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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 >> Maridive VII, Maridive XIII, Maridive 85 and Maridive 94, Owners, Masters and Crews of the tugs v Key Singapore, Owners and Demise Charterers of the oil rig  EWHC 2227 (Comm) (06 October 2004)
Cite as:  1 Lloyd's Rep 91,  EWHC 2227 (Comm),  1 All ER (Comm) 99
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
In the matter of an arbitration
| In the matter of an arbitration THE OWNERS, MASTERS AND CREWS OF THE TUGS "MARIDIVE VII", "MARIDIVE XIII", "MARIDIVE 85" AND "MARIDIVE 94"
|- and -
|THE OWNERS AND DEMISE CHARTERERS OF THE OIL RIG "KEY SINGAPORE", HER EQUIPMENT, STORES AND BUNKERS
Timothy Brenton QC (instructed by Ince & Co) for the Respondents
Crown Copyright ©
Mr Justice David Steel:
Article 18 of the Salvage Convention
"A salvor may be deprived of the whole or part of the payment due under this Convention to the extent that the salvage operations have become necessary or more difficult because of fault or neglect on his part…"
i) The Respondents were at fault in making the decision to commence the tow.
ii) The Claimants were at fault in:
a) failing to equip MD7 with a longer towline;
b) failing to extend the towlines to the maximum possible for the tow;
c) failing to extend the towlines a little from time to time to limit chafing;
d) failing to ease the strain on the towlines whilst running with or across the weather.
iii) Both the Claimants and the Respondents were at fault in failing to ensure that the flotilla heaved to in due time.
a) the Claimants were also at fault in failing to fit their tugs with temporary chafing gear;
b) but, on the other hand, the Claimants were not at fault in failing to equip MD7 with a longer towline.
The issue of law
(a) In reaching an overall conclusion on the relative responsibility for the situation of danger, the original arbitrator found that, when viewed in isolation, the failure to heave to was much more the fault of the rig (the Respondents) than the tugs (i.e. the Claimants): -
"158… For the reasons already given, I consider the primary responsibility for this decision lay with those on the rig. It was for those on the rig to determine what to do next, but the time had come for the lead tug at least to suggest heaving to. To head into the weather at this time would have been the prudent thing to do. Both parties must bear responsibility for this failure but the greater fault it seems to me lies with the rig."
(b) The appeal arbitrator took a different view. He held that both parties were equally responsible: -
"87. I do not consider that in terms of causative potency there is any difference between the rig's failure to order the tugs to heave to and the tug's failure to advise the rig mover that the tugs should heave to. The result of each fault was that the flotilla did not heave to. I have considered whether, in terms of blame, the tug masters are more to blameworthiness because they are the experts in knowing how to preserve the integrity of a tow line. However, both the rig and the tug masters ought to have known that the appropriate course of action was to heave to. The need to heave to did not arise because, for example, the tow line was seen by the tug master to be under particular strain but because, having regarded the severity of the weather conditions, that was what good practice required. I have therefore concluded that those on board the rig and those on board the tugs were equally to blame for the failure to heave to."
(c) The Claimants sought leave to appeal on a large number of grounds. That which is of immediate significance is ground No.5 which read as follows: -
"5. Apportionment of Liability as guided by two principles of law: i) the responsibilities between tugs and tow, and ii) the principles and fairness of justice.
Whether upon the true principles to be applied to apportioning liability or fault Mr Teare was justified in disregarding Mr Reeder's finding that the rig was responsible in large measure for the decision whether or not to heave to and whether Mr Teare's finding that the tug owner should have been held 50% to blame for the failure to heave to is unfair and unjust?"
(The application went on to assert that "the decision of the tribunal was obviously wrong in that it did not properly apply the principles set out in The Niobe  13 PD 55, The Robert Dixon  PD 54 and The Oropesa  P 32.")
(d) Gross J gave leave to appeal pursuant to an order dated the 23rd April 2004 on the following question of law: -
"Whether, pursuant to Section 69 (3) (c) (ii) Arbitration Act 1996, the appeal arbitrator, in departing from the apportionment of the first tier arbitrator, erred in failing to take into account and/or give effect to established law concerning the relative responsibilities of tug and tow."
Gross J went on to grant consequential leave in respect of various matters that might arise in the event that the Claimants were successful on the point of law identified.
a) When tug and tow are both manned, it is necessary that the overall control should reside with one or the other. Overall control usually resides with tow: see The Niobe supra.
b) In those circumstances, the tug is obliged to obey the directions of the tow: see The Robert Dixon supra. But, if the orders of the tug give rise to danger to tug and tow, the tug must warn of the potential danger: see The Duke of Manchester 2 W Rob 470.
c) In the present case, the tow was in overall charge of the move and, accordingly, primary responsibility for the decision whether or not to heave to lay with the rig. The basis of this proposition was summarised in the Claimants' skeleton argument as follows: -
"Where party A has overall responsibility and command, and party B has a duty to obey such commands as are given, together with a duty to warn if any of those commands are believed to be flawed, it is obvious that party A is more to blame for giving flawed commands than is party B for failing to warn of those flaws. This is inherent in the notion of responsibility."
"85. I am not at all sure that decisions from the late 19 century concerning the authority of a merchant ship under tow to control or direct the navigation of a tug assist in determining whether those on board a jack-up rig in the early 21st century bear primary responsibility for a failure to heave to. But in any event there was no dispute in the present case that those on board the rig had authority to instruct the tugs in the course of the tow. Nor can there be any doubt that in principle safety requires there must not be a divided command. …. I agree with the arbitrator that the rig mover's authority to instruct the tugs in the course of the tow and the tugs duty to obey such instructions are clear indications that those on the rig are in overall charge of the tow... But parallel with that responsibility is the duty of the tugs to advise those on board the rig if its orders were flawed. That duty does not limit or restrict the authority of the rig. Where both those on board the rig and those on board the tugs had failed in their duties, the one by failing to order that the tugs heave to and the other by failing to advise that the order given is flawed, I do not consider that the assessment of relative responsibility for such faults which is required by Article 18 of the Salvage Convention can be made by reference to the fact that those on board the rig are in overall charge of the tow.
86. I consider in assessing the extent to which salvage operations have become necessary because of fault or neglect on part of the salvor, for the purposes of Article 18 of the Salvage Convention, it is necessary (as in other areas of law where relative responsibility for an event has to be assessed e.g. Section 187 of The Merchant Shipping Act 1995) to assess the causative potency and blameworthiness of the salvor's faults relative to the causative potency and blameworthiness of the rig's faults. Indeed that was the arbitrator's general approach and was not challenged by other party."
(a) In the The Duke of Manchester  2 W Rob 470, a claim for salvage was dismissed on the grounds that the salvors themselves put the vessel in danger by towing her aground. Dr Lushington had this to say on the role of the tug when towing a vessel with a pilot on board: -
"I will now state another proposition of law which has a most important bearing upon the present consideration, and I will state it clearly, that if I am wrong my statement may be examined elsewhere and corrected, - and that proposition is, that where a steamer, as in the present instance, is towing a vessel with a licensed pilot on board the steamer is not relieved from the responsibility of watching the course which the licence pilot pursues. If she finds to a certainty that the course pursued by the pilot will lead the vessel into danger and destruction, it is the duty of the steamer to make the circumstances known to the master of the vessel, that he may take such measure as may be necessary under the circumstances of the case: it is not for the steamer to maintain a sulky silence and make herself instrumental in the destruction of life and property. … ": p. 836
The case in due course went to appeal before the Privy Council: (1847) 6 Moo. PC 90). The opinion of the board was given by Lord Campbell who having referred to Dr Lushington's proposition cited above, commented: -
"Their Lordships are entirely of the same opinion and consider it is the joint duty of the licensed pilot and of the master of the tug to do their utmost for the safety of the ship. Therefore, however much the licensed pilot may misconduct himself, if the master of the tug through gross negligence omits to do what was in his power to keep the ship in a proper direction that she may reach a place of safety and thereby the ship is lost, or is led into peril as great as that from which she has been rescued, all claim to salvage is forfeited."
(b) In The Christina  6 Notes of Cases 4, the factual situation was almost the complete reverse. The pilot on a tow ordered the tug to steer westward to avoid a collision with a third vessel. The master of the tug thought the better course was to steer eastward and was dilatory in obeying the order. The tug was deprived of its towage dues. The basis of the decision was set out in the judgment of Dr Lushington at page 12: -
"My opinion in this case is, that I must pronounce against this claim. I am well aware that mischiefs may arise from pilots having the entire control over steam tugs, and giving directions contrary to the experience and judgment of the masters of those tugs, conversant as they are with every part of the waters in which they are employed: but I am equally well aware that it would be difficult indeed to fix a limit to the evils which would arise from two conflicting pilots engaged in navigating one and the same vessel. There would be two controlling powers and a divided and uncertain responsibility. I am of opinion in this case that although the pilot may not have exercised a sound discretion to the orders that he gave, yet it is satisfactorily established in my mind there is no justification of the master of the steam tug in refusing to obey and carry into effect those orders; and if that be the case, he did not fulfil the contract…"
(c) In a further decision of the Privy Counsel in The Julia  14 Moo PC 210, a tug was in collision with another vessel whilst undertaking a tow of the Julia. The tug owners brought proceedings against the owners of the tow on the basis that the collision had been brought about by the negligence of the crew of the tow in failing to act on the directions of the pilot. The owners of the Julia unsuccessfully contended that the tug was also at fault. In the opinion of Lord Kingsdown at page 230, he considered the implied obligations of tug and tow to each other under the terms of the towage contract: -
"When the contract was made, the law would imply an engagement that each vessel would perform its duty in completing it; that proper skill and diligence would be used on board of each; and that neither vessel, by neglect or misconduct, would create unnecessary risk to the other, or increase any risk which might be incidental to the service undertaken.
If, in the course of performance of this contract, any inevitable accident happened to the one without any default on the part of the other, no cause of action could arise. Such an accident would be one of the necessary risks of the engagement to which each party was subject, and could create no liability on the part of the other. If on the other hand, the wrongful act of either occasioned any damage to the other, such wrongful act would create a responsibility on the party committing it, if the sufferer had not by any misconduct or unskillfulness on her part contributed to the accident."
(d) In Smith v St Lawrence Towboat Co. (1874) LR 5 PC 308, the Privy Counsel (in a Canadian appeal) was concerned with the vessel under tow in thick fog. The tow did not order the tug to stop albeit it was dangerous to proceed. The claim by the owners of the tow against the owners of the tug failed on the ground that tow had contributed to the ensuing grounding. Sir Barnes Peacock said this at page 314: -
"The vessels were proceeding in dense fog; there were no means of seeing the banks of the river, nor of knowing where they were going; and no doubt there was negligence, on the part of both those on board the ship and of those on board the Hero, in proceeding in the way in which they did during the fog. If the Silver Cloud had given orders to the Hero to stop and the Hero had neglected to obey those orders, then the negligence would have been solely on the part of the Hero. But if, on the other hand, those on board the Silver Cloud did not give proper orders to the Hero to stop, then it appears to their Lordships that they were consenting to proceed in the fog and that they contributed to the accident which occurred. The rule was clearly laid down by Lord Kingstown in the case of the Julia."
(e) In The Robert Dixon (1879) 5 PD 54, a tug failed to recover salvage remuneration when she had carelessly towed a vessel too close a lee shore and, following failure of the towage connection, had to embark on a rescue of the tow. The Court of Appeal rejected the tug's appeal. Brett LJ commented at p.58 on the fact that command of the operation had remained with the master of the tow throughout: -
"I am very much inclined to think that a tug is bound to obey the orders of the captain, and if the captain had insisted on the tug in keeping that course, the tug would have been bound to obey; certainly the captain could not have complained of the tug obeying him. But here, on the plaintiff's own showing, the only evidence was that at the beginning of the towage the tug was directed to tow the ship in a particular course. I assume that to have been the right course; but on the way the weather became threatening. Assuming that no further order was given by the captain, it was the duty of the tug to use reasonable care and skill, and unless she was ordered to the contrary she had the command of the course."
(f) In The Isca (1887) LR 12 PD 34, the plaintiff's vessel was damaged in a collision with a bridge whilst under tow. The relevant law was summarised by the President as follows at p.35: -
"As to the law applicable to the present case, it has been contended that it is the duty of the vessel in tow to give directions to the tug. It is true that the general direction is to be given by those on the vessel in tow, and also if a specific order is given by her to the tug, the responsibility must rest with the vessel in tow for the consequences of such order. But it does not follow from this rule that the vessel in tow is to be constantly interfering with the tug, it must depend on the place and on the circumstances, as whether there are numerous small vessels about. Those in charge of the tug must exercise their judgement and must not be constantly expecting to receive orders from the vessel in tow, which may be a considerable distance astern of them."
(g) In Spaight v Tedcastle (1881) 6 App. Cas 217, the issue of the relative obligations of tug and tow was considered the House of Lords. The tow had a compulsory pilot. In the course of the tow, the vessel ran aground. In an action against the tug owners, there was a plea of contributory negligence in failing to cast off the towline when danger was imminent. This plea succeeded in first instance and in the Court of Appeal. It failed in the House of Lords. During the course of his judgment at p. 221 Lord Blackburn reiterated the effect of the decision in the Julia as regards the significance of orders from tow to tug: -
"… as the duty of the tug was to carry out directions received from the ship, and the pilot who was in charge of it, the tug would not be guilty of neglect of duty by pursuing an injudicious course, if it was pursued in obedience to the pilot's orders."
(h) In The Niobe (1888) 13 PD 55, a tug with a vessel in tow collided with another vessel. In the claim brought by the third vessel against the tow, the court concluded that the collision might have been avoided had there been a good lookout on the vessel in tow in that she could and should have warned the tug of the dangerous course being pursued. At p.59 the President considered (obiter) the proposition that the tow was not responsible for the negligence of the tug as it was an independent contractor: -
"But it appears to me that the authorities clearly establish that the tow has, under the ordinary contract of towage control over the tug. The tug and tow are engaged in a common undertaking, of which the general management and command belongs to the tow, and in order that she should efficiently execute this command it is necessary that she should have a good lookout and should not merely allow herself to be drawn, or the tug to go, in a course which will cause damage to another vessel. As Dr Lushington has pointed out, it is essential to the safety of vessels being towed that there should not be a divided command, and convenience has established that the undivided authority shall belong to the tow. The pilot if there be one takes his station on his tow, and the officers of the tow are usually, as in the present case, of a higher class and better able to direct the navigation than those of the tug."
"I further think that in addition to a neglect of her own duty the "Copeland" was guilty of a great breach of all moral obligation in persisting in the course which she took, without giving warning to the persons on board the "Duke of Manchester". In my judgment that culpability is not in the slightest degree diminished by any error which might have been committed by the pilot on board the "Duke of Manchester" because it is impossible, as I conceive that the steamer could have been misled by the directions given by him, or could have believed that the course was the proper or due course."
"To what extent the tug is in direction with the navigation and to what extent the tow is in direction depends on the circumstances of the case sometimes the tug has a great deal more to do with the navigation than in others."