLOTTE C had been. On 13 May he carried out only a limited search by prodding the mud from the bottom ledge. He could probe only about 1m. from the ledge. On 14 May he only made further observations. Moreover, Mr.Marles accepted that it was possible that if an item had been in the mud when Mr.Watson arrived it was still there when he left. Thus there was no reason why Mr.Marles should not have carried out a careful search and every reason why he should. Since he accepted that it was his duty to ensure that the dock was safe for the next vessel it is probable that he carried out a search. I therefore consider that it likely that he did so and I find it surprising that, given that he was dock manager, he cannot remember doing so, after an interval of just over two years. It is presumably not every day that a vessel claims to have suffered damage whilst berthed at Bird Port.[118]Mr.Allen said in his statement that no objects capable of damaging a vessel were removed from the dock during the dredging operation following CHARLOTTE C’s departure or at all. He was cross-examined about these matters since he was present at Bird Port on 12 May 2003. He said that he was satisfied on 12 May that there was no obstruction in the mud and, when it was put to him that it was incredible that he did not conduct a search of the dock before the next vessel arrived on 15 May, he said that “we did not”.[119]Mr.Allen said that the reason that on 12 May he was satisfied that there was no obstruction in the mud was that if there had been such an obstruction it would have been “visible by making a contour in the silt”. At the time mud from the inward end of the dock was being dumped in the area where CHARLOTTE C had been berthed. Mr.Allen said that such action disturbed the mud and if there was an obstacle in the mud it would be visible. Although in other respects Mr.Allen’s evidence was given fairly (for example he was quite open when dealing with the suggested discrepancies in the Defendants’ disclosed documents concerning the care of cargo in the custody of the Defendant) I found this evidence surprising. Given the depth of the mud an obstacle in the mud might not show a visible contour on the surface of the mud. Reliance on observing a contour would be a most unsafe basis on which to conclude that there was no obstacle in the mud. Nor can the act of dropping mud on mud be regarded as a sure way of discovering whether there is an obstacle in the mud on which further mud is dropped.[120]In the result I was not impressed by Mr.Allen’s and Mr.Marles’ denials that a proper search had not been conducted before the arrival of the next vessel on 15 May. Such a search would have been the obvious course to take. I find my self unable to accept their evidence that no search was conducted. This makes it difficult to accept Mr.Marles’ denial that a coil was found and removed from the dock. Moreover, the evidence that CHARLOTTE C suffered damage whilst in the dock and the fact that the pattern of such damage on the vessel’s shell plating is so strikingly suggestive of a contact with a steel coil is, in aggregate, cogent evidence that CHARLOTTE C must have sat on a steel coil whilst in Bird Port. This must be taken into account when deciding whether Mr.Marles’ denial that a coil was found and removed before 15 May can be accepted. But before reaching a conclusion on this question it is necessary to refer to a detailed submission made on behalf of the Defendant that there was little opportunity for this to be done between 12 and 15 May.[121]On 12 May low water was at 1050. Since Mr.Watson attended on 12 May at 1015 when dredging operations using a clam grab were in progress it seems unlikely that a spider grab could have been used to remove a steel coil prior to his arrival. It is not known how long Mr.Watson remained at the dock on 12 May, though his report suggests he was still there at 1215.[122]The second low water on 12 May was at 2326. It is not known when the ebb flow commenced but Mr.Watson referred in his report to the fact that by 1215 the tide had flowed in and covered the mud. Thus the flood tide had already commenced to flow more than 4.5 hours before high water (which was at 1649). It therefore seems likely that on the evening of 12 May the tide would have been ebbing by about 1900, and possibly before that. Flushing or sluicing the dock could therefore have commenced by 1900. Sunset was (depending upon the publication one consults) between 2038 and 2052, civil twilight between 2119 and 2133 and nautical twilight between 2213 and 2229. So there was a period of almost 2 and half hours during which silt could be removed from the dock before civil twilight. Had a steel coil been spotted a spider grab would have been necessary to remove it. There was no evidence as to precisely when it would have been possible to have used the spider grab to have removed a steel coil. Mr.Allen said in evidence that the period before low water during which a grab (presumably the clam grab used for dredging) could be used depended upon “the tide conditions each month, but you are looking at approximately two hours before and two hours after each low tide.” This was determined by the need not to submerge the electro-hydraulic motor mounted on top of the grab. It is not known whether the same restrictions applied to the spider grab. If they did then the grab could have been used at about 2130, perhaps earlier. There would therefore have been an opportunity, albeit a very limited opportunity, to use the spider grab at about or just after civil twilight before darkness fell. However, artificial light would extend the time available for the use of the grab and it is unlikely that there was no artificial light at the dock since vessels depart during the hours of darkness (as did CHARLOTTE C on 12 May and, according to the dock security log, so did LADY GRETA at 2245 on 7 May) and both sides of the dock are monitored by cameras (see for example the entry in the dock security log for 2100 on 16 May). Indeed, it is to be noted that the dock security log records that on 19 May dredging continued until 2300, that on 25 May it continued until 2210 and that on 26 May dredging commenced at 2115 with no record as to when it was stopped. The security log for 12 May itself has never been found; though the pages for other days are also missing.[123]On 13 May Mr.Watson arrived at about 0900. The Bird Port management informed him that there would be no dredging that day as the crane was out of use for planned maintenance. Mr.Watson was only able to do some probing up to about 1m. from the bottom ledge in the dock. Again it is not known when Mr.Watson left but obviously no dredging operations using a spider grab could have taken place whilst he was there. The second low water was not until just after midnight and so the opportunity to flush or sluice the dock whilst the tide was ebbing and before nightfall would have more limited than the previous night.[124]On 14 May Mr.Watson attended at 1100 which was about 2 hours before low water at 1307. The dock water was draining through the sluice gate and eventually the dock was empty. Mr.Watson was informed that the crane was out of use for further planned maintenance. Again, it is not known when Mr.Watson left but obviously no dredging operations using a spider grab could have taken place whilst he was there. It is not known what was happening at the dock before he arrived but it seems unlikely that there was any dredging with a spider grab having regard to what Mr.Watson was told. The next low water was not until 0130 on 15 May.

Conclusion as to cause of damage

[125]The central question is whether the Claimant has established on the balance of probabilities, having regard to all of the evidence, that the damage suffered by CHARLOTTE C was caused when at Bird Port by the vessel sitting down upon a steel coil.[126]The evidence concerning the discovery of leakages whilst at Bird Port and shortly after departing Bird Port, coupled with the absence of such discoveries before arrival at Bird Port, show that the leaks were caused at Bird Port. Consideration of the nature of the damage shows that it is very likely that one event caused both the indentation damage and the leakages. Since the leakages were caused at Bird Port so must the indentation damage have been. There is, on the expert surveying evidence, no realistic possibility that the damage could have been caused prior to arrival at Bird Port. Further, the pattern of the damage on the vessel’s shell plating suggests contact with a circular object with a hole in its centre capable of impressing circular rings on the vessel’s bottom. A steel coil is just such an object and many steel coils are loaded, discharged and stored at Bird Port. This is a cogent body of evidence in support of the Claimant’s case.[127]The matter which gives rise to doubt as to whether the vessel was damaged by sitting upon a steel coil at Bird Port is that there is no evidence that a steel coil was found in and removed from the dock. The case has to be decided upon the balance of probabilities. The evidence in support of the Claimant’s case is very strong. The Defendant denies that a steel coil was removed from the dock following the departure of CHARLOTTE C but cannot show a realistic possibility that the damage was caused prior to Bird Port. The dock manager and general manager gave evidence that no search was made after CHARLOTTE C left early on 12 May and before the next vessel arrived early on 15 May but I have rejected that evidence because it is wholly improbable. I consider it very likely that a search was made before the next vessel arrived.[128]Having regard to the totality of the evidence, and in particular the cogency of the evidence in support of the Claimant’s case, the failure of the Defendant to show a realistic possibility that the damage was caused prior to arrival at Bird Port and my rejection of Mr.Marles’ and Mr.Allen’s evidence that no search was carried out, I consider it more likely that not that CHARLOTTE C was damaged by sitting upon a steel coil and that a steel coil was found and removed on 12 May. There was an opportunity to inspect the dock whilst the tide ebbed and the mud was removed from the dock by flushing and sluicing the dock in the evening of 12 May and an opportunity to remove a steel coil by spider grab at or about civil twilight or thereafter with the assistance of artificial light. If there was no opportunity to discover the steel coil and remove it on 12 May then the steel coil must have been discovered and removed at some later time before 13 June when it is common ground that there was no steel coil in the dock. It follows that I must reject the evidence of Mr. Marles that no steel coil was removed following the departure of CHARLOTTE C.[129]Mr.Allen said that no objects capable of damaging a vessel were removed from the dock during the dredging operation following CHARLOTTE C’s departure or at all. If this is intended as a broad statement it cannot be correct because on 13 May Mr.Watson observed the sluicing operation and noted in the entrance channel, at the outlet of the sluice valve, large boulders and brickwork, steel bars, steel plates, wire ropes and cargo securing bars all of which he said could damage a vessel using the dock. This suggests that Mr.Allen, when making this statement, cannot have given proper consideration to the dredging or sluicing operations which in fact took place after the departure of CHARLOTTE C. Had he done so he would have had to have dealt with the objects found in the mud on 13 May. It may be that his statement was based upon what others reported to him. If, however, the statement is intended to be understood more narrowly as a denial that a steel coil was removed then I must reject that evidence for the same reason that I must reject Mr.Marles’ evidence. It has been observed that whereas it was put to Mr.Marles that a coil was removed the same suggestion was not put to Mr.Allen. However, it was squarely put to Mr.Allen that he could not have been satisfied that there was no substantial obstruction in the mud and that it was incredible that he did not conduct a search before the next vessel arrived on 15 May. As I have already noted, he denied that such a search had been made, which evidence I have rejected.[130]In so far as it is necessary to decide whether Mr.Marles and Mr.Allen were involved in the search and removal operation the probabilities must be that Mr.Marles, as dock manager, was. It is difficult to imagine that the operations could take place without his knowledge. However, Mr.Allen, the General Manager, may not have been involved. It was submitted that it is fanciful to suggest that the operation could have been carried out without Mr.Allen knowing about it. But since there was a dock manager with specific responsibility for the safety of the dock, albeit under the overall direction of Mr.Allen, I do not consider the possibility to be fanciful.[131]It was submitted that the Court should deal with the question of motive. It was suggested that there could be no motive for Mr.Marles to “engage in any sort of dishonest cover-up”. There was however a clear motive to search for and remove any obstacle in the dock. It was Mr.Marles’ duty to do so. So far as covering up his role in so doing it is more likely than not that he did not wish it to become known that a steel coil had fallen into and remained in the dock of which he was the manager, charged with the duty of ensuring that the dock was safe for use by the ships which used it.

Damage in way of frames 11 and 12

[132]There is also a claim in respect of indents in way of frames 11 and 12. This was not on the bottom of the vessel but where the stern of the vessel is flared. All that was said about this damage when it was observed during repairs was that it was very recent. However, the vessel had been at Falmouth and Sagunto before La Linea. I do not consider that the Claimant has shown that damage was caused on the balance of probabilities at Bird Port.

Negligence

[133]There is no dispute that the operator of a NAABSA berth should have a system for ensuring that vessels using the berth can do so without suffering damage. Indeed Mr.Marles said that the only requirement of the berth at Bird Port was that it was kept free of obstructions to make sure that vessels could use it safely.[134]Mr.Marles said that inspections from the dockside were carried out at every low tide to see if there was anything obvious obstructing the bottom of the dock. However, he accepted that the only way of ensuring that the bottom of the berth at Bird Port was clear of obstructions was to dredge all the mud out of the dock. But the dock was only dredged when operational requirements permitted. Since the berth was busy from 28 April until 8 May it seems likely there was no dredging during that period. Indeed, the last date on which there is evidence of the dock being dredged was 27 April 2003, some 11 days before the arrival of CHARLOTTE C. Moreover, it was not apparent that all mud was removed when dredging took place. Mr.Allen told Mr.Williams, a surveyor attending on behalf the Defendant’s insurers on 13 June 2003, that prior to the incident involving CHARLOTTE C it had been about 6 weeks “since the dock had been dredged or cleared.”[135]On 2 April 2003 the Defendant obtained a Certificate of Compliance from Aureol Marine Limited which stated that Bird Port complied with all current requirements for a NAABSA berth. Captain Symonds, the author of the accompanying report, wrote that “the dock management conducts regular inspections of the dock and maintains accurate maintenance records. Dredging of the dock is frequently undertaken …” He explained in his evidence that he was shown records of frequent inspections. He also said that he saw dredging records. No such records were in evidence but in April 2004 many of the Defendant’s records, including the Dredging Book, were disposed of following the transfer of the Defendant’s assets.[136]However, Captain Symonds’ certificate did not inspire confidence in his judgment. So far as the condition of the dock was concerned it did not appear to be consistent with the terms of Captain Symonds’ own report. Mr. Williams, the surveyor acting on behalf of the Defendant’s insurers, accepted in cross-examination that he would not have issued the certificate in the terms in which Captain Symonds did. In these circumstances there must be doubt that Captain Symonds’ rosy assessment of the Defendant’s dredging and inspection practices was justified.[137]In my judgment it was not a proper discharge of the Defendant’s duty of care to dredge only when operational requirements permitted. Such a practice meant that the busier the dock was the less dredging that would be done. This is plainly an inadequate system in circumstances where the depth of mud or silt in the dock might be as much as 1.7m.[138]The Defendant’s duty required a regular system of dredging and inspection. This is reflected in Mr.Williams’ report on behalf of the Defendant’s insurers dated 27 August 2003 in which it was stated that Bird Port intended to dredge on a regular basis. Mr.Williams explained in evidence that the need to dredge on a regular basis in order to ensure that there were no substantial obstructions on the dock bottom was so important that it should interrupt the commercial operation of the dock. I agree. I reject the submission made on behalf of the Defendant that it is unreasonable to expect the Defendant to clean out the dock more than once or perhaps twice a year. Mr.Williams recommended that the entire dock floor be cleared every two or three weeks.[139]Safe operation of the dock requires that the Defendant and users of the berth can be confident that the mud or silt in the dock does not hide an obstruction capable of damaging a vessel using the dock. That can only be achieved by a daily system of careful inspection and regular dredging. The Defendant’s duty of reasonable care requires that the daily system of inspection is thorough. Merely inspecting from the dock sides as described by Mr.Marles cannot be enough because it cannot ensure that objects in the mud are discovered. Mr.Watson suggested in his report that the mud could be probed from a small boat using either a physical probe or a sonar or a cage could be attached to the crane enabling two people to probe the mud. Either or both of these methods would have been more thorough and effective than the inspections carried out by Mr.Watson. Indeed he said in his evidence that on one of his visits to Bird Port he requested the use of a cage on the gantry crane to survey the bottom but did not get a reply.[140]Had such a system been in place it is likely, on the balance of probabilities, that the steel coil which damaged CHARLOTTE C would have been detected. The submission made that it would not have been detected relied on the fact that Mr.Watson did not discover the steel coil on 12, 13 or 14 May. However, he was only able to observe from the dock edge and prod the mud with a pole from a position on the lowest ledge. The fact that he did not discover the steel coil does not show that a careful and thorough inspection, using a boat or cage, organised by those whose duty it was to keep the dock clear of obstructions would not have discovered the steel coil.[141]I have therefore concluded that the Defendant’s system of inspection and dredging was inadequate and in breach of its duty of care to users of Bird Port. That failure was causative of the damage sustained by the Claimant.

Quantum

[142]The Claimant now claims damages in the sum of £156,565.09 after making some deductions from the pleaded claim. The Defendant accepts that £111,248.21 is proved. I shall deal with the items in dispute and leave the parties to calculate the total sum of proved damages on the basis of my findings.

Loss of hire

[143]The first item which is challenged is loss of hire. A number of points must be dealt with.[144]Firstly, there is an issue as to the earning rate. The Claimant has claimed £3,275.74 per day based upon the time charter equivalent daily rate for the voyage on which she was engaged when the incident occurred and the voyage immediately thereafter. Alternatively the Claimant claims the average rate for the voyage before the incident, the voyage on which she was engaged and the two voyages thereafter in the sum of £2,733.98. The Defendant says that the demurrage rate in the charter on which she was engaged should be used, namely, £2,500.[145]Although the primary case was pleaded no evidence in support of it was adduced until the Claimant’s Reply Submissions. Admission of the evidence was challenged on the grounds that the Defendants would have wished to have cross-examined as to the differences between the equivalent daily rates for the various voyages. It is unfortunate that the evidence was not adduced at the outset as it ought to have been. However, it is not the only evidence in this case which has been adduced after the opportunity to cross-examine has been. With the same reservations that I had when admitting the additional documents sent to the Court by Mr. Allen after he had given evidence I have decided to admit the evidence since, in the context of this case, it seems the just approach. In considering the evidence I shall keep well in mind that the Defendant has not had an opportunity to cross-examine in relation to it.[146]It is submitted on behalf of the Defendant, correctly, that the Court is concerned with loss of profit. It is next said that the Claimant’s evidence ignores the fact that fuel costs and other expenses would have to be incurred in order to earn the freight. Fuel and other expenses are not noted for voyage 34 but that is probably because it was a time charter. However, the schedules in respect of voyages 31-33 appear to record fuel and other expenses.[147]It is further submitted on behalf of the Defendant that the relevant voyage to take is the voyage on which the vessel was engaged when the incident occurred and the loss of profit was incurred. The equivalent daily charter rate on the next voyage was greater than on the voyage in which the incident occurred. The next voyage took place in the latter two weeks of June. The reason for the increase is not known. It may be that the market rate was improving (the equivalent daily charter rates increased from voyage 31 to 32 and from 32 to 33). If so then the higher rate should probably not be taken into account when assessing the loss of profit on the voyage in question. In The Soya [1956] 1 Lloyd’s rep. 557 the Court of Appeal approved this approach. I therefore consider that it would not be appropriate to take the higher rate on the later voyage into account, particularly in circumstances where there has been no opportunity to explore the reason for the higher rate.[148]In principle therefore the best evidence of the loss of profit incurred by the Claimant is the equivalent daily charter rate for voyage 32. However, the allowance for fuel is in the round figure of £10,000 and there has been no opportunity to investigate whether this is the actual cost. It is unlikely that it is. The actual cost may have been more. It is likely to be an estimate. Having regard to this uncertainty I consider, doing the best I can on the material available, that the daily rate for voyage 32 of £3083.30 should be reduced to £2,900 per day.[149]Secondly, there is an issue as to whether the master, when instructed to proceed to Falmouth, should not have gone to seaward of the Scilly Isles but should have proceeded between the Scilly Isles and Land’s End. The master had in mind the risk of pollution (he had a leaking fuel tank) and wished to keep as far off land as possible. Although other mariners may have taken a different decision (and Captain Smith would have) I do not consider that his decision can be said to be unreasonable.[150]Thirdly, there is an issue as to whether the vessel would have had to have sailed to La Linea in any event. The vessel operated on the spot market. After completion of discharge at Sagunto she had no fixture. Once it was known where the casualty was to be repaired, at La Linea, a cargo was fixed from Huelva. La Linea was en route from Sagunto to Huelva. It seems to me that there is no cause for making a deduction from the period of loss of hire. Had it not been for the incident at Bird Port the vessel would not have had to have proceeded to La Linea. It was fortunate that a cargo was found from Huelva, otherwise the period of loss of hire might have been greater than it was.[151]Fourthly, it is said that the Claimant failed to mitigate its loss by failing to arrange in advance for specialist cleaning of the ballast tanks. It is said that this caused 4 days’ delay. Two reasons for making such arrangements were discussed in the evidence. The first was that the crew should have opened up the tanks at Sagunto. However, Dr.Medhurst did not pursue this suggestion after hearing of the hexagon bolts on the tank tops. The second was that the crew should have sampled the contents of the tanks by means of an oil/water separator. But Dr.Medhurst accepted that for this to be done the crew would have to have had available a slop tank and no attempt was made to show that a slop tank was available for this purpose. I therefore reject the suggestion that there was a failure to mitigate.

Owners’ items

[152]The second item concerns owners’ items which are not recoverable. These are not pursued save for £199.13 in respect of drainage plugs for the 3 repaired tanks which were previously thought to have been owners’ items. It seems to me appropriate to allow this item.

Superintendent costs

[153]The third item is described in the pleading as “Superintendents £5,437.34.” It is supported by an invoice dated 15 December 2003 which itemises the claim as follows: £623.30 in respect of travel expenses, £89.04 in respect of meals and subsistence and £4725 in respect of Mr. Davies’ services at £450 per day for 10.5 days. Mr.Davies was an employee of the Claimant, having joined it in 1989. He has been a superintendent since 1992. He had responsibility for 5 or 6 vessels but not CHARLOTTE C. Her regular superintendent Mr.Lewis was busy on another vessel in South America. Mr. Davies therefore attended upon the vessel at La Linea during repairs.[154]The Claimant relies upon the decision of Langton J. in The Gudrun Maersk (1941) 70 Ll.L.Rep 251 as authority for the proposition that a sum can be claimed as damages in respect of the wages paid to an employed superintendent. The Defendant relies upon the decision of Stanley Burnton J. in Admiral Management Services v Para-Protect Europe Limited [2002] 1 WLR 2722 in support of the proposition that a claim for the value of employee time or work is irrecoverable in the absence of expenditure or revenue loss.[155]The Gudrun Maersk was a collision case in which there was a reference to assess damages before the Assistant Registrar and a merchant. A sum of £97 10s. was claimed in respect of the wages of an employed superintendent. The Assistant Registrar thought that the superintendent only did “slight extra work” in excess of his ordinary duties. He allowed only £5 5s. Upon a motion in objection to the report of the Assistant Registrar Langton J considered that it was impossible to lay down any general principle but he thought the sum allowed very much too small. He thought the superintendent was put to a very large amount of work outside his normal duties. It seems, though it is not clear, that an argument was addressed to the judge based upon the fact that the superintendent was an employee. Langton J. is reported to have approached the matter on the footing of giving the claimants the sum they would have been entitled to if they had put forward a claim properly vouched in respect of extra outside assistance but allowed the wrongdoer some part of the “advantage from the fact that the shipowner has a marine superintendent with special expert knowledge.” He allowed £25. I am not sure that any general principle can be extracted from this decision and indeed Langton J. expressly said he could not lay down a general principle.[156]In Admiral Management Services v Para-Protect Europe Limited Stanley Burnton J considered in some detail the question whether claims for the work done by employees could be recoverable as damages. He held that it can be recovered where it is an expenditure which would not otherwise have been incurred eg where additional staff are employed or overtime is paid; see paragraphs 47 and 50. He further held that it can be recovered where revenue has been lost as a result of the employee being unavailable to carry out revenue producing work; see paragraphs 47 and 57. He further observed that it may be difficult to quantify any loss of revenue and that the cost of the employee time may be taken as an approximation for the loss of revenue; see paragraph 87. So far as claiming the value of the work done irrespective of any expenditure loss or loss of revenue he held that a claimant has no claim for damages in respect of salaries paid to its employees during the period when they carried out work made necessary by the defendant’s tort if those salaries would have been paid in any event; see paragraph 55.[157]Counsel for the Defendant said that neither loss of expenditure nor loss of revenue had been pleaded or proved. It is true that the particular basis upon which the claim was advanced was not pleaded but in the context of a modest claim for just under £5500 I consider that the manner of pleading was appropriate and proportionate, leaving the parties to argue as to whether the sum is recoverable on the basis of the evidence before the Court.[158]The sums claimed for meals and subsistence, £89.04, and for travel expenses, £623.30, are recoverable as expenditure loss and are satisfactorily proved. However, the sum claimed in respect of Mr.Davies’ time cannot be claimed as an expenditure loss, because his wages as an employee would have been paid in any event.[159]The sum claimed in respect of Mr.Davies’ time cannot, in accordance with the reasoned decision of Stanley Burnton J in Admiral Management Services v Para-Protect Europe Limited, be recovered simply on the basis that it represents the cost to the Claimant of Mr.Davies’ time. It would have been incurred in any event. I cannot regard the decision of Langton J. in The Gudrun Maersk as allowing such a claim, firstly, because Langton J. did not purport to lay down a general principle and, secondly, to allow the recovery of an employee’s time as such is contrary to the principle that a loss which would have been incurred in any event cannot be held to have been caused by the defendant’s wrongdoing. If it is recoverable at all it can only be on the basis of the loss of revenue route.[160]CHARLOTTE C was not a vessel for which Mr.Davis normally had responsibility. Thus he must have been taken away from his usual work. It is likely that his usual work was of benefit to the Claimant and so the Claimant lost the benefit of that work whilst Mr.Davis worked in respect of CHARLOTTE C. However, it would probably be very difficult to identify the revenue which a superintendent would earn for his employer by his work as superintendent. This therefore seems to be to one of those cases foreshadowed by Stanley Burnton J. in Admiral Management Services v Para-Protect Europe Limited where the cost of the employee time may be taken as an approximation for the loss of revenue. For this reason I also allow the claimed sum of £4725 in respect of Mr. Davies’ services. I do not see any injustice in doing so. “Agency”[161]The fourth item concerns “agency”. 1% of the value of the proved claim is claimed as a standard allowance in collision cases for disruption to business and expenditure of management time. In this regard reliance is placed on the decision of Clarke J. in The Kumanovo [1998] 2 Lloyd’s Rep.301. It is accepted on behalf of the Defendant that there is a practice of allowing a 1% figure in collision cases. However, this is said to be a “crude and speculative practice” which was inappropriate in modern conditions where lost time and additional expenses can easily be recorded and if it has any place at all it should be confined to collision cases. Reference was made in this regard to Tate and Lyle Distribution v GLC [1982] 1 WLR 149.[162]In The Kumanovo Clarke J. was asked to apply the standard allowance to a claim by cargo owners arising out of a collision but he declined to do so; there was no evidence as to what the cargo owners did as a result of the loss of their cargo. He also pointed out that the practice had never been challenged in a collision case and so the Court had never been asked to reject it. However, he said this:
“I would certainly not encourage a party to challenge the approach in the future because it seems to me to be rooted in good sense. Shipowners’ businesses will almost inevitably be disrupted by collision so that there is likely to be an expenditure of management time and cost. It seems to me to be more sensible to adopt the conventional approach of adding 1 per cent. to the damages than to require the shipowners to prove the actual cost.”
[163]In Tate and Lyle Distribution v GLC, to which Clarke J. referred, Forbes J accepted (in a case not involving loss by collision) that the expenditure of management time was a proper head of loss. However, he said that, although difficult, it was possible to record the expenditure of management time and that he was not prepared to proceed on the basis of allowing 1% of the claim which was “pure speculation”. Since no evidence was adduced to quantify the expenditure of management time in that case the claim failed.[164]In this case the claim by a shipowner for disruption to his business and the expenditure of management time arises out of contact between his ship and a submerged object. It is not possible to distinguish the present case from a case of collision between ships in which the Admiralty practice referred to by Clarke J. has been applied.[165]It seems to me that as a matter of principle the cost of management time spent on dealing with the consequences of a collision can be recovered under the heading of expenditure loss or revenue loss. If extra management personnel are engaged or management personnel incur overtime the extra cost can be recovered. Equally, if management is diverted from revenue producing work then a claim can be advanced for loss of revenue. Although Forbes J. said in Tate and Lyle Distribution v GLC that management time was a recoverable head of loss I do not consider that it is properly recoverable as such unless it can be recovered as expenditure loss or revenue loss; see the comments of Stanley Burnton J. on Tate and Lyle Distribution v GLC in his judgment in Admiral Management Services v Para-Protect Europe Limited at paragraph 88.[166]In the present case it is obvious that the Claimant’s management must have expended time in dealing with the consequences of the incident at Bird Port. The voyage on which CHARLOTTE C was interrupted and both temporary and permanent repair ports had to be located. In the absence of the collision it is more likely than not that the shipowner’s management would have been able to spend its time on other aspects of management designed to earn profit for the Claimant.[167]However, it is of course a general principle that the claimant must prove its loss. Thus, in principle, the claimant must adduce evidence of the time expended by its management in dealing with the consequences of the incident and as to the revenue which would have been earned by management but was lost. In the present case no such evidence was adduced. As a matter of principle therefore it is arguable that the claim should fail because the claimant has failed to prove the quantum of its loss.[168]Instead of seeking to prove its actual loss the Claimant has relied upon the practice in collision cases referred to by Clarke J. There is much to be said for that practice. Clarke J. pointed out that out that the exercise of proving the actual cost would be likely to involve further cost and disruption. In this case, where the claim is only £1565 (on the Claimant’s claim as revised), there is undoubted force in that observation. Moreover, the practice (old as it is) is consistent with the principle of proportionality which is now a feature of modern day court practice.[169]As I have said it is obvious that management was diverted from its usual activities when dealing with the consequences of the incident at Bird Port. It is also more likely than not that those usual activities generated profit. Notwithstanding that it may be possible to record the management time which was lost it is probably difficult to prove how much profit was lost by that diversion of management resources.[170]The practice of allowing recovery of 1% of the total claim in respect of business disruption and expenditure of management time has obviously proved acceptable to experienced shipping solicitors for many years. That, to my mind, blunts the charge that it is a speculative method of assessing the shipowner’s loss. In those circumstances it seems to me appropriate, so long as there is no risk of the practice producing an unjust result, to use that practice as an approximation of the revenue loss caused by the disruption of the Claimant’s business and the expenditure of management time. In the present case, where the resultant loss is only about £1565, I am satisfied that there is no risk that the Court would be awarding a sum in excess of the loss actually caused by the disruption of business and the expenditure of management time; or, to borrow a phrase from others, “I am certainly not giving them too much. I am confident of that” (see The Alikamon [1983] 1 Lloyd’s Rep.203 at p.210).[171]For these reasons I have decided to allow the “agency” claim in the sum of 1% of the proved claim.

Overall conclusion

[172]The Claimant has discharged the burden of proving that it is more likely than not that CHARLOTTE C was damaged by contacting a steel coil on the bottom of the berth at Bird Port. The Defendant failed, in breach of its duty of care, to have an adequate system of inspection and dredging as a result of which CHARLOTTE C contacted a steel coil on the bottom of the berth at Bird Port. The Defendant is liable to the Claimant for the damage thereby caused. I would be grateful if Counsel would calculate the recoverable damages on the basis of my findings.