Laws of motion
21 January 2002
Safety at sea
the Safety of commercial passenger ships has hit the headlines in recent years, particularly as a result of disasters such as the sinking of the cross-Channel car ferry the Herald of Free Enterprise, which in 1987 sank just after departing Zeebrugge harbour with the loss of 189 lives, and more recently the loss of the ferry Estonia on route from Estonia to Sweden, which sank with the loss of 852 lives.
In order to minimise the scope for poor human decisions that contribute directly or indirectly to a casualty or pollution incident, and to enhance safety standards and help to eliminate substandard shipping, the International Maritime Organisation (IMO) developed the International Safety Management Code (ISM), which it adopted in 1993. The Safety of Life at Sea Convention 1974, known as Solas, was amended to require ship operators to comply with the ISM code. The UK was instrumental in the development of the ISM code and fully supports its implementation.
The adoption of a new chapter to the Solas Convention makes the ISM code mandatory in two phases, depending on ship type, on 1 July 1998 and 1 July 2002. As part of its commitment to the implementation of the chapter, the UK Government has issued a series of regulations, the latest of which is the Merchant Shipping (Domestic Passenger Ships) (Safety Management Code) Regulations 2001, which came into force on 1 November last year. These regulations require small passenger ships operating within domestic waters to develop and implement a safety management code, the details of which are set out in Merchant Shipping Notice 1754(M). The regulations provide for the issuance of Domestic Ship Management Certificates by the Maritime and Coastguard Agency for ships to be operated in accordance with the requirements of the Safety Management Code by its owner, master and operator. It also provides for enforcement and creates offences for breach of the regulations, with penalties of fines and imprisonment.
Also on the issue of safety at sea, the Court of Appeal in July 2001 considered the application of the International Collision Regulations 1972 as a result of a collision between the Hanjin Madras and the Mineral Dampier in conditions of restricted visibility in the East China Sea, in which the latter and all 27 of its crew were lost. The case is reported as Owners &/or Demise Charterers of the ship or vessel 'Mineral Dampier' Owners &/or Demise Charterers of the ship or vessel 'Hanjin Madras' (2001).
Both vessels had detected a fishing fleet and their respective courses taken to avoid it meant that they were converging. The court decided that the vessels were not at fault for failing to take evasive action before they were in sight of each other, but after that time the Hanjin Madras had not complied with the regulations and was substantially more to blame for the collision than the Mineral Dampier. The court also expressed its concern about the use of VHF radio communications between vessels in such circumstances, particularly where an agreement was reached to take action that was in conflict with the regulations.
Timothy Brenton QC of 7 King's Bench Walk instructed by Holman Fenwick & Willan for the claimants. Nigel Teare QC, head of 4 Essex Court, instructed by Ince & Co for the defendants.
The High Court recently considered a number of procedural issues in the resolution of shipping disputes that will be of general interest.
Where an arbitrator had made an error in the calculation of an award in respect of a demurrage claim, the Commercial Court in the case of Gannet Shipping Eastrade Commodities (2001) decided that the London Maritime Arbitrators Association Terms (1997) conferred a power on the arbitrator to amend its award and consequential costs order.
Where a shipowner sought leave to appeal from an arbitration decision arising out of a trip charter in the case of Nagusina Naviera Allied Maritime (2001) and failed to serve proceedings within the 21-day period provided in Practice Direction: (CPR PD 49G): (Arbitration) (1999), the Commercial Court decided that it was an irregularity and did not invalidate the service of proceedings. In any event, the court decided that it had jurisdiction to extend the 21-day period.
In Nagusina, Christopher Hancock QC of 20 Essex Street instructed by Constant & Constant for the claimant. Simon Bryan of Essex Court instructed by Mills & Co for the defendant.
In Veba Oil Supply & Trading GMBH Petrotrade sub nom 'The Robin' (2001), the Court of Appeal decided that where a contract for the sale of gas oil provided for the quality of the cargo to be determined by a specific method by a mutually agreed independent inspector, the use of a different method of assessment meant that the determination was not binding.
David Goldstone of 4 Essex Court instructed by Clifford Chance for the claimant. Michael Nolan, also of 4 Essex Court, instructed by Davies Johnson & Co for the defendant.
Liability for loss of aircraft on domestic flights
Following the crash of a small passenger aircraft in May 1995 with the loss of all those on board, the airline involved commenced proceedings against the manufacturers of the artificial horizon navigational instruments fitted in the aircraft.
The aircraft was flying from Leeds Bradford International Airport bound for Aberdeen, with nine passengers and three flight crew. About four minutes after take-off, the aircraft went into a steep spiral dive from a height of about 3,000ft, crashing into open farmland at Dunkeswick Moore, six miles north of the airport.
The airline alleged that the instruments were not suitable for aircraft intended for scheduled passenger services, that the instruments had suffered a failure and, as a result, the pilot had become spatially disorientated and lost control of the aircraft. The airline relied in particular on the fact that the manufacturer had chosen to install different equipment in later aircraft and had announced the possibility of a retrofit with the new instruments.
The High Court concluded in the case of (1) Lambson Aviation (t/a Knight Air Scheduled Services) (2) Knight Air Scheduled Services Ltd (3) Euroair Transport (1) Embraer Empresa Brasiliera De Aeronautica (2) BF Goodrich Avionics Systems (2001) that the airline had failed to show any causal connection between any alleged negligence of the manufacturer and the crash. Even a "strong recommendation" for a refit was unlikely to have induced the airline to replace the instruments.
David Hunt QC of Blackstone Chambers and Akhil Shah of Fountain Court instructed by Cameron McKenna for Knight Air. Robert Lawson of 4 Essex Court instructed by Beaumont and Son for Embraer Empresa. Tudor Owen of 9-12 Bell Yard instructed by Beaumont and Son for BF Goodrich Avionics Systems.
Inspection of tachograph records
The House of Lords stressed the importance of road safety when it confirmed that an officer of the Vehicle Inspectorate was entitled to take away tachograph record sheets for inspection and copying at the premises of the Vehicle Inspectorate without notice and without having reason to believe that the records had been falsified.
In the case of Cantabrica Coach Holdings Vehicle Inspectorate (2001), the coach operator involved was guilty of an offence of failing to produce tachograph records for inspection and copying under s99 of the Transport Act 1968 by refusing to allow the records to be removed from their premises, even though it had no objection to the officer inspecting the records at its place of business. Although the company involved was fined only £400, the decision has wide implications, as it applies not only to tachograph records but also to other documents required to be kept under the legislation relating to commercial vehicles. There was some discussion about whether the removal of the documents had to be reasonable, but no conclusion was reached on that issue, as it had not been addressed in argument before the House of Lords or the lower courts.
David Phillips QC and Richard Serlin, both of 199 Strand, instructed by Wedlake Saint for Cantabrica. Richard Plender QC of 20 Essex Street and C Hallsworth (solicitor-advocate) instructed by Foinette Quinn for the Vehicle Inspectorate.
Kerrie Dawson is the legal editor at Lawtel