England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 October 2002

Mr Justice David Steel:

1. This claim arises out of an accident, which occurred at Lockyer Quay, Sutton Harbour, Plymouth on the evening of 15 February 2000. The trawler Pietertje was berthed starboard side to, with her starboard derrick topped and the starboard trawl beam, chain mats and nets suspended from it. In these circumstances, the eye of the topping lift block split open, allowing the block to pull through its retaining shackle. In consequence, the derrick and fishing gear crashed down onto the quayside. In doing so, the trawl beam struck the head of the skipper, Mr Welburn, who was standing on the quayside, and killed him. Mrs Mitchell, the wife of the mate, and Mrs Baylis both of whom were also standing on the quayside talking to the skipper were struck by and engulfed in the fishing gear, whereby they sustained injuries.

2. There are two principal actions. The claimant in Folio 759 is the widow of the skipper. She brings the action on behalf of herself and the two children of the marriage. The claimants in folio 872 are Mrs Mitchell and Mrs Baylis. The first and second defendants are the owners and managers of the vessel respectively. At the CMC on the 2 November 2001, Morison J ordered that the two actions be tried together and the issue of liability should be tried first.

3. Pietertje is a steel hull vessel built in the Netherlands in 1971. She is registered in Jersey, some 26.22 metres in length and 6.57 metres in beam. She was purchased by the first defendant some time in the 1980's and brought to England where she operated out of Plymouth. The first defendant also owned another beam trawler called Evert Martje which also operated out of Plymouth.

4. The principal of the first defendant company who ran the business until the mid-1980's was Mr Mo de Bourcier. His son, Mr Gary de Bourcier served on board Pietertje for some five years, starting as a deck hand under Mr Welburn and becoming in turn engineer, mate and then relief skipper. He took over the practical management of the vessel whilst still working on board it and subsequently came ashore to take over the business following his father's death. In 1998, Mr Gary de Bourcier formed the second defendant company and, thereafter, the vessels were managed by that company. The only other member of the shore staff was Mr Gary de Bourcier's wife who acted as an administrative assistant.

5. Mr Welburn and the crew were not employees of the first or second defendants. They were engaged as share fishermen. The relationship was thus in the form of a joint venture between independent contractors, with the defendants providing the vessel, and the skipper and crew providing their labour: see The Maragetha Maria [2002] EWCA Civ 509, [2002] 2 Lloyd's Rep 293.

6. In 1991, a Mr Medler, a naval architect and surveyor, was appointed by the States of Jersey to survey Jersey registered fishing vessels for compliance with the Fishing Vessels (Safety Provisions) (Jersey) Regulations 1988. In June 1991, he carried out the first such survey on Pietertje. The last such survey prior to the accident was carried out on 10 October 1996. In fact Mr Medler visited the vessel on two subsequent occasions prior to the accident, both at the invitation of the owners. The first occasion was on 4 December 1998 when he conducted a general condition survey prior to the management hand-over to the second defendant and again in June 1999 when he attended whilst the vessel was slipped at Dartmouth to survey fractures in way of the propeller nozzle and the remedial repairs that were undertaken.

7. The block which failed (the failed block) was a double sheaf block manufactured by Taylor Pallister. Its head fitting consisted of an eyebolt passing through the top of the frame. This was secured in place by a nut attached to the threaded end of the eyebolt. The eyebolt was intended to function as a swivel so that the block could turn freely. Accordingly it was fitted with a lubrication duct. During the manufacturing process, the safe working load SWL (which was probably 10 tonnes) would have been marked on the side of the eye.

8. The block was a component of the vessel's starboard derrick topping lift gear. The starboard derrick was made of tubular steel measuring some 9 metres long. It was connected to the lower end of the starboard side of the goalpost mast by means of a hinge arrangement so that it could be raised and lowered. This was achieved by a system of double sheaf blocks and wires. The failed block was secured in place by means of a shackle through its eyebolt. The shackle in turn passed through a triangular plate at the end of the derrick.

9. The defendants did not have any record relating to the blocks on board their vessels or their service history. Even the origin of the failed block was obscure. The manufacturers plate on the block was very corroded but just enough to identify it as having been manufactured by Taylor Pallister. Since this company had stopped making blocks in 1986 when it was taken over by Ansell Jones, the block was at least 14 years old at the time of the accident.

10. It was common ground that a defect had been introduced into the eye during manufacture. This defect consisted of a small hole drilled into the surface at the top of the eyebolt (the extrados). This had apparently been done so that the eye could be held in place while the shank of the bolt was threaded. The hole had then been filled with weld metal but this had not been done in a competent manner. In particular the weld metal did not completely fill the hole and further did not fuse fully with the parent metal. In the result the eyebolt was susceptible to fatigue failure.

11. At some time in the life of the block, a further repair had been carried out, this time to the underside of the crown of the eye (the intrados). This consisted of the application of a single pass of weld metal, which had been applied to build up an area of wear in the way of the point of contact with the shackle.

12. As regards maintenance, the system on board Pietertje was that if a block failed in service or, following inspection by the engineer at the end of each fishing trip, was thought to be in need of remedial work, it was replaced by one of the spare blocks kept in the net room. The block which had been removed would then be sent ashore to a company called DAM Engineering (DAM). This firm was the contractor used by the defendants to carry all repairs to the vessel's equipment. The individual in charge of the company was Mr Ian Heard. He carried out all maintenance work with the assistance of a labourer called Mr Lazarus.

13. It appears that five new double blocks had been supplied to the vessel, four in May 1998 and a fifth in September 1998. It is accordingly probable that one of these was indeed installed as the starboard topping lift block. However, according to the recollection of Mr McConnell the vessel's engineer which I accept, about six to eight months prior to the accident the bearings of the starboard derrick topping lift block failed and the block had to be changed. This was carried out when the vessel was at Liverpool. The "best looking" block of those in the net room was selected as the replacement and the crew fitted it. This was the failed block. It can be safely inferred that, since DAM supplied all the reconditioned blocks to the vessel, the failed block was indeed supplied by DAM who had at some stage performed the weld repair.

14. It is common ground that by reason of the defect introduced during manufacture a crack had developed in the fatigue mode, which in due course, broke through the surface of the extrados thus exposing the surface of the crack to the atmosphere. Thereafter it continued to develop as a corrosion fatigue crack. Eventually the defect became so large that the remaining intact metal was unable to support the load imposed on it and it failed in the brittle mode.

15. The claimants' primary case was to the effect that the defendants had failed to put in place an adequate system of inspection and maintenance of the fishing gear. The defendants' response was to the effect that the system operated by them was satisfactory in that it matched the prevailing standards within the industry. In any event, any failure in that regard, it was pleaded, was not causative since:-

    "The cause of the failure of the block and the injuries to the claimant was a latent manufacturing defect which could not have been, and was not, detected by the exercise of reasonable diligence"

16. The system operated by the defendants amounted in effect to entrusting all aspects of day to day maintenance to the crew, in particular the skipper Mr Welburn and the engineer, Mr McConnell. As regards the blocks, it was Mr McConnell's practice to inspect them for wear and other damage both weekly and at the end of every trip. If a block failed or exhibited signs of potential failure by reason of wear or otherwise, it would be replaced from spares available on board.

17. I accept that this system, so far as it went, was fully in accord with standards in the industry and was not as such open to criticism. The personnel concerned were experienced hands who had every interest to replace vulnerable blocks so as to avoid any loss of valuable fishing time.

18. But there are obvious limitations to the system:

    a) The degree of rigor involved in the system was entirely derived from experience and not training: for instance there is no suggestion that the crew were aware of the acceptable degree of wear.

    b) Thus the examination of a block (and, equally importantly, the selection of a suitable replacement from the store) was cursory and ill informed.

19. Those reservations are to a significant extent borne out by the condition of the failed block:-

    a) it was extensively corroded to the extent that the identification plate was illegible.

    b) the securing nut on the threaded portion of the eye was heavily corroded

    c) the stamp containing the SWL was not visible

    d) the eye bolt was seized

    e) the frame securing nuts appeared to be seized

    f) there was a weld repair to the inside of the eye to make up a thickness loss attributable to wear amounting to 20% of the cross section diameter: the weld itself also being worn by a further 10%.

20. The defendants could not resist saying that, if these were obvious defects, they should have been obvious to Mr McConnell. This disregards the fact that the failed block had been supplied to the vessel with a view to its further use. Indeed the understandable lack of sophistication on the part of the crew in inspecting the failed block was further evidenced by the need, following the accident, for replacement of other blocks because of their poor condition as required by the surveyor appointed by the States of Jersey. This accordingly brings into sharp focus the other part of the defendants' system, namely the long-standing arrangement with DAM for the refurbishment of damaged blocks.

21. It is particularly notable that Mr Heard, the principle of DAM, was not called to give evidence by the defendants. The court was however shown the transcript of a long interview of Mr Heard by the police. The interview is revealing. It commenced with a prepared statement in which he purported to deny having been responsible for the provision or even the refurbishment of the failed block.

22. The question and answer session that then ensued demonstrate:

    i) Mr Herd had done an apprenticeship in electrical engineering but had no other training or qualifications, either in mechanical engineering or in welding.

    ii) His routine on being sent a block for refurbishment would be to strip it down, renew parts ("if necessary"), add weld metal to the roller ("if badly worn"), clean and reassemble.

    iii) He had no testing facilities.

23. In reality he had no greater expertise as regards the condition of the block than the crew – merely the ability to conduct basic repairs. His limitations are more than apparent from the following exchanges:-

    "Q. Well normally the safe working load is on there

    A. Yes.

    Q. To show what is the safe working load on the plate and without it I was just trying to determine how you would know what the safe working load is.

    A. Well I probably wouldn't if it comes down to basics.

    Q. Right, that's OK. I am just trying to get it clear.

    A. Well I mean the block. The block looks to be, you know, if you look at the derrick end block, if you look at the topping lift blocks and say it's a 10 ton block, you can look at that within reason and think , well that must be at least good for 30 tonnes if you like……

    …….

    Q. It's fine. I am trying to establish with you the practice you carry out. Right the visual inspection then, tell me exactly how you do that?

    A. Well I stand there and look at it….

    …….

    Q. OK let me slow you down. I would like you to take it step by step. Where are you looking for excess wear?

    A. Well I am looking for excess wear on the rollers, on the cheek plates on the eye and on the swivel.

    ……

    Q. How do you know you have done a good, adequate vision inspection of that eye?

    A. Because I feel I have."

24. Despite all this, the defendants may well be correct in saying, in company with the joint views of the surveying experts, that the system which was operated by the defendants was no worse than that pursued by many, if not most, other fishing vessel owners. Indeed Mr Heard appears to have been retained by a number of other owners. However, I have no doubt that, if such was the industry standard, it was inadequate.

25. The claimants correctly emphasised that it is in the nature of trawler operations that fishermen work in close proximity to the lifting gear. In the event of a failure of a block, the risk of injury (or death) is high. The equipment is in frequent operation, in a highly hostile environment. While the incidence of block failure is rare (particularly, it may be said, with regard to a topping lift block), the costs of the avoidance of risk are very small.

26. It was the evidence of the claimants' surveying expert, Captain Spencer, that:

    i) there should have been a system of planned preventative inspection and maintenance of all lifting gear blocks

    ii) the interval between inspection should have been determined by reference to service conditions: a reasonably sensible frequency would be every six months

    iii) the inspection should be by a 'competent' person: that is to say someone with sufficient practical experience and theoretical knowledge to be able to determine defects and their significance.

27. I am attracted by that opinion, not I hope because of the impact of hindsight, but because it accords with my view of sound management practice. Quite apart from the system of relying on unqualified personnel, the defendants' approach was entirely reactive. Blocks were used until they failed or were so obviously defective as to call for remedial work.

28. Mr Holland was the defendants' expert on these matters. Being an engineer, he was less qualified than Captain Spencer to express an opinion. However, in cross examination, he was minded to accept that a preventative maintenance programme of the type suggested should have been implemented. As he put it in one answer:-

    "We have to differentiate between the accepted practice and what should have been done. I cannot dictate to the owners but what should have been done was not done."

29. Indeed it is not insignificant that just such a system was established following the casualty. Mr de Bourcier told the court that arrangements are now made for all blocks to be taken off annually, stripped down, repaired as necessary, tested, certificated and marked with their SWL.

30. The principle response of the defendants was that regular survey of blocks was not a statutory or regulatory requirement. This attitude is exemplified by an answer given by Mr de Bourcier in cross examination:-

    "Q. Isn't the importance of the SWL self evident?

    A. Not for fishing purposes.

    Q. But blocks break if the SWL is exceeded and then people get killed?

    A. Yes, but there are no requirements in fishing vessels".

31. The statutory background is somewhat surprising:-

    a) The Merchant Shipping (Hatches and Lifting Plant) Regulations 1998 which imposed a requirement for inspection and testing of lifting plant by a competent person at least every six months, expressly excluded fishing vessels.

    b) The statutory survey and inspection regime for fishing vessels was introduced by the Fishing Vessels (Safety Provisions) Act 1970. As regards Jersey, the relevant rules are the Fishing Vessels (Safety Provisions) (Jersey) Regulations 1997. These simply provide that lifting gear should be 'properly installed': rule 56. (An amendment to the equivalent rules in force for British vessels required all lifting gear to be 'maintained in good repair').

    c) The Lifting Operations and Lifting Equipment Regulations 1998 (made under the Health and Safety Act 1974), required a thorough examination of lifting equipment every 12 months with intervening examination by competent persons. However the regulations expressly excluded 'ship's work equipment'.

32. I confess that I find it difficult to see any good reason why good practice requires regular inspection of cargo ships derricks (or a shore crane) but not lifting gear on a fishing vessel. It may be that an economically pressed industry has managed to persuade government to limit the compulsory imposition of safety requirements. But it is simply naïve to assert that good practice cannot call for more than compliance with the relevant statutory regime.

33. The claimants can in any event derive support from the report of the inspector appointed by the Health and Safety Executive to enquire into the incident, one of whose recommendations was that part of the Lifting Operations and Lifting Equipment Regulations 1998 should be applied to the fishing industry. As he observed, given the loading and environmental conditions, he would expect 'a better regime of regular in-service inspections' than would be necessary on shore.

34. Further, there are other materials which furnish guidance to owners of fishing vessels in regard to proper practice in this field:-

    ` a) In November 1974 the Department of Trade had issued an 'M' Notice No 699 to owners and skippers of fishing vessels in the wake of incidents of loss of life and injury from failure of fishing gear: 'there should be a regular close visual inspection (at least every 3 months) for cracks, wear and damage. There should be similar frequent examination of running gear for distortion in links and shackles, chafing and broken strands in wire ropes, worn or corroded sheaves and sheave pins. Rusting to be minimised by regular maintenance, oiling and greasing. Gear which shows impaired strength, for example by way of cracks, excessive wear and tear or excessive corrosion, should be replaced."

    b) This was superseded by 'M' notice 1657 in March 1996 which contained the following advice:

    2.3 ……corrosion, fatigue, inappropriate repairs or modifications and poor maintenance all contribute to reduce safety margins.

    2.4 When planning maintenance, the following safety matters should be considered: ……modifications or repairs should be of equivalent strength using compatible materials and taking account of the adverse effect of heat arising from welded repairs - shackles and blocks should be inspected and lubricated regularly - shackles and links should be renewed when wear is noticed - Blocks, pintles and hinges should be stripped for examination and serviced annually."

35. It is not clear that Mr de Bourcier became aware of these M notices. But his likely attitude could be readily inferred from his response to a safety folder despatched to him in the wake of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997. This explained the introduction of "risk assessment". He regarded this solely as a matter for the skipper, to whom he had forwarded the booklet.

36. My own impression was that Mr de Bourcier simply had no concept of the role of an owner, save as providing financial support. He involuntarily abdicated all aspects of maintenance and safety to the crew. His only role, as he saw it, was to pay without complaint for remedial work affected by DAM.

37. Following the accident, the Marine and Coastguard Agency issued a 'Safety Alert'. This contained the following recommendation:

    a) On-board maintenance

    i) daily – visually check the blocks to ensure that the swivels/sheaths are free

    ii) monthly – closely examine the block for wear and distortion and any other irregularities

    iii) six-monthly – dismantle the block for inspection (load test if any repairs or renewals have been carried out)

    iv) annually – dismantle the block for inspection and load test

    b) Suppliers and repairers

    i) new and repaired blocks should be load tested and certificated prior to being issued and/or fitted……

    iv) do not build up worn parts as this may actually weaken them by changing the molecular structure of the steel.

38. In short, the agency did not view the accident as attributable to some new or unexpected danger. The thrust of the whole alert was to the effect that investigations had revealed that there was widespread bad practice in the industry in the sense that blocks were not being maintained and repairs were not being tested.

39. In his original report Mr Holland had stated "it is also my considered opinion that the shore support, put in place by the owners and the managers of the vessel and carried out by an appointed local firm of marine engineers, was adequate". When this was put to him in cross examination, he was asked:-

    "Q. Did you know that he was a non-qualified welder and assuming he was purely reactive and repairs to the block iron sheaths were carried out by unqualified persons, would you change your view set out in that report.

    A. I agree, I would change my view."

40. In my judgment the defendants had no proper system for regular inspection, maintenance and testing of the blocks on board the trawler. Furthermore, neither the crew nor Mr Heard were competent to perform such a task.

41. This conclusion does not determine the issue of liability since the defendants contend that the only effective cause of the accident was the propagation of the manufacturing defect in the crown of the eye which could not be detected with the exercise of reasonable diligence. Thus, it was further submitted, any failure to establish a proper maintenance programme was not causative. This position was maintained even if the court were to find that, as a consequence of other defects which were patent, such a programme would have led to the condemnation of the block. The failure to furnish an adequate system was said simply to furnish the occasion for the subsequent boss.

42. The block was at least fourteen years old. At the time of its re-fitting some six to eight months before the casualty, the original defects had developed over a period of years as a result of fatigue cracking to a total depth of about 14mm. It was surface breaking but only in the form of hairline cracks extending about 4mm either side of the weld in-fill.

43. The metallurgists experts were agreed that:

    "The developing defect in the crown of the eye would not have been detected during a routine inspection and overhaul of the ship's equipment."

    In using the words 'routine', I understand the experts to be referring to the system operated by the defendants, namely, visual appraisal by the crew and/or Mr Heard. However, it was also common ground that, whilst non destructive examination techniques such as MPI or dye penetration would probably have revealed the defect, in the absence of reason to believe that a crack-like defect was present, such techniques would not usually be employed on inspection of items such as blocks.

44. However, by virtue of their defence, the defendants were assuming the evidential burden of proof that the block failed as a result of fatigue cracking and that its existence was not discoverable by the exercise of reasonable care: Henderson v Henry Jenkins [1970] AC 282. It was not a promising start for the defendants to attempt to discharge this burden without calling Mr Heard.

45. In any event, as already recorded, there was a range of other defects, which were patent and indeed identified by Captain Spencer. I have already explained why the crew may have felt it reasonable nonetheless to put the failed block back into service. They were wholly untrained as to acceptable degrees of wear or corrosion: they were not familiar with the implications of SWL or the absence of a test certificate: they were not qualified to make allowances for the cumulative impact of the apparent defects: in any event they would have had a false sense of security given that the block had been returned to the ship following remedial work (including the welding of the intrados).

46. I accept the evidence of Captain Spencer that any competent surveyor, if not condemning the block, would certainly have required it to be refurbished. Whilst taken in isolation the degree of corrosion might have been acceptable, when taken with the weld repair, the seizure of the eyebolt and the absence of any certification, the block cried out for maintenance and repair.

47. The significance of this conclusion is that any repair or other material remedial work would have led to testing and certification. Dr Baker, the defendant's metallurgist, told the court in his oral evidence that in the event of testing, it was probable that either the block would have failed or at least the crack would have enlarged to become patent.

48. On this basis, it is clear that the failure to instigate a proper inspection and maintenance system was an effective cause of the accident. Indeed, common sense leads to the view that the position as regards causation would be no different if the block had been condemned out of hand rather than exposed to repair and testing.

49. The defendants are liable therefore for the accident and there is no basis for the counterclaim.