|IN THE COURT OF APPEAL
||1987, No. 162
A "dead ship" moored to a harbour buoy in order to ride out Typhoon Ellen in September 1983 had been insufficiently prepared against the risks inherent in the situation. As a result she broke free at the height of the typhoon and eventually caused substantial damage to the Plaintiffs' shore-based installations.
Prior to the onset of the typhoon the ship, which had herself earlier suffered severe damage by reason of stranding off Taiwan, had been lying within the dockyard of the Defendants awaiting instructions from the Owners as to her repair.
Various factors were argued as together imposing liability upon the Defendants.
Held, reversing the decision of the court below, that the circumstances did not disclose a degree of proximity between the parties sufficient to fix the Defendants with a duty of care.
|IN THE COURT OF APPEAL
||1987, No. 162
|MOBIL OIL HONG KONG LIMITED
DOW CHEMICAL (HONG KONG) LIMITED
HONG KONG UNITED DOCKYARDS LIMITED
Coram: Hon. Cons, V.-P., Kempster & Clough, JJ.A.
Dates of hearing: 4 - 7, 10 - 13 October 1988
Date of delivery of judgment: 2 November 1988
J U D G M E N T
1. This is an appeal from the judgment of Macdougall J. whereby he found the Defendant, Hong Kong United Dockyard Limited, ("HUD"), guilty of negligence with regard to the M.V. Hua Lien in that when she was sent out from HUD"s yard to be moored at a typhoon buoy during the passage of Typhoon Ellen in September 1983, HUD had failed to take all reasonable precautions to prevent her from creating a danger to life and property.
2. The Hua Lien, a vessel of almost 10,000 gross tonnage, was a roll on roll off passenger and cargo ferry operated by the Taiwan Car Ferry Company, Since dissolved, normally plying between Hua Lien and Keelung. On the 19th April 1983 she struck a submerged rock off Hua Lien, causing severe damage to her bottom plates with consequential flooding in the engine room and other compartments. To prevent her sinking she was beached in shallow water.
3. There was no dry dock in Taiwan capable of taking a vessel with the draft of the Hua Lien. She was brought instead to Hong Kong, arriving on the 29th May, where Mr. Temple, at that time the Senior Project Manager of HUD and generally in charge of all ship repair work in the yard, accepted her into the custody of HUD. Temporary repairs were carried out. In particular a "D shackle" was attached to the port anchor cable and one shackle's length of the cable itself, i.e. 90 feet, was slacked out, so that in the event of a typhoon the Hua Lien could be moored to a typhoon buoy in the harbour. It is the policy of HUD not to permit vessels to lie alongside their repair berths the passage of a typhoon close to Hong Kong. At the same time the yard carried out a simulated drop of the starboard anchor to ensure that it was in working order. It is advisable, when moored to a buoy and the conditions so warrant, to drop a vessel's second anchor to minimise excessive yawing.
4. By reason of her stranding the Hua Lien had become a "dead ship", i.e. in this instance, a vessel unable to proceed under its own power. As such the Hua Lien could not enter the waters of Hong Kong except with the permission of the Director of Marine. Permission had been provisionally given, subject to inspection on arrival, at a meeting attended, inter alia, by representatives of the Marine Department, including one Captain Shearman, and Mr. Temple on the 26th May. Subsequently a Dead Ship Permit was issued. Endorsed thereon were various conditions, the first being that the Hua Lien should take up a berth as and when directed. Thus on the 7th September, when Typhoon Ellen was perceived to be approaching, Hong Kong a direction was given for "the Master or officer in charge of the vessel to remove (her) to south of Kau Yi Chau, to Western Anchorage or to sea within two hours upon the No. 3. Typhoon Signal being hoisted". In fact a particular buoy in the Western Anchorage had already been allocated by the Marine Department.
5. More general conditions were that the Hua Lien should have on board a sufficient complement of deck and engine room officers, and "a qualified master during the period that any local storm signal is hoisted". To that end, Eastern World wide Shipping Ltd., the local agents of the owner, had appointed a master, engineer and second officer, all with appropriate certificates, and a further crew of three. The master accepted custody of the vessel on behalf of the owners on the 16th June, signing a formal letter to this effect. HUD were then able to dispense with the security guard which HUD had engaged meanwhile. Nine days earlier the owners had appointed a Mr. J.D. Wort of Hong Kong to act as their local superintendent.
6. Between the initial drydocking at the beginning of June, which had been necessary to effect the temporary repairs, and the arrival of Typhoon Ellen in September, the Hua Lien had been dry-docked for a second time so that further investigation could he made into what was necessary to restore her to 1st class condition. As a result various tenders and estimates were made, including a suggestion by Mr. Wort, albeit rejected by the underwriter's, that the vessel be written off as a constructive total loss. However by the time the No. 1. Signal was hoisted on the 7th September no agreement had been reached and such work as had been done was long past, other than a small correction to the ship's ballast on the 24th August. The Hua lien was simply lying alongside the berth, awaiting the outcome of the negotiations between the owners, the underwriters and the yard HUD had no other present interest in her.
7. The No. 3 Signal went up at 7.45 on the morning of the 8th September. At 10.15, In accordance with the policy of HUD and the express order of the Director of Marine, and with the assistance of three tugs and a pilot cutter, the Hua Lien was made fast by her port anchor cable to Buoy A42. On board were the master, the two officers and the crew of three.
8. At 4.45 that afternoon the No. 8 was hoisted, signalling winds of gale force, followed later by the 9, and then, at 2 o'clock the next morning by the highest signal No. 10, indicating that winds of hurricane force might he expected. So it remained until 10 a.m. During that period, when the typhoon was at its height, probably at about 7.45 a.m., the Hua Lien's mooring cable snapped, leaving her completely at the mercy of the elements. The starboard anchor, which the crew had attempted to drop earlier, was apparently jammed solid at the guillotine stopper. The tug Lamina, which had been called shortly before the cable parted, was standing by, but in the appalling conditions was unable to do more than at one stage to nudge the Hua Lien to one side as she drifted towards another vessel. Soon afterwards the crew did manage to free the starboard anchor, but it proved insufficient to hold the vessel against the wind. The tug continued to stand by as the Hua Lien dragged westward, at one time threatening the Tsing Yi bridge, and was instrumental in rescuing the crew when she eventually grounded on the island, causing substantial damage to the installations of the two Plaintiffs in the process. The assessment of the damage has been reserved for the time being. The action below proceeded on the question of liability alone. The hearing occasioned some 37 working days, the judge having the assistance of a marine assessor.
9. The "Shipmasters' Guide" is published in Hong Kong by the Director of Marine. It is a small hook intended, so the preface runs, "to provide masters of vessels called at Hong Kong with information on subjects of particular local maritime concern or application". Part I is, headed "Tronical Cyclones Affecting Hong Kong". Section 2 thereof refers to Related Port Regulations. Most of paragraphs 2.2.1 and 2.2.2 may be usefully set out:-
"2.2.1 Because of the excessive number of casualties affecting dead ships and laid up vessels which have occurred in past years during the passage of tropical cyclones and the consequent threat to life, to other vessels and to port facilities, permits issued by the Director of Marine, .... will contain any or all of certain requirements appropriate to the type and condition of the vessel, the duration of the permit required, the season of the year in which the application is made and the particular circumstances of each case ...................
The following sub-section indicates the requirements which are mandatory or which may be imposed as a condition of issue of such permits:
2.2.2 Requirements for Dead Ships under Repair
A Dead ship under repair is required:
(a) to take up a berth as and when directed by the Director of Marine;
(b) When berthed at a special typhoon buoy to be secured by a cable (led through the hawse pipe) of a size not less than that required by Lloyd's rules for the class of ship, and in addition to have the second bower anchor available for dropping underfoot; and in addition is required to:
(c) have on board at least half the sea-going complement of the deck and engine room department including officers or such greater number as may be required to ensure the safety of the ship having regard to the circumstances pertaining thereto;
(d) have on board a qualified master during the period that any local storm signal is hoisted;
(e) have auxiliary power available capable of working anchors, windlass, and...