consort shipping vs united engineers

1. Consort Shipping Line Ltd
v United Engineers

2. PROBLEM
 The plaintiff was a shipping company whose vessel was being
repaired by the defendant engineering company. Because of an
approaching cyclone, the defendant requested that the plaintiff
arrange to have its vessel towed to shelter. The plaintiff complied
with the request and handed the vessel over to defendant in the
sheltered location. The defendant failed to supply an anchor. The
vessel was subsequently tied to the plaintiff’s barge. The barge
drifted away, hit a reef and sank. The plaintiff brought an action to
recover damages to the barge.

3. PLAINTIFF’S STATEMENT
 The Plaintiff is a limited liability company having its registered office
in Suva Fiji and carrying on the business of shipping.
 The Defendant is an Engineering Company who were hired to
carry out certain works on the Vessel "Cajun Queen".
 On the 27th November 1990 the Defendant requested the Plaintiff
in writing to tow the said "Cajun Queen" to the Bay of Islands for
shelter due to approaching cyclone "Sina“.
 The specific Order was for the Plaintiff to tow the vessel from Narain
Jetty to Draunibota (Bay of Islands) as the vessel was under repair
and had no means of self-propulsion

4.  On the following morning the Fleet Superintendent of the Plaintiff
went to check certain other vessels of the Plaintiff which were
anchored at the Bay of Islands when he noticed that one of the
Plaintiffs barge 'Lautoka' was drifting towards the reef with the
"Cajun Queen“
 The Defendant had tied the "Cajun Queen" to the Plaintiff's barge
'Lautoka' without the Plaintiff's knowledge authority or permission.
 Before the Plaintiff could rescue its barge 'Lautoka' it had hit the
reef causing it to develop holes and it subsequently sank.
 The Plaintiff however managed to rescue the "Cajun Queen" from
sinking and towed the "Cajun Queen" to safety and tied it to one of
the Plaintiffs ship 'The Nivanga'.

5.  After the cyclone was over the Plaintiff towed the "Cajun Queen"
to Suva Harbour and handed it over to the Defendant.
 Due to Defendant's negligence the Plaintiff has suffered loss in
having to refloat its barge and carry out necessary repairs to it"

6. DEFENDANT’S STATEMENT
 At the time of Cyclone Sina the Defendant was carrying out repairs
to the Vessel "Cajun Queen" ("the vessel") at Narain Jetty, Walu Bay,
Suva. The vessel is owned by Stone Fish Limited a duly incorporated
company of Suva, Fiji and the Defendant was carrying out repairs
to the vessel on the instructions of the owners insurers Dominion
Insurance Limited of Suva, Fiji.
 In order to safeguard the vessel on behalf of the said owner and/or
its insurers at the time of the said cyclone was approaching the
Defendant acting as agent for the said owner and/or its insurers
gave instructions to the Plaintiff to tow the vessel to the Bay of
Islands and anchor the vessel in a safe anchorage. The tow of the
vessel was delayed to enable extra anchors to be taken aboard
the vessel for this purpose"

7.  The Defendant further states inter alia that:
"contrary to the Defendants instructions to anchor the vessel in a safe
anchorage in the Bay of Islands employees of the Plaintiff of their own
initiative tied the vessel to the Plaintiff's barge "Lautoka" which was
already anchored in the Bay of Islands“
 And that:
"that it is aware that the Plaintiffs said barge sank in the Bay of Islands
however it has no knowledge of the circumstances in which it sank.
The Defendant is also aware that the vessel "Cajun Queen" suffered
damages as a result of it being tied to the Plaintiffs barge during the
cyclone. The Defendant admits that the Plaintiff returned the vessel to
the Defendant at Suva Harbour after the cyclone"

8.  Further it says that:
"The Defendant further states that any damage which may have
been caused to the Plaintiff's barge was caused by the negligence
of the Plaintiff's employees in tying the vessel to the barge contrary
to the Defendant's instructions which were to anchor the vessel in a
safe anchorage in the Bay of Islands"

9. CASE IN SHORT
 In short, the Plaintiff's case is that it carried out the instructions
given it and it was the responsibility of the defendant's employees
who went with the Plaintiff's captain to see to the security of the
vessel "Cajun Queen" (hereafter referred to as "CQ"). Whereas the
Defendant contends that the Plaintiff acted contrary to the
instruction given it and that the Plaintiff owed a duty to the
defendant to take reasonable care over the defendant's vessel
and that the Plaintiff through its servants was in breach of this duty
and that in consequence damage was caused in the
circumstances outlined here above. It says that the Plaintiff was
negligent in performing its function.

10. JUDGEMENT AND REASON
 The defendant is liable to the plaintiff in negligence, but the
plaintiff bears 50% of the responsibility for the damages.
 The defendant owed a duty of care to the plaintiff and that duty
included supplying an anchor to safely secure the vessel. However,
there were some disputed facts and it appeared that it was the
plaintiff that might have tied the vessel to the barge. The court
chose to accept the testimony of the defendant’s witnesses and
on the facts held the plaintiff 50% responsible for the damages to
the barge.