MARITIME TORTS
Consort Shipping Line Ltd v United Engineers [1995] FJHC 21; Hbc0432j.91s (26January 1995)
MARITIME TORTS- Negligence for failing to supply anchor.
The plaintiff was a shipping company whose vessel was being repaired by the defendant engineering company. Because of an approaching cyclone, the defendant requested that the plaintiff arrange to have its vessel towed to shelter. The plaintiff complied with the request and handed the vessel over to defendant in the sheltered location. The defendant failed to supply an anchor. The vessel was subsequently tied to the plaintiff’s barge. The barge drifted away, hit a reef and sank. The plaintiff brought an action to recover damages to the barge.
DECISION: The defendant is liable to the plaintiff in negligence, but the plaintiff bears 50% of the responsibility for the damages.
HELD: The defendant owed a duty of care to the plaintiff and that duty included supplying an anchor to safely secure the vessel. However, there were some disputed facts and it appeared that it was the plaintiff that might have tied the vessel to the barge. The court chose to accept the testimony of the defendant’s witnesses and on the facts held the plaintiff 50% responsible for the damages to the barge.
Maharaj v Burns Philip (SS) Company Ltd [1994] FJHC 56; Hbc0178j.89s (3 June 1994)
MARITIME TORTS- Negligence- Company which arranges shipment has no duty of care outside of contract
The defendant company arranged for the shipment of the plaintiff’s vehicle from Suva to Sydney. The vehicle was extensively damaged on the voyage and the plaintiff brought a claim for damages for negligence and for breach of contract.
DECISION: Claim dismissed.
HELD: The plaintiff did not have a claim in tort. The liability arose out of the contract and there was no duty of care owed outside of the contract. The plaintiff was an ‘arranger’ only by the terms of the contract, and was not liable for the failings of the shipper.
MARITIME TORTS- Negligence- Public and Private Nuisance; Damages resulting from groundings and oil spills
The defendant vessel struck a reef while navigating a channel into the lagoon. The reef was damaged, and fuel leaked from oil tanks into the lagoon. A cleanup effort was undertaken but all of the oil could not be removed, especially along the mangroves. There was a ban which lasted for 5 months on the use of the lagoon which affected swimming, fishing and shelling. A class action suit was brought by 3 traditional chiefs as representatives of the people of the coastal municipalities. The plaintiffs sought compensation for physical damage to the reef structure and resources asserting that the reef was subject to traditional ownership and use by the residents of the coastal municipalities; and compensation for the effects of the oil spill including the inability to use the resources of the inner lagoon as well as for injuries to the natural resources themselves. The action was brought in rem against the vessel and in personem against the vessel owner, the vessel’s charterer and the vessel’s owner. The claim was for compensation was based in negligence, and public and private nuisance.
DECISION: Claims in negligence and nuisance allowed. Damages were awarded for damage to reef, mangroves and marine resources, and loss of use. Compensation was denied for mental anguish, and loss of swimming opportunity.
HELD: A cause of action is available in maritime negligence for recovery of damages resulting from groundings and oil spills. Causation in maritime tort law is similar to the common law causation principle: “An injury is proximately caused by an act, or failure to act, whenever it appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.” Fornier v. Petroleum Helicopters, Inc., 665 F. Supp. 483, 486 (E.D. La. 1987) (proximate cause standard generally applicable in maritime tort cases); see also Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348, 353 (Pon. 2001). The vessel breached its duty to safely navigate the channel and that caused the fuel oil spill which damaged the plaintiffs’ marine resources. Damages were also available in private nuisance because the plaintiffs suffered substantial interference with the use and enjoyment of their property as a result of the defendants’ improper navigation which could be characterized as negligent or reckless. The claim in public nuisance was also successful, the court finding that the plaintiffs suffered damages different in kind from that suffered by the public at large.
MARITIME TORTS- Determination of quantum of damages awarded as a result of reef grounding.
The case arose out of a reef grounding. The plaintiffs sought compensation for damage to the nearby reef that was the source of the community’s fish supply. The productivity of the reef was diminished following the grounding. Additionally there were incidents of ciquatera poisoning from eating the fish and this may have been the result of the damage to the reef. The plaintiffs were granted summary judgement and there was a hearing to determine damages.
The court considered various means of monetary valuation including commodity values, tourism value and replacement value. The court also considered the amount of compensation awarded in a previous grounding. Expert testimony was relied upon to determine damages. Cost of clean up was also awarded.
MARITIME TORTS- Class certification for class action; Reef grounding- Damage to traditional resources.
The defendant vessel grounded on the reef. The plaintiffs named 3 chiefs to maintain the action as a class action and alleged 6 causes action: maritime negligence, infliction of emotional distress, unseaworthiness of the vessel, trespass, nuisance (public and private) and punitive damages. There were 2 classes of plaintiffs- all residents of the affected community and those who owned the natural resources by tradition. The plaintiffs filed a motion for Class Certification.
DECISION: Plaintiffs who owned the resources by tradition were granted conditional certification for all causes of action except for the infliction of emotional distress claims
HELD: Only the class of plaintiffs who had traditional rights to the resources were considered for certification because they were the only class that was represented by a named plaintiff of that class. The court found the requisite commonality to the class where the common questions as to liability predominated over individual questions. The court did not include the emotional distress claim because the complaint did not allege that the class as a whole suffered a common physical injury. The certification was conditional upon the court receiving more information of the potential number of affected residents to confirm the numerosity requirement; and the court also required further evidence that the named plaintiffs were adequate class representatives especially in light of the fact that only one class of plaintiffs was considered for certification.
Pohnpei v MV Miyo Maru No 11 [1998] FMSC 10; 8 FSM Intrm. 281 (Pon. 1998) (8 April 1998)
MARITIME TORTS- Negligence- Tort liability against those who negligently prevent a third party from rendering assistance to another to prevent damage to property
The vessel Miyo Maru grounded on the Sapwuafik reef. When the vessel grounded the captain of the vessel requested assistance from 2 nearby vessels to refloat his ship. It was alleged that the Sapwuafik officials actively prevented refloating the vessel by arresting the captain and crew despite communications that the master and crew had to remain on board because 2 vessels were approaching to assist. As a result of the arrest the 2 boats fled and the Miyo Maru became unsalvageable. The State and Municipality of Sapwuafik filed separate complaints alleging negligence. The defendants filed counter claims against the State, and a third party complaint against the State and Sapwuafik alleging negligence, false arrest/imprisonment and violation of the right to due process. Sapwuafik filed a motion to dismiss the third party complaint.
DECISION: Motion to dismiss denied.
HELD: There is tort liablility against those who negligently prevent a third party from rendering assistance to another to prevent damage to property. The third party plaintiff may have a successful claim in negligence if it can show that Sapwuafik unreasonably prevented rescue by other boats, and that the interference was the direct cause of damage to the boat.
Rano v Melanesian Holdings Ltd [1999] SBHC 45; HC-CC 131 of 1996 (30 April 1999)
MARITIME TORTS- Negligence- Boat repairs
The plaintiff bought an old wooden boat in an AS IS AS LIES basis. He hired the defendant to install an engine and to do full body work and engineering works on the vessel. The plaintiff took delivery of the vessel but did not pay the full amount owing for repairs. The plaintiff sailed to Honiara where it experienced mechanical problems. The plaintiff filed a claim for damages for breach of contract, negligence and loss of income. The defendant counter-claimed for payment on the contract for repairs.
DECISION: Plaintiff’s claim dismissed. Judgement for the defendant on the counterclaim.
HELD: There was a binding contract between the plaintiff and defendant for repairs to the vessel. It was implied in that contract that the defendant would carry out the work properly with reasonable care and skill as shipyard operators, and the plaintiff would pay for the work done. On the evidence, the plaintiff was not able to establish that the defendant failed to complete the work with reasonable care and skill. Prior to the plaintiff’s possession of the vessel the defendant had carried out successful ‘speed trials’ on the vessel to ensure mechanical soundness.
Walters v Kimbe Shipping & Transport Pty Ltd [1999] PGDC 19; DC65 (3 September 1999)
MARITIME TORTS- Negligence- Duty of bailor of shipped goods.
The plaintiffs shipped cargo from Kimbe to Lae. When they enquired about the shipmen at the first defendant’s shipping company in Kimbe they were told to bring the cargo to the harbour the next day between 7 a.m. and 4 p.m.. The plaintiff was given a document by the defendant shipping company to allow access into the Harbour Board gate. The plaintiffs delivered their cargo that same evening at 7 p.m. The cargo was loaded onto the vessel. The ship, owned by the second defendant, sailed the next day. The cargo was not off-loaded at Lae but went on to Moresby and Alotau. The plaintiff went to Lae one week after the cargo was shipped from Kimbe. The plaintiff paid the freight charges at that time and was told that the cargo had not been unloaded at Kimbe. The plaintiffs brought an action in negligence claiming that the first defendant had failed to prepare and issue sufficient and proper documentation in the form of a bill of lading. The plaintiff claimed that the second defendant failed to include the plaintiff’s cargo on the manifest list, failed to inform the stevedoring company to off-load the cargo, and failed to properly
check the cargo hold.
DECISION: Claim dismissed.
HELD: It is customary to pay for freight charges prior to shipping a piece of cargo from port to port. There is no liability where the bailor has not complied with standard practice. The plaintiffs had disregarded instructions to come to the office the next day during business hours. There was no mistake on an oral contract- freight charges should have been paid prior to shipping. Failing that the plaintiff had a duty to meet the cargo when it arrived in Lae. The cargo was not properly documented because of the plaintiff’s failure to pay freight charges. The plaintiff did not complete the documentation regarding payment of freight charges which would have included his cargo entry on to the inward cargo manifest and the issuance of a bill of lading.
MARITIME TORTS- Negligence- Duty owed by police to individual members of public at large
The plaintiff’s vessel was grounded in the harbour. The plaintiff asked the local police to ‘keep an eye on the vessel’ and the police agreed. The boat was stripped, and the plaintiff sought compensation claiming negligence on the part of the police for their failure to protect the vessel. The defendant applied to strike out the Statement of Claim on the grounds that it disclosed no reasonable cause of action.
DECISION: Plaintiff’s action dismissed.
HELD: It is settled law that the police owe no special duty to individual members of the public at large. The requisite special relationship of proximity does not arise to support a claim in negligence. The vessel owners should have hired a private security firm to protect their vessel.