Kamal XXVI, The Owners of v Ariela, The Owners of [2009] EWHC 177 (Comm)

[2009] EWHC 177 (Comm)Case No 2006 FOLIO 375
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 February 2009
Before
MR JUSTICE BURTON
Between
THE OWNERS AND/OR DEMISE CHARTERERS OF THE DREDGERClaimants‘KAMAL XXVI’ClaimantTHE OWNERS OF THE SHIP ‘ARIELA’Defendants
Mr Stewart Buckingham (instructed by Ince & Co) for ApplicantsMr Timothy Hill (instructed by Russell Ridley & Co) for DefendantsHearing Hearing dates: 20, 21, 22, 23, 26, 27, 28, 30 January 2009
Judgment
[1]On 30 April 2004, the Defendants’ vessel, the Ariela, collided with the Claimants’ hopper barge, Kamal XXIV, in the entrance channel to Mormugao Port, Goa, India, causing the barge to collide with the adjacent dredger Kamal XXVI. Liability was contested but, in a judgment ([2007] EWHC 243 (Comm)) handed down on 23 October 2007, David Steel J found, after a two-day hearing, that the Ariela was at fault, and gave judgment for the Claimants. The damage to the Ariela was minimal, but the Claimants’ claim totalled US$ 1,296,583, consisting of US$ 681,423 repair costs, and US$ 484,584 for loss of use, in respect of the dredger, and US$ 65,139 repair costs, and US$ 52,600 towage and loss of use, in respect of the barge, plus 1% ‘business disruption’ or ‘agency’. By the time that Mr Buckingham of Counsel rose to open the quantum hearing before me, this claim of US$ 1,296,583 had been reconsidered by the Claimants and reduced to US$ 942,670. I exclude interest in each case.[2]The second morning was wasted on an aborted effort to take the evidence by video link of Mr Vishin Kewalramani, the Claimants’ technical director and only factual witness, who, in circumstances never fully explained, had left insufficient time to obtain his visa to travel to the United Kingdom in order to give that evidence. Including that morning, the hearing lasted 7½ days, most of which time was marked by a gradual and exponential abandonment of the Claimants’ claims, during the skilful cross-examination by Mr Hill, Counsel for the Defendants, of the Claimants’ expert Mr Boorman; so that, by the time of closing speeches on the last day, all claims for loss of use and towage had gone, and the total repair costs remaining to be claimed, and adjudicated upon by me, amount to US$ 26,030, consisting of US$ 10,492 in respect of the dredger and US$ 15,538 in respect of the barge, a claim well within the jurisdiction of the Shoreditch County Court.[3]Two detailed schedules of the claims were produced prior to the start of the hearing, first the Claimants’ claims schedule, attached to Mr Buckingham’s skeleton, and then a Scott Schedule, which I requested Counsel to prepare, after my receipt of the skeletons and prior to the start of the trial. Out of the numerous issues, the only ones that remain for me to decide relate to the following: i) Alleged damage to the dredger: claimed to be caused by the ‘knock-on’ effect of the barge being caused, by the Ariela’s collision with it, to collide with the dredger. a) (Part of) Old issue 1(a): port inner hull (ladder well): shell-plating indented in way of frames 19 to 21. Shell-plating renewal costed at S$ 3452 (to be converted to US dollars at 1.71 Singapore Dollars to the US dollar). b) Old issue 1(c): starboard inner hull set in and holed in way of frames -2 to 0, allegedly during lifting of the ladder after the collision, due to alleged contact with the ladder well by buckets which had slipped off the ladder. Cropping and renewal of the damaged plating costed at S$ 5934, with ancillary costs of staging and cement-breaking of S$ 661 and S$ 650 respectively. c) Old issue 1(d): starboard inner hull set in and holed in way of frames 9 to 11, again, allegedly during the lifting of the ladder after the collision, resulting from alleged contact with the ladder well by buckets which had slipped off the ladder: identical costs of S$ 5934, S$ 661 and S$ 650. ii) Damage to the barge. Old item 6: the Claimants’ claim schedule expressly referred to the UK Marine (India) surveyor’s report of 9 December 2004, which “covers all damage present on docking in November 2004”, but any reliance on such report was expressly abjured by Mr Buckingham in opening. The Claimants’ claim was computed by reference to an invoice dated 3 December 2004 from Rainbow Engineering Works, totalling 2,463,215 rupees in respect of all the works carried out to repair the barge, pro rated by reference to the amount of steel and time which Mr Boorman concluded could be ascribed to that part of the barge, namely the port aft quarter, alleged damage to which alone was pursued as being the responsibility of the Defendants, namely R 719,355 (US$ 15,538.07).[4]There will be much more to be said in due course, when the Defendants’ heralded applications for costs fall to be adjudicated, about the circumstances and context of this startling picture of wholesale jettisoning of the vast majority of a claim which was so substantially overblown, but I should set out something by way of general background to the findings I am still required to make on the surviving issues.[5]I turn first to Mr Vishin Kewalramani, who, after the abortive video link, did not in the event give evidence, in circumstances which I shall describe. Five witness statements were served, signed by him. The first was dated 11 September 2008, and was his witness statement intended as his evidence in chief at the hearing. Three witnesses statements were served in relation to his purported attempts to deal with issues of disclosure, which was, notwithstanding the belated production of a great many further documents after Court orders, including an unless order, for disclosure, lamentably exiguous, especially in the light of the need to address, in relation to this working dredger which had not been in dry dock for some 2½ years, and was imminently due for its 5-year class inspection, the issue of whether any or all of the defects and damage complained of antedated the collision. The fifth, supplementary, statement was supplied after the start of the hearing.[6]Mr Hill had signposted on several occasions during the hearing that he intended to challenge the credibility of Mr Kewalramani in a number of respects, and expected to be cross-examining him for at least a day. In the event, after Mr Boorman, in the course of his cross-examination, conceded that a substantial quantity of the claim still pursued could not be supported as damage or defects arising as a result of the collision, and not antedating it, the Claimants took the decision, on what were described as proportionality grounds, not to cause Mr Kewalramani, who by now had obtained his visa, to fly out from Mumbai in order to give evidence on what now only remained as a very small claim. The result has been, as Mr Buckingham accepted, that the contents of Mr Kewalramani’s statements are of little value to the Claimants, as they have not been tested in cross-examination. Mr Hill has conceded that such evidence as was contained in Mr Kewalramani’s first statement in relation to items 1(c) and 1(d) could be adduced, though without any concession as to their truth or reliability. As for the balance of the contents of the statements, it is at best hearsay without service of a hearsay notice, and Mr Hill’s position, set out at paragraph 11 of the note of his closing submissions, with which Mr Buckingham does not disagree, is that “although the Defendants will not contend that his statement evidence is inadmissible, its credibility and the weight to be attached to it must be judged in the light of the case as a whole”.[7]A sample of what would have been put to Mr Kewalramani in cross-examination was revealed and particularised by Mr Hill in the course of his closing submissions, and those submissions make a powerful indictment. There are three matters of which I take particular account in arriving at a view as to what if any reliance can be placed upon such part of Mr Kewalramani’s evidence as remains potentially relevant in the light of the abandonment of the vast majority of the Claimants’ claims.[8]The first is his evidence as to water leaks. A claim was made by the Claimants not only for the items of alleged damage to the wall of the ladder well (the inner hull), now surviving as 1(c) and 1(d), both of which relate to holes at tank 4.5, but also in respect of alleged holes at tanks 4.4 and 8.5. There is a report dated 1 May 2004 by the Master of the dredger, Captain Sukhachov, whom the Claimants have not produced as a witness, which records that, on 30 April 2004, there was leakage by way of ingress of water into tank 4.5 of approximately 1 cubic metre per hour. However: i) Both that same report, and the deck log of that date, record that there was also leakage into tank 4.4 of approximately 6 cubic metres per hour and into tank 8.5 of approximately 15 cubic metres per hour. Neither of these two (substantially greater) leakages of water are said now to be the responsibility of the Defendants or the result of the collision. ii) Significantly the evidence given by Mr Kewalramani at paragraph 7 of his witness statement, at a time (11 September 2008) when the Claimants were still seeking to pursue claims in respect of all three tanks, was that, after noting the ingress of water into all three tanks, “the tanks, prior to this incident, had been dry”. Since the leakages to the other tanks on any basis antedated the collision, as is now accepted, this statement cannot be correct.[9]The next example is the grease system vis-à-vis the lower drum of the ladder. A claim was made, abandoned in the course of Mr Boorman’s cross-examination as unsustainable, in respect of alleged distortion to the shaft and/or bearings of the ladder lower drum, said to be caused by the collision and/or the responsibility of the Defendants (item 2). To support a case that this was in some way due to the collision, reliance had been placed upon the statement by Mr Kewalramani, at paragraph 4, that he was informed by the Master that the “grease alarm had sounded, thereby indicating that there had been a loss of grease in the lower drum ... the grease system will sound an alarm if the grease pump runs continuously or if the grease pressure reduces”. Even as late as his fifth witness statement, he was asserting that the grease supply system “supplies grease to the bearings and seals”.[10]However, as is now conceded by Mr Boorman and the Claimants: i) The grease alarm (if it went off at all) only indicates a loss of pressure in the flexible tubes leading down to the lower drum. It does not indicate loss of grease in the lower drum. ii) In any event, the grease line does not grease the lower tumbler shaft or bearings. They require manual greasing, and there is no evidence or records that the crew ever greased the lower tumbler shaft and bearings. If they were distorted, as is now conceded, that would have been due to previous wear and tear and/or inadequate maintenance. Most significantly however: iii) The engine log entries for March to May 2004 show that, from 23 March onwards, the crew was adding 20 kilograms of grease per day to the central grease system i.e. it was losing grease. This is recorded for each day up to and including 28 March, when work is done on the central grease system, but apparently to no avail, because on every day thereafter, up to and including 29 April, 20 kilograms of grease continue to be recorded as being added. In the entry for the 30 April/1 May (i.e. immediately after the collision) there is a note that the grease system was checked and found satisfactory – though 20 kilograms of grease still had to be added, both on that day and, according to the record, for the 1/2 May. Entries for 2/3 May and 3/4 May, copies of which in the bundle I have at Mr Hill’s request examined, there is what he persuasively asserts, with the support of the Defendants’ dredging expert Mr MacVicar, though without, at present, the benefit of a handwriting expert, to have been a handwritten alteration in each case of an original entry of 20kg of grease to 28kg. This, Mr Hill asserts, may have been some attempt to bolster a claim that what is in fact the obviously pre-existing problem with the grease is in some way indicative of some relevance of the collision on 30 April – though all without appreciation of the real position, now conceded, that the grease system has no relevance to the lower drum shaft and bearings in any event. All of this is wholly unexplained in Mr Kewalramani’s statement, and, quite apart from his general endorsement of so many claims against the Defendants which were unsustainable, casts yet more substantial doubt upon the reliability of his evidence.[11]The third example is the Claimants’ claim for alleged additional costs by virtue of the dry docking being in Singapore rather than in Colombo. The Claimants needed to meet the Defendants’ case that the class dry docking survey was due in June (extended on 19 April by the Croatian Register of Shipping to a final date of 2 September) and that the dredger needed to be dry-docked in any event, so that there was no recoverable loss of use. This case was addressed by reference to Mr Kewalramani’s evidence (at paragraphs 19 and 20 of his first statement) as follows, at paragraph 50 of Mr Buckingham’s opening skeleton:
“Although there was a need, for reasons of Class, to go into dry dock by September, that need could have been satisfied by dry-docking in Sri Lanka (the Colombo Dockyard had availability at the end of August) ... However, the collision gave rise to the need to repair the bucket ladder (or, at the very least, to dismantle and inspect it) and for this purpose a powerful crane was necessary. No such crane was available at Colombo ... for this reason, the dredger was required to travel to Singapore, where a crane was available.”
[12]However: i) It had to be conceded by Mr Boorman, and hence by the Claimants, during the hearing that the work that would have needed to be carried out, irrespective of any items said to be the responsibility of the Defendants, would have required the dismantling of the bucket ladder in any event. ii) In a document disclosed by the Claimants only after order of the Court, less than 3 weeks prior to the hearing, being a quotation from Colombo Dockyard Ltd dated 24 May 2004 in response to an enquiry (not itself disclosed) by the Claimants, Colombo Dockyard Ltd itself quoted for the disconnection of the ladder “with the help of two shore cranes” of the relevant 75 to 100 tonnes capacity. iii) In a letter to the Croatian Register of Shipping dated 18 April 2004 (12 days prior to the collision) requesting the extension of dry dock for 3 months from June, handwritten by Mr Kewalramani himself, he specifically allowed for the alternative scenario of dry dock in Singapore, in case dry docking in Colombo was not available (as, in the event, it was not until mid/end August 2004, as appears from a Colombo Dockyard letter of 5 July 2004). iv) Their claim for loss of use, including steaming time of 25 days to and from Singapore was abandoned by the Claimants as unpursuable, but only during the trial, before the decision not to call Mr Kewalramani on “grounds of proportionality” was taken.[13]The above example, together with the Claimants’ failure to disclose, inadequately addressed by Mr Kewalramani in his three statements and otherwise – to much of which I have referred above, and to which I shall return below – in the case of a dredger which, as is conceded, had substantial work to be done by way of ordinary wear and tear after 2½ years with no dry docking, renders it very difficult to rely on anything said in what has now become, in any event, the hearsay statements of Mr Kewalramani, certainly unless there were any corroboration. There is certainly no corroboration – rather the reverse – by reference to the absence of any maintenance records, which leaves the clear inference to be drawn that, unless clearly shown to the contrary, any alleged damage was not due to the collision. One of Mr Kewalramani’s responses, in his fourth witness statement (at paragraph 8(b)) was that the Claimants “operate effectively in practice without producing the sort of documentation that the defendants have asked for (e.g. records relating to maintenance and repairs)” but: i) If such were the case (and it is to be noted that Kamal XXVI did keep engine and deck logs from which information has been obtained, none of which supports the Claimants), explanation would be required as to how the Claimants can operate in breach of Clause 10 of the International Safety Management (ISM) Code 2002, which, inter alia, requires not only the carrying out of proper maintenance but the keeping of records relating to it. ii) There has not even been disclosure of the documentation relating to the class survey when it was carried out in Singapore in July/August 2004, which would, or might, have assisted as to the nature or origin of the defects found and corrected.[14]The only other witness of fact, who was in the event thus the only such witness called by the Claimants, was Mr Jagadish Gorain, who gave evidence as to his attendance at the dredger in Singapore as a surveyor employed by the Salvage Association Singapore, instructed by the Hull and Machinery underwriters of the dredger, in July 2004. The Salvage Association received its instructions on 27 July, and a colleague of Mr Gorain was not permitted access to the vessel on 28: Mr Gorain attended on 29, and on some occasions thereafter, but on each occasion in the company of, and being given instructions by, Mr Kewalramani. He produced reports, the third of which was signed by Mr Kewalramani. They are, on analysis, a masterpiece of ambiguity, recording that matters were “found” and “reported” which were, unless and until clarified by him in the witness box, entirely unclear as to by whom and when and on what basis they were said to be reported and/or found. He felt able in his second report to state of the dredger that “all the damages reported here could be attributed to the collision incident”. No reliance is placed by the Claimants on such opinions, which were explored in cross-examination and found wanting at a time when many of the claims had been abandoned, and the rest, bar the three now surviving claims, were soon to be abandoned. So far as the surviving claims are concerned, he does not appear to address, at any rate in any clear or persuasive way, the indentation the subject matter of 1(a), and he only refers to one hole in the starboard inner hull, which could be either 1(c) or 1(d). I have no doubt, after the grilling to which he was submitted in cross-examination, that he will be a great deal more careful in future in ensuring the independence of his opinion and in taking care as to the drafting of his reports.[15]The Claimants instructed two experts, the latter of whom, a dredging expert, Mr Bates, had not engaged with any of the real issues in the case and his evidence was largely, if not wholly, uncontroversial, to such an extent that Mr Hill did not materially cross-examine him, and Mr Buckingham did not in the event require the Defendants’ dredging expert Mr MacVicar, to give evidence at all.[16]It was on Mr Boorman that the Claimants’ hopes rested. Mr Boorman, of Brookes Bell, Marine, Scientific and Technical Consultants and Surveyors, is a very experienced consulting marine engineer, who has carried out many investigations as surveyor and consultant, has prepared reports on technical issues on many occasions, and has given expert witness evidence in court and at maritime arbitrations. He must have known that this time he was on a sticky wicket in seeking to support a case that, as a result of what was described as a “gentle” collision (the Ariela was moving at dead slow ahead making about 4 knots), when the Ariela “passed forward, rubbing [the barge] by her hull” (see paragraph 38 below), can be established to have led to nearly US$ 1.5m of damage to a heavily used working barge and a working dredger which it is now common ground were both in very poor condition (see paragraphs 27 and 40 below). Added to this was the unhelpful absence of any maintenance records, and the fact that the dredger (and barge) continued dredging in the Mormugao Channel until 28 May before setting off for its overdue dry docking and class survey.[17]He served his first report on 7 November 2008, which constituted support for a substantially lower figure than the US$ 1.3m which his clients were claiming, namely the US$ 942,670 which was what the claim was reduced to in the Claimants’ skeleton at the opening of the trial. The report of the expert instructed by the Defendants, Mr Alex Sinclair, also a very experienced and longstanding marine consultant, who has often given expert evidence in the High Court and arbitration hearings, in considerable detail supported the Defendants’ case that little, if any, damage was caused by the collision.[18]There was an experts’ meeting on 11 December 2008 which, although it resulted in some helpful agreements on peripheral matters, did not lead Mr Boorman to abandon his support for the Claimants’ case as articulated in his report. However, he did serve a first supplemental report on 19 December 2008, which purported to exhibit at Appendix 2, and thereby incorporated into his own report, a report from a company SafetyatSea Ltd (“SaS”) dated 19 December 2008, addressing what they called “a calculation ofapproximate collision forces”. This was exchanged with a first supplementary report dated 16 December 2008 from Mr Sinclair. On receipt of Mr Boorman’s first supplementary report with its attached report from SaS, Mr Sinclair served a second supplementary report dated 7 January 2009, noting that, in his first report, Mr Boorman had not discussed the magnitude of collision forces, and was only now introducing such a case, by reference to SaS, and stating that “having carefully analysed the SaS calculation I am of the opinion that it is in error to the extent that it is both theoretically and practically invalid. As a consequence the conclusions drawn by [Mr Boorman] are also invalid”. Nothing daunted, Mr Boorman served on 14 January a second supplementary report in response to the first and second supplementary reports of Mr Sinclair, which annexed a further report from SaS, which he described as self-explanatory. It was only subsequent to that report - although Mr Boorman said in evidence that he had come to such view during the New Year break - that Mr Boorman abandoned reliance on SaS, accepting that their conclusions were invalid; but, in his second supplementary report, Mr Boorman formulated a new proposition, described in cross-examination as his “second theory”, as to how it is that, even if the collision forces were of nowhere near the magnitudes purported to be supported by SaS, the damage to the dredger could still have occurred – based on a suggestion that the dredger moved aft after the collision.[19]Mr Boorman acted honourably in the course of his cross-examination and made no continuing attempt to delay the inevitable, but made concessions throughout the careful and detailed cross-examination by Mr Hill, as, one after the other, the ninepins fell, and each of the Claimants’ claims (save, in the event, for those very few which I am left to adjudicate) were conceded by him to be unsupportable, in the light of the factual evidence, and the contrary opinion of Mr Sinclair, with which, time after time, he was compelled to agree. But he should never have reached that stage. In his reports he had sought to put forward propositions which supported all those subsequently abandoned claims. Then in the light of Mr Sinclair’s responses and/or the experts’ meeting, and even where he had to resile from and disown (but only after temporising in his second supplementary report, as referred to above) the entire report of SaS, he sought to come up with alternative propositions until they too ran into the sand when he was cross-examined, and in particular he had to accept that his second theory, the one that the dredger might have moved aft, could not be supported on the facts.[20]The clear picture I gained was of the general of a besieged city first realising, immediately upon being put in command, that he had to abandon his outer fortifications as unsupportable, then erecting a constant series of ever-diminishing inner fortifications, all of which were indefensible, until finally ending up holding the flagstaff on the top of the turret of the last battlement. He accepted in cross-examination, when it was put to him, that he was in breach of a number of the required duties of an expert witness, whether in respect of qualifying his initial opinions, or notifying the parties of a change of mind or abandonment of an earlier opinion at the earliest possible stage. In the event he has given some evidence relating to the four surviving items as a very small part of the mass of evidence which he gave in relation to claims which could not be supported. I am left with the position that there is little I can safely accept from his evidence, except where Mr Sinclair agrees with it.

The Remaining Issues

[21]Against this background, I can now deal more shortly with the four issues.

Item 1(a)

[22]The ladder upon which is sited the chain on which buckets, with a hardened steel cutting edge, travel down and then back up again in order to carry out the dredging operation, is housed in the ladder well, within the inner hull. The ladder fits very closely within the well, there being an approximate 50mm gap or clearance on either side between the ladder and the walls of the ladder well. Since it is likely that, in ordinary dredging operations, the ladder can be caused to rock against the sides of the ladder well, there is, both on the ladder itself and on those walls, a cushion, in the case of the walls being a fender bar placed at regular intervals. It is common ground that there could be a force of some 50mt on occasions during ordinary dredging operations, causing the dredger to heel and/or the ladder to tilt or knock up against the walls of the ladder well, and hence the fender bars. It is also common ground that, in those circumstances, there is the possibility that, in the event of the ladder landing particularly hard against the fender bars, there could be damage to the walls themselves behind the fender bars, even though the intention is to cushion them from that result.[23]In this case, there was some damage identified on inspection after the ladder was removed, to the port inner wall, but it was not behind the fender bar. There are four helpful photographs (one of which blown up by Mr Boorman) which it is agreed show that the indentation which required shell-plating renewal was below the bottom of the fender bar and on a convex bend away from the ladder. There did originally form part of item 1(a) a claim that there was damage to a vertical fender bar itself, but that is no longer pursued, or at any rate pursued as having been caused by the collision. The four photographs form the evidence, together with the fact that there is no similar damage to the starboard wall of the ladder well. There is no issue about the cost of renewing the shell-plating in this area, namely the sum of S$ 3452 claimed.[24]Mr Boorman says that this damage was caused when, as is common ground, the Ariela came into contact with the port side of the barge, which caused the starboard side of the barge to collide with the port side of the dredger, causing the dredger to heel over 7o to 8o to starboard. He considers that when the dredger heeled, the ladder is likely to have come into contact with the port inner hull. His case was that the force caused by such collision would be 57mt. Mr Sinclair’s opinion is a force of 42.3mt. For reasons that I have given above, not least that 57 is Mr Boorman’s final resting point after some weeks flying much higher with SaS, if I had to resolve the issue I would prefer the opinion of Mr Sinclair. But I am content to split the difference at approximately 50mt, in which case there was no greater force than in ordinary dredging operations. As it happens, Mr Boorman accepts that an excess of 7mt over the norm would not have made any material difference such as to cause this to be any greater force than should be allowed for in ordinary dredging operations – he does not disagree with Mr Sinclair that there would inevitably be a substantial margin of error or leeway.[25]Mr Boorman states that if this damage was caused by the ladder hitting hard against the fender bar in ordinary dredging operations, it would have been expected that there would be damage on both sides, not just, as here, on the port side, and hence he stands by his theory that it was caused by the collision. Mr Sinclair however points out that if the damage were caused by the ladder ramming hard against the fender bar, it would not be in the position it is shown to be in the photographs. The indentation which was required to be repaired was not behind the fender bar. It seems that Mr Boorman initially thought that the vertical cracks in way of the fender bar may have opened out because of the collision, but then withdrew this opinion: there was originally a claim, part of 1(a), now abandoned, for damage to a fender bar. The damage is however, Mr Sinclair says, notin a position where the ladder would in fact come into contact with the wall, being not only below the fender bar, which juts out for the purpose of meeting the blow of the ladder, but on the curve below the bar, which would appear to be out of reach of the ladder, even if it smacked against the fender bar.[26]Mr Sinclair is therefore of the opinion that the damage was not caused by the ladder. If he has to search for a cause, then he considers it is most likely that the indentation may result from stray metal not properly contained in the buckets, such as a loose anchor chain, lashing up against the side of the inner wall, as it was carried up. Mr Boorman’s response is that it would be unlikely that an anchor chain would have got that far up the ladder wall, because it would be unlikely that it would get any further than the ladder lifting arms in which it would have become entangled. As it happens, although, as I have said above, there are in general no maintenance records at all in respect of the vessel, there was a specific order for disclosure once it became apparent that the Claimants had made a claim for damage to the dredger, allegedly caused on 1 March 2004, against the Mormugao Port Trust, which had led to arbitration proceedings: consequently some documents were disclosed by the Claimants, pursuant to such order, relating to such claims. Amongst those documents, which recorded in part the operation of the dredger in the weeks prior to 30 April 2004 insofar as relevant to that arbitration, there are documents reciting damage to the hull caused by anchor chains (of which more later in reference to item 1(d)). Anchor chains are recorded as encountered (on one occasion with an anchor) in March 2004, and there is a record on 4 May 2004, from which it seems that an anchor may have damaged the ladder frame pulley block and greasing line of the dredger, which would suggest that it had gone or could go further up the ladder than the lifting arms. It is of course not suggested that this is the occasion when the damage 1(a) occurred, but Mr Sinclair simply points to that as indicating that it is not an answer to the suggestion that damage might be caused by an anchor chain to suggest that such an object could never get past the lifting arms or so far up the ladder.[27]The fact is that, as Mr Sinclair stated in his first report (at paragraph 3.6), and is really now common ground, the dredger was “in a poor state of maintenance before the collision occurred”: Mr MacVicar also states that he can see from the photographs that “prior to thecollision the dredger was in poor condition, severely worn and corroded”. This indentation could have occurred at any time during the period of 2½ years since the last dry docking. I am certainly not persuaded, after setting the view of Mr Boorman against that of Mr Sinclair, that, on the balance of probabilities, it was caused by the collision or is the responsibility of the Defendants.

Item 1(c)

[28]This is said to have been caused when the ladder was lifted up, after the collision. It is suggested that at least one bucket may have been tilted off the chain and thus, once the ladder was lifted, it may be that such out of position bucket, or buckets, caught and holed the sheeting of the inner hull with its/ their sharp edge(s). This is said to be a consequence of the collision; the contrary is not contended by the Defendants, if that is what occurred. A temporary repair was carried out, both to this hole and the other hole in tank 4.5 (item 1(d)) and to the hold in the tanks 4.4 and 8.5, which are not now pursued as being the responsibility of the Defendants (see paragraph 8 above): divers bolted a doubler plate over the damage, and the crew then fitted cement boxes in the tank. The repair cost is agreed, subject to liability, at S$ 5934 plus S$ 661 for staging and S$ 650 for the cost of breaking off the temporary cement boxes.[29]Mr Kewalramani, in his first statement, stated at paragraph 5 that, when he arrived at the dredger after the collision, he was informed by the Master that the crew had attempted to lift the main ladder, but the winch motors had cut out due to an overload, and so he gave permission to the Master to bypass the motor overload relays. His statement continued:
“5. ...the main ladder was then lifted in my presence. Both the Master and I heard a cracking noise whilst the ladder was lifted. 6. I noted that the bucket chain system had spilt over the starboard side of the main ladder. This must have occurred when the dredger rolled 7 to 8 degrees during the collision impact and the bucket chain links, together with the buckets, had slipped off the ends of the rollers.”
[30]This is a very odd series of statements: i) It is said that he “noted” that the bucket chain system had spilt – does he mean noticed? ii) If so, it is difficult to see how he could have noticed this as, whatever occurred at item 1(c) would have been under water. The picture that he gives is not one that is supported by Mr Boorman. iii) No such, or indeed any, account is given in the Master’s report. iv) I do not consider it at all likely that any noise which was heard when the ladder started to rise was or could have been the sound of a bucket or buckets causing the hole, which would have occurred under water. v) It is part of, and immediately followed by, his assertion in paragraph 7 which I have already stated in paragraph 8 above can be given no credence at all, but which actually became the first argument relied on under this head by Mr Buckingham in his Scott Schedule, namely “after the collision, water ingress was reported in that previously dry tank” [my underlining].[31]There may have been a manual override of the ladder motor. But I place no reliance upon what Mr Kewalramani, unsupported by the Master, states and there is nothing in the logbooks.[32]There was however a hole in the hull, item 1(c). With the ladder in the position it was, lowered to 14.9m, such hole could not have been caused by fouling by a dangling anchor chain or other tramp metal, as it would have been out of reach. Mr Boorman accepted however that if the ladder had, on some previous occasion, been lowered to 16m, then it could have been in range.[33]At paragraph 4 of the experts’ memorandum after the joint meeting, it was agreed that the puncturing damage to the starboard side of the ladder well “may have been caused when raising the bucket ladder after the collision”. The onus of proof remains upon the Claimants in this regard, as in all others, but I am influenced by the following evidence of Mr Sinclair: i) He said that he could not support the picture of one or more buckets being displaced in the manner alleged, I accept his evidence at paragraph 9.6ff of his first report:
“A minor inclination at 7-8o could not cause such displacement of a static dredge chain or cause the heavy buckets and chain to jump over the 45mm high retaining flanges of the ends of the transverse supporting rollers.”
Mr Boorman accepted that once his second theory evaporated, he could not disagree with that. However Mr Sinclair suggested the possibility that the chain could, rather like a bicycle chain, jack-knife so as to cause one bucket to ride up, in which case that one bucket could catch the wall and make a hole. ii) Apart from his suggestion that the damage might have been caused when or if the ladder were previously at a lower depth, Mr Sinclair was not able to suggest any other way, or any other circumstances in ordinary dredging operations, in which this hole could have been caused.[34]I am just persuaded on the balance of probabilities that, after a manual override, the ladder was started up, and that a bucket where the chain had jack-knifed did catch the wall, such that item 1(c) was a consequence of the collision for which the Defendants were responsible.

Item 1(d)

[35]All the same factors apply in relation to item 1(d), but with the following important differences: i) Mr Sinclair’s theory, which I have in the event found myself relying upon, albeit not to his client’s advantage, in relation to item 1(c), would not allow for more than one bucket being displaced. ii) The position of item 1(d) is within range of an anchor chain or other tramp or rogue metal trailing from a bucket.[36]But more significantly, and following on from this, there is what appears to me to be the conclusive factor that the Claimants made claim in the arbitration proceedings, to which I have referred in paragraph 26 above, against the Mormugao Port Trust in respect of just such a hole caused by an anchor chain. The Claimants resisted disclosure of documents with regard to the arbitration proceedings, and in particular Mr Kewalramani dedicated much of his second witness statement, in opposition to the application for disclosure, to seeking (unsuccessfully) a direction that a document, which was in the event produced by a Mr Ogg, a marine investigator and consultant instructed by the Defendants, should not be adduced in evidence. This document dated 1 May 2004, which he had obtained from the Mormugao Port Trust, was submitted to the Trust by the Claimants as a list of a substantial number of items of alleged damage claimed by the Claimants to have been caused to this dredger, totalling more than 6 million rupees. Mr Kewalramani’s assertion was (at paragraph 5 of his second witness statement) that “every aspect of the damage to Kamal XXVI which formed the basis of the claim against [the Mormugao Port Trust] was repaired long prior to the incident with Ariela on 30 April 2004”. This would have been an assertion which, had he attended at the trial, would have been difficult to establish, at any rate without maintenance records, and it is hard to see what he would mean by “long prior”, given the short timescale; but in fact, in the disclosure which was ordered, and eventually given, there was a record of a claim by the Claimants against the Mormugao Port Trust relating to the Claimants’ encountering an anchor chain on 13 March 2004, which “damaged [the dredger’s] hull (hole in the bottom of the vessel)”.[37]In the absence of any evidence to the contrary, and of any evidence as to this hole being repaired at any time between 13 March and 30 April 2004, I am entirely satisfied that, on the balance of probabilities, the hole at item 1(d) was the hole caused by the anchor chain on that occasion, or at any rate was more likely to have been such than to have been caused, as is asserted, by, or as a consequence of, the collision. This head therefore fails.

The Barge (Item 6)

[38]I come then to the barge. There are two written descriptions of the collision. The first is by the Master of the dredger, Captain Sukhachov, in two contemporaneous reports, of 1 and 2 May 2004, namely that at 20.19 “MV Ariela passed forward rubbing dumb barge Kamal XXIV by her hull”. The other is recorded in the first report of Ericson & Richards, the local Indian surveyors appointed by the Defendants’ insurers, after their inspection of the barge at Goa, when they record the words of the Master of the barge: “The MV Ariela chafed against the barge from her mid-ship to the last hatch, rubbing the barge from the forecastle to the stern”.[39]There are two sketches, one by the Master of the barge, showing the Ariela parallel with the barge and effectively rubbing alongside it, sandwiching the barge between it and the dredger, and one by the Master of the Ariela showing the Ariela ‘kissing’ the port bow of the barge. It is not disputed that, on either basis, the first point of contact between the Ariela and the barge was the port bow, and it is not disputed that there is no evidence of damage to the barge at the first point of hull contact, between the Ariela and the barge, namely the port hull forward. The barge was surrounded by 36 large tyre fenders, secured to the deck edges by chains, to cushion any impact. In an unchallenged description, Mr Sinclair describes how beneath the fenders there are stout half-round tubular steel rubbing bars, which extend along the full port and starboard side deck edges and protrude by about 300mm, with 8 similarly sized inclined half-round fender bars welded to each side. It is Mr Sinclair’s opinion, and he was not cross-examined in this regard, that “the deck edge and side fenders should prevent any possibility of direct contact between a wall-sided ship [such as the Ariela] and the barge side shell.”[40]It is common ground that the barge was in very poor condition prior to the incident. Mr Sinclair’s evidence, which was not disputed, was that, prior to the collision, the barge was not seaworthy: its forepeak tank structure was fractured as a result of extensive and progressive fatigue cracking, and it had substantial pre-existing damage arising from corrosion, wear, tear and rub impact. After viewing the photographs, taken by Ericson & Richards, he is satisfied that there were many minor bumps and scrapes accumulated over about 4 years of operation. The disclosure in respect of Mormugao Port Trust shows the kind of hard dredging work, including rock removal, which took place.[41]Mr Sinclair considers that, if there were any damage to the barge resulting from the collision with Ariela, it would have been to the starboard quarter, where the barge bumped against the dredger, but there is no evidence of any such damage, and none claimed for. The only damage claimed for is in respect of the port aft, in respect of which there is a claim for repairs in circumstances which I shall describe in paragraphs 42ff below. As set out in paragraph 3(ii) above, the cost is arrived at by Mr Boorman’s calculation of a proportion (by reference to the ratio between the port quarter and the whole of the barge) of the repair works carried out at Kandla to the barge, as contained in the invoice from Rainbow Engineering Works - itself a puzzle, unexplained in the absence of Mr Kewalramani, because, in their third report dated 30 November 2004, resulting from their inspection at Kandla, Ericson & Richards record that the barge was “undergoing repairs carried out by owners themselves”. In the experts’ memorandum, the experts record, at paragraph 1, their agreement “that there is no clearly identifiable collision damage to the barge, with the exception of the port aft corner: [Mr Boorman] believes there was collision damage at the port aft corner but [Mr Sinclair] thinks there was only pre-existing damage”.[42]The basis upon which Mr Boorman concludes that, out of all the very substantial works done to the barge, there must be an allowance in respect of that done to the port aft quarter as resulting from the collision, is by reference to his reading of the Ericson & Richards report. It does not flow from any expert opinion, at any rate none that I feel able to accept, that, as a result of the collision described by the two Masters and illustrated in the two sketches referred to above, it is in fact likely, on the balance of probabilities, that the damage was to the port aft and not to any other part of the barge. As I understood his evidence, he thought it might be possible that there could be no damage to the barge at the point of first impact, none to the barge as the Ariela rubbed alongside it, but possibly some damage to the port aft as the boat moved (very slowly) away from it. I am wholly unpersuaded by this, particularly given the cushioning by the fenders of which Mr Sinclair speaks.[43]The passage in the fourth Ericson & Richards report, dated 31 January 2005, upon which alone Mr Boorman relies for his opinion, is one in which the surveyors record their visit to Kandla in company with Mr Kewalramani on 17 January 2005. They again refer to proceeding to Kandla Port “where the barge was undergoing repairs carried out by the owners themselves”. They record that “the following sections were observed to have been renewed”. These are seven items, including renewal of the port quarter ship side corner, the side fender on the port quarter and three areas of port side shell plate. The surveyors record: “Based on our earlier observations and findings, the above repairs may be considered as deemed necessary due to the alleged contact with the MV Ariela”.[44]It is this opinion which Mr Boorman accepts. Mr Sinclair does not.[45]The only, and very generalised, reason for the Ericson & Richards view that the completed repairs, which Mr Kewalramani showed them, and to which they referred, may be considered as deemed necessary due to the collision, is that such view is “based on our earlier observations and findings”. These are not explained. It is certainly the case that, in their third report of 30 November 2004, relating to their visit on 27 November 2004 to Kandla, there was reference to a large amount of work being carried on upon the barge, including the fact that “the port aft corner plating in the aftpeak had been renewed and renewal of plating of adjacent void tank was in progress”, but referring also to other work which was being carried out, inter alia on the starboard side. The report records that “photographs were taken of both port as well as starboard sides of the hull to show the condition of the plating, which was dented at various places, apparently due to multiple contacts with the tugs, dredger, etc in the course of normal dredging operations”. There is nothing to differentiate in that regard between port and starboard or between port aft and any other part of the barge.[46]The only opinion which the surveyors express is contained in the first report, dated 11 May 2004, when they visited the Mormugao Channel at Goa, where the dredger and the barge were still in operation. They inspected and took photographs on 8 May 2004, and recorded that:
“The barge is fitted with a number of rubber tyre fenders. No paint marks from the ship’s hull were observed anywhere on the port side hull of the barge ... the port and starboard quarter corners of the barge were observed to have sustained some indentations on the hull and warping of the framework inside the aftpeak spaces. This damage appeared fresh and may be attributed to the contact made by the Ariela.”
[47]No explanation is ever given as to how it comes about that they eventually concluded that the alleged damage to the port quarter corner may be, but that to the starboard quarter corner is not, attributable to the contact made by the Ariela. Mr Sinclair, with his enormous experience, has considered the photographs. Of course it must be recognised that consideration of the photographs, good as they may be, is no substitute for having inspected the barge itself. However, as set out above, the photographs corroborate the view, expressed by the surveyors themselves, that there is multiple damage to the barge from ordinary use, and he can see no sign whatever that any particular part of the damage is any more fresh than any other. Mr Hill submits, on the basis of Mr Sinclair’s evidence, that it is not possible to tell whether damage is fresh unless obvious scrap marks or cracks can be seen with newly exposed steel plate. None of the photographs show such fresh damage: on the contrary, such photographs that are available of the port aft corner clearly show that the damage is small, localised indentations, which are corroded and are indicative of old damage sustained in the course of normal operations.[48]No explanation or justification is given by Ericson & Richards for drawing any distinction between port and starboard repairs, and their fourth report of 31 January 2005, of the surveyors’ inspection of the barge in company with Mr Kewalramani, does not even mention all the other works of renewal that had unquestionably been carried out. This suggests a lack of objective consideration, such as indeed there was by UK Marine (India) Surveyors in their inspection of the barge, in the presence of Mr Kewalramani, in November 2004, set out in their damage report dated 9 December 2004, when they feel able to conclude that all the repairs carried out to the barge, not limited to the port aft, were caused due to the collision with Ariela, and the repair costs should be borne by its owners: words which were no doubt as welcome to Mr Kewalramani after his supervision of their visit as were the words of Ericson & Richards quoted above, after he accompanied them on their visit of 8 May 2004. Such conclusion however is one repudiated by Mr Boorman, and the UK Marine report is not relied upon by the Claimants in this action.[49]Mr Buckingham has drawn my attention to Marsden on Collisions at Sea (13th Ed) at paragraph 15-40, from which it is apparent that the “eggshell skull” principle applies to ships, so that, if the damage caused in the collision is greater than would ordinarily be the case, because the ship was in a prior weak condition, the vessel at fault is nevertheless liable for the entire loss. Reference is made to The Egyptian[1864] 10 LT 910, in which Dr Lushington in the Admiralty Court said “if a part of the damage be clearly attributable to the wrong-doer, and it be impossible to draw the line with precision, and say how much, the wrong-doer must bear the loss”.[50]I am entirely satisfied here however that the Claimants have failed to prove that any fresh damage was caused to the barge by this collision. I am persuaded by the Defendants that the Ariela presented a huge high flat wall of steel to the barge, which extended well above the top and well below the bottom of the barge, and that there is no reason, given the existence of the fenders, to conclude that any damage was caused to the port aft of the barge, as alleged. In any event, I am not satisfied that any of the substantial repair costs to the barge of R 2,463,215, or the purportedly apportioned costs of R 719,355, can be attributable to the Defendants or are recoverable against the Defendants by the Claimants.

Conclusion

[51]In the circumstances, all claims by the Claimants against the Defendants are dismissed, save in the sum of US$ 6245 in respect of item 1(c).

Cited in 2 later judgments