Jurisdiction - China
Reports and Analysis
China – Berth Damage.

14 July, 2014

Terminal Contenitori Porto di Genova SpA v. China Shipping Container Lines Limited (Xin Xia Men) [2014] EWHC 1629 (Comm)

 

Instances of vessels making contact with and damaging a berth are fairly common. Disputed claims on liability are much rarer, given that often it is very clear that the vessel bears 100% of the fault. In this recent first instance decision, the High Court was asked to consider allegations of negligence directed at the terminal.

 

The Background Facts

 

On 5 June 2011, during strong wind and rains, Xin Xia Men (the “Vessel”), a container ship owned by China Shipping Container Lines Limited (the “Owners”), was blown off the quay at Genoa’s container terminal (the “Terminal”) and impacted with the Terminal’s shore crane PT4. 
 
The wind speed was measured at various sources around the Terminal, but the anemometer on crane PT4 indicated that the wind speed shot up from about 7km/h at 1713 to 77km/h just 30 seconds later. There were gusts of around 80km/h until 1715 when it dropped to 60km/h. Footage from the Terminal’s CCTV showed the Vessel begin to move away from the quay as the wind speed increased. By 1715, the Vessel was about 20m parallel to the quay. It stopped at around 1716 then began swinging back in four minutes later. At 1725, the Vessel stopped moving. The Vessel’s starboard bow connected with the leg of crane PT4 at some point between 1714 and 1725. The crane derailed and was damaged. 
 
Owners sought to defend the Terminal’s subsequent claim on the basis that the damage was caused or contributed to by the unsafety of the berth and/or the Terminal’s negligence.
 
There were six issues for Mr Justice Hamblen in the Commercial Court to determine. We consider each in turn.
 

The Commercial Court Decision

 

1. Was The Vessel Negligently Moored And Was This The Cause Of The Vessel Being Blown Off The Berth?
 
The Judge concluded that yes, the Vessel was negligently moored and that the Vessel was blown off the berth as a result. The Vessel was moored with four head lines and two spring lines forward and four stern lines and two spring lines aft. The experts agreed that this was the usual arrangement for container vessels of this size in non-adverse weather conditions. As the arrangement was not of itself negligent, the likely cause was human error in slackening one of the stern lines.
 
In coming to this conclusion, the Court was assisted by expert evidence on whether the load was greater than the brake design render limits (72 tonnes). This turned on (i) the wind speed; and (ii) the wind co-efficient. Whilst the crane anemometer had measured winds of around 80km/h, the crane was 70.5m above sea level. The internationally accepted Beaufort scale adopts a 10 minute mean at a height of 10m. Did this mean that the wind speed had to be revised downwards to reflect the lower height of the Vessel?
 
The Terminal’s expert said yes. The industry standard computer programme used to calculate wind loads, OPTIMOOR, adopts a 10m standard, so a 1/7 exponent had to be applied to the wind profile power law equation. Owners’ expert disagreed, because these were not normal wind conditions. He treated the wind speed acting on the Vessel as being the same as recorded at crane height and claimed it would be accelerated by containers stacked around the berth. The Judge agreed with the Terminal. Owners’ expert evidence was largely anecdotal and the expert’s theory was not supported by literature, articles or papers.
 
As regards the wind coefficient, the Terminal used the coefficient of 0.87, as applied by OPTIMOOR. By contrast, Owners’ expert used a co-efficient of 1.5, for reasons not explained in his expert report. When challenged, he told the Court it was based on his own experience and could not point to data or literature in support.  Again, the Court agreed with the Terminal. There was no way of testing Owners’ qualitative assessment and besides, it produced counter-intuitive results: it resulted in the same loads on the Vessel as experienced by a ship with almost twice the windage area.  
 
Whilst Owners’ results showed that the Vessel was at the limits of safe operation, their calculations were rejected. As the loads were not greater than the render limits, the only remaining possible causes involved negligence. The Court found that the moorings were inadequately tensioned: this was the effective cause of the lines rendering and the Vessel being blown off the berth.
 
2. When Did The Vessel Strike The Crane?
 
The Terminal said that the Vessel struck the crane on its return to the berth. Owners said contact may have occurred when it was being blown off the berth – and, as result, any subsequent negligence was causally irrelevant.
 
The Court agreed with the Terminal. Whilst Owners did not submit any eye witness evidence to support their version, two of the Terminal’s witnesses gave evidence that contact occurred on re-berthing. They both saw the Vessel move away from the berth and then heard the loud bang of the Vessel hitting the crane. The Court rejected Owners’ attempt to introduce a new positive case on causation in final submissions that the witnesses had only heard the crane derailing. This case was not put to the witnesses, and in any event the crane’s operator was adamant that the ship was moving away from the berth as he descended from the crane. If the crane had been struck whilst he was coming down the stairs, he would have felt the impact.  
 
3. Was The Re-berthing Of The Vessel Carried Out Negligently?
 
Following the Court’s finding on question 2., negligence in re-berthing remained in play. The Court concluded that the Master must have brought the Vessel back alongside the berth at an angle, causing contact with the crane.  
 
According to the Master’s witness statement, by 1717 the Vessel was still off the berth but was back under control. There was an inconsistency between the Master’s witness statement and his contemporaneous accident report as to whether he had used the bow thruster to port. There was a further inconsistency between the statements of the Master and the Chief Engineer: the Master said the Chief Engineer was instructed to look out for the distance off the berth, but the Chief Engineer said he could not see the crane. Owners’ decision not to call the Master or the Chief Engineer to give evidence meant that inconsistencies in their evidence could not be resolved before the Court.  
 
The Master’s decision not to use tugs was criticised. Both experts agreed that this was a difficult operation to carry out without tugs. The Owner’s expert tried to excuse the decision as it was made in an emergency situation and “the agony of the moment”, but the Court was not persuaded. The Master’s evidence was that the Vessel was back under control by this point. He had time and tugs were available.  
 
The Court took a dim view of an eleventh-hour amendment to Owners’ case that the Vessel was being pushed alongside by tugs without the Master’s knowledge. The Judge dismissed the amendment as a late expert-based case not supported by any factual evidence and described the way it was raised as “unsatisfactory”. The Judge concluded that the failure to re-berth in parallel must have been due to the Master’s negligence: either he was negligent in its execution or, if the manoeuvre was so difficult that its failed execution could not be said to be negligence, then the Master was negligent in not getting assistance from the tugs.
 
4. Was The Berth Unsafe?
 
Following the findings on 1-3, any unsafety was causally irrelevant. In any event, all five allegations of unsafety – none of which had been considered in Owners’ expert report – were rejected as a matter of fact.  
 
5. Was There Contributory Negligence?
 
No. The Terminal was not negligent in not moving the cranes away from the berth.
 
6. Quantum
 
The Terminal recovered its principal claim for crane repair costs, business interruption and survey fees totalling €1,546,277.94. The Court did not agree to the Terminal’s claim for interest at 10.41% – what the Terminal claimed was the standard commercial loan rate for Italian banks at the date of the incident, or “finanziamenti alle imprese”. A usual commercial Euro interest rate was applied.
 

Comment

 

This case provides a stark reminder of the importance of calling witnesses to give live evidence, particularly when liability is heavily dependent on the facts. Whilst evidence in person is always preferable, international witnesses should consider giving evidence via videolink.  
 
The case also highlights the importance of getting early expert evidence, to ensure that all possible causes are pleaded upfront. Deus ex machine, like the expert reconstruction of tug involvement introduced a month before the hearing or the new causation case introduced in final submissions, were deemed not credible and are highly unlikely to be accepted.

 

Ince & Co

 

For further information, please contact:

 

Max Cross, Partner, Ince & Co

max.cross@incelaw.com

 

Kirsty Cattanach, Ince & Co

kirsty.cattanach@incelaw.com


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