Evidence without witnesses

Evidence without witnesses

A LANDMARK case involving the fatal sinking of a trawler has drawn to a close in the Netherlands, following a decision by the country's supreme court to uphold an earlier ruling by the court of appeal in the Hague. The judgement was reached using evidence produced by a bridge simulator.

The case concerned an incident in November 1994, in which the Larissa, a 361 gt trawler, sank with the loss of all hands following a collision with the 11,356 gt bulker carrier Hero. Blaming the Larissa for the accident, the Hero's owners, Malta-based Geo Navigation, and its managers, Hamburg-based Orion Schiffartgesellschaft, sought almost $500,000 in compensation from the trawler's UK owner, Nigel Clarkson, for damage to the bulker's bow.

According to the crew of the Hero, the Larissa cut across their bows from starboard, then cut back and effectively sought out the bulk carrier. In spite of a last minute effort by the Hero to steer sharply to starboard, the bulker hit the Larissa midships on the starboard side, sinking the trawler instantly.

Although suspect, an eight-month investigation by a Dutch maritime police team failed to disprove this version of events. However, using a sophisticated and accurate bridge model, the Maritime Simulation Centre Netherlands (MSCN) in Wageningen was able to produce a video that exposed flaws in the Hero's story. Moreover, the MSCN was able to provide the court with a more accurate version of what had happened.

Using the MSCN material, Clarkson's lawyers showed that, rather than crossing in front of the bulk carrier and then cutting back, the Larissa had, in fact, tried to avoid a collision by going hard over to port in an attempt to cut behind the passing Hero. At the same moment, though, the Hero steered hard starboard, plowing into the vulnerable trawler. According to this version of events, the Hero had failed to give way in accordance with international rules, and had reacted late and inadequately.

The court ruled that the blame for the accident lay 70 per cent with the Hero and 30 per cent with the Larissa, leaving the way open for Clarkson and the dead fishermen's families to seek compensation.

Geo and Orion appealed against the decision in the Hague court of appeal, suggesting among other things that the bridge of the Larissa may have been abandoned at the time of the collision, but the decision was upheld.

Geo and Orion then took the case to the Dutch supreme court, where the ruling was again upheld.

At the heart of the judgement by the supreme and appeal courts lay the Larissa's peculiar behaviour as described by the Hero's crew. Moreover, the supreme court emphasised the inadequate response by the Hero to the unfolding drama. Rather than ordering all stop, the Hero chose to steer its way out of trouble in spite of being faced with an oncoming vessel that was supposedly behaving irrationally and unpredictably.

No power to enforce arbitration award

THE admiralty court in London had no jurisdiction in rem to hear and determine a claim to enforce an arbitration award made by the Constantza Court of Arbitration in Romania, because the claim did not constitute an agreement in relation to the use or hire of a ship within Section 20(2)(h) of the Supreme Court Act 1981.

The Admiralty Court of the Queen's Bench Division so held in granting the application of Petromin to set aside arrest proceedings and to release a vessel from arrest by Rolinay Sea Star.

Vessel ownership

IN an action filed before the Dubai courts, the Dubai Court of Cassation has held that ownership of a vessel must be evidenced by an official certificate issued by a ship register or by a notarised document.

Failing this, sale of the said vessel would be null and void, and any interested party could challenge the ownership of the vessel. This is in accordance with Article 66 of the UAE Maritime Code 1981.

Power to arrest sistership

A SLOT charterer of space on a containership for the carriage of goods was capable of coming within the definition of a charterer in Section 21(4)(b) of the Supreme Court Act 1981, despite the fact that a slot charterer gave control of only part of the vessel to the charterer.

Since more than one charterer at any one time could properly be described as the charterer of the ship, a slot charterer could be described as the charterer within Section 21(4).

The admiralty court therefore had jurisdiction under Section 20(1) and 20 (2) (h) of the 1981 act in relation to the arrest of a sistership owned by the slot charterer arising out of an alleged breach of the slot charter agreement.

So held the Court of Appeal in London, dismissing the appeal of Polish Ocean Lines against a refusal by the court of first instance to discharge the arrest of the Tychy by MSC.

Master to decide course

A TIME-CHARTER on an amended New York Produce Exchange form distinguished between the charterer's orders as to employment which the ship's master was bound to follow, and orders as to navigation, which he was not. It was for the master to decide the course his ship was to follow when prosecuting a voyage having regard to weather conditions and other hazards of navigation.

So held the Court of Appeal in London, dismissing an appeal by the charterer of the vessel from the 1998 judgment of the Queen's Bench Division reversing an award by arbitrators and holding that the shipowner was not in breach of the charter party by reason of the master's decision refusing to take the direct route from Vancouver to Yokkaichi and to Shiogama recommended to the charterer by a weather routeing service, and taking instead the longer, more southerly, rhumb line route.

Defining seaman status under Jones Act

THE retrial of Latsis v Chandris in the US courts has resulted in a verdict which is a virtual replay of the original 1993 judgment.

Latsis sued Chandris for damages he claimed were sustained while he was on board the Galileo (since renamed Meridian). Bringing his case under the Jones Act, Latsis relied in part on whether or not he was a seaman, because only seamen can bring Jones Act suits.

The original verdict, in favour of Chandris, was appealed to the second circuit on the basis of erroneous jury instructions regarding Latsis' status and the governing laws of shipping personnel. The second circuit reversed the jury verdict and dictated new instructions on this central issue.

Chandris filed for review with the supreme court, which affirmed the second circuit decision to reverse the jury verdict but restated the jury instructions on the issue of determining seaman status under the Jones Act.

At the retrial, the jury instructions were largely drawn verbatim from the supreme court opinion. And the jury found once again that the plaintiff was not a seaman under the Jones Act.

The case is significant because it clarifies the status of shipping personnel, thereby making clear which laws govern them. From now on, US cases involving shipping personnel will have to address the precedents set forth in this case.