Case study

Background to the incident

A bulk carrier of about 70,000 DWT was operating under a time charter for one trip from the West coast of the United States to India, and loaded almost a full cargo of bulk wheat.

During the initial stages of the voyage, the vessel encountered severe weather conditions as a result of which there was an ingress of water through the hatch covers which seriously damaged the cargo. Further damage was caused at the discharge port when sound and wet cargo were mixed. A total of nearly 8,000 mt of cargo was affected, and a claim in excess of one and a half million US dollars was brought against the vessel.

The charterers, who were initially liable for the damage, claimed an indemnity from the owners, and the dispute was submitted to arbitration. The owners sought to rely on the Hague Rules’ perils of the sea defence. However, the charterers alleged that the owners had failed to exercise due diligence to make the patent hatch covers seaworthy.

Consideration of relevant evidence

In support of their arguments that the weather encountered by the vessel had been severe the owners submitted the vessel’s log books as well as a video taken by the master during the voyage. The log book entries showed that from an early stage in the voyage, the vessel encountered winds of force 6 to 7 from the South East with accompanying rough seas, increasing in strength over the following two days to force 8. The vessel then encountered force 9 winds from the West South West with heavy seas causing the vessel to pitch and roll and ship seas. In the next two days the worst weather was recorded with westerly winds of force 9 to 11 and huge waves. At this stage the vessel had to heave to for about 24 hours and eventually headed south to get away from the violent weather. During this period the vessel suffered damage and well-secured drums of lubricant at the stern were carried away. The winds slowly abated to below force 7 during the following two to three day period.

The evidence contained in the log books was supported by a twenty minute video film taken by the master during the voyage. The arbitrators found that the film did not demonstrate that the weather had been as ferocious as recorded in the log book, but conceded that it was not possible to him during the worst of the weather and that the film would not show the full magnitude of the high seas and swell. The arbitrators were also impressed by the oral evidence from the master of the vessel who they found an honest and reliable witness, corroborating evidence from another vessel in the area during the same time as the subject vessel, the extent of damage suffered by the vessel and the carrying away of the drums of lubricant.

Before the owners could invoke the perils of the sea defence they had to demonstrate that they had exercised due diligence to make the vessel seaworthy before the voyage commenced. The owners submitted evidence of the maintenance of the vessel prior to the voyage as well as contemporaneous evidence demonstrating the condition of the hatch covers.

The vessel had been in dry-dock one month prior to the voyage and had undergone general repairs including repairs to the hatch coamings. At this time hatchways and closing appliances were inspected by class surveyors and were found to be in good condition. A letter from the classification society stated that hose testing of the hatch covers was carried out with satisfactory results and that dig surveyor was satisfied with the water tightness of the hatch covers. The master had stated during his testimony before the arbitrators that the surveyor had not only watched the hose testing on the hatch covers, but also went down into each hatch after the test in order to ensure that there were no leakages. A ballast voyage was then undertaken between the dry-dock port and the first load port on the chartered voyage.

The owners also submitted contemporaneous evidence. The reports of three independent surveyors, who examined the hatch covers at the discharge port, confirmed their good order and condition. In addition, the surveyors’ reports showed that there was salt water damage to all the hatches. If there had been salt water damage to only some of the hatches, the arbitrators may have drawn adverse inferences about the seaworthiness of these hatches. Finally, the video film taken by the master demonstrated that the vessel on the whole looked well maintained and the hatch covers, in particular, appeared to be in good condition.

Outcome

The arbitrators held that if the owners had exercised due diligence to make the vessel seaworthy they could successfully rely on the perils of the sea defence because the vessel had encountered severe weather even though the weather was not entirely unexpected or unusual. The arbitrators stated that if this was not correct the defence would never apply to areas like the North Atlantic or North Pacific where severe weather is often encountered in the winter.

The arbitrators found that the evidence suggested that the owners had exercised due diligence to make the vessel seaworthy before the vessel sailed from the first load port. They also commented that they had no reason to believe that the hatch covers were not properly secured on the completion of loading.

The arbitrators further stated that in certain circumstances well maintained hatch covers will flex in periods of severe weather and permit the ingress of sea water. Therefore, provided owners had exercised due diligence to make the vessel seaworthy, they could avoid liability by relying on the perils of the sea defence.

Although it is very difficult to rely on a heavy weather defence, the arbitrators in the present case were impressed by the well kept log book and the video film.

Although not every vessel will have a video camera on board, a series of still photographs could also be of great evidential value in demonstrating bad weather and the condition of the vessel.