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This
week, Nicholas Woo, from Richards
Butler, one of the leading law
admiralty law firms in London,
says the defence of exercise of
due diligence by shiponwners is
unlikely to succeed unless it can
be proven investigations carried
out as to cause were exhaustive
and covered all possibilities.
The
decision of the Court of Appeal in
the “FJORD WIND” [2000] 2
Lloyd’s Rep 191, affirming the
decision at first instance (see
[1999] 1 Lloyd’s Rep 307)
demonstrates the heavy burden a
shipowner has in proving he has
exercised due diligence.
The
FJORD WIND had a history of
recurrent crank pin bearing
failures. The owners and
engine manufacturers had tried
many times and failed to identify
the cause of the failures.
It was also impossible to prove
when another failure would occur.
The
incident in question occurred when
the vessel was navigating in the
River Parana.
Unfortunately,
this meant that when the initial
alarm was received, the main
engine could not be stopped due to
the risk of grounding. The
alarm had to be over-ridden until
the vessel could anchor safely.
The
crankshaft sustained severe damage
as a result, requiring its removal
and transport back to the engine
manufacturers. The voyage
had to be substantially delayed
and transhipment was required.
The
Court upheld the finding of Moore-Bick
J at first instance that the
vessel had been unseaworthy at the
commencement of the voyage on the
basis that nothing had occurred
during the course of the voyage
which would have affected the
condition of the main engine on
sailing.
Although
it was recognised that it was
impossible to identify the precise
cause of the bearing failure, the
judge was held entitled to draw
the inference that there must have
been a defect of some kind in the
bearing itself, or in the
lubricating system.
Where
a vessel suffered a serious
casualty without any outside
intervention, the natural
inference was that there was
something wrong with her which a
prudent owner would have rectified
if he had known about it.
Although
it was recognised by the judge at
first instance that the owners had
acted prudently in involving the
engine manufacturers in their
previous enquiries, that was of
itself, insufficient to discharge
the burden of due diligence.
It was also necessary to show that
the engine manufacturers had
exercised due diligence.
Given
the prior history of the bearing
failures, the owners had to show
that they, and those for whom they
were responsible, did not overlook
any lines of enquiry which
competent experts could reasonably
be expected to have pursued.
It was not necessary for the cargo
interests to demonstrate that any
failure in this regard was
causative.
The
lesson to be learnt from this case
is that where a vessel has a
propensity for repeated failures
of a component on board, the
defence of exercise of due
diligence is unlikely to succeed
unless it is possible to
demonstrate that the
investigations carried out as to
cause were exhaustive and covered
all possibilities. That is
going to be very heavy burden to
discharge.
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