Gard Marine & Energy Ltd v China National Chartering Co Ltd & Ors [2013] EWHC 2199 (Comm)

Case No 2010 FOLIO 720[2013] EWHC 2199 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building 7 Rolls Buildings, Fetter Lane London EC4A 1NLDate 30/07/2013
Before
MR. JUSTICE TEARE
Between
GARD MARINE & ENERGY LIMITEDClaimant
Jeremy Russell QC & James Turner QC (instructed by Ince & Co LLP) for Claimant and the Fourth PartyTimothy Saloman QC (instructed by Winter Scott LLP) for DefendantDominic Kendrick QC & David Goldstone QC (instructed by MFB Solicitors) for Third PartyHearing Hearing dates: 10, 15-18, 22-25, 29 April, 1, 2, 7, 8 and 20-22 May 2013
JudgmentMr. Justice Teare:
[1]On 24 October 2006 OCEAN VICTORY, a Capesize bulkcarrier, part-laden with a cargo of iron ore, sought to leave the port of Kashima, Japan during a severe gale. As she proceeded along the Kashima Fairway she was confronted by northerly or north-north-westerly winds of about Beaufort scale force 9 and by heavy seas generated both by the winds and by the dominant swell from the north-east. When north-west of the seaward end of the South Breakwater, without steerage way and with her portside exposed to the gale she was set down onto the end of the breakwater. She was then driven southwards by the weather, went aground and was abandoned by her crew who were airlifted ashore. Notwithstanding the assistance of Nippon Salvage on LOF 2000 terms she broke apart just after Christmas 2006. A wreck removal contract was entered into with Fukada Salvage and by August 2008 the wreck had been removed.[2]This was a remarkable maritime casualty. Although OCEAN VICTORY had the full use of her engines she lost steerage way when leaving a modern, purpose-built port and navigating a fairway which had been used by many ships without incident. The casualty has given rise to a claim in the sum of approximately US$137.6m. made up of the loss of the vessel, some US$88.5m., loss of hire of the vessel until 27 December 2006, some US$2.7m., SCOPIC costs pursuant to LOF 2000 in the sum of US$12m., and wreck removal costs of some US$34.5m. The Claimants, the hull underwriters who are suing as assignees of the owners and demise charterers, say that the casualty was caused by the unsafety of the port of Kashima to which the time charterers had ordered the vessel. The time charterers say that the port of Kashima was not unsafe but that even if it were unsafe the cause of the casualty was not that unsafety but a misapprehension by the master of the vessel that the vessel had been ordered to leave the port and/or by the negligent navigation of the master when leaving the port. The time charterers also say that certain of the losses claimed are irrecoverable for other reasons. The following guide to the contents of this judgment may assist the reader: paras The vessel 3-4 The port of Kashima 5-8 The weather on 24 October 2006 9-12 The port “set-up” 13-15 The charterparties 16-17 The witnesses 18-22 The events prior to 23 October 2006 23-29 The events of 23 October 2006 30-49 The events of 24 October 2006 50-76 The departure of the vessel 77-92 The safety of the port 93-135 The cause of the vessel leaving the port 136-149 The navigation of the vessel 150-172 Negligent navigation and causation 173-175 The recoverability of the value of the vessel 176-204 Limitation 205 Loss of hire 207 Conclusion 207 Postscript 208-213

The vessel

[3]OCEAN VICTORY was a single deck gearless bulk carrier, with 9 holds, built in Shanghai in August 2005. She was registered in Hong Kong. She was 289 metres in length overall and 45 metres in breadth. Her summer deadweight was 174,148 metric tonnes on a draft of 18.12 metres. She was powered by a six cylinder MAN B&W diesel engine which produced 22,920 bhp at 91 rpm. Her full sea speed in laden condition was 14 knots. She was equipped with the usual navigational aids, including gyro compass, two radars and two GPS. She was manned by a crew of 24.[4]Her master at the material time was Captain Dong. In 2006 he was 47 years of age. He had obtained his PRC (People’s Republic of China) master’s certificate in October 1995. He had commanded several bulk carriers, both Handysize and Panamax, between 1998 and 2006. In July 2006 he was appointed master of OCEAN VICTORY, his first command of a Capesize bulk carrier. Until the events with which this case is concerned neither the master nor the vessel had visited Kashima.

The port of Kashima

[5]Kashima is a large modern port, construction of which began in 1969 and continued for many years thereafter. It appears to be one of the largest ports in Japan. The port contains over 9 miles of wharves serving an industrial zone. There are iron and steel works, an oil refinery, chemical works and a foodstuffs industry within the port. The port serves a variety of vessels from smaller coastal ships to VLCCs (up to 280,000 DWT) and Capesize bulk carriers (up to 230,000 DWT) as well as LPG and chemical tankers. Between 1971 and 2006 some 1254 VLCCs and some 5316 Capesize vessels had visited the port. There was no history of incidents such as that which befell OCEAN VICTORY on 24 October 2006.[6]One of the fairways within the port is the Central Fairway which runs in a NE/SW direction. Along its northern shore is the Raw Material Quay, with three berths A, B and C. OCEAN VICTORY had been moored at that quay for the purposes of discharging her cargo. A vessel leaving the port via the Central Fairway, as OCEAN VICTORY did, proceeds in a north easterly direction and turns to port into the Kashima Fairway which runs in a N/S direction. The eastern side of the fairway is bounded by the South Breakwater which extends 1.75 miles north and affords a measure of protection from the swell coming in from the Pacific Ocean. At the inward end of the breakwater, and to the south-west, are two leading lights aligned on a bearing of 183.5 degrees. The line of those leading lights is marked on the Admiralty chart. For an outbound vessel that line marks the course to follow along the fairway, just to the east of north. At the seaward end of the breakwater is a light on a tower some 11m. in height. Beyond the breakwater are two buoys, nos. 1 and 2, which mark the route out to sea from the fairway on a north easterly course. The seaward end of the fairway had been dredged to a depth of 24 m. and the inward end had been dredged to a depth of 22m. The width of the fairway between the 20m. depth contours either side of the line of the leading lights marked on the chart was between 2 and 3.5 cables.[7]Pilotage is not compulsory but pilots are available. The pilot boarding ground for inbound vessels is some 2.5 miles north-east of the head of the breakwater. The Guide to Port Entry notes that the presence of swell very often hampers the manoeuvre of the tugboat carrying the pilot and so a convenient lee is required to enable the pilot to board. Pilots may also be taken by outbound vessels but it was common ground that they typically disembarked near the pilot’s office at the southern end of the breakwater (in the vicinity of buoy no.6) and so did not usually pilot outbound vessels along the Kashima Fairway.[8]The Admiralty Pilot Book states that entering and leaving the port at night is only permitted in exceptional cases. It also notes that in the outer part of the fairway there is frequently a heavy swell and that in bad weather breaking seas overrunning the breakwater may cause it to be totally obscured on radar screens. The Guide to Port Entry notes that during periods of northerly swell the entry channel is fully exposed and that vessels at low speed generally have difficulty in steering.

The weather on 24 October 2006

[9]The conditions which were experienced in the Kashima Fairway on 24 October 2006 have been considered by meteorological and wave experts. Their findings may be summarised as follows. i) The fairway was exposed to north to north-north-westerly winds of about Beaufort scale 9 caused by a low pressure system. Although there was a difference of view as to how likely it was that the wind reached force 10, it was common ground that there were gusts of up to about 52 knots, that is, about force 10 (although it is strictly inaccurate, I was told, to refer to “gusts of force 10”). ii) The prevailing swell from the north east penetrated the breakwater by diffraction and by reflection from the coastline. There would also have been a component due to overtopping of the breakwater. iii) At the inward end of the breakwater the significant wave height (that is, the average height of the highest one third of the waves) would have been about 1.5-2m. iv) As the vessel passed the seaward end of the breakwater she was likely to have encountered a significant wave height of 5.5-6.5m. with a period of around 11 seconds.[10]The circumstances in which the vessel came to leave her berth for the open sea are the subject of some controversy and so the same experts, together with experts on ship movement, have considered the conditions which were probably experienced by the vessel as she lay alongside the Raw Materials Quay, starboard side to. They concluded that the wind could potentially have been from directions both abeam and astern due to distortions caused by structures and topography ashore. The waves were likely to have been onto the stern of the vessel and to have had a significant wave height of about 0.65m with a significant period of 10-11 seconds.[11]In addition to such waves created by the wind and prevailing swell there were also “long waves”, that is, waves typically with periods of 30 seconds to 5 minutes but with a small significant height. Such waves are associated with storms of long duration or travel long distances across the ocean. In open sea they travel with groups of swell waves and are bound to them. But nearshore and in port they are released from the group and behave independently from swell waves. Long waves can be diffracted more easily around a breakwater and with little loss of energy because of their long wavelength. The master of ordinary skill and care may not be familiar with this oceanographic phenomenon and would not “observe” them.[12]It was common ground that such long waves affected the Raw Materials Quay on 24 October and were of about 0.2m. significant wave height. The Owners’ wave expert considered that they had a period of about 50-100 seconds. The Charterers did not have a wave expert as such but suggested that they had a period over the full spectrum of 30 seconds to 5 minutes. The view of the Owners’ wave expert is to be preferred. Perhaps unusually these long waves may have been generated by the local low pressure system. This is suggested by the circumstance that the wave gauge outside the port recorded an increase in the height of such waves between 23 and 24 October 2006. Although long waves are usually much smaller in amplitude than swell waves they tend to cause greater ranging or surging of a vessel moored alongside a berth than swell waves. This is because the surge motion of moored vessels can be amplified by long period waves. From at least 1998 studies have been made of long waves (sometimes called “infra-gravity” waves) and their effects at Japanese ports including Kashima. The pilots at the port were aware of the phenomenon of long waves at Kashima and of their potential effect on vessels moored at the Raw Materials Quay. So was Captain Yamauchi, the Charterers’ representative at the port.

The port “set-up”

[13]There was a system in the port by which the harbour master instructed vessels to leave the port in the event of a typhoon. The standard form warned of an approaching typhoon and urged masters to take precautionary measures and, if necessary, to “prepare to seek a refuge outside the port”. There was also a system in the port by which the harbour master gave advice to vessels in the event of bad weather. The standard form urged care in berthing and unberthing operations and gave advice about anchoring. There was also, it seems, a practice whereby local weather forecasts were brought to moored vessels by both the vessel’s agent and by Captain Yamauchi, the Charterers’ agent. 7 tugs were operated in the port. In addition to such tugs being available to assist with berthing and unberthing and to assist vessels entering or leaving the tugs were also available to hold vessels at their berth should that be required. There was evidence that that had been required on 7 occasions in 2005 and on 11 occasions in 2006.[14]Studies of recorded data and other statistics suggested that from time to time vessels moored at the Raw Materials Quay had to leave the port. Mr. Ikeyama, a Japanese lawyer, carried out research which suggested that between 1996 and 2005, during 13 periods of strong NW to NE winds combined with substantial swell, only two vessels (or perhaps only one) appear to have interrupted discharge and left the Raw Materials Quay. However, this study does not appear to have been comprehensive. Data collected by the TST Corporation suggested that between 2001 and 2006 some 8 or 9 vessels had to leave the Raw Materials Quay because of bad weather and return when the weather improved. The precise circumstances in which such shifts took place were not stated but a list of evacuation alerts issued by the Kashima port authority for the period 2003 – 2006 suggested that 4 vessels left on account of evacuation alerts consequent upon a typhoon. The other 4 or 5 appear to have left the port without an evacuation alert. One of those was the ELLIDA ACE, a Capesize vessel, which left the port on 6 September 2006 in circumstances where the berth was affected by long waves generated by a typhoon a long distance away (described by the Charterers in their Closing Submissions as a “prime example” of such waves). It seems likely that the other vessels must have left either in similar circumstances or where there was particularly bad weather. Thus a senior pilot at the port confirmed that when the berth was affected by long swell mooring lines were liable to break and a decision might be taken to move the vessel out of the port. At an investigation into the OCEAN VICTORY casualty a manager of Sumitomo Metal Logistics, the ship’s agent at the port, said that he was aware of vessels which had left the port in winter in circumstances where movement at the berth could not be stopped by the use of tugs though he was not aware of a vessel having to depart in the autumn as the result of an approaching low pressure system. It was suggested that where discharge was suspended on account of bad weather the vessel would leave, not because it was unsafe to stay, but because there was no purpose in the vessel remaining on the berth. This seems unlikely since it would require the costs of tugs and a pilot to be incurred.[15]My conclusion from the totality of this evidence is that whereas the port, represented by the harbour master, had a system of issuing evacuation alerts on account of typhoons, the port, represented by the harbour master, did not have a system (before the OCEAN VICTORY casualty) of issuing such alerts in other circumstances, in particular, when the berth might be affected by long swell or by particularly bad weather. That does not mean that vessels did not leave the port in such circumstances. On the contrary the evidence suggests that they did. But such departures appear to have been the result of ad hoc decisions.

The charterparties

[16]At the time of the casualty the vessel was owned by Ocean Victory Maritime Inc. (“OVM”) and demised to Ocean Line Holdings Limited (“OLH”) by a charter dated 8 June 2005 for a period of 10 years. The demise charterparty was on the form of an amended Barecon 89 Standard Bareboat Charter and provided that the vessel was to be employed “only between good and safe ports”. By a time charterparty dated 2 August 2006 OLH chartered the vessel to the Defendant (or its predecessor in title) known as Sinochart for “minimum 5 month maximum 7 months via safe anchorage(s), safe berth(s), safe port(s)” on an amended New York Produce Exchange Form. Sinochart in turn sub-chartered the vessel to the Third Party, Daiichi, for a “time charter trip via safe port(s) safe anchorages(s) South Africa” by a charter dated 13 September 2006 also on an amended New York Produce Exchange Form. Daiichi chartered the vessel as substitute for another vessel under its contract of affreightment dated 23 June 2005 with Sumitomo Metal Industries (“SMI”). SMI owned the Raw Materials Quay in Kashima.[17]This action was brought by the Claimant (“Gard”) as assignee of the claims of OVM and OLH. Sinochart in turn brought third party proceedings against Daiichi. The positions of Daiichi and Sinochart are largely back-to-back. For that reason the charterers’ arguments in this action have been presented by Daiichi. For convenience I shall refer to the Claimant as “the Owners” and to the Defendant and Third Party as “the Charterers”.

The witnesses

[18]The master, Captain Dong, gave oral evidence via a video link from Beijing and an interpreter in court. He did so over 4 days. The court sat from 9am-1pm in view of the time difference with Beijing. Despite the length of his cross-examination which, unsurprisingly, he found tiring by the third day he gave his evidence calmly, politely and thoughtfully. Although there were one or two questions which he did not answer or appeared not to answer and although his recollection could on occasion be shown to be inaccurate by reference to the Voyage Data Recorder (the “VDR”) I did not form the impression that he was seeking to mislead the court. On the contrary I formed the impression that, when cross-examined about his navigation on 24 October 2006, he was seeking to do his best to explain his navigation and the reasons for the actions he took. Of course, he could not be expected to remember the detail of his navigation over 6 years ago and his account was inevitably and understandably assisted by the working chart and the electronic record contained in the Voyage Data Recorder (the “VDR”). The existence of the VDR meant that there could be no dispute as to the navigation of the vessel and so much of his evidence on navigation consisted of his explanation as to what he was seeking to achieve in that navigation (namely, following as closely as possible the line of the leading lights marked on the chart) and how he sought to achieve that in the prevailing conditions. His account of his second officer taking GPS positions some of which were not marked on the chart but which were indicated on the chart by the second officer using a pair of dividers and his hands (not a method likely to meet with approval at Trinity House) suggested that he was being frank in his evidence. When it came to his account of his meetings and conversations on 22-24 October 2006 with Captain Yamauchi, the charterers’ representative at Kashima, he said that his written statements made earlier in time were more likely to be accurate than his recollections in 2013 and that, in any event, he was exhausted by the cross-examination and could not remember. Both statements were, it seemed to me, likely to be true. He was, in my judgment, an honest witness who sought to assist the court. But where there is a dispute as to what actually happened so long ago as October 2006 it is probably safer to base the court’s findings on the contemporaneous records, the master’s statements made closer to October 2006 and the probabilities. I gained the impression that the master would have seen the sense in that approach himself.[19]Captain Yamauchi gave evidence with the assistance of an interpreter over some 2-3 days. He gave his evidence with some care. He was particularly careful to check the original Japanese when questions were put to him based upon a translation and his corrections were usually accepted by the interpreter. Notwithstanding his care in answering questions much time has of course passed since 2006. That must have made it difficult for Captain Yamauchi to have a clear recollection of what happened in 2006. There was also, I thought, a tendency on his part to have a fixed view of the case and a reluctance to move from that view even if contemporaneous documents suggested that he was wrong. At times he was particularly concerned to keep to the terms of his written statement. I therefore considered it appropriate to base my findings, where there was a dispute, on the contemporaneous documents and on the probabilities. In considering those contemporaneous documents which were originally in Japanese and had been translated it was necessary to consider carefully the context and probabilities in order properly to understand those documents. That was particularly necessary with the use by Captain Yamauchi of the word “shiji” which had been translated as “instruction” but which he insisted meant no more than “suggestion”.[20]The Owners’ experts on meteorology and waves were Mr. Blackwood and Mr. Bunn. Both gave their evidence in a manifestly fair and objective manner. The Charterers’ expert on meteorology was Mr. Lynagh. Whilst it was suggested to him that his report was prepared to assist the interests of the charterers I was not persuaded that he had done anything other than seek to give the court his fair and objective opinion on the questions put to him. The principal matter on which Mr. Blackwood and Mr. Lynagh differed was on the rarity of the gale which affected Kashima port on 24 October 2006. Mr. Blackwood concentrated on the magnitude of the wind whereas Mr. Lynagh concentrated on the magnitude of the wind and the length and other characteristics of the storm. Which is the appropriate approach did not appear to me to be a question of meteorological expertise but rather a question the answer to which depended upon the context in which the question of rarity arose. In the present case the question arose in the context of a safe port warranty and so the question of what is the appropriate measure of rarity depended upon the meaning and effect of that warranty.[21]The Owners’ expert on the motion of a ship whilst moored alongside the Raw Materials Quay was Dr. McBride. The Charterers’ expert on the same subject was Dr. Rodgers. Their evidence, in large part, considered the conclusions that could be drawn from the output of a programme known as OPTIMOOR which calculated the wind speed at which the vessel’s moorings might fail. The programme was run on the basis of the vessel’s (assumed) actual moorings and on the basis of an alternative mooring arrangement which the Charterers said ought to have been adopted by the master. Both witnesses gave their opinions with fairness and objectivity and with a recognition of what was within and what was without their expertise. There was a degree of agreement that the results of the OPTIMOOR runs could not be regarded as indicating in absolute terms the wind speeds at which moorings were at risk of failure. Rather, they enabled a comparison to be made between the two mooring configurations. In terms of loads on the moorings the experts agreed that there was little to choose between the two mooring configurations. Perhaps because of this no criticism of the master’s mooring arrangements was pursued in the closing submissions of counsel for the Charterers. Further, it was common ground between the experts that OPTIMOOR could not take account of long waves with a period of more than 25 seconds. For that reason, on the facts of the present case, caution was in any event necessary when seeking to draw conclusions from the OPTIMOOR results. There was however one matter which was clearly revealed by OPTIMOOR and that was that one or two of the mooring lines in the configuration assumed to have adopted by the master had “an angle of inclination” of 34 degrees or more which would bring the line into contact with the base or surround of the roller fairleads. This was relevant to the risk of failure as a result of chafing. However, although it was said that a mooring line which broke on 24 October 2006 broke as a result of chafing induced by movement of the vessel, no criticism of the master’s mooring arrangements based upon susceptibility to chafing was pursued in the closing submissions of counsel for the Charterers.[22]Finally, there were the experts on ship navigation. It used to be the case that the Commercial Court, when deciding safe port cases, did so with the assistance of an Elder Brother of Trinity House as an assessor (see Compania Naviera Maropan v Bowater’s (“the Stork”) [1955] 2 Lloyd’s Reports 397, Leeds Shipping Company v Societe Francaise Bunge (the “Eastern City”) [1958] 2 Lloyd’s Reports 127and Tage Berglund v Montoro Shipping Corporation (the “Dagmar”) [1968] 2 Lloyd’s Reports 563) but that practice seems to be in abeyance. In an appropriate case it perhaps ought to be resurrected. It might save expense and time. The primary focus of the navigation experts in the present case was upon shiphandling, in particular, the manner in which a Capesize bulk carrier can be navigated along a narrow fairway into gale force winds and a swell which was acknowledged on both sides of the debate to be a challenging and difficult task. Captain Gains was called by the Owners. He has had experience (in the 1990s) of navigating Capesize bulk carriers as master. He was therefore well qualified to advise the court as to the handling of such a vessel in heavy weather. He was cross-examined over two days and explained his opinion with clarity. He appeared to me to be fair and objective. Thus he accepted that parallel indexing, which appears not to have been adopted by the master, would have been used by him had he been the master. When cross-examined about how the master might have modified his moorings and as to the likely cause of the failure of one of the mooring lines he was also fair and objective. Thus he appeared to me to be a witness who gave the court his honest and objective opinion. He was, I thought, an impressive expert witness. Captain Barber was called by the Charterers. He also expressed his opinion with clarity, firmness and honesty. However, he had had little command experience of Capesize bulk carriers so that in terms of relevant experience Captain Gains was to be preferred. Captain Barber had come ashore in 1980. He had navigated a Capesize vessel on a scrapping voyage on one occasion since then. Further, he had, I thought, a tendency to be over-critical of the master. This was manifest in two ways. First, he tended to make criticisms without considering or taking into account the totality of the evidence. Thus in cross-examination he accepted that certain of his criticisms were inappropriately expressed. Second, and perhaps more importantly, he tended to criticise the master because he, Captain Barber, would have acted differently. He did not, it seemed to me, always have in mind that a mariner of ordinary skill, when faced with a difficult shiphandling situation, might act in more than one way, neither of which could be described as unreasonable. An example of this was his criticism of the master for having his engines on bridge control rather than on engine room control. For these reasons I considered that I should exercise a degree of caution before accepting criticisms based upon Captain Barber’s opinion. In the event counsel for the Charterers made their closing submissions without seeking to rely upon, or inviting the court to accept, Captain Barber’s opinions.

Events prior to 23 October 2006

[23]On 4 and 5 September 2006, whilst ELLIDA ACE, a Capesize bulk carrier, was moored alongside the Raw Materials Quay in Kashima, 6 mooring lines broke as a result of what was described in the vessel’s statement of facts as “heavy swell”. Two tugs sought to assist the vessel, but “in vain” according to a contemporaneous email, and the vessel left port “to take refuge at sea”. Although Captain Barber had suggested that the cause of this incident was not long waves he accepted in cross-examination that the ELLIDA ACE incident in September 2006 was “an examplar of the type of problems which can occur in this port, at this quay, due to long waves”. Thus, by the time of closing submissions, it was common ground that the heavy swell was wholly or in part made up of long waves associated with a typhoon some distance off the port.[24]On 12 or 13 September 2006 (depending upon the time zone) Daiichi gave the master of OCEAN VICTORY instructions to load at Saldanha Bay in South Africa and discharge at Kashima. This was the date on which Daiichi warranted the prospective safety of Kashima.[25]Between 19 and 21 September 2006 the vessel loaded a cargo of 170,000 tonnes of iron ore at Saldanha Bay for discharge at Kashima. (It is of interest to note that Saldanha Bay also suffers from long waves and that sometimes vessels have to leave berth on account of them. There was evidence that alerts were issued to moored vessels of upcoming adverse mooring conditions resulting from long waves, but since the report in question was dated 2012 it cannot be assumed that such alerts were issued in 2006.)[26]On 18 October 2006 the ship’s agents, Sumitomo Metal Logistics (“SML”), emailed certain instructions to the master. In particular he was advised, when anchored off Kashima, to “use two anchors, when strong wind and/or rough sea.” Later on the same day Daiichi informed the master by email that they disagreed with such advice and recommended that the vessel drift rather then use two anchors. Daiichi went on to say:
“We have a representative office in Kashima Factory and our representative is Capt. Yamauchi, who is an experienced captain. He will monitor local weather forecast and will assist you during staying at Kashima and your discharging. In case of forecasting bad weather, please discuss with him in advance and follow his instructions. Please send your message to us and copy to his office……..Capt. Yamauchi will visit your vessel upon berthing (may be with our agent) for say hello and may bring some local informations/instructions.”
[27]Counsel for the Charterers submitted that Captain Dong did not rely upon this email. This submission was based upon the fact that Captain Dong did not send emails to Captain Yamauchi even though he had been provided with his email address in the email and upon the fact that after the casualty Captain Dong made no reference to the email either to his owners or to those bodies enquiring into the casualty. Indeed the owners did not rely upon the email in those enquiries until March 2008. Whilst there is force in these points (though at least one email was sent to Captain Yamauchi by the master on 24 October 2006) it is nevertheless improbable that the master did not receive the email; and it is not said that he did not receive it. If he received it (which is likely since it was addressed to him) it is likely that he read it because he had not been to Kashima before. He said in his statement dated March 2008 (though not in his statement dated 27 October 2006) that he noted its contents. That is in accordance with the probabilities. But in circumstances where the master made no reference to the email immediately after the casualty it is likely that he himself did not regard the email as being of any particular or unusual significance.[28]On 19 October 2006 the vessel arrived off Kashima and anchored awaiting further instructions. On 20 October 2006 a pilot was embarked at the pilot boarding ground and the vessel proceeded in towards Kashima. Before the Kashima Fairway was reached four tugs were made fast. By 1436 the vessel was safely berthed, starboard side to, alongside berth C at the Raw Materials Quay in the Central Fairway. The vessel was initially moored by the use of 4 head and stern lines, 2 breast lines fore and aft and 2 springs, leading fore and aft. The navigational experts were agreed that a 4,2,2 - 2,2,4 mooring configuration was a normal configuration for a Capesize bulk carrier. The berth was well fendered and discharge of the cargo commenced at 1530. A representative from SML visited the vessel.[29]The master received weatherfax charts on board but these were large scale charts not focussed on Kashima. From 20 October 2006 the weather recorded in the vessel’s log was no more than force 3 or 4, variously from the north-west, north-east, south-west and south-east. The master expected that discharge would be completed on 23 October. He gave evidence that Captain Yamauchi made his first visit to the vessel on 22 October 2006, though it is possible that he did not because he gave evidence that his first visit to the vessel was on 23 October 2006.

Events of 23 October 2006

[30]Cargo operations ceased at 0650 on 23 October when discharge was stopped as a result of heavy rain. ELLIDA ACE, another Capesize bulk carrier, berthed at the Raw Materials Quay aft of OCEAN VICTORY, portside to.[31]Captain Yamauchi arrived at his office at about 0730. He learnt that discharge had stopped at 0700 because of flooding at the berth and the risk of a short-circuit. He also learnt of the arrival of ELLIDA ACE. He downloaded a Kashima weather forecast issued at 0200 on 23 October and a surface weather chart issued at 1800 UTC on 22 October. The former indicated that from 1200 north-north-easterly winds with an average speed of about 12 m/s, or about force 6, were to be expected. The latter showed a low pressure to the west of Kashima moving east which Captain Yamauchi thought might bring rough weather to Kashima.[32]Later that morning, at 0950, the Harbour Master issued a “request for accident prevention measures in face of gale”. It stated that “a NE gale is currently blowing in the waters around Kashima Port” and that “there will be a strong wind from the North or East until daytime on 24 October.” It further stated that care was necessary when berthing or unberthing and that “tugs etc as appropriate” should be arranged as appropriate. Advice was given should ships anchor “for unavoidable reasons”.[33]Captain Yamauchi boarded OCEAN VICTORY at about 1000 on 23 October 2006 and provided the master with copies of the weather forecast and the surface weather chart which he had downloaded. It was his practice to provide the masters of vessels chartered by Daiichi with copies of local weather forecasts when wind from the north was expected. This was because such winds could cause swell in the port and in particular at the Raw Materials Quay.[34]During the morning of 23 October the weather worsened. OCEAN VICTORY’s log records a north-easterly wind of force 8. Local records (of which there are several) confirmed that the strength of the wind increased, though force 8 would appear to be the upper limit of what might have been reached. However, the wind was expected to improve on 24 October. The master gave evidence that Captain Yamauchi advised him that if the weather improved as forecast cargo discharge would resume and would be completed by 0600 on 24 October. This seems to have been an optimistic assessment because the weather was not expected to improve significantly until much later on 24 October (although the rainfall was expected to reduce substantially on 23 October). However, it seems that such an assessment was made because the pilots were instructed that the vessel would depart the port at 0900 on 24 October. Captain Yamauchi advised the master that in the meantime additional mooring lines be deployed. In cross-examination the master accepted that Captain Yamauchi also advised him to keep his engine on stand-by in case it was necessary to seek shelter. Captain Yamauchi gave evidence that he informed the master of the experience of the ELLIDA ACE in September 2006 when swell had caused the vessel to range 2-3 meters fore and aft and had caused a number of moorings line to fail, leading to the vessel having to leave port.[35]An email from Daiichi’s head office to the master sent at 1050 confirmed the advice which Captain Yamauchi had given:
“As Captain Yamauchi advised you, please prepare the additional mooring line considering heavy weather at Kashima. In the meantime, please keep a close contact with local agent and stand-by your engine for sheltering in the worst case. ”
[36]At 1113 the master replied to Daiichi’s email saying “we will act accordingly”. The master ordered that additional mooring lines be rigged and instructed the Chief Engineer that he should not carry out any significant maintenance work on the main engine. The new mooring arrangement for OCEAN VICTORY consisted of 4 head lines, 5 forward breast lines, 3 forward spring lines, 2 aft spring lines, 5 aft breast lines and 5 stern lines. So the master changed from a 4,2,2 - 2,2,4 configuration to a 4,5,3 - 2,5,5 configuration. The task of rigging the additional lines took less than an hour and the original lines were tightened.[37]At 1238 Captain Yamauchi sent an email to a number of interested parties, probably as a result of the harbour master’s request at 0950, informing them of the steps he had taken with regard to a number of vessels including OCEAN VICTORY. With regard to that vessel he said (in translation) “Additional mooring lines should be prepared, and from this afternoon the vessel has been instructed to have the main engine ready. A bulldozer has been conveyed into no.1 CH and remains there at present. Waiting until the strong wind subsides before beginning cargo work.”[38]A similar report was made with regard to the vessel ELLIDA ACE.[39]With regard to both vessels he said that “I issued them with instructions [after] visiting them on foot this morning.”[40]Captain Yamauchi requested that steps should be taken to confirm with the masters “the measures that have been put into effect on each vessel to respond to the strong winds.”[41]At 1653 Mr. Tsuji of Daiichi’s head office in Tokyo informed Captain Yamauchi by email that “I have received replies from the vessels themselves to the effect that measures have been taken by OCEAN VICTORY and ELLIDA ACE.”[42]Captain Yamauchi insisted that he never gave instructions to the master and only made suggestions. He accepted that he had used the Japanese word “shiji” in his email at 1238 on 23 October 2006 which has been translated as “instruction”. He said that “shiji” had an “informal” usage. The interpreter agreed that “shiji” could mean instruction or advice. The word did not have a strong sense of “command” but some sense of an “indication”.[43]The interpreter’s evidence led to further evidence on “shiji” being adduced in writing by the Owners and then by the Charterers. The Owners’ expert linguist, Mr. Jones, said that “shiji” meant instruction, direction, command or order and was quite different from other words which meant advise, suggest or recommend. He said that the person issuing “shiji” would naturally assume that the recipient would comply and that the interpreter’s advice to the court was mistaken. Masako Murphy, however, agreed with the interpreter and said that “shiji” had a neutral meaning of conveying a message in the sense of an indication, denotation, pointing out, instruction or direction.[44]The precise meaning intended by the use of the word “shiji” must depend upon its context. Words cannot be divorced from the context in which they are used. Captain Yamauchi had no power to instruct, in the sense of command, the master as to the steps he must take as master of his vessel. It is likely that he regarded himself as giving advice to the master. Daiichi themselves understood that Captain Yamauchi had “advised” the master to prepare an additional mooring line. However, it is clear that Captain Yamauchi expected that his advice would be followed. For he requested that steps be taken to confirm with the masters that measures had been taken to respond to the strong winds. Thus it seems likely to me that when he used the word “shiji” Captain Yamauchi used it in the sense of advice which he expected to be followed. Daiichi, in their email to the master on 18 October, had requested the master to “follow” Captain Yamauchi’s “instructions”. I do not consider that they used the word instruction in the sense of a command because neither they nor Captain Yamauchi had power to command the master in such matters. However, it is clear that they expected that such advice would be followed.[45]A further local weather forecast, timed at 1400, was downloaded by Captain Yamauchi in the afternoon of 23 October. It indicated that the weather was expected to worsen on 24 October with the most severe weather (17 m/s or force 7-8 and gusts of 34 m/s) expected at 1800 on that day. Both the wave height and period were also expected to worsen.[46]Captain Yamauchi was not able to visit either OCEAN VICTORY or ELLIDA ACE because of flooding and so, shortly after 1700, he emailed the forecast (complete with his own manuscript explanations) to the masters of those vessels. The master of OCEAN VICTORY expected that discharge would be completed and that the vessel would have left the port before the very bad weather had developed. He drew the attention of the chief officer and chief engineer to the local weather forecast and instructed them to take additional precautions throughout the night. As a result additional officers and crew were put on standby.[47]At 1721 Captain Yamauchi informed various parties by email that with regard to the bulldozer in the hold of OCEAN VICTORY “although difficulties may be expected, we have requested that it be taken out if the wind dies down in the middle of the night. If it can be taken out, moving out into the open sea tomorrow will be considered. Tugs will also have to be laid on.”[48]It seems likely that active consideration had been given by Captain Yamauchi to removing the bulldozer in preparation for the vessel to move out into the open sea after the later weather forecast had been received in the afternoon of 23 October; removal had not been mentioned in Captain Yamauchi’s email sent at 1238 that day.[49]The afternoon weather forecast had also caused Captain Yamauchi to discuss with Mr. Niibori of the ship’s agents SML that it might be necessary for OCEAN VICTORY to leave the berth to seek shelter in the open sea on 24 October. They agreed that early the next day SML’s duty staff member would discuss the matter with the masters of the vessels moored at the Raw Materials Quay.

Events of 24 October prior to departure

[50]Discharging did not restart and at about 0700 the pilot office was informed by the vessel’s agent that the departure of the vessel at 0900 had been postponed.[51]At about 0900 Captain Yamauchi and Mr. Oda, from SML, the ship’s agents, boarded OCEAN VICTORY.[52]Captain Yamauchi had with him another local forecast (issued at 0200 on 24 October) which suggested an improvement in the weather throughout 24 October. However, he said that he had noted that the actual weather conditions were in fact much worse than those indicated by the local forecast. Some local records suggested the wind was about force 6-7 at about 0900. Captain Yamauchi provided the master with a copy of the local weather forecast. The master also noted that the wind actually being experienced was worse than that forecast and Captain Yamauchi advised him that the weather was expected to remain bad until 26 October and that no cargo operations would take place until further notice.[53]Mr. Oda informed the master of warnings issued by the Mito Meteorological Observatory at 0412 and 0810 that morning. That issued at 0412 had warned of high seas, heavy rain, gales and storm surge. In particular:
“Sea waves will be high from before noon of the 24th. until the evening of the 24th. They will reach the maximum size possible after noon of the 24th. Sea wave height will be 6 meters………………Maximum wind speed at peak intensity will be 12 m/s on shore and 20 m/s at sea. ”
That issued at 0810 gave similar warnings and said in particular:
“Maximum wind speed at peak intensity will be 25 m/s at sea……….Sea waves will be high from before noon of the 24th. until early evening of the 24th. They will reach the maximum size possible in the evening of 24th. Sea wave height will be 7 meters. ”
[54]Thus the forecast “peak intensity” was of storm force winds.[55]At 0918 the Harbour Master issued a “request in connection with accident prevention relating to strong winds” which referred to an expectation that a strong northerly wind would continue to blow until the morning of 26 October. The Harbour Master advised that “all measures to ensure the safety of vessels by making arrangements for tugs etc.” should be taken if the situation so required. Captain Yamauchi said that he was only advised of this advice later in the day.[56]Given the discussion between Captain Yamauchi and Mr. Niibori on the evening of 23 October and given the Mito forecasts brought on board by Mr. Oda it is to be expected that there would have been discussion between Captain Yamauchi, Mr. Oda and the master as to what the vessel should do. It is common ground that there was. There is however a dispute as to what Captain Yamauchi said. The master said in his statement dated March 2008 that Captain Yamauchi and Mr. Oda told him that the port was arranging for all vessels to leave the Raw Materials Quay. However, this is improbable since there is no evidence of any such order, instruction or advice by the port authority. In his statement dated 27 October 2006 he had referred to a charterers’ “instruction” to leave port. Captain Yamauchi said in his witness statement dated November 2012 that he told Captain Dong it was entirely within his discretion whether to stay at the berth or leave the port to take shelter outside (and the master, when cross-examined, accepted that Captain Yamauchi had merely suggested that there was an “option” to move). Mr. Oda in his statement dated October 2012 said much the same. If the effect of this evidence from Captain Yamauchi and Mr. Oda is that Captain Yamauchi did not offer any advice or make any suggestion as to what to do this seems improbable. Captain Yamauchi was aware of the storm warnings which Mr. Oda had brought with him. (Mr. Oda described them as being “wet from the rain.”) He had given advice the day before as to moorings and as to keeping the engine on standby. He was aware of the experience of the ELLIDA ACE in September 2006 and had mentioned it to the master. He was an experienced master of Capesize bulk carriers and knew Kashima well. His employers had expressly advised the master to follow Captain Yamauchi’s instructions in the event of bad weather. In those circumstances it is probable that he gave advice to the master. There is also contemporaneous evidence that he gave advice to ELLIDA ACE. After visiting OCEAN VICTORY Captain Yamauchi and Mr. Oda visited ELLIDA ACE which was moored aft of OCEAN VICTORY. The log book of ELLIDA ACE records that at 9 am on 24 October 2006 Captain Yamauchi (“DCKK Rep.”) and Mr. Oda (“agent”) came on board and “advised to pull out from the berth due to bad weather….” It is highly probable that the same advice was given to the master of OCEAN VICTORY. There is no reason why Captain Yamauchi and the agent should give that advice to one Capesize vessel and not to the other.[57]There is evidence that Mr. Oda had advised the master to leave. For example the master said that he gave such advice. Mr.Oda was certainly present when Captain Yamauchi gave such advice but it is probable that the origin of such advice was Captain Yamauchi. Mr. Oda was not a mariner. The master of OCEAN VICTORY said in his evidence to the inquiry on 11 November 2006 that he had heard from the ship’s agent SML that there had been an evacuation warning. But this recollection must have been mistaken because there was no evacuation warning. In his earlier statement on 27 October 2006 he had simply referred to a “charterers’ instruction.”[58]My finding is that Captain Yamauchi advised the master to leave the port. Like his advice the previous day this was advice which he expected the master to follow. It is more probable than not that the master appreciated that Captain Yamauchi expected that this advice would be followed.[59]Mr. Oda returned to OCEAN VICTORY from ELLIDA ACE and informed the master that ELLIDA ACE had decided to depart. (The master had expressed a wish to know what ELLIDA ACE’s intentions were before making his own decision as to what to do.) It appears that the master must then have decided that OCEAN VICTORY would leave the port. Orders were given to deballast hold no.6. It would no doubt have been unsafe to leave the port with a free surface in hold no.6.[60]Captain Yamauchi then reported to his head office and at 0951 Mr. Tsuji of the Daiichi head office informed his team by email as follows:
“Due to the power outage caused by a low pressure front, there is apparently no prospect of recommencing cargo operations until around midday tomorrow. This low pressure front is likely to bring about even worse weather conditions, and the currently berthed OCEAN VICTORY and ELLIDA ACE will therefore put out to open sea for safety reasons since cargo operations are not possible. The weather is likely to improve between early afternoon and evening tomorrow. ”
[61]Thus Captain Yamauchi must have reported to his head office that the masters of both vessels had decided to leave the port.[62]At 1012 Captain Yamauchi or his assistant sent an email to Daiichi and others entitled “Storm and High Surf Information for Kashima”. The email stated:
“A storm and high surf warning has been issued and is in effect at present at Kashima……………OCEAN VICTORY and ELLIDA ACE leave for the open sea today.”
[63]The reference to the storm and high surf warning is likely to have been a reference to the Mito forecasts. Captain Yamauchi, when cross-examined, was inclined to agree that it was.[64]These contemporaneous emails suggest that by about 1000 it was known that the two vessels moored at the Raw Materials Quay were going to depart that day. The master in his witness statement puts the decision to leave somewhat later in the morning at about 1130. The contemporaneous emails show that his recollection in this respect must be wrong.[65]Consequent upon the decisions of the masters of OCEAN VICTORY and ELLIDA ACE to leave the port Mr. Oda telephoned Mr. Niibori who made the necessary arrangements (presumably the instruction of pilots and tugs) for ELLIDA ACE to leave at 1200 and OCEAN VICTORY to leave at 1300.[66]At 1037 an email was sent by the ship’s agent SML to the master setting out the terms of a notice issued by the Japanese Coast Guard. It referred to the expected northerly wind lasting until 26 October and advised that caution be exercised when berthing or unberthing. Other advice was given but there was no instruction or advice from the Coast Guard to evacuate Kashima. The agent ended by saying “Of cause [sic], the final decision will be made by master”.[67]It is clear that this notice was not an evacuation alert or anything similar. It did not cause the master to alter or question his decision to depart.[68]Notwithstanding the arrangements which had been made for the vessels to depart at 1200 and 1300 they did not leave at those times. It appears from a written statement dated May 2011 of the pilot who later boarded OCEAN VICTORY (but who subsequently died and so did not give oral evidence) that he and another pilot, having considered the speed of the wind recorded on the roof of the pilot office, namely, between 20 and 30 m/s (which is indicative of force 8 -10), and having noted that visibility was so bad due to rain that a buoy just 250m. from the pilot office could not be sighted, decided to cancel the departure of ELLIDA ACE and OCEAN VICTORY. The pilots’ reasons appear to have been focussed on the difficulty of unberthing the vessel and turning her 180 degrees in such wind conditions. They did not consider that departure from the port would be difficult. The pilot in his statement said that all that was “required is merely to proceed in Kashima Waterway with a course maintained and speed increased. No special skill and local knowledge of a pilot is required any longer at that stage.”[69]It appears that the departure of the vessels was not cancelled but merely postponed for at 1140 Daiichi in Tokyo advised its personnel at the Raw Materials Quay of “a delay in the times that the following vessels will leave for the open sea. This was due to the strong winds. The wind speed at present is apparently in excess of 30 metres. The vessels will apparently be leaving for the open sea when the wind has become slightly weaker. The intended times are as follows: ELLIDA ACE: leaving at 1400, 4 tugs to be used (the vessel has yet to be unloaded and so still has a full cargo) OCEAN VICTORY: leaving at 1500, 4 tugs to be used.” OCEAN VICTORY: leaving at 1500, 4 tugs to be used.”[70]At 1150 the ship’s agent informed the master of the postponement of the shifting though not, oddly, of the revised times for departure. At 1200 the master confirmed to the agent that he had received and noted the ship’s agent’s message.[71]By 1205 the vessel’s navigation equipment had been tested and the engines were ready for departure. The vessel stood by. By 1300 the wind and swell had increased and the vessel began to roll and range alongside the berth. One of the aft breast lines parted and the other mooring lines started to chafe on the shell plating. The master ordered the lines to be greased. The master also requested the agent to obtain two tugs to assist in holding the vessel safe alongside. At 1319 he sent an email to the agents and Captain Yamauchi reporting that the vessel was rolling and pitching and that two lines were broken. He requested “tug to push my ship asap.”[72]Two tugs arrived and commenced to push on the portside of OCEAN VICTORY. Crew members were able to go ashore and reset the after breast line which had parted. The master said that he believed that neither his vessel nor the berth were any longer in danger. The mooring experts were agreed, however, that the use of tugs to hold a vessel at berth is an indication of severe conditions for vessel mooring.[73]According to the pilot’s written statement dated May 2011 the pilot office was advised by the ship’s agent at about 1330 that the master of OCEAN VICTORY had requested an immediate departure because her mooring lines were broken. This is supported by a memorandum of the ship’s agent dated 24 October 2006 (but which must have been written up later because it refers to an event at 0800 on 25 October 2006) which stated that the master asked the agent to arrange sheltering outside the port “again”. However, it is clear that the master did not request an immediate departure. Further, if the ship’s agent had thought that an immediate departure had been requested he would have requested four tugs. But only two tugs were sent and they pushed the casualty as requested by the master. What appears to have happened, on the balance of probabilities, is that the agent decided, in the light of the information given to him by the master concerning the parting of two mooring lines, that OCEAN VICTORY should be taken out of the port ahead of ELLIDA ACE. (This is also supported by a note of what the pilot told a lawyer on 2 November 2006; that the agent requested that OCEAN VICTORY be taken out first and ELLIDA ACE second.) Two further tugs were then sent to join those already holding the vessel against the berth.[74]The two pilots were now agreeable to unberthing the vessels because the wind had “calmed down” to about 18-20 m/s (about force 8) and the other side of Kashima Fairway could now be seen from the pilot’s office.[75]However, the master had not been informed of the revised departure time and so when, at about 1400, the pilot boarded with the intention of unberthing OCEAN VICTORY the master was surprised. The pilot informed him that the vessel must leave the port for safety reasons. The master formed the view that the port authorities required his vessel to leave and that he had no option but to comply. His own preference was to stay. In cross-examination he said that with the wind and high seas “it would be very dangerous to shift offshore” and that with tugs his position at berth was “relatively secure. If I could stay, surely I would stay, I would.”[76]The sailing plan was briefly discussed with the master. Four tugs would assist the vessel off the berth and the vessel would follow the course of the leading lights marked on the chart towards the anchorage keeping outside the 20m. depth contour. The vessel was drawing 9m. forward and 10.5 m. aft.

The departure of the vessel

[77]The departure of the vessel from the Raw Materials Quay was commenced, as the above account suggests, in some haste. No formal passage plan from berth to the open sea had been prepared in the morning after 1000 when it had been decided to depart and none was prepared at 1400. It is common ground that one ought to have been prepared. The master said that there was a passage plan in his head because thought had been given to it in the morning of 24 October. It was suggested that he gave no thought to the route out and that the master simply relied on the pilot to navigate the vessel out of the port. I accept that the master expected that the pilot would remain on board until the vessel had reached the open sea. But having seen the master give evidence over a period of time I do not consider that he gave no thought to the route out. It is indeed most improbable that a master of a Capesize vessel would do that. It is likely that, having perused the chart, he had in mind that when in the Kashima Fairway he would seek to follow the line of the leading lights marked on the chart as the vessel’s course, to avoid crossing the 20 metre contour lines to port and starboard of the line of the leading lights and to alter course towards the open sea between buoys 1 and 2. However, this ought not to have been merely “in his mind”. Good practice requires it to be in writing and marked on the chart. In his statement dated 14 March 2008 he referred to a waypoint entered into the GPS between buoys 1 and 2. The VDR contains no such waypoint and so it can be concluded that the master’s recollection in this regard was at fault. However, it is probable that the master had in mind altering course between buoys 1 and 2. That is the course indicated by the chart.[78]The pilot said in his statement dated May 2011 that the chart of Kashima harbour was not on the chart table. This is improbable. The pilot’s recollection in this statement is at fault in other respects. He refers to having to turn both OCEAN VICTORY and ELLIDA ACE 180 degrees. That was only necessary in the case of OCEAN VICTORY. ELLIDA ACE was berthed portside to. His recollection that the agent had reported that the master had requested an immediate departure also appears to have been in error. I consider that his recollection that there was no harbour chart on the chart table is also likely to be wrong.[79]The port radar, linked to the VDR, was (initially) set at a range of 0.75 nm. and the starboard radar was set at a range of 3 nm. The master used the starboard radar, though, since the range on the port radar was changed to 3m. at 1502 it must also have been used. The clutter control of the starboard radar was on a low setting. The second officer adjusted its clutter controls so that there was less “green” clutter. The sea clutter control on the port radar remained on an automatic setting. There was criticism of the clutter on the port radar which could be seen on the copies of the echoes which were recorded on the VDR but there were no copies of the echoes on the starboard radar, the clutter controls on which had been adjusted.[80]By 1412 all four tugs were made fast. The vessel departed the berth assisted by the tugs. She was turned off the quay to head towards the Kashima Fairway. By 1439 all but one of the tugs had been released. The vessel proceeded along the Central Fairway towards the Kashima Fairway. The vessel, with the pilot on board, safely accomplished the port turn into the Kashima Fairway. Unexpectedly, so far as the master was concerned, the pilot disembarked at the southern end of the breakwater onto the remaining tug. Before disembarking the pilot advised the master to proceed on a course of 005 degrees and, when past buoy no.1, to steer north-east to the open seas. The course advised by the pilot was just to the east of the line of the leading lights marked on the chart. This was to keep the vessel more on the starboard side of the fairway. After the pilot had disembarked the engines were put at manoeuvring full ahead.[81]The master did not use parallel indexing as a means of ensuring that he kept close to the line of the leading lights marked on the chart. He said in evidence that due to the stormy sea conditions the waves masked the breakwater and so a reliable echo could not be obtained. During the course of his evidence there was some difficulty, at least initially, in translating parallel indexing into Chinese but the effect of his evidence appeared to be that he did not consider that parallel indexing was practicable. However, if this is what the master was seeking to say, his recollection was again at fault. The VDR record of the port radar screen shows that some echoes were obtained from the breakwater so that it would have been possible, as accepted by Captain Gains, to use parallel indexing as a means of checking on the vessel’s progress along the fairway. The master’s failure to use parallel indexing was a failure to exercise the skill and care to be expected of the prudent mariner. Instead, the master relied upon position fixing by GPS to show where the vessel was in relation to the line of the leading lights marked on the chart. This is not a substitute for parallel indexing because, in the language of one textbook, it is “non-continuous and suffers from considerable latency”, that is, it records what is necessarily a past position and does not enable the mariner to have, to use Captain Gains’ expression, “real time awareness.” The risk in failing to use parallel indexing is that the mariner may not realise that his vessel is off the intended track until it is too late.[82]The first position marked on the working chart is a fix timed at 1500 about a third of the way along the Kashima Fairway, about half a cable or little more to the east of the line of the leading lights marked on the chart. It was obtained by the second officer using the GPS. In a statement the second officer said that he did not note the times of fixes on the chart and so there is uncertainty as to who wrote “1500” on the chart. In any event the VDR shows that the vessel was in the marked position not at 1500 but at 1456. There follow three untimed positions up to a cable to the west of the line of the leading lights and approaching the 20m. contour line. The VDR reconstructed track confirms that the vessel followed such a track. Positions appear to have been taken at approximately two minute intervals.[83]Between 1500 and 1501, with the vessel making good about 7 knots, the master applied starboard helm of no more than 15 degrees. This must have been intended to bring the vessel away from the 20m. contour. For about 30 seconds after 1501 the starboard helm was taken off and port helm of no more than 10 degrees was applied. From then until about 1502 starboard helm of no more than 10 degrees was applied. The helm action from 1500 to 1502, substantially starboard helm action, caused the heading of the vessel to alter from about 1 degree to about 20 degrees, so heading away from the 20m. contour, and also caused the speed of the vessel to fall below 7 knots. The helm action suggests that the master appreciated where his vessel was in the channel.[84]But the alteration of heading exposed more of the port bow of the vessel to the strong winds from the north and north-north-west. The master then applied substantial port helm from 1502 to 1504 (up to about 24 degrees of helm). By about 1504 the speed of the vessel had fallen to about 5.5 knots. At about 1505 the master increased the engines to navigation full ahead. Notwithstanding the use of port helm the heading of the vessel continued to turn to starboard. This must have been because of the strong wind on the port bow. At 1504 the heading was about 26 degrees. Between 1504 and 1508 the master applied hard port helm (that is, up to about 35 degrees of helm). This helm action caused the speed of the vessel through the water to fall to about 2 knots, or a little less, but the heading of the vessel began to turn to port, so that by 1506 it was about 10 degrees and by 1508 about 330 degrees. However, and notwithstanding the use of port helm, the vessel was set to the north-east across the fairway such that by 1505 the vessel was about on, or just to the east of, the line of leading lights and by 1508 her mid-point was almost a cable to the east of the line. It is probable that the set to the north-east and the time taken to change the heading to port were caused by the wind on the vessel’s port bow.[85]The vessel’s stern was now about 1.75 cables north-west of the seaward end of the breakwater and very close to a yellow buoy which marked a construction area.[86]Very shortly after 1508 (at about 1508.19) the helm was put amidships but at 1509, when the vessel’s heading was about 310 degrees, the helm was returned to hard port for about 15 seconds.[87]Also at about 1509 the master pressed the emergency button cancelling the load programme on the engines. He spoke by telephone to the chief engineer who requested that the engines be put on engine room control so that he could control and increase the rpm of the engines.[88]Between 1509 and 1511, with her starboard side now exposed to both the wind and the swell and with a speed of less than 1 knot through the water, the vessel moved bodily back across the line of the leading lights to the west. The master applied hard starboard helm from about 1509 and 30 seconds until about 1515. This application of starboard helm had the effect of stopping the bodily movement to the west. It suggests that the master was aware of the vessel’s position with regard to the line of leading lights marked on the chart. It also changed the vessel’s heading back to starboard. At 1510 it was about 318 degrees and by 1513 it was about 5 degrees.[89]The change of heading to starboard had the effect of bringing the north or north-north-westerly gale fine on the vessel’s port bow. This increased the rate of turn to starboard. By 1515 the vessel’s heading was about 51 degrees. As the heading changed to starboard the master tried to see buoy no.1 to see if he could steer towards the anchorage but he could not make out the buoy in the conditions. He applied hard port helm from about 1515 until 1518 but to no effect. The vessel’s heading continued to fall rapidly to starboard. Under the effect of the very strong winds on her portside the vessel was driven down onto the northern tip of the breakwater. The vessel’s engines were stopped and put astern but the vessel struck the breakwater a little after 1518. Thereafter she was driven down the seaward side of the breakwater before taking the ground.[90]The master was asked to explain how, in circumstances where there are only two further positions marked on the chart between about 1502 and 1518 when the vessel collided with the breakwater, he knew the vessel’s position. He said, as he had said in his main statement dated March 2008, that he constantly asked the second officer to update him on the vessel’s position, in particular “as to which side of the leading line we were on”. This the second officer did by taking GPS positions in the chart room (which was at the aft end of the bridge) and reporting the position of the vessel, whether it was to port or starboard of the line of the leading lights, to the master. The second officer was going “backwards and forwards”. The master generally remained at his station on the bridge but on occasion stepped aft to look at the chart. The master accepted that not all of the positions taken by the second officer from the GPS were marked on the chart. He said that the second officer used his dividers to note the latitude, which he marked with his hand, and then used his dividers to note the longitude. This indicated to him where the vessel was in the channel. This is obviously not good practice because it can lead to error and means that there is no record of the vessel’s previous position. However, in mitigation of this bad practice the master said that the sea conditions were so bad that the helmsman had difficulty in standing and that on occasion the second officer had to repeat the master’s helms orders to the helmsman. Thus, in addition to assisting with keeping a lookout and taking the vessel’s position, the second officer had to assist with ensuring that the helmsman executed the master’s helm orders. The most northerly position marked on the chart (which denotes the stern of the vessel where the GPS aerial was located) is about a ship’s length, more than a cable, from the most northerly position reached by the stern of the vessel according to the VDR. Thus this position was inaccurate.[91]It was submitted on behalf of the Charterers that the master’s account of what the second officer did should be rejected. I am not persuaded that it should be rejected. It was said that there was no reason why it should be done. But the conditions were difficult. The helmsman had difficulty standing in the conditions and the second officer sometimes had to repeat helm orders to him. “It was a very tall order to require everything as if it is a perfect ideal world” said the master. This is consistent with the fact that the wave heights increased in size as the vessel emerged from the partial protection of the breakwater, which is when the frequent positions marked on the chart cease. It was said that the second officer’s account was inconsistent with the master’s account. I agree that the second officer does not mention using his dividers and hands to note and report positions to the master but his account is not necessarily inconsistent with the master’s account. It was said that the master’s account was of the second officer showing him on the chart where the position was and that this was improbable because the second officer would have to bring the chart to the master. But the master said that he went back from time to time to the chartroom to check. The position on the chart could have been indicated then. But mostly the second officer went forward to report the position to the master. Moreover, two factors suggest that the master’s account is true. First, it was a bad method of position fixing. The master was unlikely to confess to it unless it were true. Second, the track of the vessel and in particular the arrest of the vessel’s set to the north east and then the arrest of the vessel’s track to the west suggest that he must have known where the vessel in relation to the line of the leading lights marked on the chart.[92]It is of interest to note that ELLIDA ACE also sought to leave Kashima on 24 October 2006 and failed to accomplish the departure in safety. After the pilot had disembarked from ELLIDA ACE that vessel sought the assistance of tugs because she was drifting to port. She subsequently grounded.

The safety of the port

[93]Counsel for the Owners submitted that the port of Kashima, when nominated by the Charterers on 12 or 13 September 2006, was prospectively unsafe for OCEAN VICTORY because, in essence, there was a risk that vessels moored in port might be advised to leave port on account of long waves and yet there was no system in the port to ensure either that vessels left in good time and in conditions which did not pose a threat to safe navigation or that vessels did not attempt to depart in conditions which did pose a threat. Counsel said that no risk assessment had been carried out by the port to consider appropriate limiting conditions for vessels at the Raw Materials Quay to ensure that vessels did not leave when it was unsafe to do so.[94]Counsel for the Charterers submitted that “a port is not unsafe because its systems fail to guard against every conceivable hazard. The emphasis is upon reasonable safety and the taking of reasonable precautions.” Counsel therefore submitted that “in the light of the fact that no vessel had ever been trapped by a combination of wind and swell at the RMQ and adverse conditions in the channel (whether on 24 October 2006 or before) it is difficult to see upon what basis the port is to be criticised for not having put in place a system to address such a (non) risk.”[95]The submission by counsel for the Charterers that the port had only to be “reasonably safe” rather than “safe” raises a question as to the true construction of the safe port warranty. Counsel’s submission was based upon what was said to be the “classic definition” of a safe port by Lord Denning in the Evia No.2 [1982] 1 Lloyd’s Reports 334 at p.338 where he said in terms that the port must be “reasonably safe” for the vessel. The relevant passage provides as follows: What then are the characteristics of a "safe port"? What attributes must it possess and retain if the charterer is to fulfil his warranty? To my mind it must be reasonably safe for the vessel to enter, to remain, and to depart without suffering damage so long as she is well and carefully handled. Reasonably safe, that is, in its geographical configuration on the coast or waterway and in the equipment and aids available for her movement and stay. In short, it must be safe in its set-up as a port. To elaborate a little, every port in its natural state has hazards for the ships going there. It may be shallows, shoals, mudbanks, or rocks. It may be storms or ice or appalling weather. In order to be a "safe port", there must be reasonable precautions taken to overcome these hazards, or to give sufficient warning of them to enable them to be avoided. There must be buoys to mark the channel, lights to point the way, pilots available to steer, a system to forecast the weather, good places to drop anchor, sufficient room to manoeuvre, sound berths, and so forth. In so far as any of these precautions are necessary - and the set-up of the port is deficient in them - then it is not a "safe port". Once the set-up of the port is found to be deficient - such that it is dangerous for the vessel when handled with reasonable care - then the charterer is in breach of his warranty and he is liable for any damage suffered by the vessel in consequence of it. To illustrate this proposition, I will give some of the deficiencies in set-up which have been held to render a port unsafe: Its tendency to be ice-bound during that very winter: see G. W. Grace & Co. v. General Steam Navigation Co. Ltd., (1950) 83 Ll.L.Rep. 297; [1950] 2 K.B. 383. Its tendency to sudden storms, endangering a vessel of this size in this bay: see The Stork, [1955] 1 Lloyd's Rep. 349; [1955] 2 Q.B. 68. The absence of navigational aids such as a hauling-off buoy or waling-piece: see The Houston City, [1956] 1 Lloyd's Rep. 1; [1956] A.C. 266. The lack of reliable holding ground in the anchorage area: see The Eastern City, [1958] 2 Lloyd's Rep. 127.…………………The absence of an adequate weather forecasting system: see The Dagmar, [1968] 2 Lloyd's Rep. 563. The absence of adequate room to manoeuvre in bad weather: see The Khian Sea, [1979] 1 Lloyd's Rep. 545. The tendency of the channel to become silted up so as to produce narrowing or shoaling: see The Pendrecht, [1980] 2 Lloyd's Rep. 56 and Transoceanic Petroleum Carriers v. Cook Industries Inc. (The Mary Lou), [1981] 2 Lloyd's Rep. 272. On the other hand, if the set-up of the port is good but nevertheless the vessel suffers damage owing to some isolated, abnormal or extraneous occurrence - unconnected with the set-up - then the charterer is not in breach of his warranty. Such as when a competent berthing-master makes for once a mistake, or when the vessel is run into by another vessel, or a fire spreads across to her, or when a hurricane strikes unawares. The charterer is not liable for damage so caused.[96]This passage was cited in the Carnival [1994] 2 Lloyd’s Reports 14 at p.26 by Hirst LJ who noted that it had not been questioned when the Evia (No.2) was considered by the House of Lords.[97]However, I was surprised that counsel referred to Lord Denning’s explanation of a safe port as the “classic definition” of a safe port. In so far as there is a classic definition of a safe port that definition has long been regarded as being that of Sellers LJ in the Eastern City [1958] 2 Lloyd’s Reports 127 at p.131 where he said that “a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship.”[98]That statement of principle was made in what was the third of “a trilogy of decisions” (per Roskill LJ in the Hermine [1979] 1 Lloyd’s Reports 212 at p.214) in the middle of the last century which analysed and explained the meaning and effect of the safe port warranty. The first of the trilogy was Compania Naviera Maropan v Bowaters Lloyd Pulp and Paper Mills [1955] 1 Lloyds Reports 349 (the Stork) per Singleton LJ at pp.363-366, Hodson LJ at pp.369-370 and Morris LJ at pp.373-375 and the second was Reardon Smith Line v Australian Wheat Board [1954] 2 Lloyds Reports 148 (the Houston City) per Dixon CJ at pp.151-159 whose dissenting judgment was upheld by the Privy Council at [1956] AC 266.[99]The definition of a safe port by Sellers LJ in the Eastern City was expressly approved by Roskill LJ in the Hermine [1979] 1 Lloyd’s Reports 212 at p.214 and described by him as “the classic statement …of the present state of the law”. In the Evia (No.2) in the House of Lords Lord Diplock referred to the definition of a safe port by Sellers LJ in the Eastern City as a “classic passage” which correctly and concisely stated the nature of the contractual promise made by a charterer in a safe port warranty; see [1983] AC 736 at p.749. In Wilford on Time Charters 6th.ed. at paragraph 10.3 the definition of Sellers LJ in the Eastern City is described as the “classic definition” of a safe port. It is therefore unsurprising that counsel for the Charterers had accepted in their opening submissions that this was “the classic dictum”.[100]Notwithstanding the absence of any express criticism of Lord Denning’s explanation of the safe port warranty by the House of Lords in the Evia (No.2) I consider that the authoritative and long recognised statement of the nature of a safe port is that of Sellers LJ in the Eastern City which was itself so closely modelled on the definition of a safe port by Morris LJ in the Stork. That statement or definition makes no reference to “reasonable safety” and it would, in my respectful opinion, introduce an unwelcome and inappropriate measure of uncertainty in the meaning of the safe port warranty if safety were to be understood as “reasonable safety” rather than safety. Safety is not absolute but the measure of safety is not what is “reasonable” but whether any dangers in a port can be avoided by good navigation and seamanship. It is most improbable that Lord Denning intended to depart from Sellers LJ’s statement. First, in a passage not quoted by counsel for the charterers in their closing submissions, Lord Denning noted that where the set-up of a port is found to be deficient, that is because “it is dangerous for the vessel when handled with reasonable care”. That reflects Sellers LJ’s definition of a safe port. Second, although Lord Denning referred to both the Eastern City and to the Hermine, in which Roskill LJ so handsomely endorsed Sellers LJ’s statement of principle, Lord Denning did not suggest that that statement of principle should be in any way modified. Finally, it is to be noted that the learned editors of Wilford on Time Charters make no reference to a notion of “reasonable safety”.[101]Thus a port will not be safe if the vessel will be exposed to a danger which cannot be avoided by good navigation and seamanship. Counsel’s emphasis upon “reasonable” safety and whether a port “is to be criticised” for not having a particular system suggests that the warranty of safety is not broken so long as reasonable precautions have been taken by the port. In my judgment counsel’s submission is mistaken. A port is not saved from being unsafe where, although the vessel will be exposed to a danger which cannot be avoided by good navigation and seamanship, the port has taken precautions designed to protect vessels against that danger but which in fact do not protect the vessel from that danger. If, despite the taking of such precautions, the vessel remains exposed to a danger which cannot be avoided by good navigation and seamanship then the port is unsafe. The charterers’ warranty is of safety, not of reasonable safety. The enquiry in an unsafe port case is not into the conduct of the port authority, for example, whether it has acted reasonably or otherwise. Rather, the enquiry in an unsafe port case is into the prospective exposure of the vessel, when arriving using and leaving the port, to a danger which cannot be avoided by good navigation and seamanship. Of course, aids to navigation, the availability of weather forecasts, pilots and tugs, the quality of the holding ground for anchoring, the sufficiency of the sea-room for manoeuvring and the soundness of the berths and of the fendering arrangements are, as with all aspects of the port set-up, relevant when deciding whether the vessel will be exposed to a danger which cannot be avoided by good navigation and seamanship. But if, having taken into the account the set-up in the port, the vessel will be exposed to such danger then the port will be unsafe.[102]In the present case the prospective unsafety of Kashima for OCEAN VICTORY is said to arise from the circumstance that OCEAN VICTORY might have to leave the Raw Materials Quay on account of long waves and bad weather at a time when there were northerly gale force winds in the Kashima Fairway such that safe navigation out of the Kashima Fairway required the exercise of something more than good navigation and seamanship. I accept that the Owners’ case was not pleaded in this concise manner (or indeed with any express reference to “long waves”) but this was the nature of the alleged unsafety debated at some length and explored with the witnesses at the trial.[103]It is well established that a port can be safe notwithstanding that the vessel may have to leave it in certain circumstances but if departure is required that must be capable of being safely performed; see The Eastern City [1958] 2 Lloyd’s Reports 127 at p.131 and 133. Thus the fact that a vessel may have to interrupt discharge and leave the port of Kashima on account of a typhoon, bad weather from a non-tropical depression or long waves does not make the port unsafe.[104]Counsel for the Charterers described the Owners’ case as a “trapping” case. The vessel may be “unable to stay and unable to go”. Counsel submitted that the port was safe for the vessel because(i) the risk of a vessel being trapped in the port was remote (and perhaps even non-existent) such that there was no reason to have in place “evacuation” procedures,(ii) the local pilots would ensure that Capesize vessels would not leave the port if it was unsafe to do so and(iii) in any event masters of such vessels did not need to be told in what conditions it would be dangerous to leave port. Finally, the storm which affected the port of Kashima on 24 October 2006 was an exceptional and abnormal event.[105]The first question is thus whether, when OCEAN VICTORY was ordered to proceed to Kashima on 12 or 13 September 2006, there was a risk that OCEAN VICTORY might have to leave the port on account of long waves and bad weather because it was feared that she could not be restrained by her moorings and/or the use of tugs.[106]I have already noted earlier in this judgment that Kashima was affected by long waves and that vessels moored at the Raw Materials Quay on occasion had to leave the berth for the open sea notwithstanding the assistance of tugs to hold the vessel against the berth. One example was that of ELLIDA ACE in September 2006. The risk in staying was described during the trial as that of a “mooring break-out”, that is the failure of a vessel’s moorings. Counsel for the Charterers submitted that although vessels occasionally experienced problems at the Raw Materials Quay there was no instance of a breakout actually having occurred. That is true but on those occasions when it was decided to leave the port such action removed the risk of a mooring breakout. Given the risk of long waves in the port, their effect on vessels moored at the Raw Materials Quay and the history (albeit limited) of vessels having to leave port notwithstanding the availability and use of tugs it seems to me that there must have been a real, as opposed to a fanciful, risk, that vessels might have to leave the Raw Materials Quay in order to avoid the risk of their moorings failing.[107]Counsel for the Charterers sought to support his submission that any such risk was an extreme and remote eventuality by submitting that there was nothing to support the suggestion that the vessel could not have remained safely alongside the berth on 24 October 2006. I am unable to accept the submission that there was nothing to support the suggestion that the vessel could not have remained safely alongside the berth on 24 October 2006. The fact that Captain Yamauchi advised OCEAN VICTORY and ELLIDA ACE at 0900 to leave the port on that day is cogent evidence that he, a local and experienced mariner, did not consider that the vessels could remain safely alongside. Moreover, one, or possibly two, mooring lines parted at 1300, and others were reported as starting to chafe. In Dr. McBride’s opinion this was consistent with a mooring system which was no longer acceptable, especially in worsening conditions.[108]Dr. McBride explained that if one mooring line fails the load carried by that line will be transferred to others and if they were already carrying high loads then they or some of them may fail, leading to the “unzipping” of the mooring system. There was also evidence, in the opinion of Mr. Bunn (the only wave expert), that the height of the long waves in the afternoon of 24 October 2006 would have increased to about 0.33m, that is, to a similar height to the long waves in September 2006 which caused ELLIDA ACE to leave port. That was said to be only a “modest” increase by counsel for the Charterers but given that wave energy is proportional to the square of the wave height (according to Mr. Bunn) the increase in height from 0.2m. to 0.33m. would probably have been significant. Further, given that the weather on 24 October 2006 was much worse than the weather in September 2006, there must have been a real risk that had OCEAN VICTORY stayed alongside other mooring lines would have failed.[109]It is true that OCEAN VICTORY, following the failure of one or possibly two mooring lines, was held by two tugs and so was not in immediate danger of breaking free from the berth. Also, the breast line which had failed was reset and the vessel could have been ballasted down. Indeed, the master would have preferred to have stayed and believed his vessel to be no longer in danger. But he had had no previous experience of long waves at the Raw Materials Quay and would not have known that the height of the long waves was likely to increase. The fact that tugs were necessary to hold the vessel alongside her berth was, as the ship motion experts agreed, an indication that there were severe conditions for mooring. Notwithstanding that the master would have preferred to remain alongside rather then depart it is unrealistic, it seems to me, to say, as counsel for the Charterers submitted, that the vessel was “comfortably” held alongside when tugs were required to hold her. Captain Barber accepted that a situation where tugs were required to keep a vessel at her berth was not satisfactory. In any event there can have been no certainty that there would have been no other demands for the tugs’ services in a large, modern port at a time of bad weather. There were only 7 tugs in the port. Mr. Yamaguchi, the manager of the tug company, said that to his knowledge there had never been an incident in Kashima when tugs were required to assist a Capesize ship but none was available. But there was no evidence as to what other demands there were on the tugs’ services in the port at a time when there was very bad weather. Had it been recognised in the port that tugs could be relied upon to keep the vessel safely at berth there would have been no need for Captain Yamauchi to advise OCEAN VICTORY and ELLIDA ACE to leave the port.[110]The next question is whether there was a real, as opposed to a fanciful, risk that long waves might occur at the same time as a low pressure system giving rise to gale force northerly winds in the channel. Low pressure systems off the coast of Japan cannot be regarded as unusual; the record of “alerts” issued by the port authority expressly refers to low pressure systems. Such systems will from time to time generate gale force winds from the north. The researches of Mr. Blackwood showed that between 1986 and 2010 there were 22 storms caused by a low pressure system which produced gale force winds from the northerly quadrant. These matters suggest to me that there was a risk that northerly gales might be present in the channel at the same time that long waves are affecting vessels berthed at the Raw Materials Quay. Indeed, counsel for the Charterers accepted that the conditions experienced in the Kashima Fairway on 24 October 2006 were “at the upper end of what might be expected from a non-tropical system.” Counsel also submitted, based upon the expert evidence of Mr. Lynagh, that the storm which affected Kashima on 24 October 2006 was exceptional in terms of its rapid development, its duration and its severity. That may be so but there must have been, in my judgment, a clear risk of gale force winds from the northerly quadrant in the Kashima Fairway at the same time as long waves were affecting the Raw Materials Quay. The low pressure system which produced gale force winds from the northerly quadrant on 24 October 2006 was not an unusual meteorological event.[111]The third question is whether the safe departure of a Capesize bulk carrier in circumstances of gale force winds from the north together with the prevailing swell from the north-east required something more than “good navigation and seamanship”.[112]The phrase “good navigation and seamanship” describes the standard of navigation expected of the ordinarily prudent and skilful master.If navigation out of a port is “very difficult” such that “high standards of navigation and seamanship” are required to avoid a danger then the port will be unsafe; see the Polyglory [1977] 2 Lloyd’s Reports 353 at pp.365-366 per Parker J.[113]Captain Gains gave evidence, which I accept, that in the conditions prevailing in the Kashima Fairway on 24 October 2006 the engine power of a Capsize vessel was such that it was very difficult to maintain OCEAN VICTORY on the desired course. Captain Barber agreed that a Capesize vessel when encountering heavy weather can experience difficulties with engine capacity and limitations on power. In the Kashima Fairway on 24 October 2006 a vessel heading out of the port on the required course line would have the northerly or north-north-westerly gale force wind fine on her port bow. Captain Gains’ experience of Capesize vessels was that in such circumstances the vessel’s engines might be overloaded and the vessel would be subjected to heavy motions. At sea, where there is ample sea-room, it is possible for a Capesize vessel to make progress into a gale force wind by finding (by trial and error) the right balance or equilibrium between the heading of the vessel and the direction of the wind. Captain Barber accepted that experimentation and sea-room were required. Captain Gains said that the wind has to be kept a number of points on the bow. If it is then the engines will not be overloaded and the vessel’s motions will not be so severe. But the width of the Kashima Fairway between the 20m. contours was between 2 and 3.5 cables and the length of the vessel was about 1.5 cables. There was therefore insufficient sea-room in which to find the right balance or equilibrium between the vessel’s heading and the direction of the wind. Putting the wind several points on the bow would risk the vessel heading either into the breakwater or into the shallows. A Capesize vessel leaving Kashima might therefore have considerable difficulty in maintaining the desired course which required the wind to be kept fine on the port bow.[114]In safe port cases it is difficult to keep the issue of safety separate from the issue of whether the casualty was caused by the negligent navigation of the vessel. For an owner might refer to the difficulties in fact experienced as evidence of unsafety and the charterer might refer to the negligent navigation as attenuating the evidence which might otherwise suggest that the port was unsafe; see the Eastern City at p.131 and the Dagmar at p.571. What can be said, before venturing into the question of negligent navigation, is that the experience of OCEAN VICTORY on 24 October is at least consistent with Captain Gains’ account of the difficulties of a Capesize vessel maintaining a course into a gale force wind. The master (who, it will be recalled, anticipated that it would be “very dangerous to shift offshore” in the strong winds) said in his note of protest dated 26 October 2006 that “the ship was unable to maintain its course even at full power”. In his statement dated 27 October 2006 he said that “the vessel laboured heavily and it was extremely difficult to steady and maintain her course as the vessel was rolling (20 degrees or more to both sides) and pitching heavily.” In his statement dated March 2008 he said the strong wind “seriously affected the manoeuvrability of OCEAN VICTORY” and that “large rudder orders were having to be used to establish control and to achieve the required heading.”[115]The VDR shows that at 1456 the vessel was to the east of the course line. By 1500 the vessel was close to the 20m. contour on the west side of the fairway and it was necessary to apply starboard helm to bring her back towards the line of the leading lights. Although only modest helm was applied, by 1502 the vessel’s heading was 20 degrees, over 15 degrees to starboard of the desired heading. Then, despite the application of port helm the heading reached 26 degrees at 1504. Her speed was falling and her engines had to be put at navigation full ahead. When, eventually, the use of port helm brought the heading of the vessel back to port the heading went too far to port. At 1506 it was about 10 degrees but by 1507 it was 350 degrees, almost 15 degrees to port of the desired heading. The speed of the vessel continued to fall and the load programme on the engines had to be cancelled at 1509 with the intention of getting more power. The vessel’s speed over the ground had fallen to less than a knot.[116]It was the opinion of Captain Gains that ordinary seamanship and navigation could not ensure a safe exit from Kashima on 24 October 2006. Good luck was also required. I accept that evidence. It is consistent with the experience of OCEAN VICTORY on that day. Indeed, when I asked counsel for the Charterers whether it was said that only good navigation and seamanship were required to exit Kashima in safety in the conditions prevailing on 24 October 2006, he was constrained to accept that, for a fully laden Capesize vessel, good navigation and seamanship would not be sufficient. OCEAN VICTORY was not fully laden on 24 October 2006 (almost all of her cargo having been discharged) but in the context of the warranty of prospective safety given on 12 or 13 September 2006 this does not matter. The vessel might have had to leave whilst fully laden, as did ELLIDA ACE on 24 October 2006. In any event Captain Gains did not limit his opinion as to the difficulties of navigation to fully laden, as opposed to partly laden, Capesize vessels. I do not accept the limitation suggested by counsel.[117]There was therefore a risk or danger that a Capesize vessel when leaving Kashima in a northerly gale might, notwithstanding the exercise of good navigation and seamanship, be unable to maintain the desired course line in the narrow fairway and so be unable to leave the port in safety.[118]The fourth question is whether there were any systems in the port which prevented Capesize vessels from being exposed to the risk of having to leave Kashima in a northerly gale. The port authority had a system for advising vessels to leave port before the onset of a typhoon but had no system for ensuring that Capesize vessels, if they had to leave the berth on account of long waves, only left in weather conditions with which they could cope. Nor did Captain Yamauchi provide any such system, as the facts of this case illustrate. He advised OCEAN VICTORY and ELLIDA ACE to leave on 24 October 2006 even though the MITO forecasts were of increasing wind speed up to the equivalent of force 9 and of increasing wave heights of up to 7m.[119]Counsel for the Charterers submitted that there was a system in the port which ensured that vessels did not depart when it was unsafe to do so, namely, pilotage. I am unable to accept that pilotage was such a system. It is true that the pilots decided that it was unsafe for OCEAN VICTORY to leave at 1300 on 24 October 2006 but that was only because of the unsafety of unberthing in the prevailing conditions. The pilots saw no difficulty in navigating the Kashima Fairway in those conditions. Their opinion in this regard was unsound and may well be explained by the fact that typically they did not pilot vessels outbound through the Kashima Fairway but disembarked at the southern end. It is true that they navigated vessels inbound but according to the Guide to Port Entry entry to Kashima was not permitted if there was a northerly wind of 7 m/s or more (about force 4) or 10 m/s (about force 5) from other directions. This suggests that they cannot have had much experience of navigating Capesize vessels through the fairway in the sort of conditions which prevailed on 24 October.[120]Counsel for the Charterers submitted that there was no need to warn masters of the risks of departing the port in the sort of conditions which prevailed on 24 October 2006. A prudent master would appreciate those risks himself, as indeed this master did. It is true that the master would only observe the conditions prevailing in the berth (as Captain Gains emphasised) but he would surely appreciate that the conditions in the channel and beyond the breakwater would be even worse.[121]This submission is, in my judgment, unsound because it views the master’s likely appreciation of the risks of navigating the Kashima Fairway in isolation from the circumstances in which the decision to depart is taken. The master is unlikely to know, unless he is advised, that departure from the Raw Materials Quay on account of bad weather or long swell is likely to be necessary. The unsafety of the port lay in the absence of a system for ensuring that such advice was given only when it was safe to leave port. I accept that on 23 October 2006 the master regarded departure from the berth as being “near to being the last option to consider” and that at 1400 on 24 October 2006, when the pilot boarded OCEAN VICTORY, the master did not wish to leave and would have preferred to stay. He correctly anticipated that it would be “very dangerous to shift offshore” in the strong winds. Counsel for the Charterers said that the Master’s decision to go was “obviously the wrong decision.” However, the master agreed to depart on 24 October 2006 in circumstances where at 0900 Captain Yamauchi, a local experienced mariner, had advised him to leave. It is unrealistic to expect the master to ignore such advice when it comes from a local experienced mariner. Captain Gains said that the decision whether or not it would be safe to stay would be a question of local knowledge. The importance of local advice and the reliance reasonably placed upon it by mariners visiting a port have long been recognised in the context of safe port warranties. Thus in the Stork the question was whether the master voluntarily assumed the risk of entering Tommy’s Arm when he himself judged it to be “a very dangerous place”. Devlin J., at first instance [1954] 2 Lloyd’s Reports 397 at p.415, said:
“It is peculiarly a case in which a master, whatever his own feelings, might think it wise to defer to those with local experience.”
[122]In the Court of Appeal, at [1955] 1 Lloyd’s Reports 349 at p.363, Singleton LJ said:
“Moreover, one who has never been there cannot fully appreciate all the risks. Surely he is entitled to place reliance on the assurances given him by the very experienced pilot who was sent by the defendants to meet him. ”
[123]In the same case Morris LJ said at p.375:
“Though he [the master] was uneasy, and though he expressed his anxieties, it is to be noted that he received reassurances, expressed in picturesque language, from the pilot who possessed intimate local knowledge. It was not imprudent, even though he was unable to suppress his apprehensions, to be guided by what he was told. ”
[124]In my judgment the master’s own appreciation of the risks of leaving a port at a time when he has received local advice from an experienced mariner to do so does not preclude a finding that a port, when nominated, is prospectively unsafe.[125]Counsel for the Charterers submitted that the storm which affected Kashima port on 24 October 2006 was an abnormal occurrence so that the dangers created by it could not be relied upon for the purpose of establishing a breach of the safe port warranty when Kashima was nominated as the discharge port on 12 or 13 September 2006. If the vessel was “trapped” in the sense that there were risks in staying, such that she had been advised to leave, and yet there were risks in her leaving which required more than ordinary navigation and seamanship to avoid, this was an “isolated, unusual and abnormal event….something which is unprecedented in the history of the port……a remarkable day which had never happened before and is unlikely ever to occur again………….that has all the hallmarks of an abnormal occurrence for the purposes of the test in law”.[126]Wilford on Time Charters 6th.ed. describes an abnormal occurrence as one “which is unrelated to the prevailing characteristics of the port” or to put the matter another way, “a port will be unsafe only if the danger flows from its own qualities or attributes”; see paragraphs 10.39 and 10.41. This statement of principle, based upon authorities to which the learned editors referred, was not challenged.[127]The danger facing OCEAN VICTORY was one which was related to the prevailing characteristics of Kashima. The danger flowed from two characteristics of the port, the vulnerability of the Raw Materials Quay to long swell and the vulnerability of the Kashima Fairway to northerly gales caused by a local depression. It may well be a rare event for these two events to occur at the same time but nobody at the port could, I consider, be surprised if they did. There is no meteorological reason why they should not occur at the same time. Long waves were clearlya feature of the port (as they must be of any port facing the Pacific) and low pressure systems generating gale force winds cannot, in my judgment, be regarded as abnormal. I do not consider that the juxtaposition of long waves and a low pressure system generating gale force winds from the north amounts to an abnormal occurrence unrelated to the characteristics of Kashima. Long waves may give rise to a need for a vessel to leave the port. It may be a matter of chance whether at that time there is also a low pressure system generating gale force winds from the north but I am unable to accept that such winds are so rare that they cannot be said to be a feature of the port. It is not without significance that the Guide to Port Entry notes that during periods of northerly swell the entry channel is fully exposed and that vessels at low speed generally have difficulty in steering.[128]It may be that the storm which affected the port on 24 October 2006 was one of the most severe storms to have affected Kashima in terms of severity, speed of deterioration and duration as suggested by Mr. Lynagh’s analysis of its characteristics. But the relevant characteristics are those which give rise to the danger, namely the occurrence of long waves and northerly gales. Neither long waves nor northerly gales can be described as rare. Even if the concurrent occurrence of those events is a rare event in the history of the port such an event flows from characteristics or features of the port.[129]I was referred the observations of Mustill J. in the Mary Lou [1981] 2 Lloyd’s Reports 272. He said that an abnormal occurrence was not something which “could be said, if the whole history of the port were regarded, to have been out of the ordinary”. If “events of the type and magnitude in question are sufficiently regular or at least foreseeable to say that their occurrence is an attribute or characteristic of the port” then they will not be an abnormal occurrence. (The decision of Mustill J. in the Mary Lou that the breach occurred only at the moment of nomination was overruled in the Evia (No.2) but Mustill J.’s explanation of an abnormal hazard was not criticised.) Long waves and northerly gale winds must be “at least foreseeable” in Kashima.[130]Counsel for the Charterers also submitted that it was necessary for the Owners to identify the system which “ought to have been in place prior to 24 October 2006” and that such system would have led to the vessel leaving the berth prior to 24 October 2006. The only system identified in the evidence as being an appropriate system (and which was approved by the experts) was that introduced by the port of Kashima after the OCEAN VICTORY incident. Pursuant to that system a recommendation to seek shelter was to be given whenever the forecast for Kashima issued by the Japanese Weather Association indicated wave heights of 4 metres or more and average wind speeds of 10 m/s or more. However, neither the 4 day forecast issued on 22 October 2006 nor the 2 day forecast issued on 23 October 2006 predicted waves of 4m. in height. It was therefore said that had the post-casualty system been in existence prior to 24 October 2006 advice to leave would still not have been given on 23 October 2006.[131]It is curious that the system introduced by Kashima port authority after and in the light of the OCEAN VICTORY casualty would not have resulted in the issuance of a “recommendation to seek shelter” on 23 October 2006 had it been in force at that time. But the 4 day and 2 day forecasts issued by the Japanese Weather Association to which I was referred appear to have predicted waves of no more than 3.2m. (By contrast the MITO forecast issued at 1739 on 23 October forecast for the area which included Kashima sea waves of 7m.)[132]However, in my judgment it is not necessary for the Owners to identify a system which, had it been in place, would have enabled the master in possession of ordinary skills of seamanship and navigation to avoid the danger of leaving the port at a time when it was unsafe to do so. If the Owners establish that a port is prospectively unsafe by reason of the circumstance that the chartered vessel may have to leave her berth in the port on account of long waves or bad weather at a time when the weather conditions were such that it was unsafe for that vessel to leave then they have established a breach of the safe port warranty. The remaining question is whether that breach caused the casualty which has given rise to the claim. If the casualty occurs because of that unsafety the unsafety will usually be held to be the cause of the casualty in the absence of some intervening cause, such as the negligence of the master, which breaks the chain of causation flowing from the unsafety of the port. To ask whether the Owners have identified a system which would have prevented the casualty is to ask the wrong question for it would lead to the conclusion that where no system would have prevented the casualty the Charterers would, notwithstanding the unsafety of the port, escape liability. Yet that circumstance would highlight rather than negate the unsafety of the port.[133]In so far as it is necessary to decide whether the master, had he received advice to leave the port on 23 October 2006, would have left on that day I consider that he would have done. The Charterers said that he would not have left the port on that day because he thought that there would have been time to complete discharge and depart on 24 October 2006. However, when advice to depart was given on 24 October 2006 he decided to leave the port even though his own view was that it was safe to remain and he would have preferred to remain. The probabilities are therefore, it seems to me, that if he had been given that advice on 23 October 2006 he would have decided to depart, as he did on 24 October 2006.[134]I have therefore concluded that when the Charterers ordered the vessel to discharge her cargo at Kashima that port was prospectively unsafe for OCEAN VICTORY. There was a risk that the vessel might have to leave, or be advised to leave, the port on account of long waves or bad weather (because it was feared that she could not be restrained by her moorings or the use of tugs) at a time when the wind and sea conditions in the channel were such that more than ordinary seamanship and navigation were required to enable the vessel to leave the port safely. There was no system to ensure that when any such departure was necessary or advised the vessel could safely leave.[135]If, contrary to my view, it is also necessary to enquire whether the port authority “ought” to have had any other system than they did and/or are to be “criticised” for having the system they did, the evidence before the court, consisting largely of Captain Barber’s answers in cross-examination (who was said to have some port systems expertise)suggest that the Kashima port authority ought to have made their own risk assessment to identify both the limiting conditions which would make departure from berth necessary and the limiting conditions which would make departure from the port unsafe. Thereafter the port ought to have developed contingency plans, monitored conditions and issued guidance to masters using the port so as to ensure that a safe and co-ordinated response was achieved when the limiting conditions were expected. Given the risk of the Raw Materials Quay being affected by long waves such that it was necessary on occasion to leave the berth and the risk of such waves occurring when there were gale force winds from the north which would expose Capesize vessels to dangers in leaving which could not be avoided by good navigation and seamanship I would therefore have found that such a risk assessment ought to have been carried out and suitable systems put in place before 24 October 2006. However, no such system was in place and it is to be inferred that no such risk assessment had been carried out. So, in so far as it is necessary, contrary to my view, to examine the conduct of the port authority, I would have held that the port ought to have carried out such a risk assessment and introduced appropriate systems prior to 24 October 2006.

The cause of OCEAN VICTORY leaving the port

[136]Counsel for the Charterers said that the vessel left the port on 24 October 2006 because the master thought there was an order to leave the port when there was no such order. Counsel asked how this “one-off muddle” fitted into the law on safe warranties but never sought (at any rate expressly) to answer their own rhetorical question. However, I inferred from their submissions that their answer was that, to the extent that advice to leave given by Captain Yamauchi reflected the unsafety of the port, such advice (and hence the unsafety of the port) was not the cause of the vessel leaving the port on 24 October 2006.[137]Counsel submitted that the vessel did not leave the berth by reason of anything said by Captain Yamauchi in the morning of 24 October 2006, that the vessel left in changed circumstances and due to misunderstandings between the master and the ship’s agent and between the master and the pilot, none of which could be laid at the door of the Charterers. There were said to be, in particular, five breaks in the chain of causation running from anything said by Captain Yamauchi: first, the master’s misunderstanding that there had been a port order to leave; second, the sudden deterioration in the weather as a result of which the departure of the vessel was cancelled; third, the misunderstanding by the agent that the master had requested tugs to leave; fourth, the misunderstanding between the master and pilot at 1400 and fifth, the departure of the vessel when it was unsafe to do so.[138]In my judgment there was no break in the chain of causation running from Captain Yamauchi’s advice to leave the port given at about 0900 on 24 October 2006 to the actual departure at about 1430 on 24 October 2006 for the following reasons: i) The master was expected to follow Captain Yamauchi’s advice. Captain Yamauchi had expected the master to follow his advice the previous day to provide extra mooring lines and keep the engines on standby. This is apparent from his email request at 1238 that he receive confirmation (which was given at 1653) that the measures he had advised had been put into effect. There is no reason why Captain Yamauchi would not also expect his advice given on 24 October 2006 to be followed. ii) Captain Yamauchi’s advice to leave the port was never retracted. The planned departure of ELLIDA ACE and OCEAN VICTORY at 1200 and 1300 was not cancelled but only postponed until 1400 and 1500. Following the master’s advice that a mooring line had parted and his request for tugs, the agent instructed the pilots to change the order of departure at 1300 so that OCEAN VICTORY was ordered to be unberthed first at 1400. iii) I do not accept that the chain of causation was broken by the master’s belief that there had been a port order to depart. It seems that the master assumed that such an order underpinned Captain Yamauchi’s advice. But ports do make orders or, at any rate, recommendations of this nature. Kashima did so in relation to typhoons.It was therefore a reasonable assumption for the master to make. It is suggested that he should have realised his mistake when he saw the warning which was in fact issued on 24 October 2006 and which did not contain an evacuation warning. It was said that he should have clarified the existence of an order to depart either with the agent or with his owners. Perhaps some masters would have contacted the agent for clarification but I am not persuaded that all would. The warning was received shortly after Captain Yamauchi and the agent had visited the vessel. The advice the master had received from Captain Yamauchi was not inconsistent with the warning issued by the Coast Guard. If the master obeyed Captain Yamauchi’s advice because he wrongly thought it was a port order his action in deciding to depart was nevertheless the very action Captain Yamauchi intended or expected him to take. As already noted Captain Yamauchi expected his advice to be followed. If the master had not wrongly thought that there was a port order to leave his decision to leave would still have been the very action Captain Yamauchi advised and expected him to take. It is more probable than not that if he had not thought that a port order underpinned Captain Yamauchi’s advice that he would still have relied upon the advice of an experienced local. It may be that the master’s failure to contact his owners was a breach of his standing orders but if he had contacted his owners they would hardly be likely to disagree with whatever course of action the master, as the man on the spot who had been informed of the Mito warnings and had received local advice to depart, had decided upon. I therefore do not consider that the master’s misapprehension that there was a port order to evacuate was a break in the chain of causation running from Captain Yamauchi’s advice.[139]The weather deteriorated rapidly during the morning of 24 October 2006. The northerly wind developed offshore and by about 1110 reached 46 knots (the equivalent of force 9). By 1200 it reached a peak of 59 knots (about force 11). Mr. Lynagh described this as a remarkable rate of deterioration. It was during this period that the pilots decided not to unberth ELLIDA ACE and OCEAN VICTORY. However, the departure was not cancelled on account of the rapid deterioration in the weather, but only postponed. The chain of causation running from Captain Yamauchi’s advice therefore remained intact. In any event, the deterioration in the weather was in line with the Mito warnings which had predicted winds of up to force 10 and had been discussed with the master on board the vessel that morning when the advice to leave was given.[140]The third suggested break in the chain of causation was the view formed by the agent following the master’s call at about 1300 requesting tug assistance. As a result of this call the agent changed the order of the planned departure of the vessels so that OCEAN VICTORY, instead of ELLIDA ACE, would depart at 1400. The only effect of the agent’s instruction to the pilots was that OCEAN VICTORY left shortly after 1400, rather than shortly after 1500. The agent did not misunderstand the master’s wishes. He initially sent two tugs to hold the vessel as requested by the master but then decided that OCEAN VICTORY should be unberthed before ELLIDA ACE. There was no break in the chain of causation. The agent was the vessel’s agent, as emphasised by counsel for the charterers with reference to the authority of Blandy Brothers v Nello Simoni [1963] 2 Lloyd’s reports 393, but the agent’s decision to change the order in which the two Capesize vessels departed did not break the chain of causation flowing from Captain Yamauchi’s advice. The agent was merely giving effect to that advice.[141]It is said that the master and pilot were at cross purposes when the pilot boarded at 1400. The unexpected arrival of the pilot confirmed the master in his belief that there was an evacuation order, which was, as before, a mistake. However, the pilot had been instructed to unberth the vessel because of Captain Yamauchi’s advice and his arrival on board must have appeared to the master to be consistent with Captain Yamauchi’s advice. Indeed, the worsening of the weather and the breakage of a mooring line tended to show that Captain Yamauchi’s advice to leave had been sound (putting to one side the danger in departing). I do not consider that any misunderstanding between the master and pilot broke the chain of causation.[142]Finally, there is the decision to depart. It is said that if it was unsafe for a Capesize vessel to depart, which it was, then the pilot was in error in thinking that it was safe to do so and that this was a break in the chain of causation. It is also said that the master appreciated that it was dangerous to depart and only agreed to doing so because he thought the pilot would pilot the vessel all the way out to sea. The master was at fault, it was said, in failing to raise with the pilot where he was to disembark. If he had done so he would have learnt that the pilot only intended to pilot the vessel to the southern end of the Kashima Fairway in which case he would not have left the berth. This was, it was submitted, the final break in the chain of causation.[143]I do not consider that any mistake by the pilot broke the chain of causation. His error merely reflected the absence of any system in the port for ensuring that if a vessel had to leave berth on account of bad weather and/or long waves the vessel only did so when it was safe to do so.[144]Nor do I consider that the master’s failure to refuse to depart was either negligent or broke the chain of causation. He acted upon local advice which was expected to be followed. In circumstances where his own views conflicted with the advice he had received the master was in a difficult position. He could have refused to go on the grounds that he thought it was dangerous to do so but in circumstances where he had been given local advice to go I am unable to accept that he was negligent in failing to refuse to go. Although the master’s own view was that it was dangerous to depart the master had received local and experienced advice to depart. I have already commented on the importance of local advice in this context. The master thought it unsafe but neither Captain Yamauchi nor the pilot did so.[145]Whilst it is correct that the master did not raise with the pilot where he planned to disembark and assumed that the pilot would pilot the vessel out to sea such assumption is consistent with the fact that a pilot had piloted the vessel into port from the open sea. It is said that the master ought to have raised this matter with the pilot as part of his operational plan. However, Captain Gains did not agree. In his experience it was not a matter of routine to discuss the disembarkation point. It was not in the formal pilot/Master exchange format. I accept that evidence. Captain Gains has had significant experience of being in command of Capesize bulk carriers. Further, the pilot had arrived on board the vessel at about 1400 unexpectedly (so far as the master was concerned, because he had not been advised of the revised times of departure). The departure was hurriedly arranged, the pilot insisting that the vessel must leave quickly. The first two tugs were made fast at 1408 and 1410 and the second two were made fast at 1411 and 1412. Although disembarkation arrangements could have been discussed they would hardly have been regarded as a priority.[146]In those circumstances the effective cause of the casualty remained the advice to leave given in the morning by Captain Yamauchi, which advice, given without considering whether it was safe to leave, reflected the unsafety of the port.[147]Counsel for the Charterers developed a further argument to the effect that any advice given by Captain Yamauchi was advice as to navigation which the master must accept or refuse as he sees fit. It is not an instruction as to the employment of the vessel and so the Charterers are not responsible for it. Reliance was placed upon two authorities in this regard.Larrinaga Steamship Company v The King [1945] AC 246 was a case in which an owner based a claim on an alleged order of the charterer as regards employment. The vessel had been requisitioned by the Government under a charterparty which provided that the master would be under the direction of the charterer as regards employment. The vessel was under orders to return to an English port. The master protested because the weather made it dangerous to proceed but his objection was overruled and, after leaving, the vessel stranded. In the House of Lords Lord Wright (at p. 256) drew a distinction between orders as regards employment of the vessel and matters of navigation. The charterers were not responsible for every marine casualty which affects a vessel when sailing under charterers’ orders. Lord Porter said at pp.260-261 that the charterers’ order “left it to the master’s discretion to sail at a reasonable time thereafter.” He said that “a loss is not …caused by orders to make or by making a voyage because it occurs in the course of it. Such a loss is merely the fortuitous result of the ship being at a particular place at a particular time, and in no legal sense caused by the charterers’ choice or port to which the ship is directed or their instruction to her master to proceed to it.” An “order as to the time of sailing” is “one as to navigation, or at any rate, not as to employment.” Whistler International v Kawasaki Kisen Kaisha [2001] 1 AC 638, better known as the Hill Harmony concerned, inter alia, the question whether an order by charterers to the master that the vessel cross the Pacific by taking the great circle route was an order as the employment of the vessel. The House of Lords held that it was. By contrast, as Lord Bingham said at p. 646 “a decision when, in the prevailing conditions of wind, tide and weather, to sail from a given port is plainly a navigational matter, as held in the Larrinaga case [1945] AC 246.”[148]Counsel for the Charterers relied upon these two authorities as showing that in the present case, even if the Charterers had advised the master to leave the port, it remained within the master’s province to decide when to take to the vessel out to sea and that the Charterers cannot be liable for the decision made by the master to leave the port when he did. However, neither Larrinaga Steamship Company v The King nor the Hill Harmony concerned liability for damage caused by breach of an unsafe port warranty. By contrast the present case does.[149]I accept that the decision to leave at or after 1400 on 24 October 2006 was one of navigation and was taken by the master. However, where the charterers have warranted the safety of a port and in particular that the vessel can leave the port without being exposed to a danger which cannot be avoided by the exercise of good navigation and seamanship the charterers cannot escape liability for breach of the safe port warranty merely by pointing out that in leaving when he did the master took a decision in the navigation of the vessel. Of course, if the safe port warranty is broken attention will focus on the navigation of the vessel. For, if negligent navigation is established, the question arises whether the cause of the damage is the unsafety of the port or the negligent navigation of the master. But the charterers are not freed from liability for breach of the safe port warranty merely because they are not responsible for the navigation of the vessel. On the contrary they warrant that the vessel will not be exposed to danger which cannot be avoided by good navigation and seamanship and if that warranty is broken they can only escape liability if the proximate cause of the casualty is negligent navigation of the vessel rather than the unsafety of the port. In the present case Captain Yamauchi’s advice to leave at a time when it was unsafe to leave evidenced the unsafety of the port. For the reasons I have given the master’s decision to leave the port on 24 October 2006 was not negligent and, if it was, it did not break the chain of causation.

The navigation of the vessel in departing the port

[150]There remains the question whether the unsafety of the port was the cause of the casualty which befell OCEAN VICTORY on 24 October 2006 or whether the cause of the casualty was negligent navigation by the master, not in deciding to depart which he did, but in the manner in which he navigated the vessel out of the port. In their closing submissions counsel for the Charterers said that, in view of their concession that for a fully laden Capesize vessel more than ordinary navigational skill and care was required to leave the port in safety in the conditions which prevailed on 24 October 2006, they focussed on negligent navigation as an event which broke the chain of causation. They submitted that the master was negligent in his failure to prepare and use proper navigational practices (regarding position fixing and monitoring and his misuse or misunderstanding of the Course Over the Ground (“COG”) indicator on the radar) and in his execution of his navigation (the port turn between 1506 and 1509 which took the vessel towards the shore and the starboard turn between 1512 and 1515 which put the wind on the port bow and resulted in all control being lost). Other matters had been explored in evidence but were accepted in counsel’s closing submissions as being not “directly causative”. They were inadequate briefing by the master of the chief officer, the absence of a contingency plan (proceeding to the south rather than to the north of buoy no.1) and the absence of a written passage plan on the chart from berth to the open sea. Yet other matters were explored in evidence but did not merit a mention in counsel’s closing submissions. They were the master’s mooring arrangements, the size of his bridge team and his use of bridge, rather than engine room, control of the main engines. I shall therefore deal with the criticisms of the master’s navigation maintained in counsel’s closing submissions and said to have been causative of the casualty.[151]The parties called master mariners as expert witnesses on the question of navigation, Captains Gains and Barber. They were given leave to do so by the court. Counsel for the Charterers nevertheless emphasised the opinions of the local pilots and of other masters employed by the Owners (whose views were sought by the Owners as part of the “lessons learnt” procedure required under the Owners’ ISM system). Whilst Counsel had obvious forensic reasons for doing so the limitations on the use which can be made of such opinions must be borne in mind. Neither the pilots nor the other masters were called to give expert evidence. There was no permission to do so. Their opinions, unlike those of Captain Gains and Barber, were not tested. In any event, the pilots do not typically navigate vessels out of the port so the basis of their opinion is necessarily limited and they were not provided with the detailed VDR reconstruction with which Captains Gains and Barber were provided. The masters were provided with minute by minute VDR information, a marked up chart and the master’s initial statement but did not have the very detailed VDR information with which Captains Gains and Barber were supplied and, as I have already said, they could not be cross-examined. Whilst the masters’ criticism of the helm action ordered by the master of OCEAN VICTORY provided material for cross-examination of Captain Gains and provided support for Captain Barber’s views it would not be appropriate for the court to base its findings on their opinion of the navigation of OCEAN VICTORY because theirs was not the expert evidence on which were the Charterers were given leave to rely and has not been tested by cross-examination. The opinions of the masters provided to and disclosed by the Owners nevertheless provide support for the Charterers’ case and it is legitimate to bear them in mind in that context.[152]Counsel for the owners submitted that the master, notwithstanding his failure to use recognised means of position fixing and monitoring, nevertheless knew where he was as a result of such means as he was using. He submitted, as I have already found, that the skill required to navigate a Capesize bulk carrier along a narrow channel into a northerly or north-north-westerly wind of force 9 was beyond the ordinary skill to be expected of a prudent mariner. He submitted that the maintenance of full port helm for a period of minutes was required to prevent the vessel setting to the east (towards the end of the breakwater) and that the maintenance of full starboard helm was required to prevent the vessel setting to the west (towards the shallows). Had the master taken off full port helm at 1506 he would have risked the vessel being set down onto the breakwater. Had the master taken off full starboard helm at 1512 he would have risked the vessel being set again to the west.[153]Position fixing and monitoring. I have already found that the master failed to use either waypoints or parallel indexing to monitor his position. This was negligent. However, regular fixes were taken up to about 1502. Thereafter, as the vessel met higher waves outside the protection of the breakwater, regular plotting of positions on the chart ceased. An unseamanlike method of noting, but not recording, the vessel’s position was then adopted by the second officer. This could well have resulted in the master having an erroneous appreciation of where he was but the master’s helm action and the resulting track of his vessel shows that he appreciated where his vessel was with regard to being to the west or to the east of the line of the leading lights marked on the chart. Indeed counsel for the Charterers accepted that the second officer must have been observing the GPS and advising the master whether the vessel was to the left or to the right of the line of the leading lights marked on the chart. It was suggested that he could not have known how far north he was. I accept that his understanding of his north/south position was probably inaccurate because his chartered position marked 1513 put the vessel further to the north than the vessel ever was. However, the master’s evidence that he tried to see buoy no.1 as the heading of the vessel commenced to turn to starboard, following the set to the west, suggests that he correctly appreciated that he was north of the breakwater and in a position where he could consider steering towards the anchorage. (In the wave conditions then prevailing it is improbable that the echo of the buoy could be seen by radar.) I do not therefore consider that the master’s negligent failure to make use of parallel indexing or waypoints resulted in the master failing to appreciate where he was in relation to being to the west or to the east of the line of the leading lights on the chart but it probably led to him thinking that the vessel was further to the north than she in fact was.[154]The hard port and starboard helm manoeuvres: These were said to be negligent by counsel for the Charterers because they caused the vessel’s speed to fall and put the weather on the beam. The master ought, instead, to have seized the opportunity to proceed out to sea towards the pilot station between buoys 1 and 2. In particular he ought to have proceeded out to sea between 1506 and 1508 instead of applying hard port rudder; alternatively, he ought to have proceeded out to sea at 1512 instead of applying hard starboard rudder. It was said that the reason the master failed to take this action was that the master wrongly relied upon the Course over the Ground indicator (“COG”) on the radar which he understood to be indicating an easterly set at 1506 and a westerly set at 1512. This was said to be a simple misunderstanding by the master of what the COG indicated. It merely indicated that the stern (where the GPS aerial was located) was swinging. It did not indicate the direction of bodily travel.[155]There is no doubt that the application of prolonged hard port or hard starboard helm had the effect of slowing the vessel’s speed. Thus between 1504 and 1508, when hard port helm was applied, the vessel’s speed fell from about 5.5 knots to about 2 knots. In a narrow channel where it was imperative to maintain the vessel’s course along the line of the leading lights on the chart this courted disaster because the vessel risked losing steerage way, as in fact happened. This was recognised by the masters of OCEAN CONFIDENCE and OCEAN PRIDE who were asked by the Owners for their comments on the navigation of OCEAN VICTORY. It was also accepted by Captain Gains. The master of OCEAN VICTORY was well aware of the need to maintain the vessel’s speed. At 1505 he increased his engines to navigation full ahead and at 1509 he cancelled the load programme on the engines. The question therefore is why did the master apply hard port helm and hard starboard helm for as long as he did. For, in the absence of an explanation, his action was negligent in that it exposed the vessel to a risk that steerage way would be lost whilst navigating a narrow fairway.[156]Captain Gains was in no doubt that there was such an explanation. In his opinion to have applied hard port helm for any less time at 1506 would also have courted disaster because it risked the vessel getting too close to the head of the breakwater. Similarly, to have applied hard starboard helm for less time at 1512 would have risked a dangerous set to the west and a grounding on the shoreline.[157]Counsel for the Charterers submitted that this justification for the navigation at 1506 failed, first, because there was no set towards the breakwater and, second, because “it defied common sense” to suggest that the vessel would have been pushed back at 1506 by the wind onto the breakwater. There was “no navigational justification” for the maintenance of port helm at 1506. Similarly, counsel said that Captain Gains’ justification for the master’s action at 1512 was “nonsensical” because the vessel had ceased any bodily movement towards the western shore by 1511.

Maintaining hard port helm at 1506

[158]The Charterers’ case requires the master to have seized the opportunity at 1506 to proceed out to sea. “She was now clear of the breakwater on a satisfactory heading. Had she continued on that course she would have continued out to sea.”[159]When judging the master’s navigation the position and heading of the vessel at 1506 cannot be viewed as a snapshot divorced from what had happened immediately before 1506 or without regard to the difficulties that faced a Capesize vessel seeking to maintain a course with a gale force wind fine on the port bow and in a narrow channel with little sea room.[160]Prior to 1506 the vessel had experienced difficulty in maintaining a course along the line of the leading lights marked on the chart. At 1456 she was to the east of the intended course line and at 1500 she was to the west of the course line approaching the 20m. contour. Although only moderate starboard helm was applied to keep the vessel away from the 20m. contour the vessel’s heading turned too far to starboard and, notwithstanding the application of port helm, continued to turn to starboard, reaching 26 degrees at 1504 when the port helm was increased to hard port helm. This succeeded in stopping the heading turning to starboard and caused the heading to turn to port. However, as the VDR reconstruction shows the vessel was being set bodily to the north east notwithstanding the application of substantial port helm from 1502-1504 and hard port helm from 1504. Captain Barber accepted that the VDR showed a set to the east. By 1506 the vessel was about half a cable, or a little more, to the east of the line of the leading lights having been about half a cable to the west of it at 1502. Counsel for the Charterers submitted that at 1506 the helm ought to have been eased to steady the heading on about 5 degrees. Had the helm been eased at about 1506 there was, it seems to me, a risk that the northerly or north-north-westerly gale force wind fine on the port bow would have caused the heading to fall off to starboard and the set to the north east may have continued. Even with the application of hard port the vessel was set a little further to the east of the line of the leading lights at 1507 when she was about 2 cables north-west of the end of the breakwater. The master was therefore in a difficult position. The maintenance of hard port helm at 1506 would cause the speed of the vessel to continue to fall giving rise to a risk that steerage way would be lost but easing the helm might have resulted in the heading falling off to starboard. Captain Barber accepted that there was such a risk and that the ordinary prudent mariner would be extremely wary of it. He said that such a mariner “would keep his port helm on in the overall picture of things” (but added that the port helm would have to be reduced if there was a risk of the stern of the vessel swinging towards the yellow buoy). Captain Barber said that putting the helm amidships might have increased the vessel’s speed but accepted that that involved risks and that it was “not a good position to be in.” Moreover, there could not have been any certainty that the vessel would have been able to steady the heading on the desired course of 5 degrees. In the prevailing conditions it was difficult for a Capesize vessel to maintain such a course line for the reasons explained by Captain Gains and as illustrated by the track of the vessel along the Kashima Fairway from 1456. Captain Barber accepted that it would be “very difficult” to maintain the vessel on a course of 5 degrees. Had it been possible to maintain the desired course line of about 5 degrees that would no doubt have been done from the time when the vessel entered the Kashima Fairway. But that had not been achieved and once the vessel was to the north of the end of the breakwater (as she was by 1505) the wave conditions were even more severe and the vessel would find it even more difficult to maintain the desired course line. The Charterers’ case that the vessel ought to have steadied her heading at 1506 and proceeded out to sea appears to me to ignore the difficulties which a Capesize vessel has in maintaining a course line with a gale force wind fine on her bow and wave heights of over 6m. in a narrow channel with very limited sea room.[161]Had the heading fallen off to starboard as a result of easing the port helm, more of the portside of the vessel would have been exposed to the gale force wind and there would have been a risk that the vessel would have been blown down towards the end of the breakwater. The master, when it was put to him that he could have set a course to proceed out to sea at 1506, replied that had he put the rudder to amidships “I reckon we would have crashed on to the breakwater a lot earlier.” In his March 2008 statement he had said much the same:
“…we had to use hard to port rudder to prevent our heading falling off to starboard. I did not want to get any closer to the breakwater than we already were.”
Captain Gains agreed. “If you were to ease the rudder during these periods the track would take some kind – there would be a reaction – a reaction. If you eased the rudder and she is already setting to the east, and you have considered that track to be undesirable, had I eased the rudder, that track would only be more undesirable and, in the worst-case scenario, it would be undesirable to the extent that you would be blown off the wind and land on the breakwater earlier than she actually did. And that is my opinion.” I consider that those opinions are consistent with the probabilities. There was in my judgment a clear and real risk associated with the action suggested by the Charterers.[162]I accept that some masters, recognising that at about 1506 the vessel was to the east of the line of the leading lights, that her heading was coming back to 5 degrees, that her speed through the water was about 3.4 knots and that the maintenance of full port helm would only cause the speed of the vessel to fall further with the risk that steerage way might be lost, might have decided to ease the port helm and attempted to proceed out to sea on a course of about 5 degrees with such speed as could have been mustered. But such action would not merely require “correct, prompt and resolute action” (as in the Polyglory [1977] 2 Lloyd’s rep. 353 at p. 365-6) but would also have required a particularly bold mariner (because the action had its own risks) and would have required a very high degree of skill (and, I think, luck) to bring it off.[163]In these circumstances I am unable to hold that the master’s conduct in maintaining hard port helm at 1506 was negligent. He found himself in a most difficult position. He no doubt hoped that by having increased the engine speed to navigating full ahead at 1505 he would maintain steerage way. In his answers to the questionnaire dated 18 November 2006 he said that the use of full ahead was to “enhance rudder effect”. But notwithstanding the increase in engine speed the speed of the vessel had fallen to about 2 knots by 1508. Although counsel for the Charterers submitted that the vessel retained “directional control” and that the situation was “still retrievable” I consider that by this stage, although the vessel was still able, with a speed of 2 knots, to react to the application of helm, it seems to me that, by this stage and in the prevailing conditions, she had lost steerage way in the sense of an ability to keep the vessel on her desired course. The vessel’s predicament at 1508 was, I consider, serious and dangerous but, despite that, I am not persuaded that the master’s action in maintaining hard port helm was negligent. In conditions which would have made it difficult to maintain the desired course and heading even at 7 knots, let alone 3.4 knots (at 1506), easing the vessel’s helm may have led to the vessel’s heading falling off to starboard and the vessel finding herself set dangerously close to the end of the breakwater. Counsel said that it defied common sense to suggest that the vessel would have been pushed back by the wind onto the breakwater but it seems to me that, objectively considered (which counsel accepted was the correct basis upon which to assess whether the master’s conduct was negligent) there was a risk that that might have happened had the port helm been eased at 1506. Both the master and Captain Gains recognised that risk. I consider they were giving their honest opinion. The existence of that risk means, in my judgment, that the master’s conduct in increasing the engine speed to navigating full ahead at 1505 and maintaining full port helm at 1506 cannot fairly be described as negligent. As was said by Pearson J. in the Eastern City with regard to a different navigational decision “there were sound reasons for his decision even though the results were unfortunate” (see [1958] 2 Lloyd’s Reports 127 at p.139).[164]It was suggested that the master had placed too much reliance on the COG (“course over the ground”) indicator on the radar in circumstances where it merely indicated that the vessel was turning rather than the vessel being set bodily to the east. In particular it was said that reliance was placed on the COG indicator between 1506 and 1508 and that regard to the COG at that time would have given a false impression of the vessel’s bodily movement. It is true that during this period the vessel’s stern moved to the north-east whilst there was little bodily movement in that direction. However, the important point is not what the vessel was in fact doing between 1506 and 1508 but what she may have done had the hard port helm been eased at 1506. For the reasons I have given there was a risk that the heading of the vessel might have fallen off to starboard, leading to the vessel being caught by the gale on her port side and set down onto the breakwater.[165]I have considered whether the master’s failure to adopt parallel indexing, his failure to input a waypoint between buoys 1 and 2 or the second officer’s failure to continue to plot the position of the vessel at regular intervals caused the master to fail to seize the opportunity at 1506 to settle on a heading of 5 degrees and proceed out to sea. I do not consider that they did. The master was well aware of the need to proceed out of port along the Kashima Fairway on a course of 5 degrees. He was also aware of whether he was to the east or to the west of the line of the leading lights marked on the chart. Had the master considered it safe to seek to settle on such a course at 1506 it is likely that he would have done so. I do not consider that his failure to seek to settle on a heading of 5 degrees at 1506 was because he did not know where his vessel was. Not only were there risks in seeking to settle on a course of 5 degrees at 1506 it would have been very difficult to do so. The difficulty of maintaining the desired course was a constant theme of the master’s early reports of the incident. In his statement dated 27 October 2006 he said “it was extremely difficult to steady and maintain her course.” In his report made on the same day he said “the ship was unable to maintain its course even at full power.” On 11 November 2006 he was asked by the Marine Accident Inquiry whether the vessel could hold a course and he replied “we could not sail forwards.”

Maintaining hard starboard helm at 1512

[166]Counsel for the Charterers submitted that, as a result of starboard helm having been applied from shortly after 1509, the vessel was, by about 1512, more or less stationary in the water, on about the line of the leading lights, with a northerly heading and the gale force wind fine on her port bow. In those circumstances it was said that the starboard helm ought to have been eased (or taken off altogether) to steady the heading and the vessel would have slowly picked up forward speed (and, I assume, proceeded safely out to sea). Instead the helm was kept on hard starboard until after 1515 thereby turning the heading of the vessel to starboard and putting the gale force wind on the port beam with “predictable and disastrous consequences.”[167]Counsel for the Owners accepted that by 1512 and as a result of the application of hard starboard helm the set to the west (which is clearly shown by the VDR reconstruction) had been arrested. However, counsel submitted that if the hard starboard helm had been eased there was a risk that the set to the west might have resumed. In those circumstances, unless the vessel made way on a course to the east of north, there was a risk that the vessel might have closed the shore and grounded.[168]The cause of the set to the west is likely to have been the fact that the starboard side of the vessel, now without steerage way, was exposed to the northerly or north-north-westerly gale. Captains Gains and Barber agreed that the master would wish to arrest that set and that a large rudder angle would be required to bring the bow through the wind and on to the port bow. The hard starboard helm from 1509 and 30 seconds succeeded in turning the heading of the vessel through the gale. Once the vessel was heading to the north at about 1512 the gale force wind would have been very fine on the vessel’s port bow. Had the starboard helm action been eased off there was a risk, in the opinion of Captain Gains, that the heading of the vessel would have fallen off to port under the influence of the swell from the north east thereby giving rise to a risk that the set to the west would resume. Captain Barber accepted that hard starboard helm action ought to have been maintained until 1513 (when the vessel was heading about 5 degrees) but suggested that it should then have been eased off. Captain Gains thought that putting the helm amidships could only be considered at 1514 (when the vessel was heading about 17 degrees). The master in fact continued to apply starboard helm until 1515. As a result the heading of the vessel turned further to starboard and so exposed more of the vessel’s portside to the gale force wind. She was then swept rapidly down onto the end of the breakwater, notwithstanding the application of hard port helm.[169]In determining whether it was negligent of the master to have maintained full starboard helm until 1515 it is necessary to bear in mind that the vessel’s predicament at 1509 required, even on Captain Barber’s view, at least 3 and a half minutes of full starboard helm. This is indicative of what was required to force the bows of the vessel back through the gale force wind. A master of a vessel which had been set towards the shallows might well keep the vessel’s helm hard to starboard for longer than was necessary in those circumstances. Deciding precisely when to take off the starboard helm would have been a very difficult decision. I accept that some masters might have determined between 1513 and 1514 to take off the starboard helm and to have attempted to proceed out to sea. This possibility was, it seems, in the master’s mind because he was looking for buoy no.1 to see if he could steer out to sea. But the master was again in a difficult position. Taking starboard helm off too early had its risks and keeping starboard helm on had its risks. In the event the master probably kept the starboard helm on for longer than was wise. But, in circumstances where hard and prolonged starboard helm was required, I decline to hold that in failing to ease the starboard before 1515 the master acted negligently. He was well aware of the need to proceed out of port on a heading of 5 degrees and would surely have sought to do so at 1512 if he had considered such action safe. To take off starboard helm at 1512 (or at 1513 or even at 1514) would have required particularly bold and resolute action.[170]But in any event it was now, in all probability, too late to save the situation. With the vessel being virtually stopped in the water at 1512 and 1513 there was in reality no prospect that the vessel would be able to increase her speed sufficiently to enable her to proceed out to sea on a course to the east of north. Captain Barber accepted that a Capesize vessel does not pick up speed quickly even in good conditions and counsel for the Charterers accepted that the vessel would only have picked up speed “slowly”. In those circumstances, even if the master was negligent in maintaining hard starboard helm until 1515, which I doubt, any such negligence made no appreciable difference. The master had already lost control of the vessel. The heading of the vessel was likely to fall off to starboard and the vessel was likely to be driven down onto the breakwater.[171]As with the period 1506-1508 it was suggested that during the period 1512-1515 the master wrongly deduced bodily movement (in this case to the west) from the COG indicator whereas it was only her stern which was moving to the west. It was said that hard starboard was applied until 1515, which was when the COG was no longer indicating NW but NE. This is true. However, it is unlikely that the master made the suggested mistake, notwithstanding the references in his evidence to observing the heading and the “motion vector line” and the desirability of the two being aligned. Counsel for the Charterers accepted that even a cadet would have appreciated the difference between the movement of the stern and the bodily movement of the vessel. Moreover, there had clearly been a set to the west. It is likely that the master was not only assessing the information from the radar and GPS but was also observing visually what was happening in the turbulent wind and sea conditions. It is unlikely that he based his navigation on one piece of information. He said:
“….the situation was so atrocious we have to make judgment and decision constantly, every second, even. So the situation wasn’t like playing a computer game, it was really, really challenging and the monitoring and assessment was made every second and various factors were taken into account.”
The decision which he faced, namely, when to ease or take off the starboard helm, was very difficult because there was a risk that if it were taken off too early the heading of the vessel might fall off to port and the vessel might resume her set to the west and the shallows. In judging when to do that he had to take many matters into account.[172]As with the suggested negligence at 1506 I have considered whether the master’s failure to use a recognised means of assessing and recording the vessel’s position led to him failing to ease the starboard helm at 1512 because he did not know where his vessel was. I have concluded that it did not. He knew where the vessel was in relation to the line of the leading lights marked on the chart and, although he may have thought the vessel was more to the north than in fact she was (because the plotted position at 1513 was too far north) it is unlikely that this error caused him not to ease the starboard helm at 1512 or 1513.

Negligent navigation and causation

[173]If I had found that the master’s navigation of his vessel either at 1506 or 1512 had been negligent the question would have arisen whether the cause of the casualty was the unsafety of the port or the master’s negligent navigation. Counsel for the Charterers submitted that the cause of the casualty was the negligent navigation of the master. They referred to Environment Agency v Empress Car [1999] 2 AC 22 at pp.29 and 31 where Lord Hoffman said that questions of causation depended upon the purpose for which the question was being asked. In this case the purpose for which the question is being asked is to determine liability for a marine casualty in the context of a charterparty which allocates responsibility for matters of navigation to the Owners. The question whether negligent navigation breaks the chain of causation running from the unsafety of the port has been described as a difficult question; see The Dagmar [1968] 2 Lloyd’s Reports 563 at p.571. In the present case counsel submitted that the alleged negligent navigation of the master was the cause of the casualty because(i) the danger was not latent,(ii) the master’s negligence was the chronologically immediate cause of the casualty (see the Polyglory [1977] 2 Lloyd’s Reports 353 at p.366),(iii) this was not an “agony of the moment” case,(iv) the master failed to prepare for a known testing departure,(v) he wrongly relied on the COG indicator and(vi) he kept hard rudder on for longer than a minimum period, contrary to good practice, which he did twice, and it caused the speed of the vessel to fall.[174]Had I found the master’s navigation at 1506 and 1512 to have been negligent I would have concluded that the unsafety of the port remained the real and effective cause of the casualty. The unsafety of the port made it very difficult for a Capesize vessel to depart the port in the conditions which prevailed on 24 October 2006. Any negligence of the master in maintaining hard port or hard starboard helm for longer than was safe was, in a real sense, the product of that unsafety. The unsafety of the port meant that it was difficult for the vessel to maintain the desired course and that difficulty was reflected in the navigation of the vessel. As the master said in his March 2008 statement the strong wind “seriously affected the manoeuvrability of OCEAN VICTORY” and “large rudder orders were having to be used to establish control and to achieve the required heading.” The danger was not latent but, in circumstances where the local and experienced advice was to leave, the master had no real option to stay. The master’s (assumed) negligence was chronologically the immediate cause of the casualty but that does not mean that it must inevitably be judged to be the real and effective cause of the casualty. It was not judged to be so in the Polyglory. This case was said not to be “an agony of the moment” case but I think it was. The master, when deciding for how long to keep the hard port and hard starboard helm on, had a difficult decision to make for there were risks either way. It was said that the master failed to prepare for a testing departure. In one sense he did. There was no written passage plan. But the prevailing conditions meant that he could only seek to maintain the desired course by trial and error in circumstances where there was limited sea-room. The preparations which would enable the master to prepare for an exercise of trial and error were not identified. As to the suggested erroneous reliance on the COG indicator I refer back to my earlier comments. Finally, it was said that the master’s conduct in keeping the hard port and hard starboard helm for a period of time was contrary to good practice. In the abstract it probably was because it caused the speed of the vessel to fall and, for the purposes of causation, must be assumed to have been negligent. But his action must be viewed in context. The action was taken because there were risks associated with easing the helm too soon. Those risks were the product of the difficulty in maintaining the desired course line in the prevailing conditions where there was limited sea-room.[175]Thus, for the reasons which I have endeavoured to express, the casualty was caused by the unsafety of the port.

The recoverability of the value of the vessel

[176]For the purposes of this issue it is necessary to bear in mind that the Claimant is Gard, suing as assignees of OVM, the registered owners, and OLH, the demise charterers of the vessel. The question raised by the Charterers is whether Gard, as assignee of the demise charterer, can claim the loss of the vessel from Sinochart, the head time charterers, so that Sincochart can in turn claim the loss from Daiichi. This depends upon whether, assuming a breach of the safe port warranty, OLH, the demise charterer, is liable to OVM, the registered owner, in respect of the loss of the vessel. If the demise charterer is not so liable then it has suffered no loss in respect of the loss of the vessel and has no claim to pass on to the head time charterers. The case of the Charterers (that is Sinochart and Daiichi) is that on the true construction of the terms of the demise charterparty it was not intended that the demise charterer, who had insured the vessel at its expense, should have any liability to the registered owner in respect of insured losses, notwithstanding that they may have been caused by a breach of the safe port warranty. The case of Gard is that the demise charterer was liable to the registered owner in respect of the loss of the vessel.[177]It is first necessary to set out the relevant terms of the demise charterparty between the registered owner and the demise charterer. This was on the form of an amended Barecon 89 Standard Bareboat Charter. Part I was in box form and Part II contained certain terms.[178]Part II Clause 5, Trading Limits, was deleted and replaced by additional clauses 29 and 30. Clause 29 provided that the vessel was to be employed “only between good and safe ports”. Thus the demise charterers warranted the safety of the ports to which the vessel was sent.[179]Part I Clause 27 provided for the Insured Value of the vessel to be stated and for the parties to state whether clause 13 (by inference, of Part II) applied. Clauses 12 and 13 of Part II were alternative Insurance and Repairs terms. Part I box 27 stated US$70,000,000 and did not state that clause 13 applied. Since Part II clause 13 stated that it, clause 13, was optional and only applied if expressly agreed and stated in Box 27, in which event clause 12 shall be considered deleted, it followed that clause 13 did not apply and that clause 12 did. Clause 12, entitled Insurance and Repairs, provided as follows: 12. Insurance and Repairs(a) During the Charter period the Vessel shall be kept insured by the Charterers at their expense against marine, war and Protection and Indemnity risks in such form as the Owners shall in writing approve, which approval shall not be unreasonably withheld. Such marine war and P. and I. insurances shall be arranged by the Charterers to protect the interests of both the Owners and the Charterers and mortgagees (if any), and the Charterers shall be at liberty to protect under such insurances the interests of any managers they may appoint. All insurance policies shall be in the joint names of the Owners and the Charterers as their interests may appear. If the Charterers fail to arrange and keep any of the insurances provided for under the provisions of sub-clause (a) above in the manner described therein, the Owners shall notify the Charterers whereupon the Charterers shall rectify the position within seven running days, failing which Owners shall have the right to withdraw the Vessel from the service of the Charterers without prejudice to any claim the Owners may otherwise have against the Charterers. The Charterers shall, subject to the approval of the Owners and the Underwriters, effect all insured repairs and shall undertake settlement of all costs in connection with such repairs as well as insured charges, expenses and liabilities (reimbursement to be secured by the Charterers from the Underwriters) to the extent of coverage under the insurances herein provided for. The Charterers also to remain responsible for and to effect repairs and settlement of costs and expenses incurred thereby in respect of all other repairs not covered by the insurances and/or not exceeding any possible franchise(s) or deductibles provided for in the insurances. All time used for repairs under the provisions of sub-clause (a) of this Clause and for repairs of latent defects according to Clause 2 above including any deviation shall count as time on hire and shall form part of the Charter period.(b) If the conditions of the above insurances permit additional insurance to be placed by the parties, such cover shall be limited to the amount for each party set out in Box 28 and Box 29, respectively. The Owners or the Charterers as the case may be shall immediately furnish the other party with particulars of any additional insurance effected, including copies of any cover notes or policies and the written consent of the insurers of any such required insurance in any case where the consent of such insurers is necessary.(c) Should the Vessel become an actual, constructive, compromised or agreed total loss under the insurances required under sub-clause (a) of Clause 12, all insurance payments for such loss shall be paid to the Mortgagee, if any, in the manner described in the Deed(s) of Covenant, who shall distribute the moneys between themselves, the Owners and the Charterers according to their respective interests. The Charterers undertake to notify the Owners and the Mortgagee, if any, of any occurrences in consequence of which the Vessel is likely to become a Total Loss as defined in this Clause.(d) If the Vessel becomes an actual, constructive, compromised or agreed total loss under the insurances arranged by the Charterers in accordance with sub-clause (a) of this Clause, this Charter shall terminate as of the date of such loss.(e) The Owners shall upon the request of the Charterers, promptly execute such documents as may be required to enable the Charterers to abandon the Vessel to insurers and claim constructive total loss.(f) For the purpose of insurance coverage against marine and war risks under the provisions of sub-clause (a) of this Clause, the value of the Vessel is the sum indicated in Box 27.[180]It is to be noted that the deleted clause 13 provided: 13. Insurance, Repairs and Classification (Optional, only to apply if expressly agreed and stated in Box 27, in which event Clause 12 shall be considered deleted).(a) During the Charter period the Vessel shall be kept insured by the Owners at their expense against marine and war risks under the form of policy or policies attached hereto. The Owners and/or insurers shall not have any right of recovery or subrogation against the Charterers on account of loss of or any damage to the vessel or her machinery or appurtenances covered by such insurance, or on account of payments made to discharge claims against or liabilities of the Vessel or the Owners covered by such insurance. All insurance policies shall be in the joint names of the Owners and the Charterers as their interests may appear.(b) During the Charter period the Vessel shall be kept insured by the Charterers at their expense against Protection and indemnity risks in such form as the Owners shall in writing approve which approval shall not be unreasonably withheld. If the Charterers fail to arrange and keep any of the Insurances provided for under the provisions of sub-clause (b) in the manner described therein, the Owners shall notify the Charterers whereupon the Charterers shall rectify the position within seven running days, failing which the Owners shall have the right to withdraw the Vessel from the service of the Charterers without prejudice to any claim the Owners may otherwise have against the Charterers.(c) In the event that any act of negligence of the Charterers shall vitiate any of the insurance herein provided, the Charterers shall pay to the Owners all losses and indemnify the Owners against all claims and demands which would otherwise have been covered by such insurance.(d) The Charterers shall, subject to the approval of the Owners or Owners’ Underwriters, effect all insured repairs, and the Charterers shall undertake settlement of all miscellaneous expenses in connection with such repairs as well as all insured charges, expenses and liabilities, to the extent of coverage under the insurances provided for under the provisions of sub-clause (a) of this Clause. The Charterers to be secured reimbursement through the Owners’ Underwriters for such expenditures upon presentation of accounts.(e) The Charterers to remain responsible for and to effect repairs and settlement of costs and expenses incurred thereby in respect of all other repairs not covered by the insurances and/or not exceeding any possible franchise(s) or deductibles provided for in the insurances.(f) All time used for repairs under the provisions of sub-clause (d) and (e) of this Clause and for repairs of latent defects according to Clause 2 above, including any deviation, shall count as time on hire and shall form part of the Charter period. The Owners shall not be responsible for any expenses as are incident to the use and operation of the Vessel for such time as may be required to make such repairs.(g) If the conditions of the above insurances permit additional insurance to be placed by the parties such cover shall be limited to the amount for each party set out in Box 28 and Box 29, respectively. The Owners or the Charterers as the case may be shall immediately furnish the other party with particulars of any additional insurance effected, including copies of any cover notes or policies and the written consent of the Insurers of any such required insurance in any case where the consent of such Insurers is necessary.(h) Should the Vessel become an actual, constructive, compromised or agreed total loss under the insurances required under sub-clause (a) of this Clause, all insurance payments for such loss shall be paid to the Owners, who shall distribute the moneys between themselves and the Charterers according to their respective interests.(i) It the Vessel becomes an actual, constructive, compromised or agreed total loss under the insurances arranged by the Owners in accordance with sub-clause (a) of this Clause, this Charter shall terminate as of the date of such loss.(j) The Charterers shall upon the request of the Owners, promptly execute such document as may be required to enable the Owners to abandon the Vessel to Insurers and claim a constructive total loss.(k) For the purpose of insurance coverage against marine and war risk under the provisions of sub-clause (a) of this Clause, the value of the Vessel is the sum indicated in Box 27.(l) Notwithstanding anything contained in Clause 9 (a), it is agreed that under the provisions of Clause 13, if applicable, the Owners shall keep the Vessel with unexpired classification in force at all times during the Charter period.[181]An important distinction between clause 12 and 13 is that under clause 12 the demise charterer pays for the hull insurance (marine and war risks) whereas under clause 13 the registered owner pays for such insurance. A further important distinction is that clause 13 expressly provides, in the context of hull insurance, that the registered owner and insurers will have no rights of recovery or subrogation against the demise charterer whereas under clause 12 there is no such express provision.[182]Counsel on behalf of Daiichi submitted that clause 12 of the demise charterparty contained a complete code for the treatment of insured losses as between the parties in the event of a total loss. Against that background, the parties cannot have intended that the demise charterer would have been liable to the registered owner for breach of the safe port warranty in respect of losses covered by the hull insurance taken out by the demise charterer at its expense in the joint names of both the registered owner and demise charterer.[183]Counsel on behalf of Gard submitted that the Charterers’ suggested construction of the charterparty was contrary to the express terms of the charterparty. There was an undoubted safe port warranty for which the demise charterer would be liable in damages. The parties, having expressly chosen to delete clause 13 from the charterparty, which clause provided expressly that registered owner and/or insurers shall not have any right of recovery or subrogation against the demise charterer in respect of hull risks, cannot have intended that the registered owner and/or insurers should have no right of subrogation against the Charterers, for there was no bar on subrogation in clause 12. Further, the suggested construction would mean that the safe port warranty in additional clause 29 would be ineffective. It was also submitted that the proper analysis of the charterparty was that the insurance discharges the demise charterer’s liability to the registered owner; it does not mean that there was no liability to start with.[184]This is an important dispute. The value of the vessel is agreed to be US$88.5m and the amount paid by the insurers was US$70m. Accordingly, if the submission made on behalf of Daiichi is correct, Gard’s claim must be reduced by US$70m. It was accepted that this point does not affect the balance of US$18.5m. or the sums due in respect of SCOPIC or wreck removal costs.[185]The demise charterparty must be given that meaning which, having regard to the background known to both parties, it would be reasonably understood to bear. In circumstances where the demise charterparty contains a clear safe port warranty by the demise charterers (additional clause 29) one would expect that any exemption of the demise charterers from liability in damages for breach of the safe port warranty would be clearly expressed.[186]Clause 12 of Part II of the charterparty does not expressly exempt the demise charterers from such liability. Thus any such exemption can only arise by necessary implication.[187]The first sentence of clause 12(a) provides that the demise charterers shall insure the vessel at their expense. The second sentence provides that such insurance shall protect the interests of the owners and the demise charterers. It is therefore contended by Daiichi that the parties cannot have intended that the demise charterers, having procured at their expense insurance which covered the owners’ and demise charterers’ interests, would, after the insurers had indemnified the owners in respect of their loss, also be liable to the insurers by way of a subrogated claim under the safe port warranty.[188]The third paragraph of clause 12(a) provides that the demise charterers shall effect all insured repairs with reimbursement to be secured by the demise charterers from the underwriters. Again it is said that the parties cannot have intended that the demise charterers, having secured reimbursement from the underwriters, would then be liable to the insurers by way of a subrogated claim under the safe port warranty.[189]Clause 12(c) provides that in the event that the vessel becomes a total loss all insurance payments shall be paid to the mortgagee who shall distribute the moneys between themselves, the owners and the demise charterers according to their respective interests. Again it is said that the parties cannot have intended that the demise charterers, having been paid their share of the insurance proceeds, would then be liable to the insurers by way of a subrogated claim under the safe port warranty.[190]These arguments gain some support from the decision of the House of Lords in the Evia (no.2) [1983] 2AC 736 at p.766. In that case the charterparty contained a safe port warranty (clause 2) and a war risks clause (clause 21) which provided, inter alia, that in the event that the vessel be brought or ordered into a war risk zone the owners were entitled to insure against such risks and the charterers were obliged to refund owners the premium. The second main question in that case (the first being the application of the safe port warranty) was whether clause 21 cast upon owners and their insurers all war risks and thus freed the charterers from liability for them pursuant to the safe port clause. It was held that the charterers were freed from any liability that they might otherwise have. In reaching that conclusion Lord Roskill said:
“My Lords, whether clause 21 is a complete code and thus exhaustive of the owners’ rights depends upon the construction of the time charter-party as a whole. But if the owners are right that clause 21 leaves the time charterers’ obligations under clause 2 in full force and effect, one remarkable result follows. The time charterers are to repay to the owners the premiums for the extra insurance, including extra war risk insurance premiums. But if the dangers, against the risks on which they have paid those premiums, materialise and cause loss or damage to the ship, then war risk insurers, upon payment of the relevant claim, become subrogated to the owners’ rights against the time charterers for the assumed breach of clause 2. My Lords, this result would no doubt be highly attractive to war risk insurers but the less fortunate time charterers would have paid the premiums not only for no benefit for themselves but without shedding any of the liabilities which clause 2 would, apart from clause 21, impose upon them. Of course, duplication of rights of recovery is not unknown. Indeed, it is because of such duplication that subrogation rights can be enforced.”
[191]The Charterers adopted this reasoning and said that it was applicable to the demise charterparty between the registered owners and the demise charterers Indeed, they said that the present case was a fortiori the Evia (No.2) because not only did the demise charterers pay for the cost of hull insurance but they were also named as joint assureds and, generally speaking, an insurer cannot exercise rights of subrogation to purse a claim in the name of one co-assured against another; see Arnould on Insurance 18th.ed at paragraph 31-18.[192]Cases decided after the Evia (No.2) have emphasised that the decision in that case depended upon there being a clause which, on its true construction, provided an exhaustive code of the rights and liabilities of the parties; see the Concordia Fjord [1984] 1 Lloyd’s Reports 385 and the Chemical Venture [1993] 1 Lloyd’s Reports 508.[193]In the Concordia Fjord the arbitrator, Mr. MacCrindle QC, said that he was “unaware of any principle exempting the Charterers from liability for their breaches of contract merely on the ground that they have directly or indirectly provided the funds whereby the Owners insured themselves against such damages.” Bingham J. agreed; see pp.337-338. Thus the mere fact that the charterer pays for the hull insurance is not enough to exempt him from liability for breach of his obligations under the charterparty. There has to be an intention to create an exhaustive code which determines the parties’ rights and liabilities by reference to a claim on the insurance policy.[194]If clause 12 of the demise charterparty were such a code it would apply, not just to a particular issue such as war risks as was the case in the Evia (No.2), but to all hull, war and P&I risks. The charterparty contains a clear and express safe port warranty. If clause 12 were to be construed as an exhaustive code that clause would be rendered nugatory with regard to insured risks. It would in effect exempt the demise charterer from liability for breach of the safe port warranty in exchange for paying for the hull insurance. For that to be the intention of the parties there would have to be clear words. Counsel for Gard emphasised the rule of construction that clear words are necessary before the court will hold that a contract has taken away rights or remedies which one of the parties would otherwise have had; see Gilbert-Ash v Modern Engineering [1974] AC 689. This rule of construction is usually expressed with regard to rights which a party would have at common law but it must also apply to valuable rights given by other parts of a contract. Counsel submitted that there are no such words in clause 12 of the demise charterparty. The sentences of clause 12(a) and 12(c) on which particular reliance is placed by Daiichi do not expressly remove the right to damages for breach of the safe port warranty. They merely give the demise charterer certain rights with regard to proceeds of the insurance policy for which they have paid.[195]Reference was made to the deleted clause 13 which contained an alternative insurance and repairs clause which not only provided that hull insurance would be paid for by the registered owner but also expressly stated that the registered owners and/or insurers shall not have any rights of recovery or subrogation against the demise charterer in respect of insured losses. The demise charterer chose not to be bound by clause 13. The significance of this deleted clause was the subject of submissions. It was not disputed that it was legitimate to have regard to deleted words in a printed form to construe that which remains; see the discussion in The Interpretation of Contracts 5th.ed by Lewison LJ at paragraph 3.04, in particular the authorities discussed at pp. 78-83. That discussion emphasises, however, that care must be exercised in the use which is made of deleted words.[196]Counsel for Gard said that the demise charterers had agreed not to have the benefit of the very favourable insurance and repairs regime in clause 13. Instead, it chose to be bound by the insurance and repairs regime in clause 12 which did not contain the express provision that there would be no rights of recovery or subrogation against the demise charterers. In those circumstances the true construction of clause 12, that is, the meaning it would be reasonably be expected to bear, cannot be that there would be no rights of recovery or subrogation against the demise charterers. In response counsel for Daiichi said that this argument leads to a most odd and uncommercial result, namely, that had clause 13 been adopted by the parties the demise charterers would not pay for the hull insurance and there would be no rights of recovery or subrogation against him in respect of insured losses but where clause 12 has been adopted by the parties the demise charterers pay for the hull insurance and yet there would be rights of recovery and subrogation against them. In reply Counsel for Gard said that it could not be concluded that such result was odd and uncommercial. The purpose of the express statement in clause 13 that there were to be no rights of recovery or subrogation where the owner had paid for the hull insurance policy was to make clear which party took the risk of the insurer’s insolvency. Where the registered owner procured and paid for the hull insurance policy, as in clause 13, the registered owner would have no rights of recovery against the demise charterer if the insurer proved to be insolvent. But where the demise charterers procured and paid for the hull insurance policy they remained liable for breach of the charterparty if the insurer proved to be insolvent.[197]In the light of Lord Roskill’s comments in the Evia (No.2) it is arguable that the reason why clause 13 expressly provides that there shall be no rights of recovery or subrogation against the demise charterers in respect of insured losses where the registered owner has paid for the hull insurance is that it might otherwise be thought that, because the demise charterers do not pay for the insurance, such rights of recovery and subrogation would exist. The reason why clause 12 does not make such express provision is that in circumstances where the demise charterers have paid for the hull insurance it would be expected by commercial men that there would be no rights of recovery or subrogation against the demise charterers in respect of insured losses and so there was no need to state that expressly. It is also to be noted that clause 13(b) provides that the demise charterers are to pay for the cost of P&I Insurance but, unlike clause 13(a), there is no express provision that there shall be no rights of recovery or subrogation against the demise charterers in respect of insured losses. Why does clause 13(a) make such provision (where the demise charterers do not pay for the hull insurance) but clause 13(b) makes no such provision where the demise charterers pay for the P&I Insurance ? The answer may be that commercial men regard it as obvious, and therefore unnecessary to state, that where the demise charterers pay for insurance there can be no rights of recovery or subrogation in respect of insured losses.[198]However, this approach is probably too simple. It did not appeal to Mr. MacCrindle QC in the Concordia Fjord and Bingham J. agreed with his comments. That emphasises why it is necessary to spell out of the charterparty, and in particular clause 12, an intention to codify the rights and obligations of the party where the vessel suffers damage as a result of being sent to an unsafe port. Lord Roskill was able to do that in the Evia (No.2) with regard to a clause which was restricted to war risks and dealt not only with the payment of war risks insurance but also with the owner’s right to refuse orders to go to a war risks area and with his rights to hire notwithstanding the off-hire clause. It could therefore be said that the war risks clause codified the rights and liabilities of the parties with regard to war risks. Clause 12 in the present case is not comparable. I do not consider that it codifies the rights and liabilities of the parties with regard to insured risks. It provides for the provision of insurance and who is to pay for it, for the demise charterers to be responsible for insured repairs and to reimburse themselves from the proceeds of the insurance policy, for the demise charterers to be responsible for other repairs and for the claims on a total loss to be paid to the mortgagee for distribution to the registered owner and demise charterers in accordance with the their respective interests. I do not consider that this “codifies” in the required sense the rights and liabilities of the parties with regard to breach of the safe port warranty where the casualty caused by the breach has given rise to a claim on the insurance.[199]However, what clause 12 has, which the clause in the Evia (No.2) did not have (nor the clause in the Concordia Fjord, as expressly noted by Mr. MacCrindle QC) is a provision that the owners and demise charterers were to be co-assureds, thereby bringing into play the principle that, generally, an insurer cannot exercise rights of subrogation to pursue a claim in the name of one co-assured against another. It is arguable that the provisions in clause 12 enabling the demise charterers to recoup the costs of repairs from the proceeds of the insurance and to participate in the distribution of a claim in respect of the total loss of the vessel reflect this principle.[200]In Tyco Fire and Integrated Solutions v Rolls-Royce Motor Cars [2008] 2 AER Comm 584 the true basis of this principle was discussed by Rix LJ. He concluded at paragraph 76 that the true basis of the “rule” lay in the contract been the parties. Thus the contract between the parties must be construed. The terms of a contract may provide “a highly detailed and developed code which made it completely clear that they were designed to supplant any possible liability for negligence on the part of the contractor” (see paragraph 36). Or it is possible that “the underlying contract envisages that one co-assured may be liable to another for negligence even within the sphere of the cover provided by the policy” in which case Rix LJ was “inclined to think that there is nothing in the doctrine of subrogation to prevent the insurer suing in the name of the employer to recover the insurance proceeds which the insurer has paid in the absence of any express ouster of the right of subrogation……….It is unusual for an insurer to sue his own insured to recover insurance proceeds due under his own policy, but it must be recalled that he does so in the name of and under the right of another party…..” (see paragraph 77).[201]In the present case there was an express safe port warranty by the demise charterers, there was no code of rights and obligations in clause 12 with regard to insured losses caused by a breach of the safe port warranty and there was no express ouster of the right of subrogation in clause 12. Those features of the demise charterparty suggest to me that, construing the charter as a whole, it was intended that the demise charterer would be liable to the owner for breach of the safe port warranty, notwithstanding that they were joint assured and could take the benefit of the insurance in the manner set out in clause 12.[202]I have considered the point made by Daiichi’s counsel that it would be very odd if, in circumstances where clause 13 had been adopted, a charterer who had not paid for the hull insurance could not be sued for breach of the safe port warranty, because there was an express ouster, yet, where clause 12 has been adopted a charterer who has paid for the hull insurance could be sued for breach of the safe port warranty. However, counsel for Gard’s suggestion that the ouster of a right of recovery or subrogation in clause 13 and the absence of such an ouster in clause 12 were designed to allocate responsibility for an insolvent insurer must be considered. Under clause 13 the registered owner who procures and pays for the hull insurance takes that risk but under clause 12 the demise charterers who procure and pay for the hull insurance take that risk. Neither clause mentions the event of an insurer’s insolvency but I am unable to discount the possibility that the difference between the clauses can be so explained. (It is to be noted that in Tyco Fire and Integrated Solutions v Rolls-Royce Motor Cars [2008] 2 AER Comm 584 at paragraph 79 Rix LJ referred to the risk of the insurer’s insolvency.) In these circumstances I am not persuaded that a construction which permits the demise charterers to be sued for breach of the safe port warranty should be rejected as uncommercial.[203]If the demise charterers can be liable for breach of the safe port warranty it does not follow that the registered owner can be indemnified twice, once by the demise charterers and once by the insurer. That could not have been intended. But so long as the recovery from the demise charterers returns to the insurer by way of subrogation there would be no double recovery; see Tyco Fire and Integrated Solutions v Rolls-Royce Motor Cars [2008] 2 AER Comm 584 at paragraph 78 per Rix LJ.[204]I have therefore concluded that on the true construction of the charterparty as a whole the demise charterers are liable to the registered owner in damages for breach of the safe port warranty notwithstanding that the value of the vessel (to the extent of its agreed insured value) is recoverable and has been recovered by the registered owners from the hull insurers.

Limitation

[205]The further point is that the registered owner’s claim against the demise charterers is time barred because no claim was made before 13 September 2012 when 6 years had elapsed from the demise charterers’ breach of contract in instructing the vessel to proceed to a prospectively unsafe port. However, the demise charterers were liable to registered owner for breach of the safe port warranty. That liability is a loss which the demise charterers are able to claim from Sinochart as damages for breach of the safe port warranty. Gard brought that claim as assignee of the demise charterer in 2010 and acknowledged the demise charterers’ liability to the registered owner. There was no need for the registered owner to issue proceedings against the demise charterers. The fact that the registered owner did not bring a claim against the demise charterers before September 2012 does not therefore provide Sinochart or Daiichi with a defence to Gard’s claim.

Loss of hire

[206]Counsel for the Charterers submitted that the Owners could not claim damages for the hire which was lost for the period ending with the loss of the vessel on 27 December 2006. It was said that they could not claim both the market value of the vessel and, at the same time, damages for future loss of hire. The ability of the vessel to earn hire is reflected in the value of the vessel. However, the vessel was not lost until 27 December 2006 when, notwithstanding the efforts of Nippon Salvage under LOF 2000, the vessel broke apart. Thus the hire which would have fallen due until 27 December 2006 was recoverable as damages.

Conclusion

[207]The casualty was caused by the unsafety of the port in breach of the safe port warranty. The Claimant is entitled to the sums claimed from Sinochart and Sinochart is entitled to the sums claimed from Daiichi. If discrete issues remain to be decided as between Sinochart and other parties appropriate directions can be given for their determination.

Postscript

[208]After I had completed my judgment and was preparing to send it in draft to the parties prior to handing it down formally I received a letter dated 19 July 2013 from the Third Party’s solicitors drawing my attention to a judgment of the Tokyo District Court and asking me to take certain points which it sets out into consideration. The solicitors for the Claimant have objected to this course of action citing Hollington v Hawthorn [1943] 1 KB 587 and Rogers v Hoyle [2013] EWHC 1409. They submit that the views of another court, based upon evidence before it, are inadmissible as evidence in this court and that this court must reach its decision on the basis of the evidence adduced before it.[209]The judgment of the Japanese court concerns a claim by the Japanese Government against the registered owners of the vessel for damages to the breakwater on the grounds of negligent navigation. I am told that the claim succeeded but that the decision is under appeal. The Third Party does not allege that any issue estoppel arises from the decision but identifies two matters, as explained in their solicitors’ further letter to me dated 22 July 2013, which I should take into account. The first is the nature of the owners’ case in the Japanese proceedings which, it is said, did not include any suggestion that the master maintained hard rudder for prolonged periods because of fear of being driven onto the breakwater after 1506 or of being driven onto the shore after 1508. The second is that Captain Sueda, the chief pilot, gave evidence that the sustained use of hard rudder was contrary to all ordinary principles of navigation for Capesize vessels and maintained his evidence “in the teeth of cross-examination”.[210]In response the Claimants said that the manner in which the owners put their case in Japan could have been adduced in evidence at the trial and that it is now too late to do so. As to Captain Sueda they say that the Third Party has no leave to adduce his evidence as expert evidence. Instead, they obtained leave to rely upon the expert opinion of Captain Barber. He, not Captain Sueda, was cross-examined in this court.[211]I accept that it is very late in the day for the Third Party to seek to adduce evidence of the manner in which the owners put their case in Japan but I am not persuaded that the Third Party should be shut out from doing so. On the basis that the judgment sets out the way in which the owners put their case in Japan I decided to look at the judgment for that purpose. However, I do not consider that it is appropriate to look at the judgment for the purpose of examining the opinion of Captain Sueda on navigational matters. It would be unfair to do so in circumstances where the Third Party chose to rely upon the opinion of Captain Barber who, together with Captain Gains, prepared a memorandum on navigational matters and was cross-examined on the matters which remained in dispute. There was a statement in writing from Captain Sueda before this court. It dealt largely with factual matters.[212]Having read the material passage (which appears to be at p.49, at the commencement of the section of the judgment to which I was referred, between pages 49 and 57) it is apparent that the owners placed reliance on racing of the propeller and the effect of “pyramidal” waves in support of their case. However, the full account of the owners’ case is as follows:
“Their assertion is that the bow of the vessel swung to the starboard side at c.1502, after which the port side of the vessel at the bow was directly exposed to a wind of force 12, as a result of which the bow was forced to starboard and the rudder was set hard to port so as to avoid the vessel coming any closer to the South Breakwater; after it had passed the breakwater, waves increased in height under the influence of pyramidal waves, the speed fell, the hull began to pitch and the propellers started racing, whereupon, at 1509, the vessel became uncontrollable, meaning that the accident was caused by the fact that the weather conditions had attained a severity far in excess of the operational capacity of the vessel.”
[213]There are perhaps differences in the detail or emphasis of the cases advanced in Japan and in this court but the thrust of the case is in broad terms similar to that advanced before this court. I am not persuaded that the differences of detail or emphasis are such that I should revise the views I have reached as to the navigation of the vessel based as they are on the extensive factual and expert evidence adduced by the parties and investigated at considerable length with Captain Dong, Captain Gains and Captain Barber, none of whom gave evidence in Japan.

Cited in 1 later judgment