Humber Work Boats Ltd v 'Selby Paradigm', Owners of MV & Ors, Court of Appeal - Admiralty Division, July 23, 2004, [2004] EWHC 1804 (Admlty)

Resolution Date:July 23, 2004
Issuing Organization:Admiralty Division
Actores:Humber Work Boats Ltd v 'Selby Paradigm', Owners of MV & Ors
 
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Neutral Citation Number: [2004] EWHC 1804 (Admlty)

Case No: 2001 FOLIO NO 1338

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMIRALTY COURT

Admiralty Action in rem against:

The Ship or Vessel ``Selby Paradigm''

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23rd July 2004

Before :

THE HONOURABLE MR JUSTICE DAVID STEEL

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Between :

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Michael Davey (instructed by Andrew M Jackson) for the Claimants

Timothy Hill (instructed by Richards Butler) for the Intended Defendants

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Judgment

Mr Justice David Steel :

Introduction

  1. In this application the intended defendants seek the following relief:

    a) permission to intervene in this action and be joined as second and third defendants pursuant to CPR Part 19.2(2);

    b) the judgment in default obtained by the claimants on 23 May 2003 be set aside pursuant to CPR Part 13.3(1) or CPR Part 61.9(5);

    c) that the intended defendants should be permitted to defend this claim (without prejudice to their denial of liability under the relevant contract of insurance between themselves and the first defendant).

    The background

  2. The background to this application is most unusual. The first defendant was the owner of a barge called Selby Paradigm. She was a barge built in 1974, some 43.49 metres in length with a gross tonnage of 340.55 tonnes. The barge had been modified and fitted with twelve cargo tanks for the carriage of edible oils.

  3. It appears that during a cargo operation at the Unitrition berth on the River Ouse at Selby on 30 July 2001, the barge took the ground. Some three hours later, while subsequently proceeding down the River Ouse on passage to the Blacktoff jetty, those on board noticed the barge had developed a port list, which was initially controlled with pumps. The barge subsequently proceeded to the Anglia Oils Berth at Hull where the cargo was discharged on 31 July 2001.

  4. The barge then proceeded to a tidal berth at a repairers' premises on the River Hull where internal examination in way of the port forward wing ballast tank revealed that the bottom plating was set up and holed locally over a diameter of approximately 75mm. Temporary repairs were carried out in that the plating was hammered down to close up the fracture and a cement box was fitted by the crew.

  5. The barge subsequently loaded 489.120 metric tonnes of maize oil at the Cargill Premises on the River Hull between 0940 and 1600 on 2 August 2001. The barge sailed at about 1620 that day bound for No. 7 Quay in the King George Dock, Hull in order to discharge the cargo to the Intermol tank storage facilities nearby the following day.

  6. Apparently no problems were encountered during the passage, the barge berthing portside alongside at about 1845 on 2 August 2001. The barge was left unattended overnight. However, at about 0340 on 3 August, the ABP Dock master advised the master of the barge that it was sinking.

  7. The cause of the casualty appears to have been the failure of the temporary cement box fitted on 1 August 2001. It would appear that no securing of the cement box had been provided. This failure caused an uncontrolled ingress of water into the portside wing inter-connected ballast tanks.

  8. The vessel had sunk in 35ft of water. During the course of the sinking and thereafter, she leaked her cargo of oil. The barge was subsequently re-floated by the claimants during the evening of 5 August 2001. One of the potential issues in the case is the identification of the party who requested the wreck-raising exercise.

    The insurance cover

  9. The intended defendants are the underwriters of the barge and of its owners. The barge was one of a number of vessels and barges belonging to or operated by Unititem Ltd and insured pursuant to a policy of insurance for Hull Port Risks for the period 23 May 2001 for 12 months. The insurance was affected on the Institute Time Clauses Hull Port Risk (including Limited Navigation).

  10. The underwriters avoided the policy for non-disclosure. The basis for this was that the barge had undergone a pre-purchase condition survey during which a number of defects in the barge were identified, including significant areas of plate thinning. The work required to bring the barge into a seaworthy condition was not done after purchase and prior to her being traded. The underwriters were not informed of the defects or that the necessary work had not been undertaken.

  11. The underwriters also contend that the vessel was traded in an unseaworthy state with the privity of the first defendants contrary to Section 39(5) of the Marine Insurance Act 1906. Not only did the first defendants know, it is contended, that the necessary repairs had not been carried out as set out above, but also they knew that the ballast tanks had been re-configured leaving the barge in an unseaworthy state. As regards this latter point, various modifications had been made to the vessel with the result that her wing ballast tanks were left in an unseaworthy condition with dividing bulkheads breached and with non return valves seized or bypassed and inadequate bilge or ballast pumping arrangements in place.

  12. Finally, the underwriters contend that the crew...

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