QUEEN'S BENCH DIVISION
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
B e f o r e :
| NAVIGATOR SPIRIT SA
|- and -
|FIVE OCEANS SALVAGE SA
Simon Kverndal QC (instructed by Clyde & Co LLP) for the Defendant
Hearing date: 27 April 2018
Crown Copyright ©
Mr. Justice Teare :
The events giving rise to the salvage claim
The first instance arbitration
"It is plain from the contemporaneous correspondence that the managers had very prudently decided that the vessel should proceed to Brest and that the assistance of a MAN service engineer was required before the vessel could proceed to destination. The instruction to make for Brest was given before LOF was concluded. There is no evidence to suggest that either the master or the managers would have been foolhardy enough to contemplate a Channel transit in the absence of assistance."
The arbitration on appeal
"He wrongly rejected the second danger put forward by the Contractors on the basis that the Managers had decided to order the vessel to Brest and had given that instruction prior to conclusion of the LOF. In doing so he failed to consider the consequences of his findings that the casualty would have required tug assistance to be permitted to enter Brest or to anchor and that the ABEILLE BOURBON was the only tug available to provide rapid assistance to the casualty. Had he given proper consideration to the absence of any alternative assistance he would have had to conclude that it was probable that the casualty would have had to contemplate a Channel transit, however dangerous, because she had no alternative."
"I have knowledge of previous cases where vessels in difficulty have been ordered away from the French coast. When considering dangers, an arbitrator is concerned with risks, not certainties. In the absence of a large tug, there was a sufficiently significant risk for me to take into account that the French authorities would not have permitted the Vessel to close the coast and come to anchor."
"Had the French authorities refused to permit the Vessel to close the coast unassisted, I find that one of two things would have happened. Either:
(a) the Vessel would have moved off the coast to seaward of vessels approaching and departing the TSS and waited until assistance from a tug acceptable to the authorities became available, after which she would have been towed into Douarnenez Bay and repairs would have been carried out or alternatively
(b) the MAN service engineer would have been put on board offshore, either by boat or more probably by helicopter, where the repairs would have been carried out whilst the Vessel waited for the arrival of an escort tug."
"That risk would have been present both whilst the Vessel manoeuvred to a position further off the coast and whilst she waited there, either for an alternative tug to arrive or for the service engineer to analyse and resolve the problem. Although that risk is of a low order, it is not of such a low order that I should refuse to take into account."
"Thus although I reject Mr. Kverndal's first ground of appeal as originally formulated I find that had the Vessel's situation been analysed in the way set out above, the dangers to which the Vessel was exposed would have been found to be a little higher than those found by the arbitrator. Accordingly it is open to me to review the level of the award."
The suggested serious irregularity
"The difficulty with making good that submission [that the tribunal had failed to give counsel a reasonable opportunity to deal with a particular point] is that section 33 has to be approached by reference to the conduct of the arbitrators. For an irregularity to be established in a case of this kind it must be established that the tribunal have acted unfairly …by failing to give a party a reasonable opportunity of putting his case or dealing with that of his opponent."
"In my view it would be placing an unfair burden on any tribunal where (I stress) they do not appreciate that a point is being missed, to check whether leading counsel understands what is being said."
"If an arbitrator appreciates that a party has missed a point then fairness requires the arbitrator to raise it so that the party can deal with it. But where there is no such appreciation it is not unfair to leave it to counsel , particularly highly experienced counsel, who shows a detailed knowledge of the case to take such points as he wishes."