Vinmar International Ltd. v Theresa Navigation SA, Court of Appeal - Commercial Court, March 09, 2001, [2001] EWHC 497 (Comm)
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Vinmar International Ltd. v Theresa Navigation SA, Court of Appeal - Commercial Court, March 09, 2001, [2001] EWHC 497 (Comm)
Case No: 1997 Folio 1721
IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONCOMMERCIAL COURTRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 9th March 2001B e f o r e:THE HONOURABLE MR JUSTICE TOMLINSONBetween- - - - - - - - - - - - - - - - - - - - -(1) VINMAR INTERNATIONAL LIMITED(2) PMI TRADING LIMITEDClaimant-and-THERESA NAVIGATION S.A.Defendant- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Christopher Hancock QC and Miss Karen Maxwell (instructed by Messrs Elborne Mitchell for the Claimants)Mr Jeremy Cooke QC and Mr Robert Bright (instructed by Messrs Richards Butler for the Defendants)- - - - - - - - - - - - - - - - - - - - -JUDGMENTJUDGMENT: APPROVED BY THE COURT FOR HANDINGDOWN (SUBJECT TO EDITORIAL CORRECTIONS)Mr Justice Tomlinson :Introduction1. This is a damage to cargo claim of a somewhat unusual nature. The Defendant shipowners admit that their vessel was unfit to carry the cargo in question, ethylene, the owners having failed in their duty to exercise due diligence to clean or purge the vessel's tanks and lines of a previous cargo of butadiene. Their breach must have been particularly gross since, according to the owners' expert cargo surveyor, the extent of the contamination observed during sampling at the initial stage of loading is likely to have exceeded anything which the attending independent surveyor then acting for the cargo interest had previously experienced. However the owners seek to pray in aid the grossness of the contamination then observed in support of their contention that the bulk of the loss sustained by cargo interests is to be regarded as having been caused by their own decision to continue loading. That was, say the Defendants, a decision for which there was no rational basis and which they even characterise as reckless. Foolhardly is another expression employed to describe the cargo interests' decision. That decision was, say the Defendants, so aberrant that it must be regarded as breaking the causal link between the owners' admitted breach and the ensuing contamination of the balance of the ethylene parcel thereafter loaded.2. The court has had to resolve the questions which arise in this case without the benefit of any oral evidence from any of those who were or should have been most immediately involved in the relevant activities and decisions. The cargo interests called one witness whose evidence was helpful but at one remove. They did not call those who were present at the loading operation and whose recommendation it was to continue. The shipowners called no oral factual evidence, in particular they did not call the Master who might perhaps have been expected to intervene if it was so obviously wrong to continue loading. They did however tender in evidence a written statement from the Master in which he explained that when he was told that samples taken and analysed at the initial stage of loading showed that the cargo was contaminated he did not believe that that was so. If it was contaminated he thought that the most likely explanation was that there had been a small slug in a shore line at the start of loading and that the loading of contaminated cargo would not continue. Any contamination would thus be diluted out. However the Master for his part did not believe that the analysis of the samples truly showed the cargo to be out of specification. He thought that the cargo interests were playing a trick on him so as to justify putting his vessel off the berth in order to load another vessel ahead of his own. Even more than four years after the even...See the full content of this document
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