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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> MT "Cape Bonny" Tankschiffahrts GmbH & Co KG v Ping AN Property and Casualty Insurance Company of China Ltd & Anor  EWHC 3036 (Comm) (04 December 2017)
Cite as:  EWHC 3036 (Comm)
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QUEEN'S BENCH DIVISION
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
B e f o r e :
| MT "CAPE BONNY" TANKSCHIFFAHRTS GMBH & CO KG
|- and -
|PING AN PROPERTY AND CASUALTY INSURANCE COMPANY OF CHINA LIMITED, BEIJING BRANCH
Christopher Smith QC and Sean Snook (instructed by Rodgers Liu & Assoc. Solicitors (Asia) Pte. Ltd) for the Defendant
Hearing dates: 9, 10, 11, 12, 16, 17, 18 and 19 October 2017
Crown Copyright ©
Mr. Justice Teare :
|Outline of the dispute||6-7|
|Investigations by MAN, the main engine designers||13-14|
|Material events prior to the voyage||32-51|
|The breakdown and the damage found||52-53|
|The condition of the filters||54-82|
|The Owners' case as to the cause of the damage to main bearing no.1||83-90|
|The Defendants' case as to the cause of the damage to main bearing no.1||91-103|
|Chain coupling bolts||107-109|
|Improper cleaning of the filters||110-112|
|The Court's finding as to the cause of the damage to main bearing no.1||113-117|
|The crankweb deflections||128-154|
|Conclusion on liability||155|
|Quantum disputes; the burden of proof||157-163|
|The hire of KOYO MARU||164-181|
|The diversion to Korea and the transhipment of the cargo||182-193|
|The hire of KOYO MARU after 1 August 2011||194|
|Conclusion on quantum||196-197|
"Rights to contribution in general average shall not be affected, though the event which gave rise to the sacrifice or expenditure may have been due to the fault of one of the parties to the adventure, but this shall not prejudice any remedies or defences which may be open against or to that party in respect of such fault."
Outline of the dispute
Investigations by MAN, the main engine designers
Material events prior to the voyage
The breakdown and the damage found
The condition of the filters
"auto back flush filter 40 mkm maintained 1/6m (19.05.11 and 21.05.11), cartridges gauze intact."
"All filters and cartridges checked immediately after the breakdown. No visible defects. All metal chips remained in sludge checkers."
The Owners' case as to the cause of the damage to main bearing no.1
The Defendants' case as to the cause of the damage to main bearing no.1
Chain coupling bolts
Improper cleaning of the filters
The Court's finding as to the cause of the damage to main bearing no.1
Failure to exercise due diligence
"1. Consult manufacturers' instructions.
2. Open and overhaul/clean/replace filter elements or candles according to observed operating condition "
The crankweb deflections
"if there is too large a difference in the crankshaft deflection readings (autolog) check the clearance in the individual bearings" (see chapter 905-2.1 page 4(21) paragraph 8)."
"The manual states that an impressive change should call for action, but what is that ? That cannot be stated clearly."
"It is hard to say it may be different from MDT CPH to MDT Hamburg etc."
"Presented to the deflection figures, I would not say it was clear that main bearing no.1 was damaged. ."
"but I am not sure I would have concluded that knowing only the deflections"
Conclusion on liability
The quantum disputes; the burden of proof with regard to reasonableness
"In no case shall there be any allowance for sacrifice or expenditure unless reasonably made or incurred."
"(1) There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure. "
"the sacrifice or expenditure will be deemed to have been reasonably made or incurred unless the contrary is established, and the master will be given the benefit of the doubt."
"1. The onus of proof is upon the party claiming in general average to show that the loss or expense claimed is properly allowable as general average."
The hire of KOYO MARU
"She is presently stopped at position 26 47.4N 148.53.1E. The main engine is disabled, hence an ocean-going tug with sufficient bollard pull (would assume at least 100 ton) is required."
"Our favourite is still the Japanese tug. Though more expensive, cost can be compensated by the shorter distance. "
"We calculate that the KOYO MARU (proceeding from Moji) has a distance of over 1050 nmiles to the position whereas DE DA has only 860 miles. Also, the De DA is already at sea so can commence routing directly to the vessel whereas the KOYO MARU requires 2-3 hours for clearance purposes."
The diversion to Korea and the transhipment of the cargo
"expressed grave reservations about the vessel proceeding to China and have stated that there is a possibility the vessel will not be allowed into Chinese waters"
"local MSA did not agree m/v Cape Bonny to berth at Tianjin port ..they said they can consider let her berth Tianjin Shihhua Terminal berth no.S30 this terminal is near Channel, anchorage and almost locate in sea, where is safer than berthing inside of port pls push consignee AND charter agent to negotiate with Tianjin Shihhua Terminal if they can use line and tanker there ..."
The hire of KOYO MARU after 1 August 2011
Conclusion on quantum