'Krysia' Maritime Inc v Intership Ltd, Court of Appeal - Admiralty Division, August 01, 2008, [2008] 2 Lloyd's Rep 707,[2008] EWHC 1880 (Admlty),[2008] 2 CLC 395

Resolution Date:August 01, 2008
Issuing Organization:Admiralty Division
Actores:'Krysia' Maritime Inc v Intership Ltd
 
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Neutral Citation Number: [2008] EWHC 1880 (Admlty)

Case No: 2007-1581

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMIRALTY COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/08/2008

Before :

THE HONOURABLE MR JUSTICE AIKENS

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Between :

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Mr Chirag Karia (instructed by Davies Johnson & Co, Solicitors, Plymouth) for the Claimants

Mr Stewart Buckingham (instructed by Holman Fenwick Willan, Solicitors, London) for the Defendants

Hearing dates: 23rd July 2008

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Judgment

Mr Justice Aikens :

  1. In this action the claimants, as Owners of the fast support and intervention vessel ``KRYSIA'', claimed damages from the defendants, the Owners of the dumb barge ``EUROPA''. The claim arose out of an incident on 30th September 2006, when the number 1 port outer propeller of ``KRYSIA'' was fouled by a rope and wire attached to the aft end of a Yokohama fender which was secured forward on the portside of ``EUROPA''.

  2. Following a hearing on 24th, 25th and 26th June 2008, when I sat with Captain D P Richards, Elder Brother of Trinity House, as Nautical Assessor, I handed down judgment on 1st July 2008. I held that the fouling of the propeller was caused by negligence in the management of ``EUROPA''. However, I also concluded (applying section 187(1) and (2) of the Merchant Shipping Act 1995, which replaced section 1 of the Maritime Conventions Act 1911), that the fouling was also caused by fault in the navigation of ``KRYSIA''. I concluded that ``EUROPA'' was 70% to blame and ``KRYSIA'' 30% to blame. I apportioned liability for any damage and loss to ``KRYSIA'' resulting from this fouling accordingly,

  3. The trial did not deal with issues of damages. The claimants allege that this fouling caused substantial damage to ``KRYSIA'''s propeller, gearbox and line shaft resulting in losses of approximately US$ 560,000. Issues of damages will be dealt with at a future hearing.

  4. When judgment was handed down, Mr Stewart Buckingham, appearing for the defendants, indicated that he wished to submit that the defendants should only have to pay a proportion of the claimants' costs. He wished to argue that this would be in accord with longstanding practice in Admiralty Court cases, which should be continued now, after the advent of the CPR. Mr Buckingham invited me to consider a number of cases. As this submission seemed to me to involve a point of principle, I fixed a separate date to hear argument. I heard the submissions of counsel in the afternoon of 23rd July 2008. At the end of the afternoon there was insufficient time to give judgment, which I am now handing down.

  5. Since this judgment was prepared, I have been informed by the parties that they have settled the issue of costs of the liability hearing. However, as I have dealt with the point of principle raised by Mr Buckingham, I asked the parties if they would agree to judgment being handed down in any event. They have done so.

    The CPR

  6. Both parties agree, as is obvious, that the starting point for any discussion on costs must be CPR Part 44.3. The relevant parts of this provide:

    ``44.3

    (1) The court has discretion as to -

    (a) whether costs are payable by one party to another;

    (b) the amount of those costs; and

    (c) when they are to be paid.

    (2) If the court decides to make an order about costs -

    (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

    (b) the court may make a different order.''

    ...........

    (4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including -

    (a) the conduct of all the parties;

    (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

    (c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.

    ..............

    (5) The conduct of the parties includes -

    (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol;

    (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

    (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and

    (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

    (6) The orders which the court may make under this rule include an order that a party must pay -

    (a) a proportion of another party's costs;

    (b) a stated amount in respect of another party's costs;

    (c) costs from or until a certain date only;

    (d) costs incurred before proceedings have begun;

    (e) costs relating to particular steps taken in the...

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