Carisbrooke Shipping CV5 v Bird Port Ltd, Court of Appeal - Admiralty Division, September 13, 2005, [2005] EWHC 1974 (Admlty)

Resolution Date:September 13, 2005
Issuing Organization:Admiralty Division
Actores:Carisbrooke Shipping CV5 v Bird Port Ltd

Case No: 2004 Folio 772Neutral Citation Number: [2005] EWHC 1974 (Admlty)IN THE HIGH COURT OF JUSTICEQUEENS BENCH DIVISIONADMIRALTY COURTRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 13 September 2005Before :Mr.Nigel Teare QC- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -MV CHARLOTTE C- - - - - - - - - - - - - - - - - - - - -Richard Waller (instructed by Clyde and Co.) for the ClaimantStewart Buckingham (instructed by Ince and Co.) for the DefendantHearing dates : 7-8,11-13 and 15 July 2005- - - - - - - - - - - - - - - - - - - - -JudgmentMr Nigel Teare QC:1. This is an action for damages by the Claimant, the owner of the motor vessel CHARLOTTE C, against the Defendant, the owner and operator of Bird Port which is in Newport. The claim is brought under the Occupiers' Liability Act 1957 and in negligence. It is said that whilst berthed at Bird Port between 8 and 12 May 2003 the vessel sat upon a steel coil causing indentations and fractures in her bottom shell plating and buckling of her internals. The Claimant seeks to recover as damages for breach of the Defendant's duty of care the costs of repairing the damage and loss of hire initially in the sum of £168,485. The Defendant denies liability and essentially puts the Claimant to proof of its claim. 2. In essence the issue between the parties can be shortly stated. What caused the vessel to suffer damage ? Was the damage caused at Bird Port or at another port ? Was the cause of the damage a steel coil on the dock bottom at Bird Port ? In order to resolve this apparently simple dispute oral evidence was adduced from eleven factual witnesses and from two expert surveyors. At the end of 6 days of evidence the Claimant and Defendant submitted very detailed written submissions. The parties may once have sought a solution to their dispute at a cost which was proportionate to the amount at issue. But those attempts had clearly come to an end sometime before the trial. 3. Whether or not the Claimant has proved on the balance of probabilities that the damage was caused by a steel coil on the bottom of the berth at Bird Port will necessarily depend upon a consideration of the totality of the evidence though some categories of evidence may be more cogent than others. The essence of the Claimant's case is that the evidence as to the nature of the damage, as to the behaviour of the vessel at Bird Port and as to the time when leakages were detected on board is cogent and convincing proof that on the balance of probabilities the damage was caused by a steel coil on the bottom of the berth at Bird Port. The Claimant has no direct evidence that a particular coil had fallen into the berth or that a coil had been removed from the berth after CHARLOTTE C had left the berth. However, it is said that it can safely be inferred from the above evidence that the damage must have been caused by a steel coil which had fallen onto the bottom of the berth before CHARLOTTE C arrived at Bird Port and was removed after CHARLOTTE C had left Bird Port. 4. If the Claimant is unable to discharge the burden of proof upon it then the claim fails; see The Popi M [1985] 1 WLR 948.5. If the Court concludes, on the balance of probabilities, that the damage was caused by a steel coil on the bottom of the berth at Bird Port it is then necessary to decide whether the servants or agents of the Defendant were negligent to have permitted a steel coil to lie on the bottom of the berth. Finally, there are several issues to be resolved concerning the quantum of the Claimant's claim.6. There were several categories of evidence and associated topics which it was necessary to consider. They are as follows:(i) The vessel (paragraphs 7-8);(ii) Bird Port (paragraphs 9-17);(iii) The nature of the damage (paragraphs 18-23);(iv) The perceived behaviour of the vessel and the discovery of leakages (paragraphs 24-41); (v) The actual behaviour of the vessel (paragraphs 42-66); (vi) The damage and the expert surveying evidence (paragraphs 67-84); (vii) Discussion and conclusions with regard to the expert surveying evidence (paragraphs 85-95);(viii) The possibility of a steel coil finding its way into the bottom of the berth (paragraphs 96-111);(ix) Removal of the coil (paragraphs 112-124); (x) Conclusion as to the cause of the damage (paragraphs 125-131);(xi) Damage in way of frames 11 and 12 (paragraph 132); (xii) Negligence (paragraphs 133-141);(xiii) Quantum (paragraphs 142-171);(xiv) Overall conclusion (paragraph 172).The vessel 7. CHARLOTTE C is a single-decked multi-purpose geared general cargo vessel of 2,999 grt and 1,714 nrt built in 2000. She is 94.95 metres in length overall, 13.17 metres in breadth and has a summer draft of 6.191 metres. She has a single hold forward of the accommodation and machinery space and is double skinned. Her double bottom is divided transversally into three tanks. The wing tanks are for ballast water as are the forward centre tanks. The three aft centre tanks are for fuel oil. Double bottom ballast tanks nos. 2 and 4 starboard run from frame 24 to frame 86. The transverse bulkhead between the tanks is at frame 52. Double bottom fuel oil tank no.3 centre is adjacent to those tanks running from frame 46 to frame 62. 8. Prior to arrival off Bird Port on 6 May 2003 CHARLOTTE C had loaded and discharged cargo at Haifa and St.Malo. The ballast tanks are routinely sounded and stripped after deballsating. No ingress of water into the ballast tanks (or into the fuel tanks) had been reported prior to arrival at Bird Port and no unusual trim had been observed at sea. Bird Port9. The berth at Bird Port is within an enclosed dock which was originally constructed as a dry dock. The dock is 225m. in length and 19.8m. wide. It has a flat reinforced concrete bottom. Photographs of the dock bottom indicated that the dock bottom sloped up from the gates inwards. However, the gradient was unknown. The dock gates, instead of being used to keep water out, are used to keep water in. However, they leak with the result that water can enter the dock during the flood tide and can escape during the ebb tide. Just inside the gates is a sill which is about 0.5m. in height above the dock bottom. On one of the gates is a depth gauge which records the depth of water above the sill. 10. Vessels are berthed bow in, starboard side to. The berth is known as a NAABSA berth, that is, ``not always afloat but safely aground''. Thus it is expected that vessels will or may take the ground at low water. However, the bottom of the berth is typically covered with a layer of silt or mud which comes in with the tide. The mud was described as gelatinous and not of a solid composition like compacted river beds. From time to time, and when operational considerations permitted, dredging operations were carried out in the dock. 11. Steel coils, amongst other products, are loaded and discharged at Bird Port. Indeed, between 7 February and 20 May 2003 14 vessels discharged coils and 22 vessels loaded coils at Bird Port. The steel coils imported in March and April 2003 varied in width from 0.72m. to over 2m., although over 99% exceeded 0.9m. in width. The width of the coil represented the height of the coil in the event that the coil lay on its side. There was no evidence of the width of coils exported. Depth of mud or silt12. On 19 June 2005 the mud or silt was observed by the parties' surveyors to have reached the level of the first ledge at the side of the dock which was 1.7m. above the dock bottom. It was therefore concluded that the mud or silt was 1.7m. deep. However, this was the depth in June 2005 rather than between 8 and 12 May 2003 when CHARLOTTE C was at Bird Port. 13. In a report dated 11 April 2003 by C F Spencer and Co. Ltd., which was issued following an inspection by Mr.Spencer and Mr.Robert Watson, the dock is described as retaining a considerable volume of mud, approximately 1.5 metres. On 12,13 and 14 May 2003 Mr.Watson visited Bird Port following the departure of CHARLOTTE C from Bird Port on 12 May 2003. In his report dated 29 May 2003 Mr.Watson described the mud or silt on 13 May as being approximately 1 metre in depth at its shallowest point. Mr.Watson recalled in his oral evidence, which was given by video link from the United States, that the mud was a little less than half a metre or one to one and a half feet below the level of the first ledge. Given the height of that ledge (1.7m.) that would indicate that the depth of the mud or silt was about 1.2 - 1.4m. However, in his report he also noted that on 12 May mud was being grabbed and deposited in the area where CHARLOTTE C had been berthed. Thus the position observed on 13 May was not identical to that which prevailed prior to 12 May. A month later, on 13 June 2003, Mr.Williams of LGSA Marine reported that the depth of mud in way of the operational part of the dock ``is expected to be within half to approximately 1 metre depth.'' Mr.Gibson of Brookes Bell who attended on that day reported that the depth of silt where CHARLOTTE C had been berthed appeared to be approximately 1m. deep. 14. The depth of the mud or silt between 8 and 12 May 2003 cannot be known for certain. On the evidence which was adduced before me I find that the depth was probably between 1 and 1.5m. It was said by Mr.Allen, the General Manager of Bird Port, that for a period of 10-11 days prior to the arrival of CHARLOTTE C there had been no dredging. This suggests that the depth was probably closer to the top end of the likely range than the bottom end. Tides and depth of water in the dock15. During the period 8-10 May 2003 the tide level at high water was falling. From 11 May the tide level at high water was increasing. Allowing for the facts that the height of the dock sill was 5.2m. above chart datum and that the sill was 0.5m. above the dock bottom (and assuming that water was able to flow in and out of the dock unimpeded) the...

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