High Court · Decided 15 April 2003

Ever Lucky Shipping Co Ltd v Sunlight Mercantile Pte Ltd and Another

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[2003] SGHC 80Case no. Suit 1266/2001

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Grounds of decision

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Introduction
[1] On December 24, 1999, the main engine of the vessel ‘Pep Nautic’ broke down while the vessel was sailing off the coast of southwest Africa on a voyage to the port of Tuticorin, India. The vessel was then laden with a cargo of logs. The owners of the vessel, the plaintiffs in this action, Ever Lucky Shipping Company Limited (‘the shipowners’), subsequently arranged for the vessel to be towed first to Luanda, then to Cape Town, and finally to Tuticorin, where the cargo was discharged and delivered.
Background
[3] The vessel was built as a bulk log carrier in Spain in 1977. It was a small vessel with a gross registered tonnage of 8,980 tonnes. The main engine was a Stork Werkspoor TM410L 12 cylinder engine. It had a brake horsepower of 8,500 and was capable of working at a maximum load of 570 rpm. On completion of construction, the vessel was classed with Lloyds Register of Shipping (‘Lloyds’).
[4] The vessel changed ownership several times over the years. In January 1994, it was acquired by its third owner, Greta Shipping Co Ltd, and renamed ‘Alexandros P’. The vessel was then sailing under the Cypriot flag and was still classed with Lloyds. No change of classification society or flag took place on the change of ownership.
[5] By April 1999, the vessel was due to undergo the five-yearly special classification surveys for both hull and machinery mandated by Lloyds for maintenance of its classification status. These, however, were not done at that time and Lloyds granted Greta Shipping permission to postpone the surveys to July 1999. In May 1999, the vessel arrived at Piraeus and was put up for sale.
[6] At about that time, Crossworld Shipping Ltd (‘Crossworld’), a company that is incorporated in the United Emirates and operates several vessels on behalf of Alpha Emirates, a Dubai company, was looking for a bulk log carrier for Alpha Emirates. They were informed about the availability of the vessel and sent a surveyor to inspect it. The surveyor reported that the vessel was in a good and satisfactory condition and much better than could have been expected for a vessel of its age (22 years) and type. Unfortunately, before Crossworld’s negotiations could bear fruit, the vessel was sold to another company, SMC Ltd, incorporated in Liberia but owned by Syrian parties.
[7] SMC Ltd took delivery of the vessel around the end of May 1999. They re-flagged it under the Cambodian flag and changed its name to ‘Haj Ibrahim’. A Syrian crew was put on board. The vessel was taken out of Lloyds and classed with the International Naval Surveys Bureau (‘INSB’), which at the time was not an internationally recognised classification society. INSB became a member of the International Association of Technical Survey and Classification Institutions in May 2001.
[8] On 20 September 1999, the INSB issued an attestation confirming that:
(a) commencement of special hull/machinery surveys for the vessel had been carried out from 4 to 12 June 1999 at Istanbul, Turkey, and
(b) on satisfactory completion of these surveys the vessel would be supplied with full term class certificates with five years validity.
[9] Under the ownership of SMC, the vessel undertook two voyages. The first was to Novorossisk in the Black Sea back to Damietta, Egypt, and the second was from Turkey to Lagos, West Africa.
[10] In the meantime, Alpha Emirates had maintained their interest in purchasing the vessel and Crossworld continued to watch its movements. Crossworld then negotiated with SMC for the purchase of the vessel. A second survey of the vessel was arranged with SMC and was conducted on 27 June 1999 at Damietta, Egypt. Two representatives from Crossworld, one of whom was their managing director, Mr R Srinivasan, boarded the vessel for inspection. Mr Srinivasan was satisfied from his inspection of the vessel and his interviews with selected crewmen that it was a well-maintained vessel and in good condition.
[11] SMC eventually agreed to sell the vessel. The shipowners were incorporated in St Vincent and the Grenadines for the purpose of becoming the registered owner of the vessel. SMC wanted to effect delivery in West Africa as they had already fixed a voyage for the vessel from the Ukraine to Lagos. In anticipation of such delivery, the shipowners entered into a contract to carry West African round logs from three ports in West Africa to Tuticorin in India.
[12] The vessel arrived in Port Owendo, Gabon on 23 September 1999. It was physically delivered to the shipowners the next day. The shipowners changed the vessel’s name to ‘Pep Nautic’ and its flag to that of St. Vincent and the Grenadines. They decided, however, to maintain its class with INSB and Mr Srinivasan therefore asked INSB to survey the vessel at Gabon. INSB sent one Mr I.A. Hashmi to conduct the survey and he stayed on board the vessel from 24 September to 29 September for this purpose.
[13] The shipowners had employed one Mr P.K. Chandran as chief engineer of the vessel. Mr Chandran went on board the vessel on 24 September together with Mr Hashmi and Mr Srinivasan and the rest of the new crew. Mr Chandran took over from the outgoing chief engineer who reported to him in broken English that everything was fine with the vessel and that his crew had not encountered any problems with the vessel. Mr Chandran found the overall condition of the engine room to be satisfactory. As the outgoing crewmen were all Syrian nationals who could not converse in English, there was a communication barrier between the two crews and, as a result, no inventory list was provided by the outgoing crew.
[14] On taking over the vessel, Mr Chandran ensured that there would be sufficient spares on board for its requirements. He also changed the lube oil of the main engine and generators. On the advice of Mr Hashmi, the chief engineer and crew carried out the following maintenance work on the engine equipment:
(1) the main engine units nos. 3 and 5 were overhauled;
(2) the oily bilge water separator was examined and tested;
(3) the main and emergency steering gear were examined and tested; and
(4) the generators were examined in idling mode and on load as well.
Apart from supervising the overhaul of the main engine units 3 and 5 by the crew, Mr Hashmi also checked the crankcases, pistons, connecting rods, bottom end bearing bolts, crankpins and push rods of these two units and found them to be in satisfactory condition. Engine trials were conducted after the overhaul and whilst the vessel was at anchorage.
[15] Mr Hashmi concluded that the vessel was seaworthy. Accordingly, on 28 September 1999, INSB issued their class certificate and all other statutory certificates for the vessel without any recommendations.
[16] The vessel commenced loading of cargo at Port Owendo on 28 September 1999. Three of the derricks then broke down and the port authorities instructed the vessel to leave the port, repair the derricks and then return to load the rest of the cargo. The vessel arrived at Port Gentil on 19 October. Loading at Port Gentil was completed without delay. Thereafter, the vessel sailed to Bata, Equatorial Guinea, arrived there on 23 October and loaded cargo. The vessel arrived back at Port Owendo on 31 October. Due to congestion, however, it berthed only on 22 November. Loading was completed on 26 November.
[17] In total, at the three ports, the vessel took on board 2212 logs, measuring slightly over 10,000 cubic metres, for carriage to Tuticorin. Twenty-one bills of lading were subsequently issued by the shipowners acknowledging receipt of the cargo. The bills of lading specifically incorporated the Hague Rules 1924. Most of the logs were stowed in the holds but some 430 logs were loaded on deck as noted on the relevant bills of lading.
[18] While the vessel was at Port Owendo, the crew became hostile to the master because of the death of a sick crewman. The master resigned and a new master arrived on the vessel on 25 November. As the vessel was about to sail, the Gabon police came on board and arrested the outgoing master and second officer and ordered the vessel not to sail until clearance was given. Clearance arrived on 30 November but, just prior to sailing, the master found eight stowaways on board. Further delays ensued and the vessel was only able to proceed to Port Gentil some days later. The stowaways were disembarked from the vessel at Port Gentil on around 13 December. The vessel sailed from Port Gentil on 18 December on the first leg of the voyage to Tuticorin.
[19] Due to the unexpected delays in Port Gentil and Port Owendo, the provisions on board the vessel were insufficient to last until it arrived at Durban, which was intended to be the next port of call. The master was therefore instructed to proceed to Cape Town that was the nearer port in order to take on bunkers, provisions and fresh water.
[20] According to the chief engineer, Mr Krishnan, on route to Cape Town the vessel encountered reduced speed in comparison to its design factor because of the fact that it had been at anchorage for an extensive period at Port Owendo. This had caused the ship’s hull to be subjected to fouling by seaweed and barnacles over and above the ageing factor of the vessel. Also, on route to Cape Town, he had to stop the vessel on 22 and 23 December to effect repairs because of generator failures such as ‘cooling water pipeline burst and water condensation in the fuel oil service tank’.
[21] On 24 December, at about 0410 hours, the incident that led to this action occurred. The chief engineer stated that what had happened was that a main engine crankcase ‘explosion’ took place. Prior to this explosion, all systems were operating normally. The explosion was instantaneous and occurred without any warning or indication. There was no unusual or abnormal vibration or sound before the incident.
[22] After the incident, the engine was inoperable and the vessel was adrift. The chief engineer inspected the damage caused by the explosion. His Breakdown Report described it as follows:
Item no. 4 was, in the shipowners’ view, the most significant item of damage. What the description given meant was that the no. 1 connecting rod bottom end bearing bolt in the main engine had sheared and blown through the starboard crankcase door, piercing through it.
[23] Crossworld then arranged for a tugboat to tow the vessel to the nearest port, Port Luanda, in Angola. The vessel arrived at the inner anchorage of Port Luanda on the morning of 28 December 1999.
The cause of the initial damage to No. 1 crankpin and No. 1 portside unit can reasonably be attributed to failure of the lower connecting rod bearing bolt, however the reason for the failure will require that the bolt be examined metallurgically to determine the nature of the failure. The cause of the general failure of the main bearings can only be determined when the engine has been dismantled however, damage to main bearings is usually associated with loss or partial loss of lubricating oil pressure. A sample of the lubricating oil has been taken and retained on board for analysis at the vessel’s repair port.
[25] Mr Srinivasan made the necessary arrangements for towage. On 20 February the crew arrested the vessel for unpaid wages. Mr Srinivasan was able to persuade the crew to withdraw their action on 23 February and the tugboat arrived at about the same time. The vessel departed for Cape Town under tow on 24 February. Shortly afterwards, the shipowners declared general average.
[26] The vessel arrived at Cape Town on 3 March. The original intention had been to effect repairs to the engine at that port. According to Mr Srinivasan, however, problems were encountered in obtaining a repair berth for the vessel and unreasonable demands were made by the port authorities for the provision of such a berth. As a result of the difficulties encountered, the vessel remained in the anchorage and no repairs were undertaken.
[27] The eventual decision taken by the shipowners was to tow the vessel to the destination port of Tuticorin directly from Cape Town. They were concerned that any other port in South Africa would take a position similar to that of the Cape Town Port Authority and deny entry to the vessel. Mr Srinivasan made further towage arrangements and the vessel left Cape Town under tow on 24 March. The day before its departure, a surveyor representing the cargo interests, one Mr Geoffrey Needham, went on board the vessel and conducted a short survey. Around this time, negotiations took place between the shipowners and the cargo interests as a result of which a general average bond was provided by the first defendants and the general average guarantee was provided by the second defendants.
The action
[29] This action was commenced in October 2001. In the statement of claim and in support of the claim for general average contribution, the shipowners pleaded the occurrence of the main engine crankcase explosion on 24 December 1999, the stoppage of the main engine, the drifting of the vessel and its subsequent towage to Luanda, Cape Town and Tuticorin where the cargo was delivered. In saving the vessel and its cargo from common danger as set out aforesaid, the vessel incurred general average loss and expenditure including towage expenses totalling US$910,288.78 of which US$746,967.18 was attributable to cargo under the York Antwerp Rules 1974 and/or the York Antwerp Rules 1994. The sum of US$746,987.18 was claimed as general average contribution or, alternatively, damages.
[30] The defendants filed both a defence and a counterclaim for damage to cargo. The counterclaim was, however, withdrawn in the course of the trial. The defence was amended several times and took its final form in July 2002, just after the trial commenced. The main points of the defence are as follows. The casualty caused by the main engine crankcase explosion was admitted. It was also admitted that a general average adjustment prepared by M/s Richards Hogg Lindley dated 28 February 2001 was delivered to the defendants. It was denied, however, that any extraordinary sacrifice or expenditure was intentionally and reasonably incurred for the common safety for the purpose of preserving the ship and cargo from peril. The meat of the defence was the assertion that, in breach of contract, the shipowners failed before and at the beginning of the voyage to exercise due diligence to make the vessel seaworthy and, further, that the vessel was not seaworthy at the start of the voyage. Particulars of unseaworthiness and failure to exercise due diligence were given. Insofar as the cargo loaded on deck was concerned, the defendants pleaded that the shipowners in breach of their implied undertaking had failed to, before and at the beginning of the voyage, make the vessel seaworthy and that the main engine was liable to and did seize up during the voyage.
[31] In the reply filed by the shipowners, they denied that the vessel was unseaworthy or that they were in breach of contract. They also made a positive averment that they had exercised due diligence before and at the beginning of the voyage to make the vessel seaworthy. The shipowners also pleaded in the alternative that the main engine crankcase explosion was caused by a latent defect which was not discoverable by the exercise of due diligence on their part.
The issues
[32] Rule A of the York Antwerp Rules 1974 defines a general average act as follows:
There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.
The rights to contribution are provided under Rule D:
Rights to contribution in general average shall not be affected, though the event which gave rise to the sacrifice or expenditure may have been due to the fault of one of the parties to the adventure, but this shall not prejudice any remedies or defences which may be open against or to that party in respect of such fault.
[33] From their submissions, it is clear that the defendants are not seriously disputing that the shipowners incurred extraordinary expenditure for the common safety for the purpose of preserving from peril the vessel and its cargo of round logs which were involved in a common maritime adventure. There are some disputes over the reasonableness of the expenditure but the main dispute is whether the shipowners have, in the light of Rule D, the right to claim a contribution towards that expenditure from the cargo interests.
[34] The shipowners agree that, under Rule D, if the general average sacrifice resulted from their fault, that would give the defendants a cause of action against the shipowners and the shipowners would lose their right to contribution. The general average adjustment carried out by M/s Richards Hogg Lindley would have, as explained in General Average Law and Practice (1997 Ed, at p 66) by F D Rose, adjusted the rights and liabilities to contribution independently of the fault of the parties to the common adventure. As Rose goes on to explain, however, if the necessity for the general average (in this case the damage to the main engine) has arisen from the fault of one of the parties (in this case the shipowners) and that fault is actionable at the suit of another party (in this case the defendant cargo owners), the rights, remedies and defences between the two parties are preserved; in particular, the party not at fault is prima facie not obliged to pay contribution to the party at fault.
[35] The ‘fault’ that has to be established by the defendants to escape from general average liability has been described as a legal wrong that is actionable as between parties at the time when the general average sacrifice or expenditure was made. See Goulandris Brothers Ltd v B. Goldman & Sons Ltd [1957] 2 Lloyd’s Rep 207. The shipowners’ position is that in this case an actionable fault would be:
[36] The shipowners maintain that there was no actionable fault on their part because:
[37] The defendants have a two-pronged position. In relation to the portion of cargo that was loaded under deck, they rely on Articles 3 and 4 of the Hague Rules which impose an obligation on the carrier, before and at the beginning of the voyage, to exercise due diligence to make the ship seaworthy and, provided that obligation is complied with, relieve the carrier from liability for loss or damage arising from unseaworthiness. They maintain that the shipowners did not comply with this obligation and thus are liable for the loss. As regards the deck cargo, they maintain that there was an implied term in the contract of carriage that the shipowners undertook that the vessel was seaworthy at the commencement of the voyage and, as a result of a breach of that implied term, the casualty occurred. Accordingly, they would not be able to claim general average contribution. A separate issue here is whether certain exemption clauses in the bills of lading excluding liability for deck cargo would be sufficient to absolve the shipowners of any actionable fault for breach of the contract.
[38] From the submissions it would appear that the defendants consider that the issues I have to determine and the order in which they are to be determined are:
[39] The shipowners on the other hand put forward only one compendious issue which they phrase as follows: whether the main engine failure resulted from the shipowners’ failure to make the vessel seaworthy at the commencement of the voyage. It seems from this formulation that the shipowners consider it irrelevant whether or not they made the vessel seaworthy at the commencement of the voyage and would argue that even if the vessel was unseaworthy at that time due to a failure on their part, as long as the main engine failure did not result from that failure, they would not be at fault. The shipowners do not, however, concede that the vessel was unseaworthy at the commencement of the voyage. Their stand is that the main engine damage was caused by the bolt failure (as described in item 4 of the damage report) in spite of the fact that they had, at the commencement of the voyage, exercised due diligence and made the vessel seaworthy. If the shipowners had conceded that the vessel was unseaworthy at the commencement of the voyage due to the defective state of the bolt, then I could concentrate on whether that defect could have been detected by the exercise of due diligence. As they have not, I will have to consider the individual issues as formulated by the defendants.
(i) Was the vessel seaworthy at the commencement of the voyage and what was the cause of the main engine breakdown?
(a) The law
[40] I must first review the law on the test for unseaworthiness at the commencement of the voyage. A seaworthy vessel is one that has that degree of fitness which an ordinary owner would want it to have at the time it starts its voyage having regard to the circumstances the vessel would probably meet during the voyage. This is an objective test as the question to be asked is whether a prudent owner would have required that the defect in the ship be made good before sending his ship to sea, had he known of it. This formulation is derived from the judgment of Scrutton LJ in F.C. Bradley & Sons v Federal Steam Navigation Co., [1926] 24 LLR 446. It was approved in the English Court of Appeal case of The “Fjord Wind” [2000] 2 LLR 191 and the court also approved the holding of the trial judge, Moore-Bick J, that seaworthiness is not an absolute concept but is relative to the nature of the ship, to the particular voyage and even to the particular stage of the voyage.
[41] Also relevant on the question of what inferences should be drawn from the breakdown of the vessel is the following passage from the judgment of the trial judge quoted by the Court of Appeal (at p 198):
[42] The defendants submitted that since the vessel did encounter an engine breakdown on 24 December 1999, about six days after the commencement of her voyage from Port Gentil, and since there had been no external intervention leading to such breakdown, the natural inference would be that the vessel was unseaworthy at the commencement of the voyage by reason of the fact that there was something wrong with it which a prudent owner would have rectified had he known of it. That may be the natural inference but one must also examine the evidence to determine whether there is any reason not to draw that inference. Since it is accepted that after the explosion on 24 December the engine was inoperable, the way to proceed is to scrutinise the evidence and try to ascertain what, on the balance of probabilities, was the cause of that breakdown. Then, I would have to determine whether this cause would have made the vessel unseaworthy at the commencement of the voyage. In the discussion that follows, I will be dealing with issues 1 and 3.
(b) the evidence
[43] The defendants assert the following matters evidence defects in the main engine:
[44] It is not in dispute that the main engine of the vessel was operated by the crew at well below the designed engine load of 570 rpm. According to the chief engineer, even when the vessel was sailing between the three load ports between end September 1999 and December 1999, the operating load of the main engine at its peak was 320 rpm. The engine logbook entries from the commencement of the voyage on 18 December 1999 till the explosion six days later also indicate the load on the engine as 320 rpm. The speed of the vessel was also relatively slow. On some of the days between 18 and 24 December the vessel’s speed varied between 5.61 knots and 7 knots. The design speed was 15 knots and the evidence was that when the vessel was owned by SMC, it had made speeds of between 10.5 and 11.5 knots. Further, during the ten days prior to the vessel being delivered by SMC, the latter’s crew had also operated the engine at 320 rpm.
[45] In his evidence in chief, the chief engineer did not mention the low rpm of the engine. He explained the vessel’s slow speed on route to Cape Town as being due to its extended stay in the Port Owendo anchorage which had caused the hull to be fouled by seawater and barnacles. When questioned on the speed and rpm, Mr Chandran gave various reasons at various points for the reduced speed and rpm. First, he stated he had ‘convinced the master that he was going through the behaviour part of the running machineries’ and also told the master that page 2-4/I-2/16/E of the engine manual stated that an rpm of 250 was safe for the engine. It should be noted that when the engine manual was produced, what was stated was that if one of the engine cylinders failed, then the engine should not be operated below 250 rpm.
[46] Subsequently, Mr Chandran repeated the assertion in his affidavit that the low rpm was a result of hull fouling and the age of the vessel. Next, he stated that his reason for running the engine at low rpm was that he wanted to study the behaviour of the main engine and its auxiliaries and to gradually increase the rpm. He maintained that he was not confident of running the engine at its design load because of ‘various factors’ which he did not elucidate. To run the engine at design load between 18 and 24 December 1999 would have been similar to reckless driving. That was an interesting comment bearing in mind that he had had control of the main engine since 24 September 1999.
[47] The chief engineer then alleged that many fishing vessels sailed along the western coast of Africa and the low speed and rpm were maintained to avoid colliding into them. When he was pressed as to why he had not increased the rpm three days after leaving Port Gentil since he had testified that, given three to four days of continuous steaming, he would increase it to 70% to 80% of 570 rpm, Mr Chandran said that this was because only two units of the engine had been overhauled by him and therefore he still did not have confidence in the engine. He said he was taking his time to have a real judgment of his own on the condition of the engine. It should be noted that when the chief engineer was discussing the engine with the expert appointed by the shipowners, Mr Chay Choon Chong, he had told the latter that he had run the engine at low load because there were no previous records of its maintenance and operation available on board and that he was monitoring its performance to build up confidence in it.
[48] Mr Srinivasan was also asked about the speed. He explained that the chief engineer was a very cautious man. It had been his own decision to keep at a slow speed. Mr Srinivasan twice spoke to the chief engineer about the speed and was told on the first occasion that the speed would be increased within two or three days and on the second occasion that it would be increased shortly. The master had asked him to tell Mr Chandran to increase the speed but Mr Srinivasan explained he had not wanted to push the chief engineer to do so until the latter was happy with the engine. He had been content to allow Mr Chandran to operate the vessel on a low rpm even though he knew that the shipowners’ profitability would be affected if the vessel was run this way.
[49] Mr Chay gave a report in which he stated that, although in theory, a correctly maintained engine of a 20 year old ship can operate at the full engine design speed, this is not achievable in practice as consideration has to be given to the wear and tear on the engine component parts and its associated gears and ancillary machinery over two decades of use, increased frictional resistance and other factors. His review of the documentary evidence showed there was no evidence to suggest that the engine could not have made full sea speed. He understood that the chief engineer did not want to do so during the initial stages of the voyage and had elected instead to first proceed at a reduced speed. The chief engineer had stated that he was running-in the engine and this running-in period was a matter which fell within the chief engineer’s discretion. Mr Chay found the chief engineer’s actions to be reasonable.
[50] Under cross-examination, Mr Chay admitted that, when it had been properly maintained, the engine rpm of a 20 or 25 year old ship could be brought to its maximum load. He also admitted that if it was true that the chief engineer had insufficient confidence in the main engine he should not have run it at low loads to ascertain whether it was capable of running properly at high loads and thereby taken the risk that something might go wrong with the engine. Although Mr Chay asserted that if he had been in the place of the chief engineer, he would have proceeded cautiously at an acceptable minimum speed, checked all the systems and then slowly brought the speed up as his confidence increased, he also agreed that doing so would not be a guarantee of no engine damage or no explosion occurring. He concluded, therefore, that what the chief engineer and shipowners did was not justified. Later Mr Chay qualified this reply by stating that the chief engineer’s actions had not led to the explosion.
[51] The defendants’ engineering expert, Mr William Hastings, testified that a ship’s main engine is normally run at its maximum rpm to achieve optimum fuel efficiency and speed. His opinion was that there is no engineering basis for saying that an engine cannot achieve its maximum rpm because of age unless such engine is not properly maintained or is defective in some respect.
[52] Next, the defendants asserted that there had been engine repairs before the vessel departed Port Gentil on 18 December. They asserted the evidence showed that certain engine trials had been carried out at Port Gentil. First, their surveyor Mr Needham had copied certain entries in the vessel’s deck log when he boarded the vessel in Cape Town. According to him, the entry made on 15 December at 1012 hours stated ‘Anchor aweigh – vessel on sea trials and engine tested out’. Further, the Salvage Association report stated that examination of the engine room logbook indicated that maintenance work on the engine had been carried out between 7 and 18 December 1999 when the air, lube oil and jacket water coolers were cleaned. The report also stated that according to the engine logbook, sea trials were carried out between 14 and 15 December and were found to be satisfactory.
[53] Whilst the chief engineer had admitted that engine sea trials are always carried out when repair work on the main engine has taken place, he denied that any main engine repairs had been effected at Port Gentil. His evidence was that there is a difference between an engine try out and a sea trial. A sea trial is done during manoeuvres at sea prior to a long voyage and it involves checking the steering and oil consumption and monitoring the condition of all machinery. The purpose of a sea trial is to check overall operation of the vessel including the operation of the main engine. On the other hand, an engine try out is just to try working of the engine before putting it on standby.
[54] According to the chief engineer, before 18 December, the Pep Nautic underwent only one sea trial. This took place on 13 or 14 December when the vessel had arrived at Port Gentil an 84 mile voyage from Gabon. When asked why there was a need for this trial after such a short voyage, Mr Chandran replied ‘it is customary practice out at sea, when there is a variable rpm, it is not on a steady speed, it is said all parameters maintain normal. Whenever all watch- keeping engineers are down in engine room we just have a thorough examination. We have conducted all the tests. He has written “sea trials conducted” [that was a reference to the logbook entry] but it’s only examination of machinery’. The entry in question was made by one of the engine room crew and countersigned by the chief engineer who, under cross-examination, maintained that it had been an oversight on his part not to correct the entry.
[55] With reference to another entry in the logbook for 15/16 December 1999 stating ‘Sea trials conducted’ and also countersigned by the chief engineer, his position was that it too was an erroneous entry. Mr Chandran maintained that both these entries were not sea trials because if they had been sea trials, he would have ensured that all the main engine parameters were entered into the logbook and that was not done in the engine logbook on these two dates. Subsequently when Mr Chandran was shown the entry for 15 December in the deck logbook, he admitted that there had been a sea trial on that date and explained that there had been a slip up in the engine logbook recording on that date. The net result of the cross-examination was that Mr Chandran was uncertain whether there had been more than one sea trial conducted prior to departure from Port Gentil. He did, however, confirm that the sea trial conducted on 15 December had lasted three hours as shown in the deck logbook.
[56] Mr Srinivasan was also asked about the sea trials. He admitted that he knew two engine trials had taken place between 13 and 15 December. He asserted that these were normal pre-voyage procedures that a pilot would insist on upon boarding the vessel and denied that there were evidence of engine repairs being carried out. He denied that the vessel’s departure from Port Gentil was delayed until 18 December because of engine repairs. His explanation was that the delay in departure resulted from the failure to pay monies owing to the ship’s agent including payments that had to be made for the disembarkation of the stowaways. Documents furnished by the shipowners showed that on 10 December, the shipowners owed their Gabon agent some US$22,000 and that on 14 December, the agents informed the shipowners that because they had not received a certain sum of money (the amount is illegible) they could not return the logbooks that the police had taken from the vessel. The shipowners were asked ‘please clarify urgently to avoid sailing delays’. The shipowners did not, however, furnish any evidence of when they actually sent the money to the agents and how the sailing date of 18 December related to that remittance.
[57] On this issue I find the chief engineer’s evidence and Mr Srinivasan’s unreliable. I consider it safer to accept the written record which establishes that there were two trials, not just one, and these were sea trials and not just engine try-outs at anchorage.
[58] Next, I come to the allegation of breakdowns having taken place after departure. According to the vessel’s deck logbook, a generator failure took place on 22 December and the main engine was stopped for some 12 hours from 0520 hours until 1700 hours. The vessel resumed full ahead at 2100 hours that day after a four hour engine trial referred to in the deck logbook as ‘main engine tried out ahead and astern’. Some four hours later, at 0100 hours on 23 December, the second breakdown occurred. The main engine was stopped again and the vessel was adrift. At 1200 hours, the main engine was tried out ‘ahead and astern’ and at 1930 hours, the main engine was full away. According to these entries in the deck logbook therefore, the main engine was not fully functional for some 18 hours.
[59] As regards the first breakdown, the chief engineer maintained under cross-examination that it was due to a problem with the no. 2 generator. He was asked why it was necessary to stop the main engine to deal with that problem. Mr Chandran’s answer was that he had two generators working in parallel during the steaming-in period and he did not want to overload the no. 1 generator by working it alone with the main engine while he attended to the problem with no. 2. Thus, the main engine was stopped. He was asked whether he preferred to leave the ship adrift for 12 hours. Mr Chandran agreed that one generator would have been sufficient to take the full sea load of the vessel. He disagreed that he had had to stop the main engine because there was something wrong with it. He was then asked why, if it was a generator problem, it was necessary to do a four hour engine trial. The reply was that the engine had not been tested for four hours. The main engine was on standby and ready at 1700 hours and it was the bridge that decided that the engine should be full away at 2100 hours. He did not give any reason why the master should keep the vessel adrift for a further four hours after the main engine was ready at 1700 hours.
[60] As regards the second breakdown, in his affidavit Mr Chandran’s only reference to this was that he had had to stop the vessel on 22 and 23 December to effect repairs because of generator failures. Under cross-examination, Mr Chandran agreed that, according to the engineer’s log, there had been a problem with the no. 6 exhaust valve in the main engine. He was asked why in his affidavit he had not stated that the 23 December breakdown was due to a main engine problem. His explanation was that ‘23 was a slippage. I was dealing with 22’. When asked why the vessel stopped for 18 hours when the maximum time taken to change an exhaust valve would be two to three hours, Mr Chandran replied that while two to three hours would be sufficient under normal circumstances, in this case the holding stud broke and some drilling was required to remove it.
[61] The last thing that the defendants found suspicious was the vessel’s course after leaving Port Gentil. They alleged it was not taking the direct ocean route to its destination, Cape Town. The vessel, they said, was instead proceeding on a course that hugged the coast of west Africa and the only reasonable inference to be drawn from this fact is that those who were on the vessel knew that there was a problem with the main engine and therefore decided to keep close to the coast. The shipowners, however, maintained that the course taken was not one that was hugging the coast but that the vessel was maintaining a safe passage, clear of all known obstructions in the area.
62. Having considered all the evidence, it does appear to me that the chief engineer had experienced problems with the main engine in December 1999, both prior to and after the vessel’s departure from Port Gentil. That it was not working properly was indicated first by the low load maintained. Mr Chandran was not able to give a consistent and reasonable explanation as to why he maintained an rpm of 320. He was evasive. The defendants contend that the engine was only working at 20% of its achievable load. I am of the view that that contention is unfair as a 22 year old engine should not be judged on the same basis as a new one. It was clear, however, that the rpm maintained fell substantially short of that which should have been achievable for an engine of its type and age. Secondly, the fact of two engine trials being conducted at sea prior to departure from Port Gentil was a further indication of something being wrong with the main engine. The vessel’s delayed departure from that port has not been properly explained. The shipowners could have produced more documents to establish their case that it was due only to non-payment of agents’ fees. The absence of such documents and the unsatisfactory nature of the chief engineer’s evidence on the necessity for the engine trials adds weight to the defendants’ assertions.
[63] The two breakdowns in quick succession after the vessel left Port Gentil leading to it being adrift for 12 hours on the first occasion and 18 hours on the second, provide more circumstantial evidence of defects in the main engine. As far as the first breakdown was concerned, it really was not necessary to stop the main engine at all if it was only a generator problem. Further, I do not believe the engine was ready by 5pm on 22 December as, if it had been, the master would have ordered the engine to be full away immediately. There was no reason for him to wait a further four hours to set sail. It seems improbable that he would have done so had he had a choice since, first, he had asked Mr Srinivasan to tell the chief engineer to increase the speed and, secondly, he was concerned about the vessel’s provisions and water running out. As for the second breakdown, the ostensible reason for the stoppage, the failure of the valve, should have been dealt with within three hours as the chief engineer admitted. The problem must have been much more serious to have required 18 hours of repair work. Finally, though on its own this would be slight evidence, the course taken by the vessel en-route to Cape Town gives some indication of a lack of confidence in the engine.
[64] It therefore appears to me, on the balance of probability, that there were defects in the main engine from the time the vessel left Port Gentil and, as a result of such defects, the vessel was not in a seaworthy condition at the commencement of the voyage. The question which arises is whether that unseaworthiness is what led to the casualty.
[65] The defendants do not assert that those defects in the main engine that led to the low rpm, the frequent engine trials and the stoppage of the main engine on 22 and 23 December were the probable cause of the casualty. Instead, their closing submission is that, on the available evidence, the cause of the main engine failure on 24 December cannot be conclusively established and that it was not due to the fracture of the bottom end bolt of the no. 1 unit of the main engine. I must therefore turn now to an analysis of the evidence relating to this fracture.
[66] The shipowners adduced technical evidence on the nature of the fracture. The bolt in question was first examined by one Professor Ball in April 2000. Unfortunately, thereafter Professor Ball died. Therefore, a part of the fractured bolt and, as a reference, an undamaged connecting rod bearing bolt from the same engine, were sent to Dr Huang Xianya of PSB Corporation Pte Ltd for analysis. Dr Huang holds a PhD in materials science and engineering from the University of Stuttgart which he obtained in 1989 and has worked as a research scientist from 1988. He has also held senior positions in the Singapore Productivity and Standards Board and the Singapore Institute of Standards and Industrial Research. Dr Huang was called as the shipowners’ metallurgical expert.
[67] Dr Huang was sure that the part of the fractured bolt which was sent to him was the same bolt as that examined by Professor Ball because it would be impossible to reproduce the same fracture characteristics in such detail in any other bolt. Dr Huang carried out a visual examination of the fractured bolt followed by a microscopic examination using scanning electron microscopy (‘SEM’) and energy dispersive X-ray spectrometry (‘EDX’). His examination revealed that the fracture occurred exactly at the first thread root of the bolt, and the salient features of the fracture surface suggested that this was a fatigue fracture. Ratchet marks seen by Dr Huang indicated that the fatigue cracking was initiated by multiple crack sites at the thread root caused by hydrogen embrittlement. Beach marks were visible indicating that the fatigue crack propagated sub-critically through about 55% of the cross-sectional area of the bolt before finally leading to the stress rupture. No evidence for over pre-loading (caused by over-tightening) was detected. Apart from corrosion pits detected along the thread root, Dr Huang also noted that a layer of deposits of chemicals including sulphur and chlorine had formed over the thread root and that pitting had occurred under the deposits. Further, deep and sharp machining marks were detected at the thread root surface by SEM. The width and depth of these marks varied. In Dr Huang’s opinion, these machining marks acted not only as stress raisers but also as traps for corrosive substances and, along with the deposits, had contributed to the formation of the corrosion pits and, consequently, the initiation of the fatigue crack.
[68] Dr Huang’s metallurgical analysis of the composition of the failed bolt showed it to be ‘of good quality in terms of chemical composition, microstructure defects and mechanical strength’. Dr Huang confirmed in cross examination that there was no evidence of acid attack on the thread root. In his view, the section of the bolt that had not been given to him to analyse was not likely to have suffered chemical attack or mechanical impact. Had there been such attack or impact, the fracture would have occurred in that section and not at the thread root.
[69] The defendants did not offer any evidence to challenge the findings of Dr Huang. They accepted his evidence that prior to the incident, the bolt must have been cracked and corroded. Their position is that it has not been proved that the sudden fracture of the bolt had caused the breakdown of the main engine. They contend that this scenario is merely a theory advanced by the shipowners and their expert, Mr Chay, and that the fracture of the bolt could very well have been the consequence of an explosion rather than the cause of it. Some other main engine defect could have resulted in lube oil starvation of the main engine bearings leading to the explosion in the main engine crankcase. Such an explosion would have caused the bottom end bolt to fracture because it was already cracked and corroded.
[70] Mr Chay is a marine engineer who also holds a First Class (Steam and Motor) Engineer Certificate of Competency. He had some 13 years of experience as a ship’s engineer and an engineering superintendent and 23 years of experience as an engineering surveyor with the Salvage Association. His opinion was that the engine breakdown was brought about by the fracture of the bolt. According to his reconstruction of the incident, when the bolt fractured it permitted the bearing housing to open slightly. This caused a localised pressure drop in the bearing in-way. As the piston-connecting rod assembly connected to that bearing moved, the bearing shells jawed open even more, causing a drop of oil pressure in all of the other bearings (all of the bearings are lubricated from the same source).
[71] The drop in oil pressure then tripped the lube oil pressure alarm and this automatically activated to switch off the main engine. The engine did not, however, come to an immediate stop as it had to go through a series of revolution reductions which brought the engine revolutions gradually down until it finally came to a complete stop. That would have been some 60 to 90 seconds after the activation of the automatic shut down. During this period, the loss of lube oil in the bearings in the crankpin journal would have resulted in metal to metal contact between the bearings and the crankpin. The bearing material would have wiped or melted causing a final seizure of the crankpins/journals. The bearings would then have turned with the crankshaft and caused heavy scouring or abrasion marks on the main engine block bearing pockets resulting in major damage.
[72] The shipowners supported this theory by reference to Mr Chandran’s evidence that when he inspected the main engine after the incident, he noted that several bearings (nos. 1,2 and 3) had seized onto the main journals and turned with the crankshaft as it was being turned by hand. It was also observed that the main bearing no. 4 had shifted from its place.
[73] Mr Chay’s opinion was criticised by the defendants on several grounds. They did not accept that the explosion reported by the chief engineer could have been caused by the fractured bolt. As the chief engineer had, at the time of the incident, been asleep in his cabin which was located some three or four decks above the engine room, the defendants submitted that for the explosion to awake him it must have been a loud gaseous one. Mr Chay did not agree. He stated that there was no evidence that a gaseous explosion had occurred on 24 December 1999. If that had been the case, the crankcase doors would have been blown off by the force of the explosion and not just damaged. Secondly, the scale of the damage observed was consistent with the failure of the bolt leading to the shut down of the engine. Such a failed bolt could have, in fact, resulted in far worse damage.
[74] Mr Chay considered there was no evidence to support the ‘lube oil starvation’ theory put forward by the defendants as the cause of the engine failure. He asserted that at all times up to the moment when the engine was shut down, the lube oil pressure in the engine was found to be satisfactory. There was no evidence of low lube oil pressure or a sudden drop in lube oil pressure before that. As the defendants point out, however, the second engineer who was on duty in the engine room at that time and was the one person with actual knowledge of the situation prior to the breakdown, was not called to testify and any evidence that the chief engineer gave on that situation was hearsay. On the other hand, in support of Mr Chay’s opinion, is the fact that the surveyor from the Salvage Association tested the alarms and shut down devices when he attended the vessel in Luanda and found all such equipment to be in satisfactory working condition. Thus, if there had been a drop in pressure to below acceptable limits before the incident, the low oil pressure alarms would have sounded and cut off fuel to the engine resulting in less damage being caused by the failure of the bolt.
[75] The defendants sought to cast doubt on the chief engineer’s account of the incident by reference to a letter written by Alpha Emirates on 25 December to the hull underwriters. That letter informed the insurers that the vessel was totally immobilised and drifting and quoted a radio message from the ship stating ‘While the vessel was on her way … Chief Engineer noticed some unusual sound from the main engine and the vessel stopped … Initial inspection revealed that out of seven main bearings three got seized …’. Mr Chandran was shown this letter and he was unable to explain why the radio message did not refer to an explosion. Mr Srinivasan, too, had no explanation as to why the letter did not describe the incident as an explosion. The actual radio message referred to in that letter was not disclosed by the shipowners.
[76] Mr Chandran testified that his thorough inspection of the main engine after the explosion led him to conclude that it was beyond economic repair. He admitted that he had reached this conclusion even before there was any opportunity to dismantle the engine and inspect the extent of damage to the bedplate. He had issued a report describing the incident as a ‘main crankcase explosion’. The report did not, however, mention any theory regarding the cause of the explosion and the damage. The report stated various matters that the chief engineer had no personal knowledge of. It said the explosion occurred suddenly in circumstances where the temperature and pressure were normal. It also stated that the second engineer had shut down the engine manually. The chief engineer also testified that there was no automatic shut down of the main engine and that the low lube oil pressure alarm and the oil mist detector alarm were not activated. That evidence was, of course, hearsay. Mr Srinivasan testified, on the other hand, that Mr Chandran had told him that the main bearing was rotating and some serious problems had been experienced by the main shaft.
[77] The earliest indication that the shipowners regarded the failure of the bolt as being the cause of the main engine damage is found in The Salvage Association Report of 24 January 2000. The chief engineer had drawn the attention of the surveyor to the relevant bolt and showed him how it had failed and burst through the crankcase door and alleged that the damage to the main engine was due to the failure of the bolt. The surveyor agreed that the initial damage of the crankpin and portside unit were reasonably attributable to the failure of the bolt but commented that the cause of the general failure of the main bearings could only be determined when the engine had been dismantled.
[78] The surveyor also commented that damage to main bearings is usually associated with loss or partial loss of lubricating oil pressure. He took a sample of the lubricating oil and kept it on board for analysis at the vessel’s repair port. It is interesting, however, that this sample was not subsequently analysed. The expert witnesses of both parties agreed that if the lube oil was contaminated, the damage in the main engine would first manifest itself in damage to the soft metal coating of the bearings. Mr Srinivasan, however, testified that on 4 June 2000, he decided against sending the lube oil sample for analysis after seeing the damage to the bedplate and getting astronomical repair quotations.
[79] Mr Hastings said that on the available evidence, the actual cause of the main engine failure could not be determined. He too, however, had a theory about its cause. This was that there were serious problems with the lube oil system leading to lube oil starvation of the main bearings. He contended this theory was supported by the following:
[80] There are difficulties with this theory. Among them is the fact that it has not been established that the vessel used high viscosity fuel oil. Mr Chandran’s evidence was that 60 cst oil was used. It was Mr Needham who asserted in court in July 2002 that the vessel used 180 cst fuel oil. He said the chief engineer told him this when he visited the vessel. Mr Needham’s evidence on this point is suspect because only the quantity of the fuel oil was mentioned in his notes not its viscosity. How did he remember such a fact in court without the aid of notes when he had only been on the vessel once for no longer than a few hours at the most?
[81] Secondly, the criticism of the shipowners’ failure to keep lube oil consumption records may not have been warranted. According to Mr Abdul Rahim bin Zan, an expert on lube oil, who gave evidence for the shipowners, lube oil consumption is not a good indicator of the engine’s performance and condition. These are matters which would have been better monitored by checking other parameters of the engine such as exhaust temperature. According to Mr Rahim, any attempt to use lube oil consumption to track the engine’s performance and condition would have been too late in the day. Mr Rahim’s view is supported by engine log extracts produced by Mr Hastings of ships managed by him that indicate there was no practice of regularly monitoring lube oil consumption on board those ships.
[82] Further, there was no evidence of combustion by-products in the crankcase. It was not mentioned either by the Salvage Association surveyor in his report or by Mr Needham. There was also no evidence of combustion by-products or other foreign material embedded in the bearings or that any such material scoured the crankpin journal as suggested by Mr Needham. The chief engineer denied machining the crankpin journal and, under cross-examination, Mr Needham who had first made this allegation, clarified that he did not think that it would have been possible to machine the crankpin by hand on board the vessel. In any case, as Mr Needham conceded, if the crankpin had been machined to the degree alleged, the vessel would not have been able to have sustained a voyage for long after sailing from the first load port.
[83] There was little positive evidence to support Mr Hastings’ theory. He was relying on conjectures derived from the general propensity of medium speed engines, the lack of hard information on the condition of the lube oil or its consumption and the alleged lack of experience on the part of the chief engineer in dealing with medium speed engines. On the other hand, I also have difficulty in accepting the shipowners’ theory that the damage to the main engine was caused by the fracture of the bolt. Their theory is stronger than the defendants’ theory in that there is the physical evidence in the form of the fractured bolt and the technical evidence of Dr Huang that fatigue in the bolt led to cracks propagating to a critical level so that the bolt fractured. It has not, however, been established to my satisfaction that, on the balance of probabilities, the bolt fractured of its own accord rather than from external stress arising from some other defect. In this regard, the observations of both Professor Ball and the Salvage Association surveyor are material.
[84] A prime cause of my inability to come to a conclusion on the probable cause of the engine failure is the lack of sufficient evidence of the circumstances in which it took place and of the physical condition of the engine prior to and after the casualty. It would be recalled that the Salvage Association surveyor opined that the cause of the damage to the main engine could only be established when the bedplate was dismantled and the whole engine examined. This was not done. Instead, the shipowners sold the ship for scrap without conducting any deeper investigation to find out whether there was any cause for the damage apart from the broken bolt. They did not even conduct an analysis of the lube oil sample which was one simple investigation that the surveyor recommended. The shipowners had control of the ship and the crew and all the records. They had the best ability to obtain and preserve evidence about the incident. Yet, they did not produce many of the records of the ship including full deck and engine room logbooks. No satisfactory explanation was given for this; Mr Srinivasan’s evidence on the loss of the records was hearsay. They did not call the engineer on duty at the time of the incident. Nor did they call the Salvage Association surveyor who was the first independent person to see the engine room and the damage after the incident.
[85] I have, however, been able to conclude that the vessel was unseaworthy by reason of the defects in the engine. Even if the exact cause of the damage is not known, it is probable that this unseaworthiness contributed to it. In this regard, I accept the submission of the defendants that since the vessel did encounter a completely disabling engine breakdown on 24 December 1999, about six days after the commencement of the voyage and without the intervention of any external matter, the natural inference must be drawn that the vessel was unseaworthy when the voyage commenced.
[86] Further, even if I am wrong on this finding and the cause of the damage was the fracture of the bolt alone, such cause would also lead me to the conclusion that the vessel was unseaworthy at the commencement of the voyage. It was Dr Huang’s evidence that the crack in the no. 1 bottom end bolt was not something that had developed quickly but a matter that would have developed over many months or even years. That being the case, the crack must have been present well before 18 December 1999 when the vessel left Port Gentil. It is not in dispute that had this crack been discovered, the bolt would have been replaced. Since the bolt was defective in that it had a crack that was only six days short of propagating to the critical point of causing a fracture, the vessel must have been unseaworthy at Port Gentil.
(ii) Did the shipowners exercise due diligence to make the vessel seaworthy?
[87] The argument on this point centred on the few days following delivery of the vessel to the shipowners at Owendo. That was when the shipowners first had control of the vessel and the power to carry out detailed inspections and effect the repair of defects revealed by the inspection. The shipowners rely on what was done during that period to satisfy their due diligence obligation. They say that they had undertaken all that a reasonably prudent shipowner would have done to put the vessel in a seaworthy condition prior to commencement of the intended voyage to Tuticorin. They had commissioned a survey which was undertaken by a class surveyor, following which the vessel was classed without qualifications. The vessel then undertook various journeys and sailed for some 440 miles before the failure of the main engine.
[88] The burden of showing the exercise of due diligence lies on the shipowners and is a relatively heavy one. In The ‘Fjord Wind’ [2000] 2 LLR 191 the English Court of Appeal had to consider a case in which the main engine was automatically stopped due to a crankpin bearing failure. The vessel had had bearing failures previously and before the start of the relevant voyage, the owners had asked the engine builders, MAN, to investigate the cause of such bearing failures. The investigations, however, never succeeded in discovering the cause of the problem which led to the defects in the crankpin bearing which in turn led to failure of the engine on the relevant voyage. Both the court of first instance and the Court of Appeal held that the owners had not exercised due diligence to make the vessel seaworthy. In a passage that was subsequently approved by the Court of Appeal, Moore-Bick J stated:
It is for the owners to show that they themselves and those for whom they were responsible exercised due diligence to make the ship seaworthy, or that any failure to do so, if there was one, did not cause or contribute to the casualty. Since the cause of the casualty remains unknown, the owners can only discharge that burden by showing that they and M.A.N. between them did not overlook any lines of enquiry which competent experts could reasonably be expected to have pursued, but in the absence of evidence as to what investigations were in fact carried out and why I cannot be satisfied that that is so. In these circumstances the owners are unable to discharge the burden of showing that they exercised due diligence to make the ship seaworthy.
[89] What steps did the shipowners take to ensure that the vessel was seaworthy? They first became interested in purchasing the vessel in May 1999. From information given to their shipbroker at that time the shipowners would have learnt that Lloyds Register of Shipping required the vessel to undergo its five year special hull and machinery surveys by July 1999. According to Mr Hastings, a special machinery survey would include opening up all the units of the main engine, inspecting all its component parts including bottom end bolts, recommending the renewal of parts as found necessary and the taking of all clearances upon boxing up. With respect to checking of the bottom end bolts, the following would be carried out:
[90] When the vessel was bought over by the shipowners from SMC, it was no longer classed by Lloyds but had been re-classed by INSB. Mr Srinivasan confirmed that he knew at the time of purchase that the Lloyds special hull and machinery surveys had not been completed by their due date but nevertheless was happy to purchase the vessel. SMC had issued an interim certificate of class for hull and machinery dated 12 June 1999. This certificate was valid for three months only and therefore, as confirmed by the INSB surveyor, Mr Hashmi, the vessel was out of class when the shipowners took delivery of it on 24 September 1999.
[91] Mr Hashmi emphasised in court that the survey he conducted from 24 to 29 September 1999 was a periodical survey under INSB rules and not a special hull and machinery survey. Mr Srinivasan’s position was that the special hull and machinery surveys had been carried out by INSB in June 1999 prior to the issue of the INSB interim certificate. He relied on an e-mail dated 28 June 2002 from INSB to Alpha Emirates stating that the special hull and machinery surveys had commenced on 4 June 1999 and were completed on 11 June 1999 at Istanbul, Turkey. The reliability of that information, however, is doubtful given that the vessel’s movement records show that between 4 and 12 June 1999 the vessel was never at Istanbul and therefore could not have been surveyed there. Further, Mr Hashmi’s evidence was that the survey in June 1999 marked the commencement of the special hull/machinery surveys and not their completion. This further undermined the e-mail of 28 June 2002. Mr Srinivasan was unable to explain the discrepancy between the e-mail and the vessel’s movements. He could only say that he himself had not done the survey and had not been on the vessel at the time.
[92] It therefore appears that despite knowing that the vessel was overdue for special hull and machinery surveys by September 1999, the shipowners did nothing to ascertain whether such surveys had actually been effected or to arrange for such surveys. They did bring Mr Hashmi to the vessel to survey it but that was necessary because the interim class certificate had expired (and the fact that the class certificate was interim only must have informed them that full surveys had not been completed) and Mr Hashmi himself was somewhat evasive about the nature of the survey he conducted. He testified that he had kept records of his survey but refused to furnish these documents when requested to do so. All that he furnished was an attestation by him dated 5 March 2002 that repeatedly referred to the ‘satisfactory condition’ of various items surveyed and that the class and statutory certificates were issued ‘after completion of surveys with satisfactory results’. There was no reference in his attestation to the actual physical observations made by him or the measurement of engine part clearances.
[93] Mr Hashmi was not in fact well qualified to conduct a machinery survey. He had joined INSB in April 1999 and that was his first job as a surveyor. Before then he was a deck officer. He had no engineering qualifications. He maintained that he had supervised the survey on the main engine and requested the opening up and overhauling of its no. 3 and no. 5 units. However, it was apparent that he had had to rely completely on the chief engineer and the engine room crew and was not himself able to verify the correctness of what had been done or what had been observed in the process, about the condition of the main engine and its parts. He admitted that the checking of the bearings, pistons and all the items of machinery which he had referred to in his affidavit as having been checked, had been done by Mr Chandran and not by himself.
[94] Mr Hashmi testified that he checked the clearances of the bearings and maintained records. When asked for these, he replied that ‘they may be in my office’ and said he would try to furnish them to the court. The records have not been produced. He also said he checked the bottom end bearing clearances with a feeler gauge. That was an impossible thing to do and when this evidence was cross-checked with Mr Chandran, the latter replied that Mr Hashmi must have been confused. As regards checking the ovality of the bearings, after some prevarication, Mr Hashmi admitted he had relied on Mr Chandran to do this. He could not recall whether any parts had been renewed when units 3 and 5 were overhauled and depended on Mr Chandran who told him that everything was within satisfactory limits. At the end of his survey, the engine was tested when the vessel was at anchor. No sea trial was carried out to test the engine performance.
[95] In W. Angliss and Co v Peninsular And Oriental Steam Navigation Company [1927] 2 KB 456, Wright J observed that when a shipowner buys a ship he must take all appropriate steps to satisfy himself by surveys and inspections that the ship is fit for the service in which he intends to put it. Here the shipowners intended to sail the vessel from west Africa around the Cape of Good Hope and across the Indian Ocean to Tuticorin. This would be a long voyage during which difficult sea conditions could be anticipated. The vessel was then 22 years old and over the course of its operations had experienced major engine breakdowns.

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Ever Lucky Shipping Co Ltd v Sunlight Mercantile Pte Ltd and Another

Grounds of decision

Introduction

Background

The action

The issues

(i) Was the vessel seaworthy at the commencement of the voyage and what was the cause of the main engine breakdown?

(a) The law

(ii) Did the shipowners exercise due diligence to make the vessel seaworthy?