High Court · Decided 28 June 2012

Zweite Ms “Philippa Schulte” Shipping GmbH & Co KG & another v PSA Corp Ltd

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[2012] SGHC 135Case no. Suit No 82 of 2009

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Laws this judgment relies on

Evidence Act 1893

Grounds of decision

Official text from eLitigation

Tan Lee Meng J:
[1] This first plaintiff, Zweite MS “Philippa Schulte” Shipping GmbH & Co KG, claimed that it was the owner of a container vessel, The APL Sokhna (“the vessel”), when an accident occurred on 6 January 2009 while she was berthed at a container terminal belonging to the defendant, PSA Corporation Limited (“PSA”), which provides port operation services. The second plaintiff, St Philonas Shipping Co Ltd, claimed to be the demise charterer of the vessel at the material time. The plaintiffs alleged that the PSA negligently lifted and dropped one of the vessel’s hatch covers (“the hatch cover”) during cargo discharging operations. This accident (“the accident”) damaged the hatch cover, the vessel and the PSA’s property. The PSA denied liability and counterclaimed against the plaintiffs for, inter alia, damage to its wharf.
Background
[2] On 6 January 2009, the vessel berthed at the PSA’s Brani Container Terminal Berth 06 at around 11.12 am. She moored port side alongside Berth 06.
[3] Four quayside gantry cranes were deployed to discharge the vessel’s cargo. One of the gantry cranes was Gantry Crane 901 (“the gantry crane”). A Spreader, numbered BSPT 16, (“the Spreader”) was installed onto the gantry crane. The Spreader’s task was to lift hatch covers and containers from the vessel to the wharf and vice-versa.
[4] For the purpose of lifting hatch covers, the Spreader was fitted with four twistlocks and four Top of Container Pins (“TOC Pins”), which are also known as “landing pins”. Hatch covers are fitted with fixed lifting points, known as “lifting sockets” or “casting sockets”, to enable them to be lifted by the Spreader. The Spreader twistlocks lock within the lifting sockets of a hatch cover before the cover is lifted. A schematic diagram of the Spreader and the hatch cover lifting sockets (“the lifting sockets”) is set out below:
[5] The gantry crane system has various built-in operational and safety features. It is equipped with a lighting system that will indicate to the gantry crane operator that the Spreader twistlocks have properly engaged the hatch cover lifting sockets so that he knows that it is safe to lift the hatch cover.
[6] The PSA deployed three key persons at the time the hatch cover was lifted. They were the gantry crane operator, Mr Wong Chee Hong (“Mr Wong”), the ship traffic assistant, Mr Udaiyappan Balraj (“STA Balraj”) and the wharf operations supervisor, Ms Nur Aleena, (“WOS Nur Aleena”). Mr Wong was tasked to operate the gantry crane to lift containers and hatch covers from vessels and to land them safely onto the wharf. STA Balraj, an employee of Goldin Enterprise Pte Ltd, a contractor of the PSA, was deployed to check that all hatch covers to be lifted by the gantry crane operator were clear of people and foreign objects and safe to be lifted. He was the gantry crane operator’s eyes on the ground and responsible for guiding the latter in lowering the Spreader twistlocks into the opening of the lifting sockets and for ensuring that the Spreader sits squarely on all the four lifting sockets. STA Balraj and Mr Wong each had a radio set, which enabled them to communicate with each other. After a container or hatch cover had been hoisted past the vessel’s rails, it was WOS Nur Aleena’s task to ensure that cargo operations were carried out safely at the wharf side.
[7] At the material time, the plaintiffs deployed able-bodied seaman, Managbanag F Clemente (“AB Clemente”) to monitor the lifting of the hatch cover from the vessel. He explained in a statement on 6 January 2009 that he had been deployed on deck to “observe and watch for possible damage to the hatch cover and also damage of [the] ship’s superstructure”.
[8] Before the accident occurred, many containers and two hatch covers were lifted from the vessel without any mishap. At around 9.35 pm, STA Balraj, who was on the vessel, informed the crane operator, Mr Wong, through his radio set that their next task was to lift the hatch cover. The vessel’s deck was well lit by floodlights. After the deck had been cleared of loose matter and the hatch cover cleats had been unfastened, Mr Wong lowered the Spreader to position it onto the hatch cover for its twistlocks to fit into the openings of the lifting sockets. This is a precise operation and it is not uncommon for a few attempts to be made before the twistlocks land properly within the openings of the casting sockets of a hatch cover.
[9] The parties’ position on what followed after the Spreader landed on the hatch cover differed. The plaintiffs asserted that AB Clemente stood with STA Balraj on top of the starboard side hatch cover during the lifting operation and asserted that the latter did not walk around the Spreader to check whether the Spreader twistlocks had properly engaged the hatch cover lifting sockets. On the other hand, the PSA contended that STA Balraj walked around the Spreader after it had landed on the hatch cover to check whether it was properly aligned with the lifting sockets and that AB Clemente, who followed STA Balraj, appeared to be conducting the same checks. The PSA added that after confirming that all four corners of the Spreader had landed properly on the hatch cover, STA Balraj gave an “all ok” hand signal to Mr Wong to proceed with the lifting of the hatch cover. As the lighting system in the gantry crane cabin confirmed that the Spreader twistlocks had properly engaged the lifting sockets, Mr Wong started to lift the hatch cover.
[10] According to the PSA, after the hatch cover had been lifted slightly above the vessel’s deck, the lifting operation was paused as part of the safety measures. After Mr Wong observed that the hatch cover remained stable in its suspended position, he proceeded to lift it to a height of about 10 meters under the close supervision of STA Balraj. However, the hatch cover suddenly dropped down and landed diagonally on the wharf, with one side leaning on and damaging the gantry crane. Damage was also caused to a portion of the PSA’s wharf at Berth 6, a gantry over-height frame and the gantry crane sea side sill beam and left-side portal beam.
[11] After the accident, the PSA inspected the Spreader and its twistlocks. A piece of casting socket that was detached from the hatch cover was found attached to the Spreader’s forward starboard twistlock. The detached casting socket was removed from the Spreader. In his preliminary report dated 8 January 2009, just two days after the accident, Mr Sio Beng Huat (“Mr Sio”), the surveyor appointed by the vessel’s hull and machinery insurers, recommended a metallurgical examination of the detached lifting socket as well as the part of the hatch cover plate from where the lifting socket was ripped off because he was concerned that the lifting socket may have been defectively welded to the hatch cover. However, no action was taken by the plaintiffs to implement his recommendation.
[12] As for the Spreader, no cracks or other defects were found on it or its twistlocks. Functional tests were conducted and as the Spreader was found to be in good order, it was re-deployed for cargo operations.
[14] Apart from denying liability, the PSA filed a counterclaim against the plaintiffs for damage to its property.
The expert witnesses
[15] The plaintiffs called two expert witnesses. The first expert witness, Dr Jonathan Sykes (“Dr Sykes”), is the director of the Singapore office of Dr JH Burgoyne & Partners (International) Ltd, a firm of consulting forensic scientists and engineers. The second expert witness, Captain Jonathan Lee Lai Chuan (“Capt Lee”), is a marine surveyor at GL Noble Denton, which provides consultancy services for, inter alia, maritime casualties.
[16] The PSA called one expert witness, namely Captain Nicholas Edward Haslam (“Capt Haslam”), a Master Mariner and the managing director of London Offshore Consultants Pte Ltd, a company that provides marine surveying and consultancy services to the shipping industry.
Whether the plaintiffs are entitled to sue the PSA
[17] The PSA contended that the first and second plaintiffs were not entitled to sue it because they did not prove that they were the owner and bareboat charterer of the vessel respectively.
[18] In Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] 1 AC 785, the House of Lords held that it has long been established that for a plaintiff to have a right to claim in negligence for loss or damage to property, he must have had either the legal ownership or a possessory title to that property when the loss or damage occurred. The first and second plaintiffs averred in paragraphs 1 and 2 of their Statement of Claim that they were and are the owners and bareboat charterers of the vessel respectively at the material time. When the PSA filed its defence more than 2 years ago in May 2009, it made it clear that these averments were not admitted. As such, the plaintiffs had to prove that they were entitled to commence the present proceedings against the PSA.
[19] Considering that the question of title to sue had been an issue since 2009, it was surprising that the plaintiffs did not furnish the court with the certificate of registration, which is regarded as prima facie evidence of ownership: see The Opal 3 ex Kuchino [1992] 2 SLR(R) 231 and The Ivanovo [2001] 1 SLR(R) 263. Neither did they adduce evidence from any of their own staff with personal knowledge of the ownership and bareboat charter of the vessel. Instead, they chose to rely on the evidence of Mr Frank Wilhelm Heidrich (“Mr Heidrich”), who was merely the technical director of the technical managers of the vessel, Ocean Shipmanagement GmbH.
[20] The plaintiffs, relying on Jet Holding v Cooper Cameron [2005] 4 SLR(R) 417 (“Jet Holding”), asserted that Mr Heidrich had sufficient “involvement” with the vessel to have personal knowledge of the ownership of the vessel. They pointed out that Mr Heidrich had testified that he had been “working” for the first and second plaintiffs since 2007. Their reliance on Jet Holding was totally misplaced. In Jet Holding, the first plaintiff purchased a drill ship from the second plaintiff, who then became the bareboat charterer of that ship. The person who testified on ownership of the ship and the bareboat charter was a Mr Perret, who was the director and executive vice-president of the bareboat charterer as well as the executive vice-president of the shipowner. He was personally involved in the purchase by the second plaintiff of the ship from the Sheriff of the Supreme Court of Singapore and in the sale and lease-back arrangements between the first and second plaintiffs. He was also closely involved with the commercial aspects of the operation of the ship. In these circumstances, it was understandable that Belinda Ang J held that Mr Perret's involvement in the two companies was sufficient to place him in a position to testify generally on ownership of the drill ship and the bareboat charter.
[21] In contrast, in the present case, Mr Heidrich is not an employee of either of the plaintiffs. He is employed by Ocean Shipmanagement GmbH, the vessel’s technical managers and Document of Compliance (“DOC”) company, whose role was rather limited. In essence, a DOC is issued by the flag state for a vessel which complies with the International Safety Management Code, which provides for an international standard for the safe management and operation of ships and for pollution prevention. As for technical managers, their role is to take care of matters relating to the day-to-day running of the vessel, such as crewing and maintenance. In his affidavit of evidence-in-chief (“AEIC”), Mr Heidrich did not exhibit any document relating to either ownership or a bareboat charter and he did not mention anything about the bareboat charter. When cross-examined, he said that he did not have to exhibit any documents relating to ownership of the vessel in his AEIC because he was “simply a technical manager”. Any comparison of the position of Mr Heidrich with that of Mr Perret in Jet Holding is unwarranted and more was required to prove the plaintiffs’ right to sue the PSA.
[22] The plaintiffs next contended that the copies of the Certificate of Registry and Certificate of Bareboat Registry found in their Supplementary List of Documents filed on 3 October 2011 proved their title to sue. They asserted that all the documents in this list are deemed to have been admitted pursuant to O 27 r 4 of the Rules of Court since the PSA did not file any Notice of Non-Admission. This was absolutely incorrect as the PSA filed a Notice of Non-Admission with respect to these documents. It followed that the authenticity of the said documents was challenged and these documents were not admitted as evidence. As the plaintiffs took no steps to prove the authenticity of the copies of the certificates in question at the trial, they are now in no position to rely on them as proof of their title to sue.
[23] The plaintiffs also sought to rely on the vessel’s Continuous Sypnosis Records (“CSR”), which are compliance documents required to comply with the International Convention for the Safety of Life at Sea. A day before the trial commenced, the plaintiffs filed a Supplementary List of documents and affidavit verifying the said list, which included a number of documents described as “Continuous Sypnosis Record Nos (1) to (5)”. When the trial commenced on 3 October 2011, the plaintiffs filed another Supplementary List and affidavit verifying this List, which included five documents described as “Continuous Sypnosis Record Nos (6) to (10)”. The plaintiffs then sought leave to admit the documents enumerated in the two said Supplementary Lists as secondary evidence on the basis that the originals were no longer in the possession, custody and control of the plaintiffs. The PSA vigorously opposed the application, which was heard in chambers on 5 October 2011. In the face of the PSA’s objections, the plaintiffs withdrew their application. The trial resumed and Mr Heidrich was cross-examined.
[24] On 5 October 2011, the plaintiffs’ solicitors went to the office of the PSA’s solicitors at around 5.30 pm to 6 pm and furnished for the latter’s inspection “originals” of the documents listed in their Supplementary List of Documents dated 2 and 3 October 2011. The PSA’s solicitors did not accept the authenticity of these documents and filed a Notice of Non-Admission of Documents pursuant to O 27 r 4(2) of the Rules of Court.
[25] On 6 October 2011, the plaintiffs sought to admit copies of the CSR as part of the Agreed Bundle of Documents and invited the PSA’s counsel, Mr Toh Kian Sing SC (“Mr Toh”), to cross-examine Mr Heidrich, who had already been released as a witness, on the documents in question. However, Mr Toh retorted that the plaintiffs had failed to prove that the requirements for adducing secondary evidence under s 66 of the Evidence Act had been complied with. He added that as Mr Heidrich had been released as a witness, the plaintiffs would have to apply to have him recalled if he was to give any evidence in relation to the CSR. The plaintiffs closed their case without recalling Mr Heidrich to testify. It followed that no evidence was led on the documents in question.
[26] After the first tranche of the trial, the plaintiffs tried by way of Summons No 5870 of 2011 when the trial resumed in January 2012 to furnish for the court’s inspection what they claimed were the vessel’s CSR. According to them, these records showed that the first and second plaintiffs were the owners of the vessel and bareboat charterers respectively at the time of the accident. The PSA objected to the plaintiffs’ application and submitted that this was an attempt by the plaintiffs to adduce evidence to substantiate their case after they had already closed their case in the earlier tranche of the trial. Mr Toh pointed out there was no reason why the plaintiffs could not have tendered original copies of the CSR to the court during the first tranche of the trial as the vessel was in Singapore waters at that time.
[27] The plaintiffs, who pointed out that the documents in question were not included in the Agreed Bundle because the PSA had refused to accept their authenticity, relied on The Shravan [1999] 2 SLR(R) 713 for the proposition that the court can rely on documents contained in a plaintiff’s bundle of documents. However, this was not what was decided in The Shravan. In that case, one of the issues was whether the plaintiff, who claimed to be the holder of a bill of lading, was the holder of the same when the action was commenced. Chao Hick Tin J pointed out (at [11]) that the plaintiff’s own bundle of documents contained a letter from the sellers of the cargo to the plaintiff, which suggested that the latter could not have been in possession of the bill of lading at the date of the writ. He explained that as this letter was included in the plaintiff’s own bundle, it may be assumed that the plaintiff had received the said letter. It was under these circumstances that Chao J was not satisfied that the plaintiff had shown that they were in possession of the bill of lading at the commencement of the writ. The position in that case is totally different from the present case, where the plaintiffs tried to rely on documents in their own bundle without having proven the authenticity of the said documents. This cannot be countenanced.
[28] In any case, the plaintiffs did not establish the authenticity of the CSR during the second tranche of the trial. They argued that no one had to prove the contents of the CSR because these are public documents. However, what cannot be overlooked was that no one who had personal knowledge of the authenticity of the documents filed an affidavit affirming that the documents presented to the court were indeed originals. Instead, one of the plaintiffs’ lawyers, Mr Syed Isa, who had no personal knowledge of the authenticity of the documents, filed an affidavit to assert that on the basis of instructions received from his clients, the CSR were authentic. This was unsatisfactory as O 41 r 5 of the Rules of Court makes it clear that an affidavit may contain “only such facts as the deponent is able of his own knowledge to prove”. Apart from this, some of the copies of the CSR exhibited in Mr Syed Isa’s affidavit did not bear the signature of vessel’s master whereas the purported originals of the CSR shown to the court had been signed by the master. The PSA pointed out that such discrepancies underscored the point that it would be risky to regard the documents in question as originals, and especially so when the master had not deposed an affidavit to establish that he had signed the documents bearing his signature. Subsequently, Mr Syed Isa, who had no personal knowledge of the discrepancies, filed an affidavit on 13 January 2012 to explain that based on his clients’ instructions, the copies of the CSR exhibited in his AEIC were copies of documents that had not been handed over to the master for his signature. The PSA rightly pointed out that as no one testified on the authenticity of the CSR, its counsel was denied the opportunity to test the claim of authenticity of the CSR by cross-examination. I accept that there was insufficient evidence to prove the authenticity of the CSR.
[29] The plaintiffs next asserted that their Sea-Web searches were prima facie evidence of ownership of the vessel by the first plaintiff. They relied on The Andres Bonifacio [1991] 1 SLR(R) 523 and The Kapitan Temkin [1998] 2 SLR(R) 537. However, these cases concerned entries in the Lloyd’s Register and not Sea-Web search results. In any case, as the PSA disputed the authenticity of the plaintiffs’ Sea-Web search results and filed a Notice of Non-Admission of Documents, the plaintiffs’ witnesses should have but did not introduce the Sea-Web search results as evidence during the trial. Furthermore, as these search results were retrieved from computers, it was regrettable that the plaintiffs took no steps to establish that the requirements of s 35 of the Evidence Act in relation to proof of computer outputs were met.
[30] The plaintiffs, who relied on Zheng Yu Shan v Lian Beng Construction (1988) Pte Ltd [2009] 2 SLR(R) 587, asserted that the court ought to take judicial notice of the their Sea-Web search results. In that case, the Court of Appeal pointed out that before a question of judicial notice arises, the fact in question must be certain and considered by all to be factually incontrovertible. The Court added (at [33]) that there is no “licence for counsel to presumptuously (or, one might even say, optimistically) rely on the doctrine of judicial notice to fill up evidential gaps in their cases”. A similar approach was adopted in a more recent case, City Chain Stores (S) Pte Ltd v Louis Vuitton Malletier [2010] 1 SLR 382, where the Court of Appeal noted (at [82]) that “before taking judicial notice of any fact, the court should carefully consider whether that fact is of such an unassailable character” and that any doubt as to the public notoriety of any fact which is alleged to be judicially noticeable ought, as a general rule, to be resolved against the party seeking to rely on that fact.
[31] Sea-Web search results on ownership of a vessel are not unassailable. In fact, even entries in the Lloyd’s Register have been successfully challenged. In The Kapitan Temkin, GP Selvam J pointed out (at [7]) that an entry in the Lloyd’s Registry of Shipping was merely a good “starting point” and in The Andres Bonifacio, Karthigesu J stated (at [24]) that while this Registry provides ready information as to the ownership of vessels, “total reliance cannot be placed on the information it contains”. Furthermore, in The Saudi Prince [1982] 2 Lloyd’s Rep, 255, 257, Sheen J observed that the Lloyd’s Register is “not infallible” even though it is a very useful guide for those who wish to find out about the identity of the owners of a ship. Not surprisingly, the plaintiffs were unable to cite any case where the court has taken judicial notice of the Lloyd’s Register or Sea-Web searches when considering the question of ownership of vessels. I thus find that there is no basis for this court to take judicial notice of the Sea-Search results submitted by the plaintiffs and that the Sea-Search results did not prove the plaintiffs’ entitlement to sue the PSA.
[32] As the first and second plaintiffs failed to prove that they were the owner and demise charterer of the vessel respectively at the material time, their claim against the PSA is dismissed.
The law on negligence
[33] Although I have found that the plaintiffs did not prove that they were entitled to sue the PSA for negligence, I will, for the sake of completeness, consider the position had they been entitled to do so.
[34] To succeed in their claim in negligence against the PSA, the plaintiffs must establish that the latter owed them a duty of care, that the latter breached that duty and that the breach caused them damage. In Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”), the Court of Appeal explained (at [21]):
[35] In Spandeck, the Court of Appeal pointed out (at [73]) that a coherent and workable test to determine the existence of a duty of care for claims of negligence can be “fashioned out of the basic two-stage test premised on proximity and policy considerations, if its application is preceded by a preliminary requirement of factual forseeability”. What matters is the closeness of the relationship between the parties, including physical, circumstantial and causal proximity, supported by the twin criteria of voluntary assumption of responsibility and reliance. If a positive answer to the threshold question of factual foreseeability and the first stage of proximity was assumed, a prima facie duty of care arose.
[36] In this case, the vessel berthed at the PSA wharf for cargo operations. As such, this is a situation where it was foreseeable that negligence on the part of the PSA or the plaintiffs could result in damage to the other party’s property. As such, they owed a duty of care to each other. There are no policy considerations to negate the duty of care imposed on the parties with regard to the lifting operations.
[37] The plaintiffs have the burden of proving on a balance of probabilities that the PSA breached its duty of care and that this breach was the cause of the accident. In relation to causation, in Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782, the Court of Appeal explained (at [52]-[53]):
Whether the PSA breached its duty of care
[38] The plaintiffs accepted that the appropriate standard of care for the hatch cover lifting operation was that set out in the PSA’s Standard Operating Procedure (“SOP”) as well as in the guidelines and instructions given to the crane operator, the STA and the WOS during their on-the-job training. They contended that the accident occurred as a result of the following sequence of events:
(i) the Spreader was misaligned with the lifting sockets of the hatch cover when the crane operator lowered it heavily onto the hatch cover during the lifting operation;
(ii) the misalignment was such that only the forward twistlocks were secured inside the forward lifting sockets whilst the aft twistlocks were displaced outside the aft lifting sockets;
(iii) STA Balraj failed to check whether or not the Spreader was properly connected to the hatch cover before signalling to the crane operator to lift the hatch cover;
(iv) the hatch cover was therefore lifted in circumstances where the aft twistlocks were precariously connected only to the underside of the outer flange of the aft lifting sockets; and
(v) the hatch cover was lifted in that condition to a height of about 10 metres and the crane operator then proceeded to trolley the hatch cover laterally towards the wharf. It was during this time that the aft twistlocks slipped off the underside of the aft lifting sockets causing the hatch cover to drop.
[39] To establish negligence on the PSA’s part, the plaintiffs pleaded a very long list of particulars of negligence, which included the following rather serious allegations against the PSA in paras 17(c), (d), (e), (g), (h), (i) and (j) of the Statement of Claim:
[41] In para 17 of their amended Statement of Claim, the plaintiffs pleaded the following allegations of negligence on the PSA’s part:
[42] The plaintiffs offered only one explanation on how the accident occurred. When cross-examined, Dr Sykes confirmed that there was nothing in his AEIC on how the accident could have occurred if all the lifting sockets had been properly engaged by the corresponding Spreader twistlocks. It follows that the plaintiffs’ case on negligence hinged on whether their sole explanation for the cause of the accident was substantiated.
[43] The PSA contended that the plaintiffs’ theory that the Spreader twistlocks did not properly engage all four lifting sockets of the hatch cover was fanciful and wholly unsubstantiated by the evidence. It pointed out that between 2008 to 2010, more than 80 million containers and countless hatch covers were lifted by its gantry cranes without a similar mishap. It added that it cannot be ruled out that the accident was caused by a defect in the lifting sockets of the hatch cover.
Plaintiffs’ theory inconsistent with eye-witness accounts of accident
[44] The plaintiffs faced many hurdles in proving their hypothesis that the hatch cover fell because the Spreader aft twistlocks did not properly engage its aft lifting sockets when it was lifted by Mr Wong. To begin with, this hypothesis was totally inconsistent with eye-witness accounts.
Allegation that Mr Wong was negligent
[45] Having abandoned their allegation that the gantry crane was not properly maintained or was not in good working order, the plaintiffs pointed their fingers at the crane operator, Mr Wong. They made two allegations against him. The first was that he negligently landed the Spreader heavily on the hatch cover before it finally rested on the hatch cover and this caused the aft twistlocks of the Spreader to become misaligned to the portside of the two aft lifting sockets of the hatch cover whilst the two forward twistlocks were inside the forward lifting sockets. The second allegation was that he failed to comply with the PSA’s SOP for the lifting of the hatch cover, which required him to follow the so-called “3-step hoist” when lifting a hatch cover.
The alleged misalignment
[46] The alleged misalignment of the Spreader by Mr Wong was a key element in the plaintiffs’ explanation of how the accident occurred. If, as the plaintiffs contended, the aft of the Spreader was misaligned to the port-side by 150mm, this would have caused the entire port-side aft lifting socket to be exposed. Capt Haslam pointed out that if the Spreader had sat in the manner claimed by the plaintiffs’ experts, it would have been at an angle of 1.29 degrees from the fore and aft plane and it would have shifted at its aft end by 136mm, which is a considerable displacement. In such a case, the starboard aft lifting socket would have been clearly visible and someone watching the hatch cover operation would have been able to spot the misalignment regardless of whether it was lifted during daytime or at night. After all, there was a stark contrast in colours between the hatch cover surface, which was grey, the lifting sockets, which were green, and the Spreader, which was yellow.
[47] The plaintiffs’ sole eye-witness, AB Clemente, claimed that he heard two to three strong slams and loud bangs before the Spreader finally rested on the hatch cover and that he was worried that the hatch cover might have been damaged. As he testified that he was the vessel’s duty officer’s “eyes on the deck” to ensure that there was no damage to the vessel, it was rather telling that in his three statements given shortly after the accident and in his AEIC, he did not mention that the Spreader had been misaligned in any way after the loud bangs or that any of the Spreader twistlocks had not properly engaged the corresponding hatch cover lifting sockets.
[48] When cross-examined, AB Clemente confirmed that from where he claimed to have been standing during the lifting operation, he would have been able to see an exposed lifting socket. He testified as follows:
[49] In their reply submissions, the plaintiffs claimed that AB Clemente was answering a hypothetical question and as he had not seen the misalignment, his answer does not prove that he had actually seen the exposed lifting socket. However, what mattered was that AB Clemente confirmed that despite the loud bangs that he heard, the Spreader landed “properly” on the corner castings of the hatch cover. The relevant part of the proceedings is as follows:
[50] The implication of AB Clemente’s testimony that the Spreader landed properly was that the Spreader was not misaligned after it landed. When cross-examined, Dr Sykes agreed that AB Clemente would not have regarded the Spreader as having landed properly on the hatch cover if the aft lifting sockets had been exposed.
[51] Apart from confirming that the Spreader had landed properly on the hatch cover, AB Clement also testified that he did not notice anything unusual while the hatch cover was being lifted. As he claimed that he was observing the hatch cover while it was being lifted, this lent weight to his evidence that the Spreader had landed properly on the hatch cover. In this context, the PSA’s expert witness, Capt Haslam testified:
[52] It is noteworthy that Dr Sykes readily conceded that if AB Clemente had said that the Spreader had landed properly and that he could have seen the allegedly exposed lifting socket from where he stood if it had been exposed, the latter’s evidence would be inconsistent with the plaintiffs’ theory that the hatch cover fell because the aft Spreader twistlocks had not properly engaged the aft lifting sockets of the hatch cover.
[53] AB Clemente’s testimony that the Spreader had landed properly on the hatch cover was corroborated by STA Balraj, who impressed me as a truthful witness. He testified that he walked around that Spreader after it landed to conduct checks and that he found that the Spreader was “properly fixed” and “sitting in the correct place” and that all the locking levers were properly locked. He testified that it was only after checking that everything was all right that he then gave an “all ok” hand signal to Mr Wong to proceed with the lifting of the hatch cover. Despite intense cross-examination, his evidence was consistent with what he had stated in his AEIC.
[54] It must also be borne in mind that there were indicator lamps in the gantry crane cabin to ensure that a hatch cover is not lifted if the Spreader’s twistlocks did not properly engage a hatch cover’s lifting sockets. Mr Ang Chew Peng, the engineering manager of the PSA’s Brani terminal, explained the working of the lighting system in his AEIC at paras 16-20 as follows:
[55] Mr Wong confirmed that the lighting system in the crane operator’s cabin indicated that all the Spreader twistlocks had engaged the corresponding lifting sockets. He explained in his AEIC at paras 18 – 19 why he believed that the twistlocks had properly engaged the lifting sockets:
[56] Mr Wong, who holds an Institute of Technical Education (“ITE”) certificate in Quay Crane Operations, received 420 hours of structured full-time training, which involved both classroom and on-the-job training. The methods of work, guidelines and procedures for safe working practices were taught by experienced mentors. He had worked for 8 months as a crane operator without any mishap. I found him to be a truthful witness and I believe his evidence that he had followed the SOP for lifting the hatch cover and that the lighting panel in the gantry crane cabin showed that it was safe to lift the hatch cover. As such, I find that it was not established that he had negligently handled the Spreader when he lifted the hatch cover.
Whether Mr Wong followed the 3-step hoist
[57] The plaintiffs asserted that Mr Wong acted negligently by not following the SOP for the lifting of the hatch cover. The so-called “3-step hoist” procedure for lifting a hatch cover requires a crane operator to do the following:-
[58] The plaintiffs furnished no expert evidence to support their allegation that the 3-step hoist was not followed. They merely relied on the testimony of AB Clemente, who claimed that Mr Wong lifted the hatch cover to a height of about 10 metres in a single step within seconds after the Spreader landed on the hatch cover.
[59] Mr Wong testified that he had followed the 3-step hoist procedure when he lifted the hatch cover. He stated:
[60] Mr Wong’s evidence that he had followed the 3-step hoist procedure was corroborated by STA Balraj.
[61] AB Clemente’s evidence is not believable. To begin with, he deposed that he saw STA Balraj standing next to him and that the latter was communicating with the crane operator “during the lifting process”. If the hatch cover was lifted in seconds, there would be no time for STA Balraj to talk to the crane operator during the lifting process. Furthermore, the hatch cover is a large object that measures 12 metres by 10 metres and weighs around 30 tonnes. It was hoisted by wire ropes and would invariable swing when lifted from the rest position. The plaintiffs’ own expert witness, Capt Lee, explained in his report, which was annexed to his AEIC as follows:
[62] AB Clemente, who testified that he did not notice anything unusual while the hatch cover was being lifted, did not mention the swaying of the hatch cover in his AEIC. In contrast, Mr Wong, who was fully aware of this swaying motion, knew that the hatch cover could not be lifted quickly in a single step to the height suggested by AB Clemente. He testified as follows when he was re-examined:
[63] The PSA furnished adequate evidence that Mr Wong and STA Balraj had been well trained and that sufficient safety guidelines had been given to them for hatch cover lifting operations. I do not believe, in the absence of acceptable evidence, that Mr Wong would suddenly go on a frolic of his own and ignore the safety measures by not complying with the procedure for a 3-step hoist, and especially so when he knew that the hatch cover would sway while being lifted and could cause massive damage if dropped. I thus find that Mr Wong had followed the 3-step hoist when he lifted the hatch cover.
Whether STA Balraj walked around the Spreader
[64] The plaintiffs alleged that STA Balraj was negligent as he did not walk around the Spreader to conduct the requisite checks after it rested on the hatch cover. However, STA Balraj testified that he walked around the Spreader after it landed to check that the Spreader twistlocks were properly connected to the lifting sockets. He explained in his AEIC at paras 6 and 7 as follows:
[65] The crane operator, Mr Wong, testified that he saw STA Balraj walking around the Spreader to conduct checks on all the four corners of the Spreader after it rested on the hatch cover. He added that he had been taught that it was necessary for him to be satisfied that the STA had walked around the Spreader for the requisite checks to be made before he can proceed to lift a hatch cover. In his AEIC, he stated at paras 19 and 21 as follows:
[66] When cross-examined, Mr Wong testified that he saw STA Balraj walk towards the Spreader from the starboard side, after which the latter walked around the Spreader before giving him an “all ok” hand signal to begin to hoist the hatch cover.
[67] Lifting a hatch cover is a dangerous operation and it is quite obvious that if a STA does not do his job properly, the hatch cover, weighing around 30 tonnes, could tumble down causing damage to the vessel and the PSA’s facilities and kill or maim innocent personnel from the ship and shore. STA Balraj, who holds an ITE certificate, had 420 hours of training for his work and had worked at the PSA terminals for 5 years without any mishap before the accident. To carry out his task properly, he had to walk around the Spreader to conduct the requisite checks. I accept his evidence that he did this before the hatch cover was lifted.
[68] The plaintiffs asserted that STA Balraj could not have walked around the Spreader as this was prohibited by the SOP. They laid emphasis on the words “Check to see that no people are on the hatch cover” in the said SOP. However, these words concerned the period when the crane operator is about to land the Spreader onto the hatch cover. There was nothing in the SOP that expressly prohibited STA Balraj or AB Clemente from going onto the hatch cover after the Spreader had already landed on the hatch cover to conduct the requisite checks.
[69] The PSA pointed out that the guidelines issued to its personnel are not exhaustive and stressed that STA Balraj had been trained to walk around the Spreader while Mr Wong had been trained to lift hatch covers only after the STA had walked around the Spreader. When cross-examined on his training by his mentors, Mr Wong said:
[70] Mr Wong testified that even if the indicator lights in his cabin showed that the Spreader twistlocks had properly engaged the lifting sockets, he would not have lifted the hatch cover unless he was satisfied that STA Balraj had walked around the Spreader and given him the requisite “all ok” hand signal to lift. When cross-examined, he stated:
[71] I believe the evidence of STA Balraj and Mr Wong that a member of the crew accompanied STA Balraj when he walked around the Spreader. Mr Wong explained that from his gantry crane cabin, which gave him an unimpeded view of the entire hatch cover, he could see a member of the crew, who was holding a clipboard, accompany STA Balraj as he walked around the Spreader.
[72] AB Clemente gave contradictory evidence as to whether he had walked around the Spreader. Although he claimed that he had not done so, he also testified as follows:
[73] AB Clemente also contradicted himself on where he was positioned during the lifting operation. Initially, he said that he had checked the cleats together with STA Balraj. However, he soon changed his evidence and claimed that STA Balraj remained on the starboard side hatch cover while he checked the hatch cover cleats. Subsequently, he said that STA Balraj first approached him when he was on the hatch cover. Finally, when it was put to him by Mr Toh that he could not have stood on the starboard hatch cover at the material time because four 40-feet containers occupied all the available space there, he agreed. Another version emerged during re-examination when AB Clemente claimed that he moved to the centre hatch cover after he had removed the hatch cover cleats and that STA Balraj was also standing on that centre cover before they both moved to the starboard hatch cover, even though he had already conceded that he could not have been on the starboard hatch cover because all the available space on that cover had been taken up by four containers.
[74] I had no doubt whatsoever that Mr Wong and STA Balraj were more reliable witnesses than AB Clemente and I find that STA Balraj walked around the Spreader to conduct the requisite checks before the hatch cover was lifted by Mr Wong. I also find that neither STA Balraj nor Mr Wong were negligent in carrying out their tasks in relation to the lifting of the hatch cover.
Whether AB Clemente’s role was to monitor the lifting of the hatch cover
[75] Considering that AB Clemente’s AEIC and testimony during cross-examination was not to the plaintiffs’ advantage, it was not surprising that they decided to distance themselves from his evidence by arguing that he was neither required nor qualified to monitor the lifting of the hatch cover. AB Clemente went so far as to claim that he did not witness the whole process and that he did not pay attention or concentrate during the hatch lifting operations.
[76] The plaintiffs’ contention that AB Clemente was only required to watch hatch cover operations “generally” cannot be taken seriously in view of the latter’s evidence and the vessel’s procedures regarding hatch cover lifting operations. In his AEIC, AB Clemente outlined his duties at the time of the accident as follows:
[77] The plaintiffs’ expert witness, Capt Lee, stated in his AEIC at para 16 that the scope of duties described by AB Clemente is typical of the duties of an able-bodied seaman or duty officer on board a container vessel during cargo operations. In fact, the vessel’s technical manager, who had been rather concerned about damage to hatch covers, had written as follows to the captain and chief officer of the vessel to keep a close watch on hatch cover operations before the accident:
[78] Mr Heidrich, who authored the above-mentioned circular, confirmed that it was issued because he wanted the vessel’s crew to keep an eye on hatch covers during cargo operations. Crucially, the vessel’s Operational Procedure and Contingency Plan (“Operational Procedure”) required the crew to witness and record the connection of “the spreader to the lifting fittings of the hatch cover” in the log book. The relevant part of the Operational Procedure provides:
[79] Capt Haslam testified that for the above-mentioned operational procedure to be effective, the connection of the Spreader to the lifting fittings should be entered contemporaneously in the appropriate vessel log book after a crew member of the vessel had actually witnessed the said connection. It follows from AB Clemente’s admission that he was the “eyes on deck” for the purpose of the filling up of the vessel’s logbook, that he was required to watch and report the connection of the “spreader to the lifting fittings of the hatch cover”. After all, he also confirmed that no entry of any such connection can be made in the vessel’s log book unless an able-bodied seaman reports the connection. He testified as follows:
[80] Significantly, AB Clemente also agreed that walking around the Spreader was the only way he could have conducted the necessary checks. He also conceded that in the interest of safety, he would want to consider any possible damage to the ship during cargo operations. When cross-examined, he testified:
[81] It is also pertinent to note that the Chief Officer’s Standing Order Nr 02/09 Watch Keeping In Port (Deck Crew) dated 25 March 2009, provided as follows:-
[82] Furthermore, the Chief Officer’s Standing Order Nr 03/09 (Cargo Operations) as at 19 July 2009 specifically stated as follows:
[83] The above-mentioned Standing Orders were applicable in July 2009, some six months after the accident. As such, the PSA asked the plaintiffs to furnish copies of the Standing Orders applicable at the time of the accident in January 2009. The plaintiffs did not furnish the requested documents and their solicitors responded as follows:-
[84] The PSA invited the court to make an adverse inference from the failure of the plaintiffs to furnish the court with the Standing Orders applicable at the time of the accident and assume that the same type of Standing Orders as those applicable in July 2009 must have been in force at the material time. In any case, although Capt Haslam was only given the Standing Orders applicable after the accident, he was able to infer from the other SMS documents, and particularly Company Circular OSM/26/2006, which was specifically referred to in the July 2009 Standing Orders, that the crew member on duty was required to witness the connection of the Spreader to the Hatch Cover. He explained at para 65 as follows:
[85] I thus accept the PSA’s contention that the vessel’s SMS documents, read as a whole, require her crew to closely monitor the hatch cover operations, including the proper engagement of the Spreader twistlocks into the hatch cover lifting sockets. I do not believe that AB Clemente, who has sailed for more than 3 years on container vessels, could not raise the alarm if any Spreader twistlock socket, which was coloured very differently from the Spreader and the deck, had been left outside a lifting socket before it was lifted. Capt Haslam explained the position in the following succinct words:
[86] AB Clemente’s ability to recall so many details about the lifting of the hatch cover showed that he must have been paying attention to the movements of the Spreader at the material time. As such, it is significant that he did not mention in his three reports on the accident and in his AEIC that the Spreader was misaligned when it landed on the hatch cover. Furthermore, his evidence that the Spreader landed properly on the hatch cover, that he could have seen any misalignment from where he claimed to have stood during the hatch cover operations and that he had noticed nothing unusual when the hatch cover was lifted cannot be overlooked. While the plaintiffs claimed that AB Clemente’s evidence must be viewed on the basis that he is not fluent in English and did not understand the questions posed during cross-examination on many occasions, all that needs to be said is that even if this is taken into account, his inconsistent evidence and other evidence that damaged the plaintiffs’ case had nothing to do with his lack of understanding of the English language. I had the distinct impression that he had problems answering because he was trying so very hard to keep in line with the plaintiffs’ case. There was nothing difficult about the questions relating to his duties during the hatch cover lifting operation, where he stood during the lifting operation, whether the Spreader landed properly and whether he noticed anything unusual while the hatch cover was being lifted. As for the deafening silence in his AEIC about any misalignment of the Spreader when it landed, the plaintiffs did not suggest that this omission was due to his lack of understanding of the English language. I thus find that AB Clemente knew why he was on duty at the material time and that he was capable of performing his duties in relation to the lifting operation. In short, his evidence damaged the plaintiffs’ theory on how the accident occurred.
Conclusion on the eye-witness accounts of the accident
[87] I am fully aware that it would be in the interest of both STA Balraj and Mr Wong to support each other’s version of events. However, I was convinced that both of them were telling the truth when they testified that the Spreader had landed properly on the hatch cover, that STA Balraj had walked around the Spreader to check that the Spreader twistlocks had properly engaged the lifting sockets and that the 3-step hoist process had been followed. I have no reason to believe that they, realising that a hatch cover weighing around 30 tonnes was being lifted, would throw caution to the winds and fail to follow the standard procedures for the lift. For the record, I must add that it was not proven that the PSA had failed to provide guidelines to the crane operator or adequate supervision to check that the Spreader was properly and safely locked into the lifting sockets before lifting the same. In short, the plaintiffs did not prove the particulars of negligence alleged in para 17 of the Statement of Claim.
Effect of eye-witness accounts on the theory espoused by the plaintiffs
[88] The plaintiffs’ entire hypothesis on the cause of the accident is only relevant if the Spreader was in fact misaligned by 150mm port-wise at an angle of 1.4 degrees. Dr Sykes stated as follows in Appendix 3 of his Report:
[89] However, none of the eye-witnesses, including the plaintiffs’ AB Clemente, stated in their AEICs that the Spreader was misaligned in any way before it lifted the hatch cover and there was credible evidence that the Spreader twistlocks had properly engaged the hatch cover lifting sockets. As such, the starting point of Dr Sykes’ hypothesis was totally contradicted by the eye-witnesses. At this juncture, it may also be noted that the engineering drawings of Capt Haslam, who conducted a number of experiments using Progecad software, showed that it was impossible for the front Spreader twistlocks to be properly engaged with the hatch cover front lifting sockets if the aft Spreader twistlocks were misaligned and locked outside the lifting socket flanges in the manner alleged by the plaintiff. More will be said about these experiments later on. What needs to be stated here is that it is trite that if a critical factual premise of an expert opinion is wrong, that opinion will be rejected even if it is otherwise flawlessly reasoned. In Khoo Bee Keong v Ang Chun Hong and Another [2005] SGHC 128, Andrew Phang JC explained (at [68]):
[90] The position is also outlined as follows in Halsbury’s Law of Singapore (Evidence: Vol 10 2006 Reissue):
[91] Dr Sykes agreed that AB Clemente had not indicated in his AEIC that the Spreader landed on the hatch cover in a misaligned position. Crucially, he accepted that if Mr Toh had outlined AB Clemente’s eye-witness account correctly, that account would be inconsistent with the plaintiffs’ theory on the cause of the accident. The relevant part of the proceedings is as follows:
[92] As Mr Toh had correctly summarised AB Clemente’s evidence, Dr Sykes’ theory on how the accident occurred did not rest on solid ground. As the plaintiffs’ experts were fundamentally mistaken when they assumed that the Spreader was misaligned when it landed on the hatch cover, their theory on how the accident occurred did not even get off the ground.
The views of Capt Howe and Mr Sio
[93] Leaving aside for the moment the eye-witness accounts of the accident, the plaintiffs’ theory on the cause of the accident faced other hurdles.
[94] The only witnesses who asserted that the Spreader was misaligned before the hatch cover was lifted were the plaintiffs’ surveyors and experts, none of whom witnessed the accident. The plaintiffs called two surveyors, Mr Sio, who was appointed by the vessel’s hull and machinery insurers, and Captain Richard Howe (“Capt Howe”), their own surveyor, as factual witnesses to present the physical evidence of their inspections on the hatch cover in general and the lifting sockets in particular. In Sim Cheng Soon v BT Engineering Pte Ltd and another [2007] 1 SLR(R) 148, the Court of Appeal reiterated (at [22]) that it is “an accepted principle that only expert witnesses may give opinion evidence”. As such, the PSA rightly submitted that as Mr Sio and Capt Howe were not expert witnesses, their opinion on the cause of the accident were inadmissible. In any case, Mr Sio also relied on the contents in the master’s letters of protest, the vessel’s third officer’s statements and inspection reports of the hatch cover allegedly issued by the hatch cover manufacturer’s representative. He did not have personal knowledge of the contents of these documents and the makers of the statements in these documents were not called as witnesses to prove the truth of the documents.
[95] As for the reliance by Mr Sio and Capt Howe on digital photographs taken by them and transferred to their computers, the PSA submitted that s 35 of the Evidence Act, which requires the party furnishing computer outputs to prove that they are reliable, was not complied with. It is clear that the witness who is called to certify the reliability and accuracy of the computer must be someone fairly familiar with its operation: see Ng Koo Kay Benedict v Zim Integrated Shipping Services Ltd [2010] 2 SLR 60. Mr Sio, who did not know which camera had been used to take the photographs, could not shed any light on the camera settings. Neither could he explain how the digital photographs in his digital camera were copied onto the discs and what computer programme was used to process the images. It was also troubling that the digital camera may not have been set properly as some of the dates reflected in the photographs were dated prior to the day of the accident. The effect of s 35 of the Evidence Act need not be considered at length for the simple reason that even if the photographs in question were taken into account, their quality left much to be desired. Important photographs were either blurred or under-exposed.
[96] Leaving aside the question of the inadmissibility of opinion evidence for the moment, Mr Sio’s attempt to prove the plaintiffs’ theory on the cause of the accident by using drawings was also not without flaws. He did not take measurements of the lifting sockets and their relative positions. As such, it was impossible for him to draw accurately scaled drawings to prove his hypothesis. Capt Haslam, who pointed out that Mr Sio’s drawings were unreliable hand-drawn scaled drawings of the hatch cover, had no doubt that the latter’s hypothesis failed as it hinged on these inaccurate drawings. He explained at para 92 of his Report annexed to his AEIC as follows:
[97] It should not be overlooked that in Mr Sio’s drawings, the angles of the alleged misalignment from the ideal position of the Spreader vis-a-vis the aft lifting sockets are different from each other. In one drawing, the misalignment was 9.5 degrees while it was 12.5 degrees in another drawing. As there was no evidence to prove that the Spreader is not of a rigid construction, it was not possible for it to be misaligned by 9.5 degrees and 12.5 degrees at the same time. Apart from this, Mr Sio failed to take into account the position of the forward twistlocks vis-a-vis the aft twistlocks. When cross-examined, he admitted that he had assumed that the forward lifting sockets engaged the corresponding twistlocks and hence he focussed on the two aft lifting sockets in his drawings. This meant that he had not considered whether, if the aft port twistlock had been put into a position to support the plaintiffs’ theory, the starboard twistlocks would fall into the position replicated by him at page 31 of his AEIC. This showed that his methodology was inherently unreliable.
The surveyors’ view on the chipped paint on the aft lifting sockets
[98] The opinion of Mr Sio and Capt Howe that chipped paint on the underside of the aft flange supported the hypothesis that the aft twistlocks of the Spreader closed outside was also flawed. Capt Haslam pointed out that it was presumptuous of Mr Sio and Capt Howe to assume that the said damage to the paintwork was caused by the accident at the PSA berth because the damage could just as easily have been caused by other factors. He explained that when the Spreader, a heavy mass weighing about 13 tonnes, descended onto the hatch cover several times at the PSA berth, the twistlocks would inevitably hit the casting socket with great force. This would result in paint work damage. Capt Haslam added at para 111 in his Report annexed to his AEIC as follows:
[99] Capt Haslam also noted that neither Mr Sio nor Capt Howe had explained whether the damage to the paint work was recent or fresh.
[100] Although the plaintiffs claimed that Capt Haslam was not qualified to deal with the characteristics of paint and materials and stated in their closing submissions that the evidence of Mr Sio and Capt Howe was supported by the “unchallenged” physical evidence adduced by Dr Sykes, this was not correct. Dr Sykes’ evidence was robustly challenged and when cross-examined, he made an important concession that impact and chipping damage on lifting socket flanges is not an uncommon occurrence on vessels and could be due to a number of reasons, including contact with Spreader twistlocks. He testified as follows:
[101] I hold that the chipped paint on the aft lifting sockets does not support the plaintiffs’ theory on the cause of the accident.
The views of the expert witnesses
[102] The duty of an expert witness must be viewed in the context of Order 40A r 3(2) of the Rules of Court, which provides:
Capt Jonathan Lee
[103] Capt Lee was a rather unhelpful expert witness. For a start, he did not comply with O 40A r 3(2)(c) of the Rules of Court, which requires an expert to set out all the issues that he was asked to provide an expert opinion on. When asked why he failed to comply with this requirement, his answers gave a good indication of the tenor of his testimony:
[104] Capt Lee did not inspect the gantry crane, the Spreader, the hatch cover or the lifting sockets. There was no evidence that he was given the measurements of the relevant fittings of the Spreader or the hatch cover. Although the plaintiffs stressed in their reply submissions that it was patently clear that his conclusion that the accident had occurred as a result of the misalignment of the Spreader was based on his review of the physical evidence before him, Capt Lee readily conceded that for the preparation of his expert report, he depended on the reports of Capt Howe and Mr Sio and relied “heavily” on the photographs found in their AEICs. The relevant part of the proceedings is as follows:
[105] While the plaintiffs contended that Capt Lee had conducted an independent and objective analysis of the primary physical evidence described by Capt Howe and Mr Sio, he could not explain the basis for his “independent and objective” views. In fact, Capt Lee made the absolutely astonishing admission of his partisanship when he answered as follows during cross-examination:
[106] By selecting parts of Capt Howe’s report that better support the plaintiffs’ case, Capt Lee showed that he was not the impartial witness that an expert witness is supposed to be.
[107] When Capt Howe and Mr Sio took different views on the nature of marks found on the aft lifting socket flanges, Capt Lee preferred Capt Howe’s view that these were scouring marks to that of Mr Sio, who only found abrasions on these lifting sockets. However, he could not explain why he preferred Capt Howe’s view. This was rather disturbing as s 62(1)(d) of the Evidence Act provides:
[108] In Halsbury’s Laws of Singapore Vol 10: Evidence (2006 Reissue), the role of an expert witness in the face of contradictory views was put as follows:
[109] When pressed to explain why he preferred the view of Capt Howe over that of Mr Sio on the scouring marks referred to earlier on, Capt Lee’s replies were most unhelpful. Although the plaintiffs asserted that Capt Lee had not preferred any view but had formulated his own objective and independent views, this was not borne out by the evidence. When questioned, Capt Lee did not deny that he had preferred Capt Howe’s view on the scouring marks. As mentioned, he conceded that he had selected parts of Capt Howe’s report that best supported the plaintiffs’ case. Admittedly, he claimed that he did not understand the question on why he preferred one view over another but this was a ridiculous answer to cover up his inability to explain his view. The relevant part of the proceedings, which showed that he understood the question, is as follows:
[110] After another five minutes of cross-examination, Capt Lee had still not enlightened the court on why he preferred Capt Howe’s view on the marks on the aft lifting socket. The relevant part of the proceedings is as follows :
[111] It was in the context of Capt Lee’s inability to answer a simple question on why he preferred Capt Howe’s view on the scoring marks in question that an exasperated Mr Toh asked Capt Lee whether he had selected parts of Capt Howe’s report that best supported the plaintiffs’ case. Capt Lee also admitted that he had not taken into account the possibility that welding defects in relation to the lifting sockets of the hatch cover could have caused or contributed to the accident. Clearly, he did not present an objective and independent analysis on the cause of the accident and this diminished his role as an expert witness.
[112] The plaintiffs asserted that Capt Lee had done his best to assist the court as an independent expert witness. Regrettably, I had no doubt whatsoever that he did not advance the plaintiffs’ case against the PSA.
Dr Jonathan Sykes
[113] In view of Capt Lee’s unhelpful evidence, Dr Sykes had the unenviable task of shouldering the responsibility of explaining why the plaintiffs’ theory was workable. Regrettably for the plaintiffs, his performance in the witness box was rightly described by Mr Toh as “calamitous”. Although touted by the plaintiffs as a metallurgist and materials scientist, he did not conduct any metallurgical tests on the hatch cover to exclude the possibility that hatch cover defects had caused the accident.
[114] In their closing submissions, the plaintiffs asserted that Dr Sykes’ findings on how the accident occurred, as described in his AEIC were unchallenged. Nothing could be further from the truth as Dr Sykes’ findings were challenged at every turn. The PSA had shown that the testimony of eye-witnesses contradicted his theory, challenged the admissibility of much of his evidence and photographs, cross-examined him robustly on his theory and presented the results of Progecad experiments that showed that his hypothesis could not be replicated in real life.
[115] To begin with, Mr Toh took Dr Sykes to task for failing to disclose to the court that he had already formed an opinion on the cause of the accident more than two years ago in January 2009 when he was commissioned to investigate the cause of the accident on behalf of the P & I Club to which the vessel belonged. Pursuant to that engagement, he had issued a report dated 18 February 2009. Dr Sykes also did not disclose in his report or AEIC that he had discussed his views on causation with Mr Sio and Capt Howe way back in 2009. When cross-examined, Mr Sio testified that he, Capt Howe and Dr Sykes had met in 2009 to forge a “united front” on the issue of causation.
[116] Dr Sykes conceded that although he claimed to have read all the AEICs and found that only the AEICs of AB Clemente and Mr Ang Chew Peng were relevant, the truth was that in preparing his expert report for the present proceedings, he was “basically putting together an opinion in respect of a matter on which [he] had formed a view more than two years ago”, he did not carry out any new tests or consider other evidence, such as the relative positioning of four twistlocks vis-a-vis the lifting sockets, that might not have supported his conclusion. Neither did he take into account the fact that none of the eye-witnesses of the accident had stated in their respective AEICs that the Spreader had landed in a misaligned position on the hatch cover. When cross-examined, he stated as follows:
[117] The opinions formed by Dr Sykes in his earlier report in 2009 must be viewed in the context of his own admission that he was not asked in 2009 to look at matters of causation. In fact, he added that he had been expressly instructed not to provide any opinion on causation. Furthermore, the old digital photographs that Dr Sykes took in 2009 and relied on for his latest report are problematic. As in the case of the digital photographs taken by Mr Sio and Capt Howe, the PSA contended that Dr Sykes did not meet the requirements of s 35 of the Evidence Act concerning the use of computer evidence. He did not know which computer was used to download the images in his digital camera or which programme had been used to download the said images. Neither did he know the settings on his camera nor the process by which the images were transferred into a CD ROM. As the images allegedly captured in his camera storage card had been overwritten, the photographs reproduced in his report could not be verified against the original images from his camera. Finally, he was in no position to confirm that the computer used to produce the photographs in his report had been working properly at all material times. Even if compliance with s 35 of the Evidence Act is left aside, the quality of the photographs relied on by Dr Sykes is an issue. Dr Sykes admitted that photograph 21 in his report, which depicts paint damage to the starboard aft lifting socket, was over-exposed and it was not possible to make out the area of the paint damage. Furthermore, when he was shown two photographs (marked “PP-1” and “PP-2”), which were taken by him at the same time as the other photographs but included in his report, he informed the court that these two photographs must be treated with “caution”. This reinforces the point that it was not altogether safe for Dr Sykes to rely on his visual impressions of the photographs in his report to defend his theory on the cause of the accident.
[118] Dr Sykes focused on the condition of the four lifting sockets and did not analyse the positions of all the four twistlocks vis-a-vis the four lifting sockets. He confirmed that apart from determining the length of the twistlock heads and the dimensions of the lifting socket orifice, he took no other measurements. As such, he did not check the relative position of the fittings at the forward end of the Spreader vis-a-vis the fittings of the aft of the Spreader and hatch cover to see if his hypothesis could work. The PSA submitted that as Dr Sykes’ opinion was based on a preconceived notion rather than an independent, objective and fresh analysis, his opinion ought to be viewed with caution.
[119] Despite the contradictory factual evidence furnished by all three eye-witnesses to the accident, Dr Sykes claimed that there was unequivocal evidence that the aft lifting socket could not have been torn off unless it was outside the corresponding Spreader twistlock. When cross-examined, he stated:
[120] Admittedly, even Capt Haslam was puzzled by the lack of damage to the orifices of the aft lifting sockets, However, while this is one piece of evidence favourable to the plaintiffs’ hypothesis, it did not, without more, prove their hypothesis on the cause of the accident. This evidence must be viewed in the context of the overwhelming evidence against the plaintiffs’ hypothesis, including the eye-witness accounts that far from being misaligned, the Spreader had properly engaged the lifting sockets of the hatch cover and the Progecad drawings that showed that the plaintiffs’ hypothesis on the case of the accident was quite impossible. While the plaintiffs laid great emphasis on the fact that even Capt Haslam was baffled by this piece of evidence, it must be noted that his evidence was that while he did not know how the accident was caused, he was absolutely certain that it did not occur in the manner hypothesised by the plaintiffs.
[121] The plaintiffs claimed that Dr Sykes’ investigations were detailed and precise. However, Dr Sykes was less thorough than desired and he did not consider other possible scenarios. The plaintiffs must have been aware that structural or material defects in the hatch cover might have caused the accident because Mr Sio had in his preliminary report of 8 January 2009, just two days after the accident, recommended a metallurgical examination of the detached lifting socket as well as the part of the hatch cover plate from where the lifting socket was ripped off. When cross-examined, Mr Sio confirmed that he had called for the said metallurgical examination because he was concerned that the lifting socket may have been defectively welded to the hatch cover. The plaintiffs did not conduct the metallurgical test recommended by Mr Sio. Significantly, Capt Lee accepted that neither Mr Sio nor Capt Howe had ruled out the possibility that poor welding of the hatch cover was a cause of the loss. Capt Haslam pointed out that all four lifting sockets should have been checked for their tensile strength to find out if there was anything wrong with them. He explained:

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Zweite Ms “Philippa Schulte” Shipping GmbH & Co KG & another v PSA Corp Ltd

Laws this judgment relies on

Grounds of decision

Background

The expert witnesses

Whether the plaintiffs are entitled to sue the PSA

The law on negligence

Whether the PSA breached its duty of care

Plaintiffs’ theory inconsistent with eye-witness accounts of accident

Allegation that Mr Wong was negligent

The alleged misalignment

Whether Mr Wong followed the 3-step hoist

Whether STA Balraj walked around the Spreader

Whether AB Clemente’s role was to monitor the lifting of the hatch cover

Conclusion on the eye-witness accounts of the accident

Effect of eye-witness accounts on the theory espoused by the plaintiffs

The views of Capt Howe and Mr Sio

The surveyors’ view on the chipped paint on the aft lifting sockets

The views of the expert witnesses

Capt Jonathan Lee

Dr Jonathan Sykes