IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.0432 OF 1991

Between:

CONSORT SHIPPING LINE LTD
Plaintiff

- and -

UNITED ENGINEERS
Defendant

Mr. H. Lateef for Plaintiff
Mr. W. Morgan for Defendant

JUDGMENT

By Writ of Summons dated 4 September 1991 the Plaintiff has sued the Defendant for damages for negligence.

The Statement of Claim sets out the relevant facts and the Plaintiff's claim and which are as follows:-

"1. At all material times the Plaintiff was and is a limited liability company having its registered office in Suva Fiji and carrying on the business of shipping.

2. At all material times the Defendant was and is an Engineering Company who were hired to carry out certain works on the Vessel "Cajun Queen".

3. That on the 27th November 1990 the Defendant requested the Plaintiff in writing to tow the said "Cajun Queen" to the Bay of Islands for shelter due to approaching cyclone "Sina".

4. THAT the specific Order was for the Plaintiff to tow the vessel from Narain Jetty to Draunibota (Bay of Islands) as the vessel was under repair and had no means of self-propulsion.

5. THAT the Plaintiff towed the vessel "Cajun Queen" from Narain Wharf to Draunibota and handed it over to the Defendant and thereafter the "Cajun Queen" was under the care and control of the Defendant.

6. THAT on the following morning the Fleet Superintendent of the Plaintiff went to check certain other vessels of the Plaintiff which were anchored at the Bay of Islands when he noticed that one of the Plaintiffs barge 'Lautoka' was drifting towards the reef with the "Cajun Queen".

7. THAT the Defendant had tied the "Cajun Queen" to the Plaintiff's barge 'Lautoka' without the Plaintiff's knowledge authority or permission.

8. THAT before the Plaintiff could rescue its barge 'Lautoka' it had hit the reef causing it to develop holes and it subsequently sank.

9. THAT the Plaintiff however managed to rescue the "Cajun Queen" from sinking and towed the "Cajun Queen" to safety and tied it to one of the Plaintiffs ship 'The Nivanga'.

10. THAT after the cyclone was over the Plaintiff towed the "Cajun Queen" to Suva Harbour and handed it over to the Defendant.

11. That due to Defendant's negligence the Plaintiff has suffered loss in having to refloat its barge and carry out necessary repairs to it".

The Defendant in its Statement of Defence, inter alia, raises the following defence:-

(a) That at the time of Cyclone Sina the Defendant was carrying out repairs to the Vessel "Cajun Queen" ("the vessel") at Narain Jetty, Walu Bay, Suva. The vessel is owned by Stone Fish Limited a duly incorporated company of Suva, Fiji and the Defendant was carrying out repairs to the vessel on the instructions of the owners insurers Dominion Insurance Limited of Suva, Fiji.

(b) In order to safeguard the vessel on behalf of the said owner and/or its insurers at the time of the said cyclone was approaching the Defendant acting as agent for the said owner and/or its insurers gave instructions to the Plaintiff to tow the vessel to the Bay of Islands and anchor the vessel in a safe anchorage. The tow of the vessel was delayed to enable extra anchors to be taken aboard the vessel for this purpose".

The Defendant further states inter alia that:

"contrary to the Defendants instructions to anchor the vessel in a safe anchorage in the Bay of Islands employees of the Plaintiff of their own initiative tied the vessel to the Plaintiff's barge "Lautoka" which was already anchored in the Bay of Islands".

And that:

"that it is aware that the Plaintiffs said barge sank in the Bay of Islands however it has no knowledge of the circumstances in which it sank. The Defendant is also aware that the vessel "Cajun Queen" suffered damages as a result of it being tied to the Plaintiffs barge during the cyclone. The Defendant admits that the Plaintiff returned the vessel to the Defendant at Suva Harbour after the cyclone".

Further it says that:

"The Defendant further states that any damage which may have been caused to the Plaintiff's barge was caused by the negligence of the Plaintiff's employees in tying the vessel to the barge contrary to the Defendant's instructions which were to anchor the vessel in a safe anchorage in the Bay of Islands".

The sole issue for the court's determination is whether damage to the Plaintiff's vessel was caused through the negligence of the defendant and its servants. In the Pre-trial Conference parties agreed that it was a question of fact for the court to decide.

Both counsel have agreed that at this hearing, I decide on liability only and the damages aspect to be dealt with afterwards depending upon the outcome of the case.

The Plaintiff's claim and the defendant's defence have already been stated hereabove. In short, the Plaintiff's case is that it carried out the instructions given it and it was the responsibility of the defendant's employees who went with the Plaintiff's captain to see to the security of the vessel "Cajun Queen" (hereafter referred to as "CQ"). Whereas the Defendant contends that the Plaintiff acted contrary to the instruction given it and that the Plaintiff owed a duty to the defendant to take reasonable care over the defendant's vessel and that the Plaintiff through its servants was in breach of this duty and that in consequence damage was caused in the circumstances outlined hereabove. It says that the Plaintiff was negligent in performing its function.

The Plaintiff called two witnesses to testify on its behalf. They are HECTOR SMITH (PW.1) fleet Superintendent and SEKOVE DURI (PW.2) the captain. The Defendant's witnesses were DONALD PICKERING, Managing Director (DW.1), KELE TALIU, Assistant Manager (DW.2), TUI TEVITA, Estimator (DW.3) and TUFA SILANGA, Labourer (DW.4).

I have considered all the evidence adduced in this case and find as fact on a balance of probability as hereunder.

The PW1 arranged with PW2 to proceed to Draunibota (called "Bay of Islands") from Narain Jetty in his tug "Tui Wailevu" and to tow CAJUN QUEEN ("CQ") to safety as a cyclone was approaching. The written order (exhibit P1) that was given to the Plaintiff reads: "Hire of Tug Wailevu to tow Cajun Queen to Draunibota". The Plaintiff took 7 of its own crew (including the Captain) and 3 people were from defendant's side. These three were on CQ while it was being towed.

Upon reaching Draunibota PW2 told one of CQ's crew to anchor CQ but he was told that there was no anchor on board to do that. It should be noted here and it was a well known fact that because CQ was under repair there was no engine propulsion. In fact no anchor was found on CQ at the time it was recovered the next day. Upon discovering that there was no anchor on CQ, PW2 decided to "tow the vessel towards shore" so as "to avoid it drifting away". The PW2 then berthed his tug "Wailevu" next to one of Plaintiff's own vessel; his crew was with him all night. At 7.00p.m. PW2 saw a person on CQ after it had drifted away from the shore and it stopped where barge "Lautoka" was berthed. The PW2 was at that time aware that CQ was tied to "Lautoka" but, he had not himself instructed anyone to do that.

The next morning PW1 discovered that "Lautoka" had struck the reef and CQ was tied to it. With the assistance of PW2, CQ was rescued by cutting the rope. The CQ was later towed to safety and handed over to the defendant.

Although the actual order was very brief and merely stated "hire of tug Tui Wailevu to tow Cajun Queen to Draunibota", the defendant expected the Plaintiff's captain to see that CQ was properly secured. And as DW1 said he wanted the CQ towed and "to assist my crew to drop the anchor in a reasonable place. I didn't say what particular spot". He expected the vessel "an obvious thing to at least anchor it - we were a vessel without means of propelling - not to take crew only but to make it safe".

It is the defendant's contention that the Plaintiff as "tower" in charge of CQ owed a duty to the defendant to take reasonable care over the CQ so as not to expose the CQ to risk of damage or loss and that the Plaintiff was in breach of that duty as a result whereof the incident referred to hereabove happened, with the ultimate result that the Plaintiff's own vessel "Lautoka" was damaged.

In this case I hold that the Plaintiff did owe a certain degree of duty of care to defendant whilst at the same time the defendant company was negligent in not providing an anchor when it itself wanted CQ anchored according to DW1. What can the CQ crew of 3 do without the anchor and the CQ crew were completely negligent in not making sure that an anchor was available. The liability of the defendant is greater when it supplied its crew to assist and it was expected by the Plaintiff that an anchor would be provided but as it was found out it was not. It is an accepted fact that the towing operation was delayed whilst CQ's crew were making efforts to find an anchor. It was only at the crucial time when PW2 wanted to berth that PW2 was told that there was no anchor; PW2 had no alternative but to do the best he could by ramming the CQ on to the sand on the shore.

On the facts it is clear that instruction to PW2 was to tow the CQ and it was expected that he would anchor it with the anchor which was to be provided by the defendant with the assistance of the a crew of 3 provided by the defendant. Therefore in the circumstances of this case the fact that the PW2 did not personally check to see if the 'anchor' was on board before towing commenced should not go against him as he knew that CQ's crew were trying to get one and hence the departure for Draunibota was delayed.

I find that this was not a case where the PW2 proceeded on his journey with full knowledge of the absence of an anchor in the face of strong winds. It would have been the height of absurdity to have done that. Hence here there was no question of foreseeability of loss or damage arising. In MARC RICH & CO. A.G. AND OTHERS v BISHOP ROCK MARINE CO. LTD, BETHMARINE CO. LTD AND NIPPON KAIVI KYOKAI (THE "NICHOLAS H") (1994) 1 LLOYD'S REP. (CA) {P.495}: SAVILLE L.J. said "What then is required for the law to impose a duty of care in any given set of circumstances? To my mind mere foreseeability of harm to the Plaintiff or the Plaintiff's property (or indeed the Plaintiff's pocket) has never been the sole touchstone in the modern law of negligence". In "NICHOLAS H" supra at {p.496} he goes on to say:

"There are many circumstances in everyday life where the law imposes no duty notwithstanding foreseeability of loss and damage. Walking down the street I see a blind person about to cross the road in front of a vehicle. It is foreseeable that he will be injured. I am under no legal duty to take care to save him from danger. But if I am in charge of a child in the street and the child starts to run in front of the traffic. I am under a legal duty to take care to save the child from danger; and indeed other road users from the danger the child may create. The difference in the two cases lies in the difference between the relationship of the parties concerned, and in the fact that in the one case but not the other considerations of justice, fairness and reasonableness demand that those injured or damaged should have a remedy".

SAVILLE L.J. on foreseeability of loss and damage further states:

"....................... it seems to me that the authorities point to the conclusion that whatever the nature of the harm sustained by the plaintiff, it is necessary to consider the matter not only by inquiring about foreseeability but also by considering the nature of the relationship between the parties; and to be satisfied that in all the circumstances it is fair, just and reasonable to impose a duty of care".

Whether the law does impose a duty in any particular circumstances depends upon the circumstances (THE "NICHOLAS H" supra p.496). Here I do not find that the Plaintiff through PW2 had the full responsibility of seeing to CQ's safety mainly because it was the defendant's duty to provide an anchor and this fact is not in dispute. Because the defendant's employees were frantically arranging for an anchor and because before departing there was no indication to PW2 that there was no anchor, the PW2 had the confidence that he was sailing with anchor on board CQ but as it turned out his hopes were dashed when told, when he was about to anchor, that there was no anchor available on board CQ.

In this case in the light of this relationship between the parties when both had certain responsibilities pursuant to the said order, the fact that the Plaintiff relied on the defendant, and not vice versa, to exercise care by providing anchor and assisting in anchoring and securing CQ I regard as of paramount importance. The cases all "demonstrate that in differing circumstances the same or similar factors may take on different significance". (THE "NICHOLAS H"supra p. 496). The circumstances of the present case were and I find as fact that: according to DW1 the CQ crew were to assist in anchoring; DW2 told PW1 to tow CQ to Draunibota and when DW2 saw that there was no anchor he arranged for one to be delivered before they set sail, but he himself did not personally check to see if one was put on board CQ or not; according to DW3 instruction was to anchor CQ but his crew acted contrary to instructions. The DW3 admitted when asked by court that they could have thrown the anchor even after, as stated by DW3, tying the CQ to the barge "Lautoka". The DW3 says that CQ was not "run on the sand", and this piece of evidence differs materially from that of PW2 the captain. I prefer to accept PW2's evidence to that of DW3 in this regard despite certain very unsatisfactory features in the evidence of PW2. How CQ got to barge "Lautoka" where it was berthed some distance away from where CQ was grounded on the shore is a mystery. The PW2 evidently has not told the full truth in this regard. I am therefore inclined to accept DW4's testimony that CQ was tied to barge "Lautoka" and that he was going to be the watchman on it BUT it does not follow that the tying of CQ to "Lautoka" was done on PW2's instructions for DW4 does say that he does not know on whose instruction that was done. There is a ring of truth in what DW4 says because it ties up with what PW2 said when he said that he saw someone on board CQ.

For the above reasons I do not find that there was that full degree of care owed by the Plaintiff as alleged in the circumstances of this case or that it would be "fair, just and reasonable" to impose a duty of care; but in all the circumstances of this case some blame ought to be attached to the Plaintiff for not properly berthing the CQ crew in the absence of the anchor. I agree with Mr.Lateef when he says that the blame should be "fifty to fifty".

In the outcome, for these reasons, I find on a balance of probability, the case proved against the defendant but only to the extent that I have mentioned. I therefore hold the defendant fifty per cent liable for damages caused to the barge "Lautoka" in the circumstances of this case.

There will therefore be judgment for the Plaintiff against the defendant to the extent of fifty per cent damage caused to the barge "Lautoka" with damages to be assessed unless agreed.

D. PATHIK
JUDGE

AT Suva
26 January 1995
HBC0432J.91S