Terminal Contenitori Porto Di Genova Spa v China Shipping Container Lines Ltd

The port of Genoa is on the north west coast of Italy. The Terminal is located in the east part of the port, close to the Old Harbour Basin.

The berth face is 526 metres in length and orientated about 106^o/286^o. The berth is open to the Outer Harbour at the eastern end and is adjoined to another perpendicular quay wall to the west. Although the berth is open to the east, the berth itself is not open to the sea as there is a breakwater structure across the southern end of the Outer Harbour.

The surface of the quay is about 2 metres above chart datum. There are bollards on the quay about 21 metres apart and set back from the quay by about 0.4 metres. There were hollow cylindrical fenders which were 1 metre in diameter and also positioned along the quay face about 21 metres apart.

At the time of the incident the berth had five cranes numbered PT1 to PT5, although only three were in operation, including PT4, the crane which was damaged in the incident. The cranes are over 70 metres high and each has a lift which is accessible after climbing two flights of stairs. There is a further flight of stairs at the top of the lift before entering the cab. Inside the cab is a digital display showing the wind speed from the crane’s anemometer which changes by the second. On the left and right of the display is an orange and red alarm light respectively. The orange light activates when the wind exceeds 65 km/hr and the red light activates at 80 km/hr.

High winds are common in Genoa and Section 2 of the guidance given to all vessels calling at Genoa states that there is a risk of adverse weather conditions at the Terminal. The Admiralty Sailing Directions provides as follows in relation to June:

As regards the availability of weather information, there were a number of sources available to any vessel:

At the material time there were 15 tugs at the port ranging in power from 3,358 bhp to 4,570 bhp. Pilotage is compulsory and two pilots were used to berth the vessel. A pilot also attended at the time of the incident.

The wind speeds at the terminal are recorded mechanically (and automatically) in a number of places. The location and height of these anemometers are as follows:

The vessel is a 2004-built, Chinese flagged, 5,668 TEU container ship. Her summer deadweight is 69,260 tonnes and her gross registered tonnage comes to 66,433 tonnes. Her length overall is some 279.9 metres.

The vessel was equipped with six mooring winches, three forward and three aft. Each of the winches had two rope drums meaning that it was possible to use a total of 12 mooring ropes secured to the winches without using any bitts. The rope drums were secured by “band brakes” which were manually tightened by the crew on completion of the arrival mooring operation.

The vessel had a bow thruster of 2,200 kw. She had an anemometer at a height of 40 metres which recorded wind speeds every 30 seconds.

The vesselarrived at Genoa from La Spezia on 5 June 2011 and berthed at the Terminal at 10:00 that morning with the assistance of two tugs fore and aft and two pilots.

The vesselwas moored with 4 head lines and two spring lines forward and 4 stern lines and 2 spring lines aft. The vessel’s draft was 10.8 metres forward and 11.6 metres aft when she started cargo operations.

Inclusive of the containers on deck, her freeboard above the quay was about 27 metres. At the time of the incident, she was the only vesselusing the quay and she was being worked by 3 cranes, PT1, PT2 and PT4.

The vessel was loading and discharging containers. The operations progressed smoothly. The wind speed was mostly normal. At 1600 hours the crane driver, Mr Pedemonte, took over operation of crane PT4 and the wind speed was 20 km/h.

Shortly after 17:10 the wind speed rapidly increased. Mr Camoriano, the operations co-ordinator, saw the tags on his monitor change from green to orange. Mr Pedemonte described seeing “a sudden darkening of the sky and some rainfall. At that moment due to the vibrations in the cabin and the noise of the wind, I realised that the wind was increasing suddenly.”

The suddenness of the increase in wind speed is illustrated by the wind data provided by the anemometer on the PT4 crane. At 17:13:00 the wind speeds were 7-8 km/hr. By 17:13:30 they had risen to 76-77 km/hr. At 17:13:45 there was a 3 second gust at 82-84 km/hr. From that time until 17:15:22 there were a number of gusts of over 80 km/hr. Thereafter the wind speeds gradually decreased until 17:16:40 by which time the wind speed was about 60 km/hr.

Wind speeds of 50-61 km/hr are Force 7 (near gale). Wind speeds of 62-74 km/hr are Force 8 (gale). Wind speeds of 75-88 km/hr are Force 9 (strong gale). At a particular wind force gusts of up to 3 seconds at 1.5 x the maximum force wind speed may be expected.

The squall came in from the south/south west. Prior to its development the vessel had been subject to light winds from the north (varying on either side of 000°).

The stern of the vessel was shown on CCTV footage recorded on cameras situated on a mast situated on the left hand corner of the berth. A reconstruction of events by using a combination of the CCTV, the vessel’s AIS/ECDIS times and the times recorded by the Terminal’s wind monitoring software show the following sequence of events:

The movements of the vessel as shown by ECDIS data and in particular her heading relative to the berth and her speed may be summarised as follows:

It was common ground that the vessel’s starboard bow connected with the leg of crane PT4 at some point in the 11-minute period between 17:14 and 17:25.

It was common ground that the damage to the crane was caused by a low-speed impact. The damage was described by the attending surveyor from China Classification Society as follows: “Top edge of side strake plating scarred slightly two places length about each 300mm, plate of side strake scarred slightly size about 300mm x 300 mm under top edge of plating about 300 mm”.

Although it was low speed it was a high energy impact and the crane was severely damaged as a result. The impact appears to have slewed the crane around, which in turn caused the intermediate equaliser to the bogie connection to fail, thereby derailing it (although the crane remained upright).

The Terminal relied upon six witnesses of fact, all of whom were called to give evidence other than Mr Minetti. These witnesses were:

The Owners relied upon two witnesses of fact.

Despite the obvious importance of their evidence, and the allegations of negligence made against the vessel, neither the Master nor the Chief Officer was called. The only explanation offered was that they were at sea but that is clearly an inadequate explanation in circumstances where the trial was fixed in June last year. In a case of this nature one would expect key ship’s witnesses to be called to be questioned on their evidence and to assist the court. The Terminal submitted and I accept that the court can draw adverse inferences from their non-attendance.

There was expert marine engineering/naval architect evidence from Mr Timothy Lewis for the Terminal and Mr Simon Burnay for the Owners. There was expert master mariner evidence from Captain Faulkner for the Terminal and Captain Bhasin for the Owners.

The only expert who had visited the vessel was Captain Bhasin who attended at Port Kelang on 1 July 2011. The Terminal pointed out that they were not invited to carry out an inspection jointly or at all.

Both parties made extensive opening and closing written submissions. I have drawn on those submissions, with amendments and adaptations as appropriate, in preparing this judgment, especially in relation to matters of common ground or in setting out each party’s case or argument. In reaching my conclusions I have had regard to all the evidence and submissions but have focused in my judgment on what I consider to be the most material evidence/submissions.

The principal issues which arise may be stated as follows:

Was the vessel negligently moored and was this the cause of the vessel being blown off the berth?

The critical issue in relation to the mooring of the vessel is the cause of the head and stern lines rendering. Although the aft spring lines broke this was not the effective cause of the vessel moving away from the berth and the need for a re-berthing operation. I further find that it was the rendering of the lines which was the effective cause of the spring lines breaking rather than any alleged defect in the way in the aft spring lines were arranged or in the ropes used.

Further, I accept the Owner’s case that 4 + 2 fore and aft mooring arrangement adopted by the vesselwas not negligent or a breach of good seamanship. It was common ground between the experts that this was the usual arrangement for container vessels of this size in non-adverse weather conditions. Neither the general weather warnings nor the specific weather forecasts available to the vessel were such as to require further precautions to be taken. Although there were forecasts of “thunderstorms with gusts” I accept Captain Bhasin’s evidence that this did not mean that breast lines should have been deployed.

Captain Faulkner identified four possible causes of the lines rendering:

Much of the evidence at trial focused on the fourth of these possible causes and I propose to address this issue first.

There was an issue between the experts as to what was the appropriate render limit. I accept the evidence of the Owners’ experts that the brake certificates are likely to be referring to the hydraulic pressure limit and that the relevant render limit is therefore the figure used by Mr Burnay of 72 tonnes.

There was a marked difference of opinion between Mr Lewis and Mr Burnay as to the likely loads in this case. This essentially turned on two matters: (i) the wind speed and (ii) the wind co-efficient.

the wind speed

There was a considerable amount of recorded wind data from the various anemometers. Mr Lewis adopted a conservative approach and based his wind speed calculations on the anemometers with the highest readings, namely those at PT4. This was at a height of 70.5 metres above sea level (68.5 metres above quay level). The essential dispute between the experts was whether this recorded wind speed should be reduced so as to reflect the lower height of the vessel.

Mr Lewis’ evidence was that it should be so reduced for a number of reasons. In particular:

Mr Lewis considered that the appropriateness of applying the 1/7 exponent in this case was corroborated by a cross-check of the mechanically recorded data available in this case.

Mr Burnay’s view was that these were not normal wind conditions and that it was inappropriate to use the 1/7 rule. His approach was to treat the wind speeds acting on the vessel as being the same as those recorded at the crane heights. His principal reasons for doing so were: (i) the tug operator’s statement of facts; and (ii) the effects of wind funnelling, wind updraft and wind shadowing.

The tug operator’s statement of facts produced on 7 June 2011 stated as follows:

“In the port of Genoa

At abt 17.15 hrs, owing to a sudden strong wind gust abt 45 knts from South/South West, the motor vessel ‘Xin Xia Men’ berthed at Sanita Pier, broke some mooring ropes and her stern slipped out abt 20 mt. from the pier.”

Mr Burnay surmised that the 45 knot figure was likely to have been taken from the tugs’ own anomemeter and therefore to reflect a reading at a height of 10 metres. However, there is no satisfactory evidence of where this figure came from. Moreover, 45 knots is 23.20 m/s or 83.52 km/hr. Such speeds were not measured by the ship’s anemometer (uncorrected for height), by the VTS Tower (uncorrected for height), the yard anemometers (uncorrected for height) or by PT1 (uncorrected for height). PT4 and PT2 did record a similar figure for a few 3-second gusts at about 17:14 hrs but they were taken at a much greater height. Further, this wind is said to be the force of the wind at the time that the vessel broke away from the berth, which is before any tugs were called out and therefore before any reading of the tug’s anomemeter would be likely to be taken. For all these reasons I am unable to find that this document does reflect a tug anemometer reading and find that it most likely reflects winds recorded at the berth, as reflected in some of the PT crane readings.

In oral evidence Mr Burnay also referred to the fact that there are some yard anemometer readings which are higher than the PT crane readings. It is correct that there are some isolated examples of this but the general pattern is that they are lower, and often significantly so.

In relation to wind funnelling, wind updraft and wind shadowing, Mr Burnay’s essential point was that these would increase the wind speed as the wind went round or over the containers stacked at the berth and would cause turbulence. However, the accelerating effect occurs as the wind goes round the object in its way and all the containers were some distance away from the vessel. Even if one assumes that there were gaps between the containers (as to which there was no direct evidence) so that there were both horizontal and vertical effects there was no satisfactory evidence as to whether and, if so, why those effects would still be pronounced by the time the wind reached the vessel. Moreover, Mr Burnay’s evidence that there would still be some effect was largely anecdotal and was not based on literature, articles or papers.

By contrast Mr Lewis was able to point to a Port Technology International document which stated that the general effect of wind passing over land is to reduce the open sea wind speed due to land roughness (by 12-20%). The same document advises that container terminal designers to design so as to have container stacks near to vessels so as to provide wind shield/protection, the opposite effect to that asserted by Mr Burnay.

For all these reasons I do not consider that Mr Burnay’s evidence justifies ignoring the normal 1/7 rule.

The Owners relied on various press articles which it was suggested were inconsistent with the wind speeds which Mr Lewis’s calculations produce once the 1/7 rule is applied. These reports referred to canoes being swept into the air; small boats capsizing; fallen trees; damaged advertising billboards and 30 square metres of cladding being ripped of the Trade Fair Complex. Captain Bhasin said that these reports were consistent with Force 9 winds. The difficulty with general reports such as these is that they contain no satisfactory detail. For the most part one has no idea of precisely where these incidents occurred and their relationship to the area of the berth. The one exception to this is the Trade Fair Complex, but that was still some 2 km away.

The Owners also placed reliance on the evidence of the Terminal’s witnesses and the fact that they had rarely encountered of winds of this kind. However, the most striking feature of the wind conditions described by the witnesses was the speed with which the wind conditions changed, a feature borne out by the recorded data. There is no doubt that there were strong gusts and that they came about suddenly. However, it is difficult to form meaningful quantitative conclusions from either this or the newspaper report evidence.

The effect of applying the 1/7 rule to the recorded wind speeds was set out in helpful coloured table produced by the Terminal. This showed that the wind force was Force 7 with gusts at Force 8 wind speeds (although within the gusting range which might be expected at Force 7). I accept the general picture shown by the Table. It is possible that the vessel may have been subject to occasional gusts at greater speeds than the Table suggests, but I accept it as accurate within an upwards margin of at most 10%.

the wind co-efficient

As part of various methods of assessing wind forces, one needs to have what is called a wind co-efficient. The coefficient depends upon the structure of the vessel and varies with the direction of the wind.

The wind co-efficient used by OPTIMOOR is 0.87. This generally accords with data from recent data from wind tunnel tests, namely Andersen (0.79) and Fujiwara (0.8).

Although this was not stated or explained in his expert report, Mr Burnay used a co-efficient of 1.5. This was not based on any data or literature but was derived from Mr Burnay’s experience. As eventually explained by him it was based on the following:

“a.

The various obstructions on the actual vessel’s deck, that are not modelled in the wind tunnel tests and that SLB considers will increase the wind load acting on the vessel relative to the wind tunnel results.

b.

SLB’s own experience of working extensively with Masters and Pilots on ship simulators to accurately model and validate the effect of wind on the vessel. SLB explained that his experience of wind tunnel tests (including the data set on which the OPTIMOOR data set is based) is that they are often scaled to better reflect the real OPTIMOOR data set is based) is that they are often scaled to better reflect the real behaviour of the vessel in question (based on Master/Pilot feedback), in order to account for the effects not able to be created and/or modelled in the wind tunnel. SLB explained that this includes scale effects (wind tunnel models are usually small scale) and the inability to accurately recreate the wind shear environment in the tests.

5)

SLB confirmed that the scale factor of 1.5 was one that he had used for similar circumstances in validating the behaviour of ship simulator models and that, whilst it was qualitatively derived, it was based on previous experience.”

In relation to point a. I accept Mr Lewis’ evidence that obstructions on deck (such as hatch coamings and lashing bridges) are unlikely to make any significant difference to the overall result. The windage area taken by Mr Burnay is 5,653 m². It is obvious that such obstructions on deck cannot account for 50% of the windage area of the whole ship (so as to justify a 1.5 co-efficient). It is likely to be no more than about 2%.

In relation to point b. if there were significant scaling effects it is likely that this would be recognised in Andersen and Fujiwara’s work and in the literature. There is no evidence of that. It is also to be noted that people design ports to the BS standard which is inherently conservative. The BS standard produces precisely the same range of forces as OPTIMOOR.

In relation to point 5) no data or other information was produced by Mr Burnay to support his stated experience. Whilst there may have been proprietary restrictions on some of his work, if his experience is as extensive as it is stated to be one would expect some supporting material to be available. There was none and therefore no way of properly testing his admittedly qualitative assessment.

Further Mr Burnay’s results are counter-intuitive. Mr Lewis compared the forces acting on the vessel using Mr Burnay’s wind co-efficients with the forces acting on the Andersen vessel as found in her paper. Mr Burnay’s loads for a 5,668 teu containership were found to be almost identical to the loads a 9,000 teu containership would experience but that the latter has almost twice the windage area than the former (10,350m² against 5,653 m²). It seems inconceivable that Andersen’s analysis could be so wrong, an analysis that Mr Burnay himself relied upon in his first report.

Further, OPTIMOOR’s co-efficient is based on a fully loaded vessel, which this vessel was not.

For all these reasons I am unable to accept that it is correct to use Mr Burnay’s 1.5 co-efficient. I find that the OPTIMOOR co-efficient is appropriate and that it is accurate within an upwards margin of at most 10%.

Finally, in considering the likely loads on the vessel Mr Burnay also placed reliance on what he alleged would be the “shock” loading effect of the gusting wind. However, I accept Mr Lewis’s evidence that shock or snatch loading occurs where a line is slack and then goes taut. If lines are under tension, as was the case here, then the loading is dynamic. Further, any rapid loading of the lines would have had to overcome the inertia of the vessel.

Mr Lewis’s calculations showed the wind loads to be well below the render limit, even using a lower render limit of 40 tonnes and applying a dynamic second by second analysis using the highest recorded wind speeds (at PT4). Even if Mr Burnay’s evidence was accepted in full his calculations showed that the mooring system was at the limits of its safe operation: three lines would have rendered out to a small amount. If one then assumed aged lines, reduction in brake capacity and unequal tensioning more significant rendering could be explained. However, it is clear that such rendering can only be explained if his evidence on both wind speed and the co-efficient was accepted. Rejection of his evidence on either issue would result in loads below the render limit. I have rejected his evidence on both issues and even if one assumed a 10% upwards increase of speed and co-efficient the loads would remain well below the limit. It follows that the vessel should have been able to withstand the winds actually experienced during the incident, her winches should not have rendered and that wind loads were not and cannot have been the effective cause of the lines rendering and of vessel being blown off the berth.

The Terminal submits that if the loads were not greater than the render limits then the only remaining possible causes involve negligence and that it does not have to go further and prove precisely what the mooring deficiency was - res ipsa loquitur.

As to the other possible causes the Terminal contends as follows:

These allegations were denied by the Owners who relied in particular on Captain Bhasin’s evidence relating to his physical inspection of the vessel at Port Kelang. Neither of the Terminal’s experts had carried out an inspection of the vessel. Captain Bhasin’s evidence was that the brake liner on the aft winches appeared to be in good condition and that he could not find anything causatively deficient in the mooring winches. It was also noted that one of the brake liners had recently been replaced.

Although there is evidence that some of the brake bands were not in a satisfactory condition, the evidence does not establish that they were all in such a condition. I find that the most likely cause of the rendering of the lines was that they were not properly tightened. There is some direct evidence of this in the Chief Officer’s statement and no ship’s evidence has been tendered addressing this issue. Indeed there has been no evidence at all from those involved in this operation of berthing or (other than the Chief Officer) thereafter. Further, the likely cause of all the lines rendering is a common cause and, once wind loads are excluded, this is the most probable common cause. Whilst the poor condition of the brakes may have caused or contributed to the rendering of some of the winches, that does not explain the general rendering of the lines. I also find that the most likely cause of the slackening of one of the stern lines was a crew member mistakenly releasing the brake drum whilst trying to tighten it. This only occurred over a short period and although it would have increased the load on the remaining lines and may well have caused further rendering of the lines, it was at most a contributory cause.

In conclusion the vessel was negligently moored because the moorings were inadequately tensioned and this was the effective cause of the lines rendering and the vessel being blown off the berth.

The Terminals’ case and evidence was that the vessel struck the crane on its return to the berth. The Owners’ case was that this had not been proved and that it may have occurred when it was being blown off the berth. If so, any subsequent negligence which might be proved would be causally irrelevant.

Two of the Terminal’s witness gave evidence to the effect that the contact occurred on re-berthing.

The re-berthing operation was seen by Mr Arecco, a checker working under crane PT2 roughly in the middle of the vessel. He was sitting in his cabin beneath the crane. The sides of this cabin are glass as well as the front. Mr Arecco described being informed by the operations co-ordinator that the wind was very strong and he should leave the site and go to a designated waiting area. He saw the vessel move away from the berth. After some time (more than a few minutes) the vessel then started to return to the berth. It appeared to Mr Arecco that it did so “very quickly”. Mr Arecco described the moment of contact as follows:

“As the ship returned to the berth the front leg of the PT4 crane was hit and the checking office of that crane was also damaged. When the contact actually occurred however I was still in my office [by PT2] due to the heavy rain and waiting for the car. I had started collecting my clothes and my other belongings, the stevedore documents, the computer and the like and this was also a reason that I had delayed to leave the checking office. I was not looking at the ship at the precise time but looking at my computer. I did not see the incident but I heard the crash.

After I heard the noise, immediately looked up and saw the crane shaking. I realised the crane had been hit and knew there was a big problem. I didn’t realise the extent of the damage as it was further away from me. I didn’t realise the crane had been moved off its trolley and I didn’t realise how unsafe the situation was. I don’t remember the exact position of the ship when the collision occurred, perhaps 2-3 metres off the berth.”

Mr De Vita was another stevedore working on board the vessel with shore crane PT2. He said that when the weather deteriorated he was ordered to leave the ship. He did so and went to the base of crane PT2. He saw both the forward and stern parts of the vessel then move away from the berth with her lines loose. After a while he decided to walk to the safety building. When he was at a point marked on the terminal map he heard the following:

“There was a loud bang, which was unexpected; I could clearly hear this bang above all the other noise. I have never heard anything like that before. This happened when the Vessel was nearly close to the berth.

I turned around and saw the crane was shaking. I was astonished by this. I don’t know how much of the crane had moved off the rails, but I saw that the forward part had moved away. The bow of the ship had bounced back and was now off the berth slightly but at smaller distance since the last time I had seen the bow off.”

The evidence of these witnesses was not undermined in cross examination. However, in final submissions the Owners submitted that what the witnesses may have heard and seen was the crane derailing and that this may have resulted from contact some minutes earlier. This was a new case which was not put to any witness or supported by any expert evidence. There is no evidence that this is physically possible, still less probable. I do not accept that this is a matter which the Terminal should have anticipated and addressed. This is a positive case on causation that should have been pleaded or at the very least flagged up in and supported by evidence.

The Owners also sought to cast doubt on the evidence of these witnesses because of their evidence that they saw the vessel’s bow to be a little distance away from the berth. The Owners relied on Mr Lewis’s evidence in cross-examination that the vessel would not have been “thrown back” by any contact with the crane. However, as the Terminal pointed out, its witnesses’ rather vague evidence on this issue was not inconsistent with the visible vertical side of the bow being a small distance off the berth, even though the upper flared part of the bow, which would have contacted the crane, was not.

The Owners also submitted that the witnesses’ recollection of times was imprecise and that the noise heard by them may have been earlier than suggested. However, regardless of the precise time that the noise was heard and the shaking crane seen, it is clear from the witnesses’ evidence that it occurred after the vessel had been blown off the berth.

The Terminal’s case was further supported by witness evidence to the effect that the striking of the crane did not happen whilst the vessel was being blown off the berth.

Mr Pedemonte was the operator of the crane which was struck. He was coming down the crane at the time. If, as I find, the derailing occurred at the time that the crane was struck, as he came down the stairs he would have been jolted by the lurching of the crane to one side. By the time he reached the bottom the vessel was stable and well off the berth. He was aware that the ship was moving away from the berth as he descended. He was adamant that if the crane was struck at this time or whilst he descended the stairs he would have noticed this and felt any impact. I accept that evidence.

Mr Camoriano was in the operations office. He had a clear view of the ship including her bow. He heard the aft spring break and looked up and saw them broken. He saw the vessel come off the berth. He saw the bow lines render and the bow moving away from the berth as this was happening. He stated that:

“As I was making the various phone calls, I was watching the vessel through the large office window. At this point she was still moving away from the berth. The aft moved the greatest distance away at first and I saw the front of the ship was nearer to the berth. Nevertheless the lines at the bow end were as loose as the remaining aft ones – as the ship was moving bodily away from the berth. The ship developed an angle to the berth. At this point the ship did not touch the crane.

From my experience, the vessel could not have hit the crane as she came off the berth, because her bow lines were loose meaning the whole vessel drifted off the berth. If the bow lines were tight the vessel would have torn away from the quay frame as she moved off and the bow fenders would have been completely quashed. This did not happen.”

Although the vessel’s contemporaneous documents stated that the vessel struck the crane whilst she was being blown off the berth there was no evidence from the Master, the Chief Officer, any other crew member or other eye witness to support this.

Captain Bhasin’s evidence was that it was “possible” that the vessel struck the crane when being blown off the berth based on an analysis of the ECDIS data. However, the GPS error in the ECDIS data makes this a questionable exercise. Moreover, if one examines the ECDIS data by reference to the heading of the berth, the vessel does not start to turn towards the berth until she is clear of the berthing line (at 17.15.08).

In any event, even if I was to accept Captain Bhasin’s evidence as to what was “possible”, it provides an insufficient basis to disregard the Terminal’s factual evidence which I am satisfied establishes that the contact occurred during re-berthing, and I so find.

In his witness statement the Master states that by 1717 the vessel was still off the berth “but was back under control with the movement stopped, the heading steady at an angle with the head in towards the berth...” (emphasis added). The Master repeats at paragraph 11 of his statement that “Because the ship was then back under control the next step was to heave her safely back alongside the berth as soon as possible once the wind allowed”. The Master was therefore satisfied that the vessel was under control.

According to his statement, the Master recognised that “it was important to not approach the berth at the angle XIN XIA MEN was at with her bow closer to the berth than her stern”. Accordingly, he says that he at first instructed the Second Officer at the stern to heave on the stern lines to try and bring the vessel back in line with the berth. There was no evidence from the Second Officer or anyone else who was at the stern of the vessel. The Master does not say whether he in fact achieved the result of straightening her up.

In the Amended Defence it is said that “The bow thruster was used to swing the bow out, thereby causing the stern to move back towards the berth”. This means that the bow thruster was used to port. However, the Master’s statement evidence is that “at some point” he “tested” the bow thruster by running it to starboard for a short time but the bow hardly moved against the wind. Since no VDR data was disclosed it is not possible to know precisely what happened.

The Master says that he then “instructed the Chief Officer and Second Officer to both keep a lookout of the distance off the berth as we approached but I did not receive any reports of dangerous closing distances from any of them”. This suggests that he was satisfied that a safe approach could be managed by bringing the vessel parallel and keeping a careful look out of closing distances. It is also to be noted that the Master does not explain how the vessel was moving back towards the berth at the bow. According to his statement he had only ordered the Second Officer to heave on the stern lines.

The Master then says that “as the wind decreased a little the Vessel moved smoothly back towards the berth and then turned to port to come in line with the berth and come alongside”. The Master therefore recognised the importance of ensuring that the vessel was turned to port and was in line with the berth before coming alongside and apparently thought that this had been done. However, the Master must have in fact brought the vessel back alongside the berth at an angle in order to cause the contact with the crane. There is also no explanation as to how the vessel turned to port after the vessel had moved smoothly back towards the berth. According to the Master the bow thruster was not used to port and she could not turn to port by heaving on her bow or stern lines. The Master’s statement also does not explain how the bow, which was 10-15 metres off the berth, came back alongside the berth.

This is to be contrasted with the Master’s Accident Report dated 5 June 2011. In that document he states that they also heaved on the headlines and used the bow thruster.

“At 1740 LT the Vessel re-berthed at the terminal by heaving head and stern lines and assisting by the bow thruster, and then secured with 4+2+2 lines at bow and stern respectively.”

The Chief Officer’s statement is also unclear as to precisely how the vessel re-berthed. He went to the bow. On arrival, he tightened all the brake drums. He says that after about 10 minutes the wind decreased and the ship came back alongside under the tension in the mooring lines. He says does not recall hearing the bow thruster used. He says that he does not recall what other instructions the Master gave other than to make sure the brakes were tight. The Chief Officer stresses that he did not heave on the forward winches. However, this appears to contradict the Master’s statement that “at first”, he only instructed the Second Officer to heave on the stern lines, implying that subsequently he instructed the Chief Officer to heave on the bow lines.

The Chief Officer says that from his position he could not see the crane as the vessel came back alongside:

“… and I do not know whether she came back alongside at an angle to the berth or parallel to it. Even when I looked aft when standing on the platform at the bulwark I could not have seen any contact with the crane because of the shape of the curve of the bow and the containers stowed on deck.” (Emphasis added)

The Master’s evidence was that the Chief Officer was instructed to keep a look out for distances off the berth, whilst the Chief Officer’s evidence is that he could not properly do so, although there was no evidence that the Master was told this.

The gaps in and the inconsistencies between the Master and Chief Officer’s statements highlight the importance of calling those witnesses so that the Terminal could explore these matters and the court provided with a fuller picture of what was happening on board the vessel. The Owners’ decision not to make these witnesses available meant that this was not possible.

On the account given by the Master in his witness statement the vessel was under control and he considered he could bring the vessel parallel to the berth and re-berth her safely without seeking or awaiting tug assistance. He was content to rely on turning the vessel so that she was parallel to the berth and a proper look out being kept and warnings given of distances from the berth as the vessel approached. His evidence is that this is an operation which could be carried out safely and he believed that it had been. If, as the Master’s evidence suggests, this was a manoeuvre which could safely be carried out without tug assistance then it should have been so carried out.

The expert evidence was that this would have been a difficult operation to carry out without tugs, but if the risks were such that the Master could not reasonably have been confident of berthing the vessel safely (contrary to his evidence), then he should have awaited tugs before attempting to do so. Tugs were immediately available and indeed attended the vessel within minutes.

Captain Bhasin’s evidence and the Owners’s case were that this was an emergency situation and that the Master could not be criticised if he took a wrong step in the “agony of the moment”. As the Master explained in his statement:

“the Main danger in that situation was the risk of the remaining lines parting and the ship being completely out of control in the very narrow confines of the harbour. With the high windage of the Xin Xia Men she would be blown by the very strong wind and nobody can say what would happen. She could have been blown across the harbour and hit passenger ships at the ferry terminal or damaged the port facilities.”

There is no doubt that if the lines had parted the consequences could have been very serious. However, the Master’s evidence was that the vessel was under control and the ECDIS data shows that she was stable for some 4 minutes before the Master started to bring her back alongside. He had time to make the correct decision. His statement does not address the question of whether he even considered calling for tug assistance. His evidence does not give the impression that this was an “agony of the moment decision”. As Captain Faulkner said in evidence: “I think the emergency was when the vessel was coming off. The vessel had been stopped from coming off. It was in the situation where it was under control”.

A month before trial the Owners’ amended their case to allege that the reason that the vessel did not re-berth parallel to the berth was that, unknown to the Master, she was being pushed alongside by tugs in an unco-ordinated manner. This was not a case supported by any factual witness evidence. It was a late expert-based case.

Three tugs responded to the pilot’s orders: the “Francia”, the “Inghilterra” and the “Giappone”. On Captain Bhasin’s analysis of the AIS data for the “Francia”, she was alongside and pushing the vessel shortly before 17:21:40. Although there was no AIS data for the “Inghilterra”, Captain Bhasin also considered it probable that she was engaged at the vessel’s stern at the same time.

The Owners also relied on contemporaneous documents referring to the tug involvement in re-berthing:

Captain Faulkner disputed that the “Inghilterra” was alongside at the time of the reberthing or that the “Francia” would have been pushing.

There is no AIS data for the “Inghilterra”. Capt Faulkner analysed her likely movements and concluded that she was unlikely to have arrived before 17:25:20. Capt Bhasin’s alternative view as explained in cross examination was based on the “Francia” having arrived second, because otherwise she would have gone to the vessel’s stern. However, this is inconsistent with the experts’ agreement that the second tug arrived later than the “Francia”.

Although Captain Faulkner accepted that the “Francia” was alongside the vessel, the AIS and ECDIS data does not demonstrate that the “Francia” was pushing at any point in time. Mr Lewis stressed that considerable caution must be taken when viewing the AIS and ECDIS data and it was his view that the vessel was returning to the quay long before the “Francia” arrived.

Captain Faulkner is an ex-pilot with considerable experience. He gave cogent reasons why it unlikely either tug pushed the vessel back alongside, namely:

In relation to the tug documents relied upon by Owners it was pointed out that there are a number of errors in the statement of facts, including: the wind speed; the alleged time of pushing; and the fact it is known that the second tug did not arrive at the same time as the “Francia”. It was submitted that the statement of fact is more consistent with the tugs “pushing up’ whilst the vessel was alongside the berth/fenders whilst the crew re-secured the moorings. In respect of the tug operator’s invoice, it starts the billing from 1720 hours and it was submitted that it is inconceivable that the tug company did not start billing from the earliest possible time when the tugs were still proceeding to the vessel.

It is unsatisfactory that a factual issue of this nature should be raised at a late stage and without any supporting witness evidence. If the tugs were in fact assisting the re-berthing then there must be many witnesses who could confirm that, including ship’s witnesses. No such evidence has been adduced.

Addressing the matter as one of expert reconstruction I find the evidence of Captain Faulkner to be convincing. In particular, I accept his evidence that it is most unlikely that the tugs would push the vessel back alongside without receiving instructions from the Master or the pilot. It is far more likely that the tug would have lay alongside or put the bow against the shoulder of the ship, “just make contact”, awaiting instructions. As Captain Faulkner said; “It would have been irresponsible of the tug master to start pushing without knowing how far he was pushing, what he was pushing against and everything else”.

Further, if the forward tug had pushed then the vessel’s bow would have started to come in faster but this is not supported by the change in the ECDIS data for the ship’s heading and in fact the ECDIS data shows the heading change the wrong way, away from the berth. It was suggested by Captain Bhasin that this change in heading and the observed rapid movement of the stern to starboard was likely to have been caused by the “Inghilterra” pushing at the stern. However, the reberthing speed could equally have been the result of the use of the winches and the bow thruster. Each of the winches had a 20 tonnes bollard pull and the bow thruster was rated 2,200kw which is a 29.7 bollard pull.

I accordingly conclude and find that the tugs did not push the vessel during the re-berthing. It follows that the failure to re-berth in a parallel manner cannot be blamed on the tugs. I conclude and find that it was due to the negligent execution of the re-berthing operation. The Master could and should have ensured that the vessel was parallel before bringing her safely alongside.

Alternatively, if, contrary to my primary finding, the difficulty of the parallel re-berthing operation was such that its failed execution cannot be said to be negligent, then the risk of damage occurring regardless of fault means that the Master was negligent in not awaiting tug assistance. Either the Master should have been able to bring the vessel back safely alongside without tugs, or he should not have attempted the manoeuvre given the risks involved. The vessel was accordingly not navigated back alongside the berth in a proper and seamanlike manner and the re-berthing was carried out negligently.

Even if this was not the case, the consequence would be that the effective cause of the damage to the crane was the negligent mooring of the vessel. If there was no negligence in re-berthing then damage would have flowed from and been caused by the vessel being blown off the berth. There would have been no intervening cause. The same would be the case even if the tugs had pushed the vessel. It was not suggested that the actions of the tug skippers had been negligent.

Given my finding that the vessel should have been able to remain safely alongside in the winds experienced the alleged unsafety of the berth is causally irrelevant. In any event I would reject the Owners’ case and its pleaded case was not addressed or supported in Captain Bhasin’s main report.

My findings in relation to the pleaded allegations of unsafety may be briefly summarised as follows:

I accordingly reject the Owners’ case both that the berth was unsafe and that the alleged unsafety was causative.

In so far as this case was based on the alleged unsafety of the berth it is rejected for the reasons outlined above.

The Owners’ pleaded case was that those in charge of the crane ought to have moved it away from the vessel given the prevailing winds. However, this was not possible since, as was explained by the terminal employees, the crane became locked in position when the winds exceeded 80 km/hr.

The Owners still sought to criticise the Terminal for not giving proper consideration as to how the vessel could be safely brought back alongside the berth by the tugs without damaging the cranes, which were not in their usual pre-berthing position. However, there was nothing which could have been done in the short time available. The unlocking of the cranes is a complicated job. In any event, the locks release automatically when the wind dies down to less than 80km/hr and fifteen minutes have passed. The decision to reberth was the Master’s decision and there was no further precaution which should or could reasonably have been taken by the Terminal in the time available.

The Owners’s case on contributory negligence is accordingly rejected.

The crane repair costs of €1,499,000 were not challenged. The Owners did, however, challenge the recoverability and/or reasonableness of the claims made for (i) €9,700.00 in business interruption or personnel expenses and (ii) a further €37,577.94 in survey fees.

I find that the survey fees were reasonably incurred for the reasons given by Mr Parodi. I am also of the view that the expenses claimed are adequately explained by the schedule which has been provided. If the employees had not been used for these tasks outside labour would have been required at what is likely to have been greater cost.

The Owners also challenged the Terminal’s claim for interest at 10.41% being, the “finanziamenti alle imprese”, which was said to the standard commercial loan rate for Italian Banks at the date of the incident. There is no satisfactory evidence that this was the rate paid by the Owners, still less the rate applicable throughout the relevant period. On the evidence currently before the court there is no justification for claiming interest other than at a rate based on a usual commercial Euro interest rate.

The Terminal is entitled to judgment in the principal sum of €1,546,2577.94.