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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Braganza v BP Shipping Ltd & Anor [2012] EWHC 1423 (Comm) (30 May 2012) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2012/1423.html Cite as: [2012] ICR D39, [2012] EWHC 1423 (Comm) |
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QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
NILOUFER BRAGANZA |
Claimant |
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- and - |
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(1) BP SHIPPING LIMITED (2) BP MARITIME SERVICES (SINGAPORE) PTE LTD |
Defendants |
____________________
GRAHAME ALDOUS QC and CHRISTOPHER WILSON (instructed by Hill Dickinson) for the Defendants
Hearing dates: 30 April, 1-3,8-10 and 14 May 2012
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Crown Copyright ©
Mr. Justice Teare :
The vessel
The events leading up to Mr. Braganza's arrival on board as chief engineer
Mr. Braganza
"Just keep thanking God for what we have and what the last 7 months have done to us and what lessons we have learnt. I think we did not do bad at all. I think you just got to forget the past 7 months of our lives and start afresh. We should not let whatever happened weigh us down. It was just a monetary loss."
"Renford, please do not break your head about getting this opportunity on Unity. You were available and the ship needed a good C/E. You are not God. Please remember that. They just trust you will not screw up. So do not! Just relax. Think this is like any other ship, with the same amount of trouble. All ships are under the scanner, they pay you big bucks and they expect the job done, so much as any human can do. So please do not stress yourself thinking of unnecessary stuff."
"Hi Renford. It was good to hear your voice. Please do not worry, everything will work out just fine, you just got to be committed to doing something. I really cannot figure out what has shaken you out so much that you seem to be so afraid of life. We have everything, at least we on track to getting whatever we need. If we keep crying over spilt milk we will not be able to go on with life. "
"It was good talking to you after a long time ..Renford, please be happy for whatever we have, think of people who have half of what we have and are happy. In Toronto you were with us and you seem sad. Now on the ship too you do not seem happy. I thought if you were away from this weather and on your own ground you would feel safe and happy, but that doesn't seem to be so. We all have problems. But how we face the problem and overcome it is very important. ..I think you are thinking too much about the future and that is eating you. Just concentrate now on coming home as the kids are counting the days for your return and plans to do all type of things when you are down. ..Renford I'm willing to rough it out and make it over here. I wish you could share the same enthusiasm. We knew it was going to be tough, everybody told us so what are you frightened about. D you not want to go back to sea, then be happy over here. Get a job out here and just be happy. We'll manage. "
The events leading up to the eve of Mr. Braganza's disappearance
"I would like you to carry out a scavenge inspection/ring inspection in around 6 days' time. It may be prudent to carry out the ME jacket replacement at the earliest opportunity ie when stopping for scavenge inspection dependent upon charterers' instructions and discharge ports dates etc. Proper planning should ensure this is carried out in around 4-5 hours."
"Will carry out the scavenge inspection in about 6 days time and will try to carry out the ME jacket replacement at the earliest opportunity, maybe while taking bunkers, will do out best to complete it in the shortest time possible. "
"We will be completing 250 hrs of running in of the main engine by today and I intend to stop the main engines tomorrow and do a scavenge inspection before we reduce the lubrication of the cylinders to 1.2 g/Kwh as per the running in schedule. I would also like to change the liner jacket of the #6 unit at the same time that we are stopped to do the scavenge inspection, safe weather permitting. The weather at present is not too good, but as per the weather routing service the weather is expected to be slightly better tomorrow. The next good weather is expected to be on the 13th. I would prefer to complete the jacket renewal while we are at sea, rather than to wait when we are in port and have to immobilise the engines. I trust we can go ahead with the above stoppage, fyi, we have instructions from operations to proceed to New York for orders/bunkers."
"If weather and schedule permits I would go ahead with the liner jacket exchange."
Mr. Braganza's disappearance and the events of 11 May 2009
The cause of Mr. Braganza's disappearance
The case for an accident
The case for suicide
Discussion of the cause and conclusion
Breach of duty
i) It is true that there was no pressing need to replace the CWJ. This was reflected in Mr. Williamson's thoughts on seeing Mr. Braganza's email sent at 2324 on 10 May 2009. In cross-examination he confirmed that there was no urgency in replacing the CWJ. But the nature of maintenance is that it is done timeously so as to prevent there being any urgent need for repairs or renewals. The no.6 CWJ had been noted to be leaking in Falmouth and continued to leak every day with the result that Mr. Braganza wished to replace it. He must, it seems to me, have judged that replacement of the CWJ was required to maintain the safe and efficient running of the vessel. Miss Belinda Bucknall QC, counsel for the Claimant, suggested that he only decided to go ahead with replacing the CWJ at the same time as the scavenge inspection because he wished to minimise the vessel's downtime and satisfy BP's commercial performance requirements. I accept that he was aware of the desirability of minimising down time and of BP's commercial performance requirements for the vessel but his own emails and the evidence of the Master indicate to me that he wished to replace the CWJ because it was a prudent step to take with regard to the maintenance of the vessel.
ii) Mr. Braganza's own preference was to do the job at sea rather than in port. His email to Mr. Farquhar sought permission to do the job at sea. Mr. Farquhar gave permission "if weather and schedule permits". Captain Hammond, the expert called by the Claimant, considered that the job should not have been done at sea and it can be argued that a laden tanker ought not to be without motive power at sea for period of several hours unless there was a pressing need to close down the main engine. But Captain Robertson, the marine incident investigator who was a member of the BP Investigation Team, did not think that. Nor did the Master. The BP report noted that the lowering of the CWJ into the engine room involved the opening of the main deck hatch into the engine room, that it was not a routine activity and that awkward loads were involved. Yet there is no suggestion in the BP Report that it was inappropriate to carry out the work at sea. Had it been unsafe for a vessel to be without power in the middle of the Atlantic in good weather I would have expected to have found some suggestion to that effect in the BP Report but there is none. The Investigation Team was sufficiently independent to be critical of the fact that Mr. Braganza had received no shore briefing before boarding which was contrary to the requirements of BP's Fleet Operating Management System. Captain Wiseman considered that the work could be done in the middle of the ocean if the weather was satisfactory. Indeed, he thought that the vessel was more clear of danger in the middle of the ocean than when close to a port. Mr. Williamson said in cross-examination that the operation could be done in moderate weather. In the result I was not persuaded that it was unsafe and therefore negligent to plan to do the work at sea.
iii) The notice on the hatch -"To be kept closed at sea"-did not reflect any regulation that the hatch should never be opened at sea. In so far as the notice reflected good seamanship the question is what good seamanship required and what the notice meant. There was a difference of opinion between Captains Hammond and Wiseman as to what good seamanship required. The former thought good seamanship required that the hatch should never be opened at sea. The latter thought that good seamanship required that it should not be opened at sea unless there was a requirement to open it. The BP Investigation Team must have seen the notice when on board the vessel in New York but made no mention of it. It cannot have struck them as an instruction to be followed literally. Mr. Williamson said in his evidence that the instruction meant that the hatch should not remain open at sea (for example for ventilation purposes) but that it could be opened for the loading of stores into the engine room. I was not persuaded that good seamanship requires that the notice on the hatch should be understood literally so that on no account must it be opened at sea. Good seamanship probably requires that it only be opened at sea if there is a good reason for doing so and it is safe to do so. Otherwise it must be kept closed. That, in my judgment, is the sense in which the notice should be understood.
iv) The work involved in replacing the CWJ involved risk to personnel (eg injury from swinging loads) and to the vessel (eg water entering the engine room) in the event that it was carried out during bad weather. The Master formed the view that the weather on the next day would be slightly better than it had been and planned to do the work if the weather conditions the next day were safe for the work to take place. The weather routing forecast suggested a west south westerly wind of force 4 which proved to be correct for 0800 (although the wind had strengthened to force 5 at 0400 and thereafter the direction of the swell changed between 0400 and 0800 and increased in height between 0800 and 1200). In the event the operation of lowering the CWJ into the engine room was conducted in safety. There is no evidence that the sea and swell conditions on 11 May 2009 rendered the operation unsafe. In circumstances where the Master's prediction proved to be accurate a strong case is required to show that the material before him in fact required him to have said on 10 May 2009 that the work should not be carried out the next day rather than say, as he did, that it should go ahead subject to an assessment of the weather conditions the next day.
v) The case against the Master in closing submissions was not based upon the views of Captain Hammond who had made an error in his analysis of the wind but on the Meteo France forecasts received by the vessel. In particular, the Meteo France forecast received on 10 May 2009 forecast winds of SW force 4-5, occasionally force 6, moderate or rough, rain or showers, fog patches with a warning (as was usual in Meteo France forecasts) of gusts up to 40% stronger and waves up to twice the significant height. This forecast is of conditions in which it would probably not be safe to carry out the planned operations. The Master, in his discussions with Mr. Braganza, referred to the weather routing forecast rather than to the Meteo France forecasts which had been received on the bridge but which could not be forwarded to Mr. Braganza's computer in his cabin. However, in circumstances where there was to be a weather inspection before work commenced on 11 May 2009 it seems to me impossible to criticise the Master's decision. The vessel was steaming away from the area of low pressure and the weather had been improving during the day. The master's decision was not that the work would take place the next day but that there should be an inspection of the actual weather before a decision was finally taken to do the work. That seems to me to have been a prudent decision.
vi) Much was said in evidence and submission concerning the proper operation of BP's Control of Work ("COW") procedures including the requirements for JHAs, risk assessments using the matrix attached to the COW manual and Permits to Work. It was suggested that the procedures were not properly understood and that that was illustrated by the defective manner in which the Daily Work Plan was drawn up. That suggestion appears to be justified to some extent. Indeed, Captain Wiseman accepted that a Permit to Work ought to have been issued. However, a JHA was conducted by the Chief Officer and reviewed by the Master before the work commenced. It was suggested that this was carried out hastily and not in the required manner, particularly by the Master. But unless it was unsafe to carry out the work at sea or in the conditions which prevailed on 11 May 2009 these further criticisms add nothing to the Claimant's case.
Causation
Damages
The claim in contract
7.1 Sick Pay
7.1.1 When an Officer becomes unfit (i) to return to duty onboard the Vessel following any period of leave, or (ii) to continue with his duties onboard the Vessel, due to sickness or injury, he will be eligible for Company sick pay provided always that he has completed six (6) months continuous service. Sick pay is payable from the day after the Officer's leave ends or from the date on which he is discharged from the Vessel as the case may be. Sick pay is payable subject to the conditions set out below.
.
7.1.3 Company sick pay is not payable in the event of an illness or injury resulting from self inflicted injury, attempted suicide, failure to follow the Company's safety policies and procedures or those in force onboard the Vessel, breach of the Company's reporting and/or certification procedures and/or sub-Clauses 8.3.1, 8.4 and 14.6.
7.2 Disability
7.2.1 If the Officer suffers permanent disability as a result of an accident whilst performing the Services then, subject to the conditions set out below, the Officer shall, receive compensation of a maximum of the sum specified in Appendix A (as amended from time to time) or a proportion of such sum calculated pro rata according to the Scale of Compensation set out in Appendix C, as the same may be amended from time to time (the "Scale of Compensation").
..
7.2.4 The compensation scheme operates in relation to accidents regardless of any fault of the Company. No compensation shall be payable as a result of any injury which is self inflicted, attempted suicide, the Officer's failure to follow safety policies and procedures, breach of sub-Clauses 8.3.1, 8.4 or 14.6, or by participation in a dangerous or hazardous sport, pursuit or activity.
7.3 Death Benefits
7.3.1 If the Officer dies whilst in the employment of the Company, compensation shall be payable. Such compensation shall be equivalent to three times the Officer's annual Salary, or, if higher, the total sum which would be payable pursuant to the provisions (as amended from time to time) of Article 24 (Loss of Life, Death in Service) of the ITF Approved Standard Agreement for Indian Officers as onboard the Vessel from time to time. If death occurs as a direct result of an injury for which compensation has already been paid under sub-Clause 7.2 above, then the payment under this sub-Clause 7.3.1 in respect of death shall be subject to deduction of any such sum already paid.
7.3.2 Any sum payable under sub-Clause 7.3.1 shall be paid to the Nominated Beneficiary of the Officer as stated on page 4 of this Agreement, or as amended by the Officer from time to time. The obligation is on the Officer to ensure at all times that the Company has full details of the Nominated Beneficiary and/or that the Officer communicates to the Company any change of Nominated Beneficiary by notice in writing through the manning Office. In the absence of a Nominated Beneficiary, or should the Nominated Beneficiary have pre-deceased the Officer, or if, having made reasonable endeavours, the Company is unable to trace the Nominated Beneficiary, the Company shall pay the sum to such person as it shall, in its absolute discretion, decide. The Officer accepts and agrees that the Company's decision in this respect will be final.
7.6 General
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7.6.3 For the avoidance of doubt compensation for death, accidental injury or illness shall not be payable if, in the opinion of the Company or its insurers, the death, accidental injury or illness resulted from amongst other things, the Officer's wilful act, default or misconduct whether at sea or ashore, or if the death, accidental injury or illness originated from a condition which was deliberately concealed or pre-existing at the time of commencement of employment or prior to joining the Vessel.
The question of construction
BP's opinion
"The team has not found any firm evidence to explain C/E Braganza's disappearance from the vessel.
The team concluded from the evidence collected and by eliminating other causes that he was lost overboard on the morning of Monday 11 May 2009 whilst alone and unobserved.
The team could not find any work related reason for him to be outside during this time. Neither could any evidence or cause be found of an accidental fall. However, neither of these eventualities can be ruled out. "
"This is not sufficient to draw a firm conclusion on C/E Braganza's state of mind."
"On the balance of probability, based on the evidence collected and by eliminating other causes, the investigation team is of the opinion that C/E Braganza took his own life in the morning of Monday 11 May 2009 whilst alone and unobserved."
"Based on the evidence collected and by eliminating other causes, the investigation team is of the opinion that C/E Braganza took his own life by jumping overboard on the morning of 11 May 2009 whilst alone and unobserved."
"Having regard for all the evidence the investigation team considers the most likely scenario to be that the C/E jumped overboard intentionally and therefore took his own life."
Lack of psychiatric expertise
Lack of engineering expertise
None of the team heard all of the evidence
Lack of evidence to support claimed facts
"C/E Braganza's behaviour was reported to be notably different on this voyage than on previous voyages, for example he was reported as being quiet, withdrawn and at times "staring into space" in the engine room; there were no clean officers uniforms present in his cabin and there was evidence that his attention to detail in record keeping had slipped."
"The shoes and sandals C/E Braganza usually wore on board were found in his cabin after his disappearance."
"some family and/or financial difficulties which were causing him concern"
"He was reported as being surprised and unhappy about this"
Conclusion
Note 1 The First Defendant is a UK company and is the beneficial owner and operator of the vessel. The Second Defendant is a Singaporean company which provides management services to the First Defendant and employs the officers on bard the vessel. No distinction was drawn between them and so I refer to both collectively as BP. [Back]