Consideration of relevant evidence

Expert surveyors were appointed in Liverpool to oversee the removal of the collapsed stow of containers, the reconditioning of the cargo and the reloading where possible. They re-coded and quantified the extent of damage to individual containers and their contents. The surveyors also conducted an investigation to try and establish why the stack had collapsed. Their written reports were backed up with numerous photographs.

Maritime solicitors were instructed to interview the master, and other ship staff, and to generally work alongside the surveyors to investigate the reason why the stack collapsed.

The surveyors established that the containers had been loaded into a stack with almost no securing. There was no securing of any description to the tank top of the hold. There were no twist locks or bridging pieces to lock the containers together. The only securing were four chains at each end of the stack, each with a breaking strain of 20 tonnes. The chains connected the top most corner of the upper most container to the bottom corner casting of the lower most container at the extreme ends of the stack. The total stack weight was in the region of 500 tonnes.

From interviews with the master and chief officer (C/ O) it transpired that:

• Both the master and C/O were very experienced bulk carrier people.

• Neither the master or C/O had ever carried containers before.

• Neither the master or C/O had ever been involved in a serious incident previously.

• They were both concerned about the adequacy of the lashings and securing of the container stack at the load-port.

• A sub-charterers supercargo insisted that he had been loading containers into bulk carriers in this manner for 12 years and had never encountered a problem.

• The super-cargo’s claim was apparently confirmed by the stevedore foreman.

• Although unhappy with the situation the master conceded to the apparent superior knowledge of the super-cargo and sailed.

Outcome

From an analysis of all the evidence it was agreed by the P&I Clubs involved, and their respective members, that:

• The vessel was probably unseaworthy at the commencement of the voyage on account of the inadequate stowage and securing of the containers in hold number 4.

• The seaworthiness of the vessel was probably compromised on account of the lack of experience of the master and C/O with the carriage of containers.

• The sub-charterers were complicit in the inadequate stowage and securing of the containers through the actions of their super-cargo and appointed stevedores.

• The head charterers had to accept some responsibility towards the shipowners under the terms of the head charterparty on account of the activities of their sub-charterers.

An agreement was therefore reached to settle the cargo claims on the best possible terms out of court and also to concede any G.A. contributions that were being withheld by cargo interests.

Both the master and the chief officer were so badly affected by the incident that neither of them returned to their seagoing career.

Collisions

The word ‘collision’ usually means, within the context of marine insurance and maritime law, the physical contact between two, or more, ships (although there has been exception when ships have been towed). In Annex 2 of MSC/Circ.953 a collision is defined as ‘...striking or being struck by another ship (regardless of whether under way, anchored or moored)... ’ A ‘collision’ does not include a physical contact between one ship and, for example, a navigation buoy — that is a ‘contact’ or, as the Americans call it, an allision. A collision would not, usually, include a situation where one ship caused damage to another where there was no physical contact, for example where the wash from a ship moving past at speed in a canal or river caused a moored vessel to surge and, as a consequence, suffered damage. That would be a non-contact damage incident.

The type of evidence required is, of course, going to be very similar in all three scenarios — the reason for separating them however is because they represent different insurable risks and are likely to involve different insurers.

In the lead up to a collision taking place there is very likely going to be a series of incidents and increasingly intense activity developing on the bridge of both ships. It will be necessary to try and reconstruct what exactly happened on the bridge of each ship, who did what and when - it will also be necessary to try and find an answer to the more difficult question of why? Clearly, if the International Regulations for Preventing Collisions (COLREGS) were being followed then collisions simply should not occur.

Following a collision there will be many matters to attend to and the situation will require very careful management. Tasks will need to be prioritised and clearly safety of lives, the ship and the environment will be at the top of that list. However, it is crucial that a contemporaneous record is maintained of what is happening — if possible backed up with photographs and videos. The delegation of such tasks should not have been left until an incident occurs.

It is likely that in the aftermath of a collision, lawyers and surveyors acting for owners and their insurers will come aboard the vessel and play an active role in gathering evidence necessary to bring or defend claims for damage. However, they will rely heavily on the master and the crew to provide much of the evidence.

It is quite likely that lawyers acting for the other vessel in the collision may try and secure an arrest on your vessel and attempt to board to interview members of the crew. Requests may be made to participate in a joint survey.

The Classification Society and other surveyors will probably be attending on board. It is also likely that local authorities will put an investigator on board if the collision occurred within their jurisdiction, this may be the capacity as port State Control or coastguard, such as the MCA, and / or a safety orientated investigation such as might be undertaken by the MATE, flag State Administration may also dispatch an investigator.

Nature of evidence required

Evidence prior to a collision

Evidence recording the daily routine of the vessel will be crucial in determining how and why a collision occurred. This type of evidence will include copies of the vessel’s rough log books. It is imperative, therefore, that all sections of the log book are completed fully and accurately at all times (refer to the introduction of this book). Sounding records are also likely to be important. Working charts and movement books are two items of evidence which have particular relevance in collision investigations.

Working charts

The master should ensure that chart positions are left precisely as plotted and that positions which do not match others are not erased. As a large number of collisions occur under pilotage or in congested waters, the master should also ensure that the general practice of marking the ship’s position on charts during the passage is continued while the vessel is under pilotage. Particular care should be taken to plot the vessel’s location on the chart, for example, by indicating the distances abeam off buoys.

Movement books

The master should ensure that movement books are kept in ink and that any alterations are made in ink, signed, and dated by the person making the alterations. The material deleted should be scored out with a single line leaving the writing underneath legible. The use of correction fluid should not be permitted. The master should also ensure that times are recorded as accurately as possible. Finally, he should ensure that printer outputs from telegraph recorders and the engine room are retained as part of the movement book.

Evidence after a collision

If possible, the master and the crew should collect, record, and preserve as much detail of the collision as they can immediately after an incident. Although a comprehensive list of the items of evidence required from the vessel is provided at the end of this chapter, the type of evidence discussed below is of particular importance. The master should ensure that a note of the following is made:

• The vessel’s position at the time of the incident

Every effort should be made to fix and confirm the position from more than one source.

• The exact time of the collision

The accuracy of the clocks on the bridge and in the engine room as well as the accuracy of automatic recorders such as course recorders, telegraph loggers, and data loggers should be verified. The personal watches of the members of the crew who witnessed the incident should be checked. If a reflective plotter was in use prior to a collision, the crew member operating the plotter should ensure that he has made a note (not on the screen) of any marks he made on the screen with the time they were made.

• The heading of the vessel at the time of the collision

It is important that the course recorder is marked in ink to indicate the time when the vessel collided, although care should be taken not to spoil the trace. If a course recorder is not available, the heading of the vessel should be determined by some other method which also should be recorded.

• An estimate of the angle of blow by or to the other vessel

• An estimate the speed of each of the vessels at the time of the collision

The estimates can be verified at a later date by other data such as photographs and logs.

• Any alterations of course and speed prior to a collision

If possible, this note should be verified by a second person or equipment recording. In addition, the master should ensure that all crew members on the bridge as well as other members of the crew who witnessed the incident, record their account of events which occurred prior to and after the incident. The master should also ensure that any independent witnesses to the incident are identified. He should record the names of all the vessels in the vicinity and attempt to obtain the names and addresses of the operators and duty officers of these vessels by VHF.

Finally, the master should ensure that any scraps of paper which have been disposed of in the waste paper basket on the bridge are retained as these may contain the key as to why and how a collision occurred.