Court Decision

Master’s delay voids error of navigation defence

A New Zealand court case has highlighted the unseen consequences of a master’s actions in trying to hide his own navigational error. Details of the legal argument in how they relate directly to decision-makingmay provide a salutary warning

GENERAL cargo vessel Tasman Pioneer (1979-built, 16,748 gt) was en route from Yokohama to Pusan carrying New Zealand cargo to various Asian ports.

The vessel had been running behind schedule and the master tried to make up time by transiting through a restricted passage at night. He was delayed on his voyage from Yokohama to Pusan because of bad weather and he decided that he could save about 14 hours by steaming east of the island of Okino Shima instead of taking the usual route to the west. This new route was a narrow channel between Okino Shima and the small island of Biro Shima.

The master, who was in charge of the bridge, made his decision despite the fact that it would be a night passage with visibility of only two miles and there was a northwesterly gale with wind speeds of 37 knots. Rain squalls occasionally obscured the radar images. During one of these squalls the second mate was asked to adjust the radar to take account of the rain and after doing so he immediately noted that Biro Shima was only 800 yards off the port side.

From a speed of 15 knots the vessel momentarily slowed to six or seven knots and developed a list of three degrees, which increased to 10 degrees after 10 minutes. Holds one and two were taking in water; clearly the vessel had touched bottom.

The law can be quite forgiving in respect of claims made by cargo interests against owners by allowing the owners a complete defence in certain circumstances. One of those circumstances is known as the ‘error of navigation/management defence’.

This defence is sometimes seen as out of date in that it originates from a time when the risks of navigation were perceived to be considerably greater than they are today.

Assuming that no other factor other than the master’s poor decision-making contributed to the grounding of the ship, the owners would avoid paying damages to all the cargo interests for cargo which was damaged by the flooding. However, the master’s subsequent decisions had disastrous consequences in respect of liability.

The vessel continued steaming at full speed into the Inland Sea where the master anchored near the intersection of the original course west of Okino Shima.

The vessel anchored there 2.5 hours after the grounding and only then did the master inform his owner’s agents.

He instructed the crew to falsify the records and to lie to investigators, with a view to persuading them that the vessel had stayed on its original intended course and had hit an unknown floating object.

In addition, the master did not contact the Japanese coastguard to inform them of the condition of the vessel. This was reported by a passing vessel to the coastguard, whose patrol boat managed to locate and inspect the vessel some six hours after the incident; at that time it had a 5 m-6 m trim by the head. The poor weather conditions had not abated. A no-cure no-pay salvage agreement was not concluded until some seven hours after the grounding.

Instead of proceeding at full speed towards the Inland Sea, the master could have reduced speed and made for the nearest sheltered anchorage, which was only eight miles away. There were salvage tugs in that area on 24-hour standby and it appears that salvors could have been in attendance some five to six hours earlier than they were.

During that additional five to six hours, a considerable amount of deck cargo was damaged or lost.

Understandably, the owners of the deck cargo were reluctant to accept an ‘error of navigation/management defence’. Nevertheless, they did so in respect of that cargo damaged immediately following the grounding, ie within the flooded holds. They did not do so in respect of the damaged and lost deck cargo.

Cargo owners argued that the master’s decision to proceed to the Inland Sea and not to call for salvage assistance immediately should not be allowed as an ‘error of navigation’ defence because it was made in bad faith. The cargoes mainly originated from New Zealand and the New Zealand court agreed with the cargo owners.

The shipowners appealed, arguing that the defence was available for any navigational act, be it negligent, reckless or otherwise.

After much complex analysis, the Court of Appeal simply decided that the actions of the master in delaying the notification to salvors and local authorities had been motivated not by his paramount duty to the safety of the ship, crew and cargo, but by his intention to avoid blame.

Such behaviour was carried out for purely selfish purposes and was completely against the carrier’s obligations to cargo interests under the relevant legal regime and was not conduct in the navigation or the management of the ship.

To support its conclusion, the court pointed to a previous French case where the master of a damaged ship, instead of beaching it, spent valuable hours trying to avoid salvage costs. That decision was held not to be conduct in the management of the ship. As a result, the owners were obliged to pay the cargo interests’ claims.

This article was originally published inBritannia Risk Watch, March 2010 .

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