England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 July 2008

Mr Justice Aikens :

1. This action arises out of an incident on 30^th September 2006 some 60 miles off the Nigerian coast. The number 1 Port outer propeller of the claimants' fast support and intervention vessel, "KRYSIA" was fouled by a rope and wire attached to the aft end of a Yokohama fender which was secured forward on the portside of the defendants' dumb barge "EUROPA". "EUROPA" ("the barge") was herself moored alongside the floating production, storage and offloading vessel ("FPSO") in the oilfield "ERHA". The claimants allege that this fouling caused substantial damage to the "KRYSIA's" propeller, gearbox and line shaft resulting in losses of approximately US$560,000 to the claimants.
2. The trial on liability, together with any points of principle on damages, was held before me on 24^th to 26^th June 2008. I was assisted by a Nautical Assessor, Captain Richards. Oral evidence was heard from five witnesses. Mr Allan Membreve, First Officer of "KRYSIA" and Captain Saliou Diouf, master of "KRYSIA", were called on behalf of the claimants. Captain Victorios Jadol, the master of the barge, Captain Hans-Dieter Mueschen, the mooring master of the Barge, and Mr Stuart Edmonston, a Master Mariner employed by the defendants' solicitors, Holman Fenwick & Willan International, were called on behalf of the defendants. I also received evidence under the Civil Evidence Act 1995 from Captain Papa Momar Gueye, master of "KRYSIA" until 25^th September 2006 and from Mr Apolonio Mendoza, a professional diver. He examined the fouled propeller on 5^th October 2006 and recovered the rope and wire wrapped around the propeller and tail shaft. Both of those statements were served on behalf of the claimants.
3. At the conclusion of the evidence counsel prepared very helpful written closing submissions. These were supplemented by short oral submissions on 26^th June 2008. I reserved judgment.

A. The parties, the vessels and the Yokohama fenders

4. The claimants are owners of the fast support and intervention vessel "KRYSIA". She is a vessel of 421 gross tonnes, 125 net tonnes, being 50 metres in length, 9.1 metres in breadth and a moulded draft of 2.4 metres. "KRYSIA" has four diesel engines which drive four fixed pitch propellers. Each engine produces a maximum of 2,400 brake horsepower. When "KRYSIA" left the port of Onne, Nigeria, at 1600 hours on 29^th September 2006, bound for her rendezvous with the barge, her drafts were 1.95 metres forward and 2.12 metres aft.
5. "KRYSIA" was built in 2002. She is designed to carry 80 passengers in business style airline seats and 12 passengers in VIP seats, at speeds of up to 31 knots. She can also carry deck cargo, fuel and fresh water in order to supply oil rigs and offshore installations. She has twin rudders and a bow thruster. Her wheelhouse is positioned forward. There is also an after control position in the wheelhouse, for use when the vessel is manoeuvring. "KRYSIA's" stern is of the transom type and is protected by a row of aircraft tyres of about 30cm width, strung just below the after bulwark.
6. The vessel's twin rudders are positioned directly aft of and in line with the outer port and outer starboard propellers. The outer edge of each of the two rudders follows the downward line of the transom stern at an angle of about 30 degrees.
7. There was some controversy as to the precise distances between the number 1, outer, port propeller and the extremity of the stern and between the centreline of that propeller and the extremity of the portside of the vessel. I accept the measurements taken by Mr Poul Henning Nygard Pedersen, the superintendent of "KRYSIA", when the vessel was dry docked in January 2007. The distances he took are as follows: (i) from the extremity of the propeller to the upper edge of the stern: 195cm; (ii) from the extremity of the propeller to the lower edge of the stern: 120cm; (iii) from the centreline of the propeller to the lower edge of the port side: 140cm; (iv) the radius of the number 1 propeller: 54cm. These measurements are important for reasons that will become clear later in this judgment.
8. "EUROPA" is a dumb offshore accommodation work barge of 7,302 gross tonnes and 3,198 net tonnes. She is 82.5 metres in length and 22.5 metres in breadth. At the relevant time she was owned by the defendants and chartered to Saipem S.A. pursuant to a time charperparty on an amended Supplytime 89 Form. She was providing accommodation and other services to the FPSO "ERHA". On her port side deck, she has two pad – eyes. One is 20 metres from her bow and one is 22.50 metres from her bow.
9. The FPSO "ERHA" was employed in the ERHA oil field which is approximately 60 miles off the Nigerian coast. At the time of the incident "EUROPA" was moored on the starboard side of the FPSO. Broadly speaking, on 30^th September 2006, the FPSO was moored in a north-south direction. The bow of the barge "EUROPA" was thus headed in a southerly direction. "EUROPA" was made fast to the FPSO using 8 synthetic mooring ropes. There were a number of fenders between "EUROPA" and the FPSO.
10. Two Yokohama fenders were located on the port side of "EUROPA". These pneumatic rubber fenders have tyres lashed onto them with chains in order to protect them. They were positioned on the port side of "EUROPA" specifically for use during operations by supply boats, such as "KRYSIA". The Yokohama fenders were about 6 metres in length and about 3 metres in diameter. Yokohama fenders are normally secured to the vessel it protects by means of a steel chain or wire. In the case of the port side forward Yokohama fender on "EUROPA", the forward end of the fender was secured to "EUROPA" by a chain of approximately 8 metres in length. That was secured to the Yokohama fender with a shackle which was itself secured to a pad-eye welded on to a steel plate in the middle of the forward part of the fender. A steel wire was used to secure the after end of this fender to "EUROPA". This steel wire, which was about 1.5 inches in diameter, was also attached to the fender via swivels and a shackle secured to a pad eye welded onto the steel plate of the fender.
11. Also on the port side of the deck of "EUROPA" there is a "surfer landing platform". This is used by a small boat – a surfer – to disembark personnel. The platform is situated just aft of the position where the pad – eyes are on the deck of "EUROPA".
12. On 23^rd September 2006, the forward Yokohama fender was lifted out of the water for maintenance and repair, using a crane on the FPSO. I am satisfied that at the time this was done, there was a rope which had been attached to the aft - end swivel of the fender. This rope, which was referred to during the trial as a "pick- up" rope or a "tag line", was used by the crew of the FPSO and "EUROPA" to control the movement of the fender as it was swung onto the deck of the FPSO, where the maintenance and any repairs were carried out. After these were completed the fender was repositioned. The pick up rope was used to control the swing and descent of the fender as it was lowered from the FPSO to the deck of "EUROPA". Once on the deck of "EUROPA", the original securing chain was made fast to the forward end of the fender and the securing wire was made fast to the after end of the fender. The fender was then lifted up by the crane of the FPSO and swung over the port side of "EUROPA" into the water. The pick up rope was used to help manoeuvre the fender into position.
13. There is acute controversy in respect of two matters concerning the after securing wire and the pick up rope as I have described it. The first is the length of the after securing wire and the pick up rope. The second is whether or not the pick up rope was itself re - secured to a pad-eye on the portside forward part of the deck of "EUROPA" after the fender had been repositioned; or, if it was, whether it subsequently became loose. (Originally there had been an issue about whether the pick-up rope had remained in place at all, but at the trial the defendants accepted that it did). It is the claimants' case that the pick up rope was never secured to the pad – eye on the port side of the deck of "EUROPA" after the work on the fender on 23^rd September 2006. Alternatively, it is said that at some point between 23^rd September and the afternoon of 30^th September 2006, the pick up rope became unsecured from the pad-eye, although it remained attached to the shackle on the after end of the fender. But in this state it would have had one end loose in the water. It is the defendant's case that the pick up rope remained secured at all times, both to the after end shackle attached to the fender and at the pad-eye on the port forward deck of the barge.

B. Weather and sea conditions on 30 September 2006

14. The ERHA FPSO and "EUROPA" were positioned in Gulf of Benin, approximately 60 miles off Warri on the coast of Nigeria. At that position on 30^th September 2006, the wind was southwesterly force 3. There was a sea state force 2 with a two metre swell running from the southwest. There was also a current running south west to north east at about 1.9 knots. The weather was fine. These conditions did not materially alter throughout the day.

C. Outline of events

15. On 29^th September 2006 "KRYSIA" was ordered to deliver a cargo of 92 tonnes of oilfield equipment to the FPSO. "KRYSIA" left Onne at 1600 hours on 29^th September 2006 and she arrived at the FPSO at 0730 hours on 30^th September 2006.
16. At 0930 hours that day, Captain Diouf, the master of "KRYSIA", received authorisation from the FPSO to enter the 500 metre safety zone around the FPSO. Captain Diouf informed Captain Jadol, the barge master, that the cargo would be unloaded whilst "KRYSIA" manoeuvred under power along side "EUROPA". Insofar as Captain Jadol, the barge master of "EUROPA", suggested in evidence that "KRYSIA" was moored alongside in the morning of 30th September 2006, I do not accept his evidence. The discharge operations started at 0945 hours and finished, without incident, at 1400 hours.
17. When discharge was completed, "KRYSIA" was ordered to "back-load" a 20 foot sea container. This contained waste material from the FPSO. A large motor was lashed to the container at one end. The "back – loading" operation of this unwieldy and ill – balanced cargo started at about 1535 hours. At this time, the mooring master of "EUROPA", Captain Mueschen, was taking the afternoon coffee break. He was at the coffee machine just inside the barge's accommodation, which is towards her after end. Although Captain Mueschen insisted in evidence that he had a clear view of events from his position, through a window in a door to the accommodation, I am satisfied that he was not paying particular attention to events until there was a lot of VHF radio traffic, immediately after "KRYSIA's" propeller had been fouled. Therefore he did not see precisely what happened.
18. During the manoeuvre to load the container and motor on to the cargo deck of "KRYSIA", the FPSO's crane, which has an "outreach" of approximately 50 metres, swung the load over "EUROPA" towards "KRYSIA's" cargo deck. Captain Diouf was controlling operations on board "KRYSIA" from the after control position. I accept that, before the container/motor was positioned on the after deck of "KRYSIA", Captain Diouf had a good view on to and across the cargo deck and the adjacent water on either quarter and over the stern of "KRYSIA". However, Captain Diouf could not have seen immediately below the transom of "KRYSIA". Indeed, he accepted that he could not see closer than about 5 metres away from the stern of the vessel, given his sight line from the after control position.
19. Two crew members were working on the cargo deck of "KRYSIA", the Bosun and one A/B. However, during the crucial period when the container/motor were being landed on to "KRYSIA's" deck, these crew members were sheltering in the accommodation, in order to avoid accidents.
20. Because of the heavy and unbalanced nature of the container and motor lashed to it and the swell, this load swung from side to side as the FPSO's crane driver manoeuvred the load towards the deck. In order to steady the load, the crane driver landed the container/motor onto the crash rail or protection bar which surrounds the cargo deck of "KRYSIA". (That was Captain Diouf's oral evidence, which I accept). The crane driver did this to steady the container and motor before repositioning it on "KRYSIA's" cargo deck. However, the result of this manoeuvre, (which was on the starboard side of the cargo deck and close to the superstructure of "KRYSIA"), was that Captain Diouf's view aft from the after control position was obscured. He asked the FPSO crane driver to lift the container/motor and reposition the load further aft and towards the portside of "KRYSIA's" cargo deck.
21. The evidence of Captain Diouf was that when the crane driver started to lift the container/motor, it dragged "KRYSIA" towards "EUROPA". This evidence was not challenged in cross-examination. Captain Diouf saw that this was drawing "KRYSIA" towards the port side of "EUROPA". To counter this, Captain Diouf clutched in the number 1 port outer engine dead slow astern (at 700 rpm) and the number 4 starboard outer engine at dead slow ahead (also 700 rpm).
22. The master's aim was to bring "KRYSIA" round so that her port side would be parallel to that of "EUROPA", but some metres away from her. However, almost immediately after Captain Diouf had engaged the two engines, he heard a dull sound and saw the forward Yokohama fender being pulled towards and under the aft part of "KRYSIA". Simultaneously, the number 1 port outer engine shut itself down and Captain Diouf stopped all other manoeuvres. This was at 1540 hours local time. The angle between "KRYSIA" and "EUROPA" at the moment that this occurred was about 30-45 degrees.
23. The forward Yokohama fender was squeezed, under great pressure, against "KRYSIA's" port quarter. It was obvious that the after securing wire of the Yokohama fender had become fouled around a propeller of "KRYSIA".
24. By about 1600 hours the forward and aft securing lines of the forward Yokohama fender were released from "EUROPA", so that "KRYSIA" could manoeuvre away from "EUROPA's" side. The Yokohama fender, which had been secured temporarily to "KRYSIA", was deflated and lifted onto her cargo deck, where it was relashed and secured.
25. Captain Diouf subsequently carried out an inspection in the engine room. He noted that the reversing gear of the number 1 port side outer gearbox was seriously damaged and that the line shaft connected to the corresponding main engine had been displaced by 2 cm.
26. A diving team from Underwater Engineering Nigeria Limited was asked to go out to "KRYSIA" to make an inspection of her propellers and to remove any material fouling a propeller of "KRYSIA". The diving team arrived at "KRYSIA" on 4^th October 2006 in the evening. Mr Mendoza and another diver made an inspection at about 2130 hours that evening. They observed a 1.5 inch wire and a mooring rope entangled around "KRYSIA's" extreme portside propeller and shaft. It was not possible to remove the wire and rope that evening. The cutting operation was undertaken at 0600 hours the following day and completed by 0715 hours. The 1.5inch wire was the first thing to be removed. Once that was done the divers could remove rope which was wrapped innermost around the propeller and the shaft. It was the view of Mr Mendoza that the rope had initially fouled the propeller and then drawn in the wire. Although the wire was more or less intact, the rope had been extensively shredded. Photographs of the rope and wire were taken.

D. The allegations of the parties

27. At the start of the trial, Mr Karia, on behalf of the claimants, sought leave to re-amend the claimants' "Collision Statement of Case". The parties' submissions on this were made in writing and I ruled that permission should be granted for the re-amendment. As a result of this, the claimants' case is as follows: first, it is alleged that there was a "pick-up rope" or "tag rope" which was secured to the same shackle which itself secured the aft steel securing wire of the forward Yokohama fender. The claimants allege that this pick up rope was not secured on board "EUROPA", but was loose in the water, at the latest by the afternoon of 30^th September 2006. The claimants allege that this pick up rope was partly entwined around the aft securing wire of the forward Yokohama fender. However, for a large part of its length (which the claimants allege was between 10 and 12 metres) this rope was loose in the water. The claimants say that the rope fouled the number 1 port propeller of "KRYSIA" while she was manoeuvring during the "back loading" of the container/motor. The rope then drew in the securing wire, so that both fouled the propeller and shaft.
28. The alternative case of the claimants is that if, contrary to their primary case, the pick up rope of the forward Yokohama fender was secured to the pad-eye on the port side of the deck of "EUROPA", then the whole of the forward Yokohama fender's aft securing wire and pick up rope arrangements were excessively slack, contrary to good seamanship. The consequence of this, the claimants allege, is that when "KRYSIA" was manoeuvring during the back- loading of the container/motor, the pickup rope, then the securing wire became fouled in the number 1 port propeller of "KRYSIA".
29. The defendants accept that there was a pick up rope attached to the shackle at the after end of the forward Yokohama fender. It was accepted by Mr Buckingham on behalf of the defendants that if the rope was loose at its other end, then that constituted poor seamanship. He accepted that such a situation would be contrary to the duty of the defendants to ensure that "EUROPA" did not pose a hazard or danger to any vessels approaching her, including a supply vessel which had to manoeuvre in her vicinity, such as "KRYSIA" had to do on 30^th September 2006. He accepted that the defendants would be liable for any foreseeable damage to "KRYSIA" caused by such negligence, subject to arguments about "remoteness" and subject to any question of fault on the part of the master of "KRYSIA" in his manoeuvres that afternoon.
30. The defendants' case is, however, that this pick up wire was at all material times well secured to the pad-eye on the port side deck of "EUROPA". The defendants deny that the pick up rope and/or aft securing wire of the forward Yokohama fender were unduly slack for the prevailing conditions on 30^th September 2006, i.e. a 2 metre swell. Mr Buckingham was prepared to accept that there was some slack in the securing arrangements. He reminded me that there are two pad-eye locations on the port forward side of "EUROPA". One is 20 metres from the bow and the other is 22.5 metres from the bow. Mr Buckingham accepted that it was impossible to say which pad-eye the securing wire and the pick up rope were attached to, on the evidence. He was prepared to accept that if they were attached to the forward pad-eye then at times on 30^th September, the wire and rope could have been 2.45 metres beneath the surface of the water. However, if the wire and rope were attached to the after pad-eye, then they could have been about 2.10 metres beneath the surface of the water. Mr Buckingham also accepted that this figure could increase in a swell.
31. The defendants' case was that this degree of slack in the wire and rope was necessary to avoid the risk of damage to the securing arrangements of the fender and the fender itself in the swell that was running that day. He submitted this degree of slack in the wire and rope was consistent with good seamanship. Accordingly, there was no negligence on the part of "EUROPA" with regard to the securing arrangements of the forward Yokohama fender.
32. The defendants have also alleged that the fouling of "KRYSIA's" propeller was caused by the negligence of the claimants, in particular, through the actions or inactions of Captain Diouf. In the defendants' Collision Statement of Case, it is alleged, broadly, that "KRYSIA" and her Master and crew failed to make any proper allowance for the swell or current in the course of the manoeuvres that afternoon; they failed to keep clear of "EUROPA"; and they failed to keep out of the way of "EUROPA". In the course of the trial, these broad allegations were refined by Mr Buckingham. In the end, the allegation was that Captain Diouf allowed "KRYSIA" to get into a position between the forward Yokohama fender and the surfer boat platform, which was too close to the aft securing arrangements of the forward Yokohama fender.
33. Mr Karia submitted that Mr Buckingham did not put to Captain Diouf squarely an accusation that he had been negligent in permitting "KRYSIA" to get in a position between the forward Yokohama fender and the surfer platform, such that it was inevitable she would foul the after securing wire of the fender in the course of manoeuvring. He submitted that, accordingly, the defendants could not pursue this argument. In this regard he relied on the remarks of the Court of Appeal in Socimer International Bank v Standard Bank [2008] 1 Lloyd's Rep 558 at paragraph 143. I have re-read the transcript of Captain Diouf's cross-examination by Mr Buckingham with this point particularly in mind, concentrating especially on pages 131-143 of Day 2 of the trial.
34. I am quite satisfied that Mr Buckingham put to Captain Diouf several times the allegation that the Master allowed "KRYSIA" to get very close to the aft end of the forward fender and between the forward fender and the surfer landing platform, such that "KRYSIA's" port quarter was between the fender and the surfer landing platform. I accept that Mr Buckingham did not say to Captain Diouf directly that this constituted negligence or bad seamanship on his part. However, the substance of the allegation was put clearly and the Master denied it: (Day 2, page 140, line 1).
35. The defendants also allege that Captain Diouf failed to shut down sufficiently quickly the number 1 port engine after the propeller had been fouled. I accept the Master's evidence that the number 1 port engine shut itself down when the propeller became fouled. There was no negligence on the part of Captain Diouf in this respect.

E. Issues for Decision

36. In the light of the allegations made, the following issues call for decision:

(1) What initially fouled "KRYSIA's" outer port propeller; Was it the pick up rope or the aft securing wire?

(2) (a) Was the pick up rope loose in the water or was it tied to the pad-eye on "EUROPA's" deck? (b) If the answer to this is "it was not loose" and the pick up rope was secured to the pad-eye on "EUROPA's" deck, was its presence nevertheless contrary to good seamanship?

(3) If the pick up rope was loose, where was "KRYSIA" when the rope fouled the propeller?

(4) Assuming the answer to (2)(a) above is "it was not loose", were the forward Yokohama fender's aft securing wire and pick up rope (assuming it was attached to the pad-eye) excessively slack, contrary to good seamanship?

(5) Are the defendants liable for any defects found in relation to the aft fender 's securing arrangements or the pick up rope?

(6) Were the actions (or inactions) of the Master of "KRYSIA" in manoeuvring his vessel immediately before the fouling contrary to good seamanship and/or negligent; and

(7) What was the cause of the fouling by the rope and wire of the number 1 outboard propeller of "KRYSIA" and, if both the claimants and defendants were at fault, what was the degree of fault of each?

F. Questions to the Nautical Assessor and Answers

37. In the light of the parties' allegations and submissions, I proposed to counsel a number of questions for the Nautical Assessor. Before these were put to him, I gave draft questions to counsel and modified them in the light of their short written submissions. I gave counsel the answers which the Nautical Assessor proposed to give, so that they could make submissions on them before the hearing was completed.
38. The questions and answers are as follows:

Question 1: If Yokohama fenders are secured alongside a vessel such as EUROPA, in circumstances such as found in this case, where (a) supply vessels are expected to undertake cargo loading and unloading using a crane; (b) such supply vessels will not wish and/or be able safely to secure alongside EUROPA in certain weather and tide conditions; and (c) there is a north easterly current of between 1 – 2 knts and a swell of 1 – 2 metres running from fore to aft of the vessel in EUROPA's position: then:

(i) is it good seamanlike practice to check the securing wires of the Yokohama fenders?

Answer: Yes. To be done by the Mooring Master always, and sometimes in conjunction with the Barge Master.

(ii) if so, is it good seamanlike practice to permit the after securing wire of the fender to be submerged when the fender is in the "heave" of such a swell and if so to what extent (in metres)?

Answer: The after securing wire (down stream) may be submerged, but usually not more than about a metre below the surface of the sea.

(iii) if it is decided that changes should be made to the securing wire of the fender, what would it be good seamanlike practice to do?

Answer: The Mooring Master would decide this; he would consult the barge Master (and probably Chief Officer) and have the barge crew re-secure the fender to the Mooring Master's satisfaction.

(iv) is it good seamanship practice to have a rope ("tag line" or "pick up line") that is not part of the Yokohama fender's securing arrangements attached between a Yokohama fender and "EUROPA", such as in the circumstances found in this case?

Answer: This is normal practice and the tag line would be at least one or two metres longer than the fender's securing line.

Question 2: : If Yokohama fenders are secured alongside a vessel such as EUROPA, in circumstances such as found in this case, where (a) supply vessels are expected to undertake cargo loading and unloading using a crane; (b) such supply vessels will not wish and/or be able safely to secure alongside EUROPA in certain weather and tide conditions; and (c) there is a north easterly current of between 1 – 2 knts and a swell of 1 – 2 metres running from fore to aft of the vessel in "EUROPA's" position: then:

(i) how close to the Yokohama fender is it reasonable to approach?

Answer: It is acceptable for the supply vessel to touch the fender and possibly lie alongside it briefly during manoeuvring.

(ii) Is it good seamanlike practice to manoeuvre a supply vessel so that her stern or either quarter is in a position between the two Yokohama fenders; if so, how close to the barge is it reasonable to go?

Answer: (a) No, it is not advisable for the supply vessel to manoeuvre her stern or quarter between the fenders, in case the supply vessel's steelwork collides with the barge's steelwork and substantial damage ensues.

(b) If the stern or quarter of the supply vessel finds itself between both fenders, this is unseamanlike and the supply vessel should not touch the barge (see (a) above). A reasonable proximity in these circumstances – considering swell and current – might be 3 or 4 metres.

G. Analysis of the Issues and Findings of Fact

39. Issue One: What initially fouled KRYSIA's outer port propeller? I am satisfied that it was the rope that initially fouled the propeller. This is clear from the evidence of the diver, Mr Mendoza. Although in other respects I found Captain Jadol an unsatisfactory witness, I accept his evidence that the rope would tend to coil around the wire, whether or not the rope was attached to the pad-eye on the deck of "EUROPA". Therefore, once the rope had fouled the propeller, it would draw in the wire.
40. Issue Two (a): Was the pick up rope unattached at the pad-eye and so loose in the water? Both Captain Diouf and Mr Membreve said in evidence that they did not see any rope attached to the pad-eye on the port deck of "EUROPA". However, it was the evidence of Captain Mueschen and Captain Jadol that the pick up rope was at all times attached to one or other of the pad-eyes on "EUROPA's" port side. There was no independent evidence, such as photographs, which would confirm the presence or absence of a rope attached to a pad-eye on the afternoon of 30^th September 2006.
41. Although Captain Diouf and Mr Membreve said that they did not see any rope attached to the pad-eye, I do not place particular weight on this evidence. Before the fouling occurred, neither would have been paying attention to the pad – eyes on the deck of "EUROPA"; nor, indeed whether there was a rope secured to a pad-eye there. When they were at the aft end of the cargo deck of "KRYSIA" after the fouling had occurred, they would also not have been concentrating on whether or not a rope was attached to a pad-eye on the deck of "EUROPA". They were, naturally, concentrating on how to deal with the fouling.
42. On the other hand, neither Captain Mueschen nor Captain Jadol were satisfactory witnesses. Captain Mueschen made three statements. In the first two of them he denied there was any kind of rope attached to the shackle on the aft part of the forward Yokohama fender. In cross-examination he admitted this was wrong. He tried to justify his statements that there was no rope by saying that the rope was not part of the securing arrangements for the fender and so therefore he was correct in saying that there was no rope attached to the fender. That was casuistry. In cross-examination he also had to accept that his evidence in paragraph 26 of his first and second statements, that the forward Yokohama fender was never moved was wrong. He accepted in cross – examination that the Yokohama fender had been taken out of the water and that that meant it had been moved. In his third statement, which was made only on 16^th June 2008, he expressly accepted that he was wrong about the denial of the presence of the pick up rope in his first two statements and that he was wrong about the fact that the fender had not been moved before the incident. In fact, Captain Mueschen was forced to admit in cross- examination that overall his third statement was very much at odds with his first two statements. Yet when giving evidence in chief he confirmed the accuracy of the first two statements, which were themselves not entirely consistent. I am therefore not prepared to place any weight on the evidence of Captain Mueschen with regard to whether the rope was loose or not, unless corroborated by other evidence.
43. Captain Jadol was also an unsatisfactory witness. He admitted in his statement (paragraph 26) that there was a "pick up" rope. In his oral evidence he attempted to justify the existence of the pick up rope with fanciful suggestions for its possible use. These included using it as a reserve in case the securing wire parted and using it to assist in hoisting the fender out of the water. Given the diameter of the rope (about 22 mm) this was a fanciful suggestion. On the other hand, Captain Jadol rejected the idea that the rope was used to guide the fender when it had been lifted out of the water by the crane and was being manoeuvred on the FPSO. Yet this was said by Captain Mueschen to be the very purpose of the pick up rope. Captain Jadol was also insistent that "KRYSIA" came alongside and tied up to "EUROPA" when she arrived in the morning of 30^th September 2006, despite a wealth of evidence to the contrary. Overall I regarded Captain Jadol as an unsatisfactory and unreliable witness on the issue of the pick up rope. I would not accept his evidence unless corroborated by that of another, reliable, source. I am not prepared to accept his evidence, at paragraph 66 of his statement, that he personally released the pick – up line from the pad – eye, despite the fact that he remained adamant about this in cross – examination.
44. I have concluded that, on a balance of probabilities, the pick up rope was loose. I accept that there is no positive evidence that the rope was not attached to the pad-eye on the deck of "EUROPA" by the afternoon of 30^th September 2006. However, in the first place, I regard the diver's evidence that the rope was innermost of the rope and wire fouling the propeller as powerful circumstantial evidence suggesting that there was a loose end of the rope which fouled the propeller first. Secondly, I regard the fact that there is no evidence to show that the rope had parted during the fouling, leaving one end attached to the pad – eye, as supporting evidence that the rope was loose. There is no evidence of a part of the rope, which had been secured to the pad – eye, being recovered and being intact at the pad-eye end but damaged where it had parted.
45. Mr Buckingham submitted that if the rope was loose, then someone from one or other of the vessels would have seen it in the water during the course of 30^th September 2006. Moreover, he argued, it is likely that the fouling would have occurred earlier in the day whilst "KRYSIA" was manoeuvring during the unloading of cargo in the morning.
46. As to the first of these points, this depends on whether someone was looking for a loose rope. No one on board "KRYSIA" would have done so; they would have assumed all was well. It cannot be known when the rope might have become loose. Captain Mueschen's evidence (first statement para 17 – 18) was that he made regular checks of the moorings throughout the day, every 4 hours. He confirmed this in cross – examination. He said that the rope was attached to the pad – eye. I am not impressed by this evidence, given his original stance that there was no rope attached to the Yokohama fender at all. Nor am I impressed by the evidence of Captain Jadol that he conducted a "roving inspection" every morning (paragraph 47 of his statement) and his confirmation that the rope was connected to the pad – eye. His evidence in cross – examination was that he left mooring matters to the mooring master, Captain Mueschen. I find it is likely that he left such matters as whether the pick –up rope was properly secured to him as well.
47. As to the second point, (ie. fouling would have occurred earlier), that depends on where the "KRYSIA" was positioned during the manoeuvring during the unloading operation in the morning. As I conclude under Issue 3 below, "KRYSIA" would have had to be close into the forward Yokohama fender and her port quarter would have had to be aft of it for a propeller to be fouled. There is no evidence that she was in such a position before the incident at 15.40 hours on the afternoon of 30^th September.
48. Mr Buckingham accepted that it would be poor seamanship and negligent on the part of "EUROPA" to have a pick up rope that was loose in the water in the area where supply vessels such as "KRYSIA" would be manoeuvring off "EUROPA" on a regular basis. I therefore find that "EUROPA" was negligent in this regard.
49. Issue 2(b): If the answer to question 2(a) is "it was not loose" and the pick up rope was secured to the pad-eye on "EUROPA's" deck, was its presence nevertheless contrary to good seamanship? Given the advice of the Nautical Assessor to my Question 1(iv), which I accept, the answer to this question must be "no, it is not in principle". However, it does depend on how the pick-up rope was secured and whether it was too slack. I have dealt with the first of these two points and consider the second, under Issue Four, below.
50. Issue Three: If the pick-up rope was loose, where was "KRYSIA" when the rope fouled the propeller? There is some evidence on the question of where, precisely, "KRYSIA" was relative to the forward Yokohama fender and the surfer landing platform when the fouling occurred. Captain Jadol's evidence, at paragraph 59 of his statement, is that he had an unobstructed view of "KRYSIA" and he saw her lying about 45 degrees to "EUROPA" with her port quarter lying between the forward fender and the surfer boat landing platform. He confirmed this evidence in cross – examination. Mr Geir Jacobsen was on board the FPSO as part of the crane "start up" team, and was acting as crane supervisor for the back – loading operations on 30^th September. In an email report for his employers (Exxon/Mobil) written on 2 October 2006 (dated American style – 10/2/2006), he said that "KRYSIA" had drifted past "EUROPA's" [forward] fender and was approaching "EUROPA"'s hull with her "port rear corner": (see the report at E/page 110).
51. Those pieces of evidence may be partisan. But the evidence of Captain Diouf himself tends to confirm it. First of all, his contemporaneous letter of protest and accident report stated that that "KRYSIA" had fouled slack wires. That was also his explanation of the fouling in his first statement (at paragraph 30). Captain Diouf also stated, both in his statement and in cross – examination, that the action of the FPSO's crane, when it was attempting to reposition the container/motor, combined with the swell and the current, both from the South West, was to drag "KRYSIA" towards the aft of "EUROPA". That led to Captain Diouf's action to put the port engine astern and the starboard engine ahead.
52. Now, assuming that the securing wire and the pick-up rope were slack, but the rope was not loose, then the effect of the current and the swell from the starboard bow of "EUROPA" would be to push out the aft end of the Yokohama fender. But the general line of the securing wire and the rope (assuming it remained attached) would have had to be between the fender and the pad – eye. Thus, for those two to foul the port outer propeller of "KRYSIA", given its position inboard of her port side and stern and behind the port rudder, the port quarter of "KRYSIA" must have been between the aft of the forward Yokohama fender and the surfer landing platform.
53. On the assumption that the pick-up rope was loose, but it was partly entangled with the securing wire for some of its length (so leading to the propeller being fouled by the wire), then (given the direction of the current and swell), the loose rope must have been in the area aft of the forward Yokohama fender, between the fender and the surfer platform. It is impossible to determine how much of the rope was loose, but on any view, for the port outer propeller to have been fouled by the loose rope, the port quarter of "KRYSIA" must have been aft of the forward Yokohama fender and between it and the surfer landing platform.
54. I think that this conclusion is confirmed by the action that Captain Diouf took when he realised that the action of the crane was dragging his vessel aft. He went slow astern on the port outer engine and slow ahead on the starboard outer engine so as to manoeuvre the stern of "KRYSIA" round to starboard, so that the vessel would be parallel to "EUROPA'S" port side. She could then go astern more. If the stern of "KRYSIA" had been abreast of the forward Yokohama fender, there would have been no need for that action. Instead the master would have wanted to bring the bows of his vessel round to starboard, so as to make it easier for the crane to manoeuvre the container/motor onto the after end of the cargo deck on the starboard side.
55. Issue Four: Were the forward Yokohama fender's aft securing wire and pick up rope (assuming it was attached to the pad-eye) excessively slack, contrary to good seamanship? On the defendants' own case, based on a sketch of Captain Mueschen and a diagram produced by Mr Buckingham, the aft securing wire was approximately 10 metres in length and, with the swivel and shackle which attached the securing wire to the aft end of the fender, produced a total length between fender and pad -eye of approximately 11 metres. It was accepted that the pick-up rope would have had to be longer than the securing wire. I accept the advice of the Nautical Assessor that it is good practice to have a "pick up" rope or "tag line" that is at least 1 or 2 metres longer than the fender's securing line. Accordingly, this rope would have been between 11 -13 metres in length, approximately.
56. Mr Buckingham accepts that there was some degree of slack in the securing wire and the rope. Based on his diagram, he accepted that the degree of "slack" of the securing wire in the water was something between 2.10 and 2.50 metres. I am prepared to accept those figures. Mr Buckingham's submission was that this was not excessive slack. He argued that there had to be as much slack as that in order that the fender could move in a swell of 2 metres without there being a possibility of imposing a shock or snatch load on the securing wire to the fender. When the fender is at the bottom of a trough, the securing wire must not be tight; but that means that when the fender is at the top of a crest, the securing wire will necessarily be slack by 2 metres plus a safety margin. Mr Buckingham therefore invited me to reject the advice given by the Nautical Assessor in his answer to question 1(ii).
57. I cannot accept that submission. If there is a swell of 2 metres, that is the difference between the top of the crest and the bottom of the trough of the swell. It seems to me that the Nautical Assessor's answer takes account of the fact that the top of the crest of the swell will be 1 metre from the midway point. His answer therefore makes logical sense and I accept it.
58. At the same time I also reject the submission of Mr Karia that the securing line and any pick up rope should never be significantly submerged beneath the surface of the water. That would mean taking no account of the effect of a 2 metre swell at all.
59. Three things follow from these conclusions. First, the securing wire was, from time to time on 30^th September 2006, submerged between the surface of the water to a depth of between 2.1 – 2.5 metres. Secondly, this was too slack and this arrangement was contrary to good seamanship. Thirdly, the pick up rope if in fact it was secured, would have been submerged to a greater depth. (It was accepted that the likelihood was that the rope was polypropylene and so would not float). In respect of both the securing wire and the rope, to have such a situation where it was contemplated that a supply boat would be manoeuvring in the vicinity of the Yokohama fender, this was negligent practice.
60. Issue Five: Are the defendants liable for any defects found in relation to the aft fender's securing arrangements or the pick up rope? Mr Buckingham accepted that the Defendants, as owners of "EUROPA", were under a duty to exercise reasonable care and skill to ensure that the barge did not pose a hazard or danger to shipping, including a supply vessel, such as "KRYSIA", by virtue of the management of "EUROPA". The management of "EUROPA" must include the way that her Yokohama fenders are secured. If, as I have found, there was a rope of about 12 metres in length, attached to the shackle on the aft end of the forward Yokohama fender that was free in the water, that was a hazard or danger to all vessels approaching the barge. It was foreseeable, indeed obvious, that such a hazard could result in a propeller being fouled, leading to damage to an engine, gearbox or tailshaft.
61. I also conclude that even if the rope was not loose, the securing wire and the rope were too slack in the circumstances. This created an unacceptable hazard or danger to any vessel manoeuvring in the vicinity of the barge. The defendants are responsible to ensure that such a hazard or danger to vessels manoeuvring in the vicinity of "EUROPA" did not exist and are at fault for permitting such a situation to exist.
62. Issue Six: Were the actions (or inactions) of the Master of "KRYSIA" manoeuvring his vessel contrary to good seamanship and/or negligent? The defendants allege that Captain Diouf allowed his vessel to get in a position between the forward Yokohama fender and the surfer landing platform which was a threat to the safety of his vessel, because of the securing wire of the fender. Mr Buckingham argues that if "KRYSIA" had not been in such a position then the propeller could not have become fouled. Therefore the only, or principal cause of the fouling was the failure of the master to keep his vessel at a safe distance from the Yokohama fender's securing wire.
63. The analysis of the position of "KRYSIA" that I have set out under Issue Three above demonstrates that she must have been aft of the forward Yokohama fender and between it and the surfer landing platform when the propeller was fouled, whether the rope was loose or not. She had got into that position partly as a result of the swell and current and partly as a result of the action of the crane driver.
64. I accept the advice of the Nautical Assessor that it is unseamanlike for the master of "KRYSIA" to get his vessel into a position which is between the two fenders, with a danger that his vessel might hit the side of "EUROPA". The master must have been well aware of the action of the swell and current, which would be pushing his vessel aft, albeit also tending to push her away from "EUROPA". My conclusion is that he did not keep sufficiently close attention on how the situation was developing, so that suddenly he found "KRYSIA" in a position between the fenders and being dragged in by the action of the crane. He realised that this was an unacceptable position and had to be corrected immediately, but by then it was too late and the propeller fouled the rope and wire.
65. Issue Seven: What was the cause of the rope and wire fouling of the number 1 outboard propeller of "KRYSIA" and, if both the claimants and defendants were at fault, what was the degree of fault of each? In the light of my findings above, I find that the primary cause of the fouling was that there was a loose pick – up rope in the water, which was in the area to the aft of the forward Yokohama fender. If I am wrong in my conclusion that the rope was loose, then the primary cause of the fouling was that the securing wire and pick – up rope were too slack. If the loose rope had not been present and the securing wire and pick-up rope had not been as slack as they were, then the fouling would not have occurred. This is because the fouling could only occur if the wire/rope were at a depth beneath the draft aft of "KRYSIA". The master's evidence was that the effect of unloading the cargo in the morning of 30^th September was to reduce the vessel's aft draft by about 0.4 metres. Therefore her aft draft at the time of the incident would have been about 1.70 metres. If the wire/rope had been less slack than they were (assuming for the present that the rope was not loose) and in the condition advised by the Nautical Assessor, they could not have got in way of the port outboard propeller, which was, of necessity, at a draft greater than 1.70 metres. It was also immediately forward of the port rudder, which would have protected it to a certain extent.
66. However, the fouling would also not have occurred if "KRYSIA" had not got into a position aft of the forward Yokohama fender and in the area between the fender and the surfer landing platform. So the inattention and/or slow reaction of the master of "KRYSIA" was also causative of the fouling.
67. Although this incident did not involve a collision between two vessels in the strict sense of the word, on the findings I have made it did involve the fault of two ships, whereby damage and loss were caused to one ship, viz. "KRYSIA". (I emphasise that I am making no findings on what damage precisely was caused to the engine, gearbox or other parts or equipment of her). That damage and loss was caused first by the management of "EUROPA", with regard to the position and condition of the securing wire and the pick-up rope for her forward Yokohama fender. Secondly, it was caused by the navigation of "KRYSIA". In these circumstances it is clear, on the authority of the decision of Brandon J (as he then was) in The Norwhale [1975] 1 QB 589, that the question of apportioning liability to make good the damage or loss must be dealt with in accordance with section 187(1) and (2) of the Merchant Shipping Act 1995, (which replaced section 1 of the Maritime Conventions Act 1911). Brandon J held that "fault" in the section meant both faults in acts of management and navigation.
68. Therefore, I have to consider the culpability and causative potency of the faults of the two vessels as I have found them to be. Given my findings, I must conclude that the culpability and causative potency of the faults of "EUROPA" are considerably greater than those of "KRYSIA". In my assessment, "EUROPA" was 70% to blame and "KRYSIA" was 30% to blame, whether there was a loose rope or not. I therefore apportion blame and liability for the damage and loss of "KRYSIA" accordingly.

H. Conclusion

69. The claimants succeed in their action on liability, but only to the extent of 70% of their proved loss and damage. The remaining 30% was caused by their own fault.