Krysia Maritime v Intership Ltd

This is a renewed application made by Mr Karia in respect of the first ground of appeal which I refused him leave to proceed with on paper but I gave him leave to appeal on the second aspect, which is, as he has pointed out, largely a question of fact in relation to an incident that that occurred between the vessel Krysia and the vessel Europa during cargo operations at Rotterdam. The vessel’s propeller was fouled by a rope line loose in the water. The judge found that the defendants, owners of that rope, were 70 per cent liable; but the reason why he did not say that they were 100 percent liable is because he found that the Master of the Krysia, Captain Diouf, in the course of the necessary manoeuvring, had himself been negligent or guilty of poor seamanship, inasmuch as (in the way the judge put it at paragraphs 64 and 66 of his judgment) he had given insufficiently close attention or had reacted too slowly to the developing situation.

I refused permission on the first (more procedural) ground initially, because I was satisfied that negligence had been raised in a general way and that the judge had addressed the matter, having had argument in closing submissions as to whether the allegations had been sufficiently put; and it seemed to me at that stage on the papers that that should be the end of the matter.

Mr Karia has renewed his application orally and, speaking for myself, I am persuaded that it is arguable that the points he wishes to make might in the end prevail in the full court. Firstly, he complains that the specific allegation that the judge came out with in the end in his judgment was not merely not put but also was inconsistent with Captain Diouf’s own evidence; but he has also persuaded me that it is at any rate arguable that if the matter had been investigated after being put, it would have been necessary for the cross-examiner to suggest what it was that Captain Diouf could have done during this alleged period of momentary inattention that would have made all the difference. It does seem to me that that is a respectable argument that Mr Karia ought to be allowed to make in addition to his second ground of appeal, which, as I say, is largely factual.

I have been concerned throughout whether an appeal would be proportionate. Mr Karia has won 70 per cent of the damages, which are said to about 500,000; I am not sure whether it is pounds or dollars. So the maximum that can be in issue is 150,000 or so of the appropriate currency. So I have asked whether it would increase the time estimate; I fear it might. But if my Lord, Lord Justice Hooper, agrees with the judgment I have just delivered, we will discuss that with both counsel. A time estimate of a day and-a-half.

I do agree.