Christopher, Christopher, Garnier, Garnier, Aki & Daniel v Motor Vessel 'Fiji Gas' [1992] QSC 59

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRJSBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Cro'W!l. Copies thereof must not be made or sold without the wrinen authority of the Director, State Reporting Bureau.) r .. ·-~~~~'=MI REVISED COPIES .ISSUE6 -! . r . . De1e: ~ f! 1 ()2_ ' 1 li v'- rt /J/1._/ 1 Court R<-p0rtin;) Bureau ~~ . L>"- t. "'.•(," - =+ +..-. 0 WO J / 'A /['-" ( ~ A /- ·t).) il£)-- SUPREME COURT OF QUEENSLAND .· )'( ·.CIVIL JURISDICTION COOPER J No 150 of 1988 G D & H M CHRISTOPHER and H P & T GARNIER, WUNING DARUA IPA AKI and SOBOVA DANIEL and THE MOTOR VESSEL "FIJI GAS" BRISBANE DATE 12/ 3/92 JUDGMENT 1 Plaintiffs Second Plaintiffs Defendant -- 1 of 60 -- 1200392 JUDGHE:NT HIS HONOUR: On 11 March 1992, I delivered judgment in the within action. A.t that time; I was unaware that an offer to settle had been made by the defendants on 18 September 1990. The offer was in the following terms: 10 10 "Take notice that in accordance vrith order 26 of the Rules of the Supreme Court the abovenamed defendant hereby offers to settle the plaintiffs' claim in this matter on the following terms: - (1) that the defendant pay to the first and second plaintiffs the sum of two hundred and thirty-five thousand dollars ($235,000); 20 20 30 50 I I ---60 -+ I I (2) that the defendant pay the first and second plaintiffs party/party costs incurred to date." The first plaintiffs sued for the cost of repairs to their vessel, the "Antonia", together with loss of profits during the period when the vessel was unable to fish. The second plaintiffs were the crew members regularly employed by the first plaintiffs and sued for pure economic loss, being the wages lost during the period when the vessel was under repair. There was therefore quite separate and distinct causes of action alleged by the two groups of plaintiffs. On the trial of the action, I found that there was no duty of care owed to the second plaintiffs and, accordingly, they failed in the action. The offer, in terms, offers a global sum to both groups of plaintiffs. There is no separate offer in a money sum directed to each group of plaintiffs capable of acceptance by that group. Thus, the offer to be accepted required the I I 11 30 40 50 ____ ,_j 60 Govt. Printer. Old. 2 -- 2 of 60 -- 10 I 20 30 so 1200392 JUDGMENT joint agreement of the first and second plaintiffs. It was submitted by Mr Pope, on behalf of the first plaintiffs, that the offer in terms does not comply with the requirements of 0 26 of the Rules of Court. Without deciding that question, 0 26 r 9(4) gives to the Court a discretion to order other than that the plaintiff pays the party and party costs of the defendant from the date of the offer where the Court is satisfied that it is proper in all the circumstances. In my view, it is not possible to say with any certainty that the plaintiffs, that is the first plaintiffs, could and should have isolated within the sum of $235,000 so much as that plaintiff believed it would reasonably receive on trial and accept to that amount. In fairness to Mr Thompson, he has not suggested the first plaintiffs ought to do that. However, it seems to me that the effect of making a joint offer is to require the first plaintiffs to make an assessment as to their fair entitlement to a global sum. So far as the second plaintiffs are concerned, although they failed in the action, the quantum of their claim, if they had succeeded, would have been somewhere in the order of $75,000, on the findings I have made, and on the concession made at trial that they would have received $15 per kilo of crayfish tail caught. On that basis, the quantum of the claim prospectively available to the second plaintiffs would reduce the funds within the offer which could be described as being provided to satisfy the first plaintiffs' claim iO'----+--d_o_w_n_t_o_a_s_u__m __o_f_a_r_o_u_n_d_$_1_60, 0 0 0 . The first plaintiffs, as Govt. Printer, Old. 3 10 20 30 50 60 -- 3 of 60 -- 1200392 JUDGMENT at the date of the offer, had to consider whether or not to "I I accept the offer in that amount or somewhere near that amount or press on vlith the trial. Working back the calculation, as Mr Thompson has done, it would appear that the first plaintiffs have achieved judgment in the sum of 10 10 around $221,668. On that basis, they clearly beat the payment in. The first plaintiffs only fail to beat the payment in if the sum is regarded as a global sum, the totality of \"lhich was available to the first plaintiffs at b.'l.e date that it was made. In terms, that is clearly not the 20 20 situation. In all of the circumstances, and irlithout deciding whether or not the offer complies with 0 26, I am satisfied that the form of the offer was such that the first plaintiffs were 30 30 justified in not accepting and that they ought in the circumstances to receive the costs which I ordered on 11 March 1992. I do not propose, in the circumstances, to alter any of the costs which I made on that date. 40 40 I order that the first plaintiffs' costs of today be the first plaintiffs' costs of and incidental to the action. 50 50 60 Govt. Printer, Old. 4 -- 4 of 60 -- TRANSCRIPT OF PROCEEDINGS State Rep:>rring Bureau, 4th Floor, The Law Courts, George Street, BR1SBAN£, Q. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) ···· · ··· ··-· ' SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION COOPER J No 150 of 1988 G D & H M CHRISTOPHER Plaintiffs and H P & T GARNIER, WUNUNG DAURUA IPA AKI and SOBOVA DANIEL Second Plaintiffs and THE MOTOR VESSEL "FIJ t GAS" Defendant BRISBANE .. DATE 11/3/92 JUDGMENT 1 -- 5 of 60 -- 10 20 30 40 110392 JUDGMENT HIS HONOUR: In this matter there will be judgment for the first plaintiffs against Liquified Gas Carriers (Fiji) Ltd on their claim in the sum of $249,050.52 and judgment for the first plaintiffs on the defendant owner's counterclaim. I order that the Liquified Gas Carrier (Fiji) Ltd pay the first plaintiffs' costs of and incidental to the action and counterclaim including reserved costs, if any, to be taxed. There will be judgment for Liquified Gas Carriers (Fiji) Ltd on the second plaintiffs' action. I order the second plaintiffs to pay the costs of Liquified Gas Carriers (Fjji) Ltd limited to the issues raised on the second plaintiffs' action and the defence of Liquified Gas Carriers (Fiji) Ltd on those issues including reserved costs, if any, to be taxed. I order that Liquified Gas Carriers (Fiji) Ltd pay the second plaintiffs' costs on the counterclaim including reserved costs, if any, to be taxed. I publish my reasons. 10 20 30 ~o so 50 2 -- 6 of 60 -- IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Cooper No. 150 of 1988 BETWEEN: AND: AND: CATCHWORDS: G.D. & H.M. CHRISTOPHER H.P. & T. GARNIER, WUNING DARUA IPA AKI AND SOBOVA DANIEL Plaintiffs Second Plaintiffs THE MOTOR VESSEL "FIJI GAS" Defendant REASONS FOR JUDGMENT - COOPER J. Delivered the 11th day of March, 1992. Counsel: Mr. Wall Q.C. and Mr. Pope for plaintiffs Mr. G.A. Thompson for defendants Solicitors: Middletons Solicitors for plaintiffs Williams Graham & Carmen for defendants Hearing dates: 29 January, 1991 to 4th February, 1991. -- 7 of 60 -- IN THE SUPREME COURT OF QUEENSLAND No. 150 of 1988 BETWEEN: AND: G.D. & H.M. CHRISTOPHER H.P. & T. GARNIER, WUNING DARUA IPA AKI AND SOBOVA DANIEL Plaintiffs Second Plaintiffs THE MOTOR VESSEL "FIJI GAS" Defendant REASONS FOR JUDGMENT - COOPER J. Delivered the 11th day of March, 1992. The first plaintiffs are and were at all material times the owners of the fishing vessel "Antonia". The second plaintiffs were at all material times crew members employed on the said fishing vessel. Liquified Gas Carriers (Fiji) Ltd. ("the defendant owner") was at all material times the owner of the vessel "Fiji Gas". An appearance was entered on behalf of the ship on 26 September, 1988. The defendant owner appeared in the action by notice of appearance filed on 24 September, 1990 to defend the plaintiffs' claims. The defendant owner also seeks by way of counterclaim against the plaintiffs a declaration that in the circumstances giving rise to the action it is entitled to limit its liability in accordance with Part VIII of the Navigation Act 1912 as amended (Cwth.). At approximately 12.06 p.m. on 23 September, 1987 the vessel "Fiji Gas" collided with the vessel "Antonia". At the -- 8 of 60 -- 2 time the "Fiji Gas" was attempting to berth at Thursday Island. The "Antonia" was at anchor. The defendant owner has admitted liability to the first plaintiffs for the collision and for such loss or damage as the first plaintiffs suffered thereby and which loss or damage is properly recoverable in the action. The defendant owner denies that it was under any duty of care to the second plaintiffs. In consequence it denies that it is liable to the second plaintiffs as alleged or at all. It is convenient to deal with the question of the second plaintiffs' cause of action, if any, before dealing with the other issues and quantum. The second plaintiffs had been engaged as crew by the joint owner and Master of the "Antonia", Mr. G.D. Christopher. The crew members were paid remuneration calculated by reference to a percentage of the sale price of the produce caught and sold on each fishing voyage undertaken by the "Antonia". It was admitted by the defendant owner that if the vessel had not been damaged the second plaintiffs were available and would have worked as crew on it. It was further admitted that the crew would have been paid $15.00 per kilo for produce caught and sold during the period it took to repair the "Antonia" and to bring her back into service. The second plaintiffs rely on the following evidence of Captain A. Pope the Master of the "Fiji Gas":- "Your vessel navigated in areas or the Fiji Gas or the Coral Gas navigated in areas where they could expect to encounter fishing vessels?-- Yes. -- 9 of 60 -- 3 You knew that those vessels had crew?-- Yes. And that the crew of those vessels living by fishing from those vessels?-- earnt Yes. their You knew that if there was a collision between one of those fishing vessels and the Fiji Gas or the Coral Gas damage could be caused to the fishing vessel such that it would be unable to fish and the crew would be unable to earn an income?-- Yes." and Mr. M. C. Fletcher, the Shipping Manager of Boral Gas Limited who acted as marine superintendent in relation to the "Fiji Gas":- "I take it you were aware your vessels were navigated in areas where they could expect to encounter fishing vessels?-- Yes. And you knew that those vessels would invariably have a crew who earned their living by catching fish off the fishing vessels?-- I would assume so. And that if one of your vessels collided with a fishing vessel, the fishing vessel could be damagedand unable to fish for a period and unable to earn an income for its crew and owner?-- It follows,yes." as constituting a sufficient factual basis to support the existence of a duty of care on the part of the Master and through him the defendant owner to refrain from any negligent act or omission which would cause the second plaintiffs pure economic loss. There is no question that pure economic loss is recoverable as a compensable loss in Australia (Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424). Whether or not there is a duty of care to protect the second plaintiffs from such loss depends upon there being a relationship of proximity between the defendant owner (or those for whom it is responsible) and the second plaintiffs. The general principle has recently been stated by the majority -- 10 of 60 -- 4 of the High Court in San Sebastian Pty. Ltd. v. The Minister (1986) 162 C.L.R. 340 at 355:- "The relationship of proximity is an integral constituent of the duty of care concept. We refer to that relationship in its broader sense, namely,as embracing a general limitation upon the test of reasonable foreseeabili ty, this being the sense in which it has been discussed and applied in recent judgments in this Court (Caltex (1976) 136 C.L.R., at pp. 574-576; Jaensch v. Coffey (1984) 155 C.L.R. 549, at pp. 552-553; Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424, at pp. 461-462, 506-507; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R. 16). The notion of proximity, because it limits the loss that would otherwise be recoverable if foreseeability were usedas an exclusive criterion of the duty of care, is of vi tal importance when the plaintiff's claim is for pure economic loss. When the economic loss results from negligent misstatement, the element of reliance plays a prominent part in the ascertainment of a relationship of proximity between the plaintiff and the defendant, and therefore in the ascertainment of a duty of care. But when the economic loss results from a negligent act or omission outside the realm of negligent misstatement, the element of reliance may not be present. It is in this sphere that the absence of reliance as a factor creates an additional difficulty in deciding whether a sufficient relationship of proximity exists to enable a plaintiff to recover economic loss." The present case is not one of negl·igent misstatement and there is no element of reliance on the part of the second plaintiffs. The case therefore falls into the category of cases where there is "an additional difficulty in deciding whether a sufficient relationship of proximity exists to enable a plaintiff to recover economic loss". There is no doubt, and, I find that it was reasonably foreseeable to both Captain Pope and the defendant owner that negligent navigation leading to a collision which disabled the "Antonia" could cause the crew of the "Antonia" loss of employment because they worked on the vessel which was an -- 11 of 60 -- 5 income earning fishing vessel. However, I find that the second plaintiffs as individuals were not shown on the evidence to be known to Captain Pope or the defendant owner. Further, as specific individuals employed as crew on board the "Antonia", the second plaintiffs were not known to, and were not in the contemplation of, either Captain Pope or the defendant owner as specific individuals who would suffer economic loss in consequence of any negligent collision between the "Fiji Gas" and the "Antonia". In Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424 at 501 Deane J. said as to the degree of proximity necessary to give rise to the duty of care:- "At the outset, one must distinguish between a positive act or mis-feasance and an omission or non-feasance and between physical damage and mere or pure economic loss. In the absence of some contrary express or implied statutory mandate or special common law right, there will ordinarily be little difficulty in discerning that a defendant, whether public instrumentality or private person, was under a duty to take reasonable care to avoid causing ordinary physical injury to the person or property of a plaintiff by the direct impact of its, his or her positive action. In such cases, as pointed out previously, the reasonable foreseeability of such damage being caused will ordinarily suffice to establish the requisite proximity of relationship and there will also ordinarily be no difficulty in the operation of the rule that a cause of action will arise when the physical damage is sustained. The position is different in cases where the alleged negligence is constituted by a mere failure either to act or to prevent another from acting or where the alleged loss or damage is pure economic loss." Specifically in relation to economic loss Deane J. continued at p. 502:- "The field of liability for pure economic loss is a comparatively new and developing area of the law of negligence. Again, the reasonable foreseeability of a real risk of such loss does not of itself suffice to give rise to a prima facie duty to take -- 12 of 60 -- 6 reasonable care to avoid it: see, e.g. , The Dredge"Willemstad" (1976) 136 C.L.R., at pp. 549ff., 572ff., 590ff. That being so, the· circumstances in which the relationship between the parties will be such as to impose a duty to take care to avoid pure economic loss are also properly to be seen asspecial. Indeed, in a competitive society, theinfliction of pure economic loss upon another will commonly be a concomitant of the successful pursuit of personal advantage by way of lawful conduct inthat there can be discerned, in many commercial and financial transactions, a correlation between the attainment of personal gain for one's self and the sustainment of economic loss by another." More recently, in Hawkins v. Clayton (1987-1988) 164 C.L.R. 539 Deane J. observed at pp. 577-578:- "The identity and relative importance of the factors which are determinative of the existence of a relevant relationship of proximity vary in different categories of case: see, e.g., Jaensch v. Coffey (1984) 155 C.L.R. at pp. 585; Heyman (1985) 157 C.L.R., at pp. 497-498. It is so with respect to the factor of physical nearness, in the sense of space and time. In the case of an activity which involves a foreseeable risk of causing direct physical injury to those nearby, physical nearness will ordinarily suffice to create a relevantrelationship of proximity: see per Lord Esher M.R., Le Lievre v. Gould [1893] 1 Q.B. 491, at p. 497. On the other hand, it is not necessary for the existence of a relationship of proximity in some other categories of case for there to have been any physical proximity between the parties concerned. Indeed, a relationship of proximity can exist with, and a duty of care can be owed to, a class of persons which includes members who are not yet born or who are identified by some future characteristic or capacity which they do not yet have." The references to Jaensch v. Coffey and Heyman confirm His Honour's earlier observations in Heyman at 497-498 that proximity as a test is the relevant criterion by which a duty to avoid economic loss is to be ascertained. His Honour said in Heyman at pp. 497-498:- "The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission -- 13 of 60 -- 7 of the defendant and the loss or injury sustained by the plaintiff. It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connexion or relationship between the particular act or course of conduct and the loss or injury sustained. It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance. Both the identity and the relative importance of the factors which are determinative of an issue of proximity are likely to vary in different categories of case." Statements to similar effect are to be found in the judgment of Gaudron J. at 593-594. The authority most in point in the instant case is the decision of the High Court in Caltex Oil (Australia) Pty. Limited v. The Dredge "Willemstad" (1976) 136 C.L.R. 529. The decision in Caltex has been consistently stated by the High Court as being a correct statement of the relevant principles. In Caltex Gibbs J. (as he then was) stated the proposition thus at 555:- "In my opinion it is still right to say that as a general rule damages are not recoverable for economic loss which is not consequential upon injury to the plaintiff's person or property. The fact that the loss was foreseeable is not enough to make it recoverable. However, there are exceptional cases in which the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence, and owes the plaintiff a duty to take care not to cause him such damage by his negligent act. It is not necessary, and would not be wise, to attempt to formulate a principle that would cover all cases in which such a -- 14 of 60 -- 8 duty is owed; to borrow the words of Lord Diplock in Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt (1970) 122 C.L.R. 628, at p. 642; [1971] A.C. 793, at p. 809 - 'Those will fall to be ascertained step by step as the facts of particular cases which come before the courts make it necessary to determine them.' All the facts of the particular case will have to beconsidered. It will be material, but not in my op~n~on sufficient, that some property of the plaintiff was in physical proximity to the damaged property, or that the plaintiff, and the person whose property was injured, were engaged in a common adventure." Mason J. (as he then was) said at 593:- "A defendant will then be liable for economic damagedue to his negligent conduct when he can reasonably foresee that a specific individual, as distinct from a general class of persons, will suffer financial loss as a consequence of his conduct. This approach eliminates or diminishes the prospect that therewill come into existence liability to an indeterminate class of persons; it ensures that liability is confined to those individuals whose financial loss falls within the area offoreseeability." stephen J. in determining the question of any duty expressed the same by reference to the concept of proximity and undertook an examination of the relevant facts and relationships which examination anticipated the later observations of Deane J. in Jaensch v. Coffey and Heyman and is in accord with the later pronouncements of the High Court in the authorities cited above. Stephen J. at 576-577 said:- "As a body of precedent accumulates some general area of demarcation between what is and is not a sufficient degree of proximity in any particular class of case of economic loss will no doubt emerge; but its emergence neither can be, nor should it be, other than as a reflection of the piecemealconclusions arrived at in precedent cases. The present case contains a number of salient features which will not doubt ultimately be recognized as characteristic of one particular class of case among -- 15 of 60 -- 9 the generality of cases involving economic loss. This will be typical of the development of the common law in which, in the words of Barwick C.J. in Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt (1968) 122 C.L.R. at p. 569, the elements of the relationships out of which a duty of care is imposed by law 'will be elucidated in the course of time asparticular facts are submitted for consideration in cases coming forward for decision' . The existence of these features leaves no doubt in my mind that there exists in this case sufficient proximity toentitle the plaintiff to recover its reasonably foreseeable economic loss. These features comprise the following: 1) the defendant's knowledge that the property damage, a set of pipelines, was of a kind inherently likely, when damaged, to be productive of consequential economic loss to those who rely directly upon its use. To damage an i tern of productive equipment or an item used in conveying goods or services, such as power or water, is inherently likely to cause to its users economic loss quite apart from the physical injury to the article itself. Moreover the nature of the pipeline, used in conveying refined products from a refinery to another's terminal, is such as to indicate very clearly the existence of something akin to Lord Roche's common adventure, the person to whom the petroleum products are being delivered through it having a very real interest in its continued operation as a means of conveyance, whether or not possessing a proprietary or possessory interest in the pipes themselves; 2) the defendant's knowledge or means of knowledge, from certain charts then in use on the dredge, that the pipelines extended across Botany Bay from the A.O.R. refinery to the plaintiff's Banksmeadow terminal, leading to the quite obvious inference that their use was to convey refined products from refinery to terminal, the plaintiff being in this sense a user of the pipeline. These two factors lead to the conclusion that Caltex was within the reasonable contemplation of the defendants as a person likely to suffer economic loss if the pipelines were cut. Now, because the facts referred to in ( 1 ) and ( 2) above were within -- 16 of 60 -- 10 the reasonable contemplation of the defendants, it should have been apparent to them that more than one party was likely to be exposed to loss should the pipelines be severed by the defendants' negligence; accordingly the tortious infliction of property damage on any one of these parties becomes relevant; hence the significance of the following factor: 3) the infliction of damage by the defendant to the property of a third party, A.O.R., as a result of conduct in breach of a duty of care owed to that third party. There are two other relevant factors: 4) the nature of the detriment suffered by the plaintiff; that is to say its loss of use, in the above sense, of the pipeline; 5) the nature of the damages claimed, which reflect that loss of use, representing not some loss of profits arising because collateral commercial arrangements are adversely affected but the quite direct consequence of the detriment suffered, namely the expense directly incurred in employing alternative modes of transport. These factors demonstrate a close degree of proximity between the defendant's conduct in severing the pipelines and the economic loss which Cal tex suffered when its chosen means of supplying its terminal with products was interrupted by the injury to the pipelines. The acknowledgment that a duty of care was owed to A.O.R.; the fact that Caltex was not less proximately concerned than was A.O.R. in the continued integrity of the pipeline; the very nature of the pipeline, a major mode of conveyance of products to an identifiable recipient, whose use of its terminal was for the receipt of such products; the nature of the economic loss, direct and inevitably flowing from the severing of the pipeline and not in any sense a matter for speculation only; all these characteristics of the present case combine to constitute a relationship of sufficient proximity to give rise to a duty of care owed to Cal tex for breach of which it may recover its purely economic loss." As to the defendants' knowledge, actual or constructive Stephen J. said at 578:- "In the present case it assumes significance because the defendants, when the dredging operations were in progress, must be taken to have known that -- 17 of 60 -- 1 1 carelessness in those operations, causing injury to the pipelines, would affect Caltex in precisely the way it did, by aborting the continued use of the pipelines for the delivery to it of petroleum products. The learned trial judge said in this regard, in a passage from his reasons for judgment: 'In this case it is my opinion that damages of the kind claimed by Caltex were foreseeable both by the dredge and by Decca . They both knew, or had the means of knowing, that the pipeline led from the refinery to the terminal. Its fracture would obviously involve the very kind of disruption and consequent expense for which Caltex sues.' On this view of the requirement of reasonable proximity Cal tex should be held to have suffered economic loss of a kind recoverable against those whose lack of care led to the injury to the pipelines." The reasoning of the other members of the court in Cal tex, Jacobs and Murphy JJ. has not been taken up in, and is not consistent with the later decisions of the court on this point. In the instant case there is no actual reliance or dependence on the part of the second plaintiffs on the conduct of the defendant owner or its Master known to the defendant owner or Master or at all. Nor is there an assumption of responsibility on the part of the Master, nor the defendant owner to take positive steps to avoid economic loss to the second plaintiffs. Nor is there a combination of both. There are lacking therefore the elements which commonly (although not necessarily) exist to provide the special circumstances necessary to give rise to a relationship of proximity and thereby to create a duty of care to avoid foreseeable economic loss to the second plaintiffs (Hawkins v. Clayton at 576; Murphy v. Brentwood District Council [1990] 3 W.L.R. 414 (HL) -- 18 of 60 -- 12 at 446; Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] 1 A . C . 1 7 5 ( PC ) at 1 9 6 ) . The second plaintiffs were no more known to Captain Pope and the defendant owner than the employees of Caltex were known to those on board the dredge "Willemstad". From the time Captain Pope saw the "Antonia" anchored prior to the collision, the second plaintiffs were to Captain Pope and the defendant owner an unascertained class the precise membership and identity of it being then unknown to Captain Pope or the defendant owner. It is not to the point to assert that the defendant or Captain Pope had means of knowledge to ascertain the identity of the second plaintiffs as crew members of the "Antonia" by enquiry on Thursday Island. Nor does the fact that the "Antonia" was observed before the collision fix the Master and defendant owner with constructive knowledge of the identity of the crew as an ascertained class (Ball v. Consolidated Rutile Ltd. [1991] 1 Qd.R. 524 at 531-532). The second plaintiffs' ability to earn income would not obviously and directly be impaired by negligent navigation by Captain Pope. The second plaintiffs had no interest in the "Antonia" nor did they have property in, or a right to, any particular share of the catch. Rather, their right to income was sourced in their respective contracts of employment with the first plaintiffs and the discharge of their duties as crewmen. Their capacity to earn income depended solely on their ability to gain a paid position as a crew member and the physical ability to do the work associated with that position. The only relevance of the catch was that the quantum of their -- 19 of 60 -- 13 remuneration was determined as a percentage of the gross receipts from the sale of the catch. Damage to the "Antonia" did not necessarily prevent the second plaintiffs earning income from the first plaintiffs or a third party utilising a vessel other than the "Antonia". It would have been apparent that the second plaintiffs used the "Antonia" to earn income just as any other employee uses a factory and the machine in it as his place of employment and his means to earn income through the performance of his work as an employee. However, that use is different in kind from the first plaintiffs' use of their vessel as an income earning chattel and the use made of the pipeline by Caltex to transport oil. Similarly, the direct consequence of economic loss from the deprivation of use of a profit earning chattel by physical damage to it is different in kind from the possible loss of income of an employee paid exploitation of labour of the plaintiffs was by his or her employer from the latter's the chattel albeit utilising the work and employee. The loss suffered by the second the difference in income earned during the period of repairs of the vessel and that which it is claimed they would have earned as crew on board and working the "Antonia". Their loss therefore is directly caused by the inability of the first plaintiffs to offer them fishing work remunerated by reference to proceeds of the catch. Indirectly their loss is caused by the negligent conduct of Captain Pope, and through him the defendant owner, rendering the first plaintiffs' vessel inoperative for a period of time. The second plaintiffs were not, I find, joint venturers or engaged -- 20 of 60 -- 14 in a common adventure with the first plaintiffs in the fishing operations of the "Antonia" in fact or by virtue of the contractual arrangements between them for payment of salary. Even if they were, it is doubtful that that circumstance alone would be sufficient to establish a special relationship of proximity (Caltex at 548, 555). Although the above circumstances make the loss suffered by the second plaintiffs foreseeable, they do not to my mind demonstrate any of the special elements necessary to establish a relationship of proximity sufficient to give rise to a duty of care to avoid economic loss to the second plaintiffs. There is no physical proximity to the second plaintiffs or any of their property which is relevant to an avoidance of economic loss. There is no circumstantial proximity arising out of any relationship between the second plaintiffs and the Master of the "Fiji Gas" or defendant owner. There is no sufficient closeness or directness of the causal connection or relationship between the negligent navigation and collision on the one hand and the loss sustained by the second plaintiffs to establish the necessary degree of proximity. The loss of the second plaintiffs was not economic loss from their use of the vessel as such but their loss of wages from the first plaintiffs which they had a capacity to earn while employed on board discharging the function of a crew member engaged in fishing activity. Finally, as I have stated above there is no reliance on the part of the second plaintiffs, nor acceptance of responsibility on the part of the Master or defendant owner, for the latter to take care to avoid or prevent -- 21 of 60 -- 15 economic loss or damage to the second plaintiffs. There is, in my view, no other circumstance which is special so as to give rise to a relationship of proximity and duty of care to avoid or prevent economic loss to the second plaintiffs. The second pl~intiffs have failed to prove the existence of a relevant duty of care and breach of it by the Master or the defendant owner. Accordingly the second plaintiffs fail to make out a cause of action against the defendant owner or the ship "Fiji Gas". As a result of the collision the "Antonia", which is a timber boat, was damaged at the stem which opened up, sustained damage to the decks, planking and ribs and she took on board a considerable amount of sea water. The "Antonia", due to the damage, required to be salvaged, and slipped and necessary temporary repairs were undertaken on Thursday Island. Final repair of the vessel needed to be undertaken in Cairns. The trip to Cairns, after makeshift repairs, was undertaken by Mr. Christopher with a crew of Mr. Henry Garnier and Mr. Sobova. At Cairns the male plaintiff engaged Mr. George Nakata to effect the repairs necessary with the assistance of Mr. Christopher and his crew. I accept the evidence of Mr. Christopher that he expended the following sums to effect repairs. I find that the work was necessary and that the rates and charges were reasonable. (i) Salvage, slipping and repair costs at Thursday Island (ii) Repairs at Cairns using outside contractors $2,928.40 $13,969.50 -- 22 of 60 -- (iii) (iv) 16 Cost of materials in Cairns Slipping charges, service and hire $10,288.54 costs $3,920.43 I find the claim for the costs of bringing the vessel from Thursday Island to Cairns and return, as particularised on p. 3 of ex. 1 totalling $5,162.00, were incurred and were reasonably necessary in order to effect repairs on the vessel and to return it to service at its home port at Thursday Island. I find that the rates charged are fair and reasonable. I accept a steaming time of 72 hours between Thursday Island and Cairns as reasonable. I find that the use of the crew as labourers to effect repairs was reasonable and that the sum of $4,160.00 was paid on this account. The first plaintiffs desired to keep an experienced crew together and there was no suitable available alternative labour in Cairns. I accept the evidence of Richard Stewart, Naval Architect that the hours and rates applicable to the work done and moneys paid to the crew were both fair and reasonable. I find that G. Christopher worked not less than 608.5 hours on effecting repair work on the vessel in Cairns. The first plaintiffs claim an hourly rate of $15.00 which is approximately half of the then rate being paid by slipways in Cairns for similar work. I find that the hours worked and rate were both reasonable. So too, I find that Mrs. H.M. Christopher was engaged for seven weeks in necessary work associated with repairs and that a fair rate of remuneration was $250.00 per week. The total value of the work of both of -- 23 of 60 -- the first $10,877.50. plaintiffs I find 17 in effecting that the repairs sum of was I $1,770.00 find as particularised in ex. 1 for travel and accommodation and $472.31 for other miscellaneous expenses were reasonably incurred for the purpose of effecting repairs to the vessel. For the sake of completeness I should record that Mr. Stewart the naval architect, whose evidence I accept certified the repair costs claimed in the sum of $43,215.97 (excluding transport costs, travel and accommodation which he was not asked to consider) as both fair and reasonable (ex. 2 p. 19). I turn to the question of loss of income. At the time of the collision the "Antonia" was awaiting slipping for painting and was due to go on the slip on 23 September, 1987. I find that the slipping, painting and returning of the vessel to the water would have taken not less than three days. After repairs in Cairns I find that the "Antonia" left Cairns for Thursday Island on or about 29 November, 1987. The normal sailing time is three days. In the normal course of events the "Antonia" would have arrived on or about 2 December, 1987. However, the vessel experienced steering problems unrelated to the collision which involved a delay of approximately 4.5 days. In consequence, I find that the vessel did not arrive back at Thursday Island until on or about 7 December, 1987. Allowing a period of two days for provisioning and crewing the vessel to go to sea to work, I find that a reasonable period for which the first plaintiffs were prevented from fishing, excluding periods when the vessel would have been or was out of commission for reasons unassociated with the collision, is -- 24 of 60 -- 18 from 27 September, 1987 to 4 December, 1987 a period of 68 days. I accept the evidence of Mr. Christopher that he would have fished in the months of October, November and December 1987. I find that the first plaintiffs usually did not work the vessel for one week between fishing trips. I find that an average fishing trip was from two and a half to three weeks' duration. I find on the balance of probabilities that the "Antonia" would have completed not less than two trips cif up to three weeks' duration (allowing for two weeks off in port) in the period she was undergoing repairs. I accept the following evidence of Mr. G. Christopher:- "Now, Peter Ahloy is the owner, to your knowledge, of the Nimbus?-- That's correct. And you have fished for years in competition with each other?-- That's exactly right. Going back approximately how long?-- Peter bought his - the boat I stepped off, which belonged to my. mother-in-law, Peter took. After a while he worked out it would be better to have his own boat too. I think it was in the middle of 1985 he bought the Nimbus and from then on Peter and I have worked together. And do you have the same number of dinghies - or just go back to 1987?-- Mmm. That's the important period. About the same number of dinghies then?-- Peter was starting out and he was running between four and five at the most. It is that he is allowed to carry five boats and they are limited to dinghies. There's Peter has licences for five. I have licences for seven, and other boats it just goes down the line. I have - I have the most. That is the most you can get on themand Peter, I think, has the second biggest amount of dinghies you can get which is five and from then on the other blokes have four and three. That is why - the main reason we picked Peter because he is the only closest boat to me and because he works in -- 25 of 60 -- 19 comparison - you usually work the same reefs. Wework just like the three trips gone by. The three of us have been together. There is three that always usually travel. It is the practice to go out with them at the sametime as Nimbus?-- That's about it. And to fish the same area?-- Oh well, even if we separated - usually if he finds crayfish and I am not doing too good we talk every morning, everynight. He will call me. We will move across and work the same area because we are family. This is the whole thing and it makes no difference, even though it is pretty strong competition, but we are family and we work like it. So it was reasonably comparable to yours or not quite as large as yours?-- No, his boat is 50 foot long. Mine is 60. I am not sure about his freezer. I think it might be a little under mine as well. In the last half of 1987 did he have the same number of dinghies as you?-- No, no. He had five I think you said?-- Yes. How many do you have?-- I was carrying six to seven. Depends on how many I can get. Now, you said in your evidence-in-chief that you were happy with getting 700 to 1,000 kilos a trip?-- Mmm. And when you get to that you generally come back?-- Yeah, if I get 4,000 kilos on the boat I might come back, but it depends, like, we have taken - as I have said we have done five and a half tonne at the beginning of this year. If they are three - if I get three weeks up usually the boys want to go home and that's what makes me decide not - if we have the amount, 5, 4,000, say, and we have done it within 10 days, but if I see the crayfish there and we've only been out there 10 days, we will carry on. When it comes to three weeks, the boys, you can tell it is time to go home." The catch of 1,000 kilos per trip was the personal expectation of Mr. Christopher as to what the first plaintiffs would receive out of the catch. The relevant boat catch per trip referred to is, subject to the availability of crayfish, -- 26 of 60 -- 20 not less than 4,000 kilos. I find that the usual practice of the first plaintiffs was to fish for 4,000 kilos per trip of two and a half to three weeks' duration and that was subject to the availability of crayfish to catch. The "Antonia" habitually sailed and fished in company with the vessel "Nimbus" which was owned and operated by the first plaintiffs' brother-in-law. As appears from the evidence quoted above the "Nimbus" was smaller than the "Antonia" and operated a smaller number of dinghies and divers to catch crayfish. I am satisfied that the evidence establishes that the total catch of the two boats historically was split approximately 60 per cent to the "Antonia" and 40 per cent to the "Nimbus". I find that between 24 September, 1987 and 18 November, 1987 the "Nimbus" caught 2, 580 kilos of crayfish and in the period 19 November, 1987 to 9 December, 1987 the "Nimbus" caught 2, 899 kilos of crayfish. Assuming the "Antonia" worked with the "Nimbus" and achieved the historical catch ratio, the "Antonia" would have caught 3,870 kilos in the period to 19 November, 1987 and 4,348.50 kilos in the latter period. This would give a total of 8, 218.50 kilos for the period. The "Nimbus" did not work between 1 October, 1987 and some time prior to the cargo off-loaded on 18 November, 1987. Because of the seasonal nature of crayfish there are variations in the catch and I accept the evidence of Mr. P. Ahloy that catches are lower in September and October and pick up substantially in November and December. The "Nimbus" in the period 18 November, 1987 to 14 December, 1987 off-loaded 5,623 kilos of crayfish. Transposing this figure to the "Antonia" on an -- 27 of 60 -- 21 historical basis an expected catch for the "Antonia" in the same period would be 8,434.50 kilos. The defendant owner tendered through Mr. A.R. Bottomer, an accountant, a written calculation of loss (ex. 12) which averaged the total catch of the "Antonia" for the year ended June 1988, excluding 77 days between 23 September, 1987 and 9 December, 1987, to an average daily catch in kilos and then applied that daily average to the 77 days on the basis that the "Antonia" was unable to operate on these days because of the collision. Thus the loss was calculated as 77 x daily average kilo caught x price per kilo less the costs of the catch expressed as a percentage of gross receipts. This approach fails to recognise the seasonal nature of the catch and, in particular, ignores the fact that November-December is a period of seasonally high yields. In another exercise Mr. Bottomer applies the total catch of the "Nimbus" for the period 24 September, 1987 to 9 December, 1987, 5,465 kilos, directly to the "Antonia" as the indicative loss of the "Antonia" during that period. This approach ignores the fact that the "Antonia" operated additional dinghies and divers over those employed on the "Nimbus" and, on the evidence the fact that the "Antonia" had, both before and after the relevant period, an historically higher catch rate than the "Nimbus". To my mind the evidence establishes as a matter of probability that sufficient crayfish were available between 27 September, 1987 and 4 December, 1987 to provide a total catch during that period of not less than 8, 000 kilos of crayfish and that as a matter of probability, but for the collision, -- 28 of 60 -- 22 the "Antonia" would have taken not less than 8, 000 kilos in that period, whether one approaches· the issue on the basis of two trips of not less than 4, 000 kilos per trip or upon an analysis and transposition of the catch of the "Nimbus" as an indicative catch for the relevant period adjusted upward to take account of the greater capacity and historical catch of the "Antonia". The agreed price per kilo during that period is $32. 00. The gross receipts from fishing for the vessel would, I find, have been $256,000.00 or thereabouts. The first plaintiffs in calculating the cost of the catch have only brought to account the crews' wages and the cost of fuel. This approach ignores the historical variable costs of the first plaintiffs of about 53 per cent of revenue generated. The historical variable costs are set forth in the analysis of Mr. Bottomer which I accept on this point. It is incorrect to assume, as was submitted that costs other than wages and fuel for the relevant period would have been incurred in the amounts in fact incurred in the relevant financial year and could therefore be ignored. Mrs. Nielsen, an accountant called by the first plaintiffs seems to have excluded costs other than fuel and wages only because she was instructed by the first plaintiffs' legal advisers to exclude them. In my view the variable costs of 53 per cent have to be brought to account to obtain the nett loss of profit. On this basis the nett pre-tax loss of profit sustained in consequence of the collision is $120,320.00. The first plaintiffs have received income during the relevant period of $10,877. 50 (associated -- 29 of 60 -- 23 with the vessel's repair) which they would not have earned if the vessel had been engaged in fishing. This sum must be brought to account and gives a total of $109,442.50. The defendant owner has submitted that any sum for loss of profits should be awarded on a nett after tax basis. In my opinion the sum awarded for loss of profits is assessable to income tax under s. 26 ( j) of the Income Tax Assessment Act (see Ansett Transport Industries (Operations) Pty. Ltd. v. Halton Interstate Parcel Express Co. (Aust.) Pty. Ltd. & Anor (1979) 25 A.L.R. 639 at 683 and the cases cited there; Gill v. Australian Wheat Board [1980] 2 N.S.W.L.R. 795 at 799; see generally Pincus: "Taxation of Compensatory Payments and Judgment's" 53 A.L.J. 365). This being so an award of damages ought to take into account that the first plaintiffs will be assessable to tax and damages should be assessed so that the first plaintiffs, after satisfying the tax liability, will be so far as damages can provide in the same nett income position as they would have been had the profits been earned and the tax paid. In Gill Rogers J. sought to achieve this result by assessing the nett after tax position and adding back the tax payable after taking into account carry forward losses (see at pp. 807-808). In the instant case nobody has submitted that I ought to attempt to reconstruct the taxation situation taking into account the personal circumstances of the first plaintiffs. I am satisfied that the justice of the case is met by following the course taken by Aickin J in Ansett Transport at p. 683 and making no deduction or allowance for taxation on the lost profits. -- 30 of 60 -- 24 The first plaintiffs borrowed $40,000.00 from Mrs. Christopher' s mother and also incurred increased borrowings from the bank as carry on finance and to effect repairs in consequence of the loss of income from the collision. There is no evidence of any agreement to pay interest or the rate of interest on the private loan although a claim of 10 per cent interest on the loan to the mother is made in Mrs. Nielsen's calculation of the first plaintiffs' loss. The bank overdraft which was at commercial rates was substantially paid out between 1987 and trial. In my view the first plaintiffs are adequately compensated for the sums laid out on repairs and loss of profits by allowing a commercial rate of 12 per cent (Serisier Investments v. English [1989] 1 Qd.R. 687) for the period from the date of the collision (23 September, 1987) until judgment. The damages to which the first plaintiffs are entitled (before any question of limitation of liability arises) may be summarised:- 1 • 2. 3. 4. 5. 6. 7. 8. 9. Salvage, slipping and repair costs at Thursday Island Repairs at Cairns using outside contractors Cost of materials in Cairns Slipping charges service and hire costs Transport costs to Cairns Wages to crew for repairs etc. Wages to the first plaintiffs for repair Travel and accommodation Miscellaneous expenses 2,928.40 13,969.50 10,288.54 3,920.43 5,162.00 $4,160.00 $10,877.50 $1,770.00 $472.31 -- 31 of 60 -- 25 10. Loss of profits after adjusting for 7 above Interest at 12 per cent p.a. for 4.4. years $1 o9·, 442. so $162,991.18 $86,059.34 $249,050.52 The defendant owner has sought to limit its liability under Part VIII of the Navigation Act 1912 as amended (Cwth.) ("the Act"). I find that for the purposes of the Act the vessel "Fiji Gas" had a tonnage of 1,400.07 tons. Article 1 of the International Convention relating to the Limitation of Liability of Owners of Seagoing Ships (Schedule 6 to the Act) provides:- " ( 1 ) The owner of a sea-going ship may limit his liability in accordance with Article 3 of this Convention in respect of claims arising from any of the following occurrences, unless the occurrencegiving rise to the claim resulted from the actual fault or privity of the owner: (a) loss of life of, or personal injury to, any person being carried in the ship, and loss of, or damage to, any property on board the ship; (b) loss of life, or personal injury to, any other person, whether on land or on water, loss of or damage to any other property or infringement of any rights caused by the act, neglect, ordefault of any person on board the ship for whose act, neglect or default the owner is responsible or any person not on board the ship for whose act, neglect or default the owner is responsible: Provided however that in regard to the act, neglect or default of this last class of person, the owner shall only be entitled to limit his liability when the act, neglect or default is one which occurs in the navigation or the management of the ship or in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers." The Convention has the force of law in Australia ( s. 333 of the Act). The onus to prove that the first plaintiffs' loss -- 32 of 60 -- 26 and damage falls within the terms of the article and was caused by a circumstance provided for in the article without the actual fault or privity of the owner is on the owner (Barameda Enterprises Pty. Ltd. v. O'Connor [1988] 1 Qd.R. 359 F.C.). In this case the defendant owner must prove:- (a) that the act, neglect or default of the Master for whose conduct the defendant owner has admitted liability, occurred in the navigation or the management of the ship and (b) that no act, neglect or default on the part of the defendant owner was causally connected with the occurrence giving rise to the claim. As part of its proof the defendant owner must prove what facts and circumstances actually occurred and how those facts gave rise to the collision. Additionally, it must prove the negative proposition that no act, neglect or default on its part contributed to the facts or circumstances giving rise to the collision or the collision itself. The inquiry as to actual fault or privity necessarily ranges wider than the cause of the collision as found or admitted (Gaqgin v. Moss [1984] 2 Qd.R. 513 at 519-521 F.C.). The "Fiji Gas" was registered in Fiji. time of the collision in survey and She was at the maintained in classification with the American Bureau of Shipping. She was crewed by the requisite number of certificated officers and crew as required by her flag state. The officers held the necessary and appropriate certificates. So much is not in dispute and it was not submitted by the first plaintiffs that -- 33 of 60 -- 27 the vessel was in any way deficient in terms of the statutory requirements as to the manning of the vessel or as to the equipping or physical condition of the vessel. Positive evidence as to compliance with all necessary statutory requirements was given by Mr. Fletcher the marine superintendent of the defendant owner. I accept his evidence on this point and I find that the defendant owner had complied with all applicable statutory requirements as to the manning, fit-out and equipping of the "Fiji Gas". The vessel at the time of the collision was manned with a Master (Captain Pope), engineers and eight three mates, other crewmen. a chief engineer, three At the time of the collision I find that the first officer was on the forecastle ·and the second officer was at the stern. Each of these officers was accompanied by able bodied seamen ready to undertake normal berthing. On the bridge were the helmsman, the third officer at the engine controls and the Master. The pilot was at the relevant times variously on the bridge and the port bridge wing. Save for the Master, Captain Pope and the pilot, Captain Pelicanos, no other officer or crewman was called to give evidence as to either the collision and the circumstances giving rise to it, or to the voyage up to the point of collision or as to the management and navigation of the vessel under Captain Pope or the general management of the vessel by the defendant owner. The absence of the officers and crew and in particular the third officer and helmsman was not explained the defendant owner in evidence. -- 34 of 60 -- 28 The deck log of the "Fiji Gas" was tendered into evidence (ex. 20). · The log establishes and I find the following facts:- (a) After discharging cargo (L.P.G.) at Kieta, Papua New Guinea, the "Fiji Gas" weighed anchor at 1948 hours and cleared port at 2006 hours on Thursday, 17 September, 1987. (b) The vessel steamed continuously to Rabaul, Papua New Guinea where it arrived and was secured to the wharf at 1730 hours and connected hoses for cargo discharge at 1742 hours. (c) The vessel completed cargo discharge at Rabaul, Papua New Guinea at 2100 hours on Friday, 18 September, 1987. (d) The vessel cleared Rabaul, Papua New Guinea at 0630 hours on Saturday, 19 September, 1987 and steamed continuously to Port Moresby, Papua New Guinea where it moored at 1630 hours on Monday 1 21 September, 1987 and connected hoses for cargo discharge at 1738 hours. (e) The vessel completed discharge at Port Moresby and at 0500 hours retrieved the hose. At 0630 hours on Tuesday, 22 September 1 1987 the vessel cleared the port of Port Moresby. (f) The vessel steamed continuously from Port Moresby, Papua New Guinea on route to Thursday Island and at 1136 hours on Wednesday, 23 September, 1987, the pilot Captain Pelicanos boarded the vessel to bring it into port at Thursday Island. -- 35 of 60 -- 29 I find that at the time the pilot boarded the vessel it was within the limits of the port and had proceeded.past the pilot boarding ground. Captain Pope gave no relevant evidence as to the voyage to Thursday Island other than to depose to the vessel leaving at 0630 hours on Tuesday, 22 September, 1987 and being delayed by approximately two hours by wind and sea conditions on route to Thursday Island. The defendant relied upon the evidence of Captain Pope and Captain Pelicanos to establish the circumstances of the collision. Captain Pope gave the following evidence:- "BY MR. THOMPSON: Captain Pope, the point at which you picked your pilot, was that a pre-arranged pointthat had been discussed with the pilot by radio or some other means of communication?-- No, at a pre-arranged point. Because we were running a little behind the times given previously, due to the fact that the island's in the way, you turn to port around the island to make your approach and you can't see the pilot boat. The speed was maintained to the last possible moment to try and arrive as soon as possible and of course once you turn the corner you see the pilot boat and prior to that the engines had been given half an hour's notice to - 10.58 - to slow down and cool down and by the time we turned the corner and saw the pilot boat coming towards us and the pilot was picked up on the way into Thursday Island. And the pilot came on board?-- board, yes. The pilot came on What did he do in relation to the matter of navigation and setting the course and speed of your vessel?-- He did it all. Did he direct at what speedproceed into Thursday Island?-- your vessel would That is correct. There were no untoward events involved in picking up the pilot at all; nothing that you can recall?-- The pilot had the boat because you - normally you give the engines half an hour to slow down. The -- 36 of 60 -- 30 fact that we were running a little late the pilot boat had to follow the ship in for a short distanceuntil the engine could be put on stand by and the speed reduced enough for him to come on board. And thereafter do you recall from the point he took over th bridge, at what speed he---?-- Yes, he assisted, but he made all the orders and helm orders and the engine movements. After he came on board did he take any steps to change the speed or reduce the speed immediately he came on board or anything like that?-- It was just normal pilot' s procedure to get along beside so I could berth. He boarded 11.36 and the engines were put on at full ahead to 11.57. So he put the engines on full ahead at that stage. That would have the effect of increasing the speedof the vessel, I take it?-- It is quite a fast pilot you have got there and you don't stop for the person to get on board and it is not a terribly fast vessel the Fiji Gas, so we were probably doing approximately seven knots when he got on board and he came to the bride and as there was - because the engines were full ahead for nearly 20 minutes. How long, are you able to say from looking at yourlogs there or your engine movement book, elapsed from the time that the pilot was on board to the time when the immediate manoeuvres relating to the collision occurred?-- Well, the pilot got on board and made the first engine movement at 11 . 36 and we approached the berth at 11.58. We ordered slow and dead slow and at 12.01 the order was half ahead which would have been would indicate to my recollection that the vessel approached the wharf, wasn't going to be brought in, and we would have a second go at it. Now, during that period when you described the vessel being put on full ahead by the pilot, was that uneventful in terms of the voyage, nothing peculiar happened in that period?-~ Certainly there is no - 11 . 36 or 11.57 - there is no notation in here. It was just a straightforward pilotage into Thursday Island against a strong tide. Then as you approached the berth when you got to closer to Thursday Island was some observation made about another vessel?-- Yes. What was that?-- Well, there was another vessel alongside the berth taking on fuel or stores or something and the pilot requested them to leave straight away because we had a prior booking because -- 37 of 60 -- 31 the berth would have been booked by the agent for our arrival at the pilot station at 10 o'clock. WITNESS: He was making all the engine movement orders. We continued our approach expecting the vessel to leave the berth and it got to such a situation that we realised if it wasn't going to leave in time - or we would leave ourself no room to manoeuvre off the berth prior to this vessel leaving, so it was decided to go around again, wait until the vessel left the berth and make a second attempt. BY MR. THOMPSON: Now, about how far from the berth were you when it was first observed that there was another vessel there?-- Oh, as soon as the wharf came into sight which would have been - when you are near the hospital - prior to being close to the hospital. As soon as you can see the wharf when you come around the corner. Can you give us a general estimate of the distance? Would it assist to look at the chart again?-- Oh, yeah, my word. (Handed to witness . ) As soon as I came around the point, approximately a mile from the wharf. When in relation to when you first saw the vessel did the pilot make his radio call?-- Well, as soon as he saw the vessel on the wharf, realised he was stored there, he anticipated the wharf to be free - to be clear. So at about the same time it first came into sight?- Yeah. Well then, can you describe what happened from there on in when you became apparent, I think you said, it didn't look like they were gong to move? You were going to make another run in?-- Due to the strong tide which we were making our approach against and the fact that the ship was reducing speed to make the approach waiting for this vessel alongside the wharf to leave, Fiji Gas became affected by the tide and for a period I was, in fact, drifting towards moored fishing vessels or pearl luggers which were moored south west of the berth and close to normal approach to the wharf and it then became apparent with the decision made that this vessel was not going to leave in time for us to make an approach. The pilot ordered to go hard to port which would have put the vessel which would have put the vessel towards the shore, shallower water and close to other vessels anchored further down from the -- 38 of 60 -- 32 Antonia which, to my consideration, would have put the vessel into more danger and could have increased damage to other vessels, so I countermanded his orders and said we would go to starboard into clearer, deeper water, do a round turn and then make a second approach when the vessel had left the wharf. What occurred in fact?-- The pilot ordered harderport. He - I said, 'No. ' , countermanded that. I said, 'Midship' , and the engine was put on half ahead to give us more way through the water and then I said, 'Put the wheel hard at the starboard andendeavour to clear the Antonia.' Unfortunately the rudder caught the anchor chain of the Antonia drawing the Antonia into the stern of the ship whereupon the engines were stopped. When the Fiji Gas drifted clear, or I considered that she was clear, the engines were put ahead again and the vessel was put to starboard and went into the stream, did a round turn and then made a second approach to the wharf. And successfully berthed on that occasion?-- Yeah. It berthed at 24. During the period of time you have described where you countermanded the pilot's order, who was present on the bridge?-- Helmsman, third officer who was at the engine controls." Captain Pelicanos gave a version of the events which was, in my view, significantly different to the version given by Captain Pope in a number of relevant particulars. Captain Pelicanos in evidence said:- "While were you on board the vessel did you come in view of the Cal tex wharf as you proceeded towards that?-- Yes, I did. What did you observe?-- I observed a fishing boatlying along side the Caltex wharf. What steps did you take in relation to that?-- I called the Caltex agent up on the radio to tell him that there was a fishing vessel alongside the Caltex wharf and asked him to move it immediately. At that stage were you still proceeding towards the berth?-- I was. At the speed that you were content with or happy with?-- Normal speed. -- 39 of 60 -- 33 Was there a tide running at the time?-- I can't recall, but I would say there was a very good chance that there was because on Thursday Island there is tides that run, I would say, 98 percent of the time, 99 percent of the time. That was running in which direction?-- I can't recall, but the tide predominantly ran from east to west. Do you recall the wind conditions at the time?-- South easterly. Fairly strong. From what I can recall I'd say in the vicinity of 20 knots. Would the estimate of 4 to 5 on the beaufort scale be about right?-- Yes. After you had made the radio call. to clear the wharf immediately what happened in terms of what was going on on the wharf?-- My recollection of what happened was this: that I called Allan Smith and said, 'There's a fishing vessel at the Caltex jetty. Movehim immediately.' I saw some bodies scuffling around the wharf and he called back on the radio - I was having a conversation with him on the radio. I can't recall whether he was actually at the wharf or whether he was up at his office, but he eventually called at the wharf. I know that ultimately he was on the wharf and he said something along of lines of, yes, they have just about finished or they are finished or they are going to finish and I said, 'How long will you be?' He said something along oflines of, 'We are letting go the hoses. ' 'We are letting go the lines. ' 'We are disconnecting the hoses now.' So I continued my approach. Did you maintain your speed?-- I maintained normal speed. I was making quite a normal approach and had that fishing vessel not been tied up alongside the wharf it would have been a perfect berthing. I wasmaking a perfect approach perfect speed for a perfect berthing and I continued that approach because I was led to believe by my conversation with Allan Smith that the vessel was imminently about to leave the wharf. I proceeded towards the wharf. I got to a point where I had to make a decision and that was either to proceed with the berthing in the hope that the fishing vessel would clear the berth in time so as I wouldn't hit him, or to abort the berthing and give the fishing vessel more time and come back and try again. I opted - it was a split second decision. I opted to abort the berth. Did you have a conversation with the Master at the time you made that decision about whether the ship would make a particular turn?-- I had a -- 40 of 60 -- 34 conversation with the Master about whether the vessel would make the turn - during the turn, not at the point of making the decision to abort. When I made the decision to abort I can't recall having a conversation to the Master, but I would have thought it would have been obvious to a qualified Masterstanding on the bridge what I was doing and the reasons I had done it. In piloting a lot of times a pilot doesn't have the time to have conversations with the Master about what he is going to do. You commenced to make a turn in which direction?-- ! turned to starboard. Did you have a conversation with the Master about that shortly after that?-- Yes. What was said?-- I put the wheel, as I recall, hardover to starboard to take a full turn out of the ship and come back roughly in the position where Iwas when I made the decision to abort the berthingto try a second berthing. I guessed that that would take something in the vicinity of 1 0 minutes and that would have given the fishing vessel time to leave the berth. During the turn - some ships have got tight turning circles, some ships haven't and Iwas hoping to make the turn initially with one order - that is putting the wheel over to starboard and the engines ahead. I was going into the turn. I realised that the turning circle wasn't very tight and it was going to be large than what I would have hoped and if we carried on I thought that we wouldn't have ended back in the same position where I first aborted the berthing, but I would have ended up in a position. further to the west and/or furtherto the south so during the turn I said to the Master, 'I don' t think she is going to make it. ' We---- At that stage of the conversation there wasn't any question of any imminent danger to other vessels?-- At that stage, no. You were concerned about bringing the boat back to the position where you had aborted?-- Sorry, when I said - I misunderstood you. When I said to the Master that she is not going to make it, it was - at the time of saying that to the Maser there was no danger at that time to any other vessels, but the reason I said it was that there was a danger that if we carried on - that we would end up close to thevessels that were moored. When I said beforehand to the south and the west I meant to the north and the west. There would be vessels - that we would getcloser to vessels moored to the north. -- 41 of 60 -- 35 Did the Master respond to the comment that you made about whether you would make it?-- Yes, he did. What did he say?-- He said something along of lines of, 'I know my vessel. She'll make it.' You proceeded with the turn?-- Yes, because he is the Master of the ship and ultimately he has got the authority. Did you then move to a different position on the bridge?-- Yes. Were did you go?-- I went to the starboard - to the starboard bridge - to the port bridge wing. Where was the Master at this stage?-- In the wheel house. What were you doing on the port wing?-- When I said to the Master - I will just go back a bit to explain my movements. When I said to the Master that I didn't think she was going to make it, I suggested that we should stop engines, come astern and then come ahead again, which is quite a normal manoeuvre if the vessel is not going to make the turn. He said something along of lines of he knows his ship and he knows his ship would take the turn. I wasn't so convinced and I went out on the port wing to watch the turn to see how - the vessel was being set to the north. As the vessel was going into the turn it was because of the wind it was being set to the north and I formed the opinion that it would get very close to some of the vessels which were anchored to the north, and went to the port bridge wing to monitor how close we were going to get and to be there to give any further orders if need be. What was the distance between the position that you took up and the position of the Master by way of an estimate?-- Well, I guess those ships are somewhere in the vicinity of 14 metres in breadth and on that basis I would say he could have been 7 metres away from me, roughly. While were you on the port wing did you come to a particular view and give certain orders?-- Yes, I did. What was that?-- I - judging the turn of the vessel I was drawn to the conclusion that the vessel was going to be set down on to the 1 Antonia 1 and it was going to hit the 1 Antonia 1 in the vicinity of the stern. In other words, at the bow. The bow and the main body of the vessel was going to miss the 1 Antonia 1 , but as the vessel was going into the turn -- 42 of 60 -- 36 the stern would hit the 'Antonia'. I remained there and continued on with the starboard wheel and remained there to give a hard to port order to kick the stern away as it came towards the 'Antonia'. That was my intention, but I didn't communicate that to the Master again. In piloting you don't have a lot of time to communicate your intentions to the Master. Were these decisions made in a very short period of time?-- Yes. Did they involve the exercise of your professionalexpertise in assessing such matters as the tide, the wind and the turn of the vessel?- Yes. And the position that you could see of the vessels nearby?-- Yes. Continue on?-- The vessel was going into the turn. She was being set out north. I judged that the stern would be set down on to the 'Antonia' and I waited there for the right moment. I couldn't give a port order beforehand because a lot of time wouldhave elapsed and there was a danger of the ship going aground to the north or lifting the wharf, so I had to continue the turn to as far as possible to a moment where I thought it was just safe to give a hard to starboard order to kick the stern away from the 'Antonia' and then give an immediate hard to starboard order to continue on with the turn to avoid hitting the wharf and running aground. So I gave the order - hard to port order at the moment where I thought it was right to give the order hard to port and the wheelman responded by starting to take the - by starting to that the starboard wheel off to come midship and it started to go over to wharf and the Captain countermanded that and he saiddon't put the wheel - something along the lines ofdon't put the wheel hard to port and he would have either said - by that time the wheel would have gone midship. He said keep the wheel there, midship or keep the wheel hard to starboard, but hecountermanded the hard to port order and the wheel didn't go hard to port." The version given by Captain Pope has the collision occurring on the first approach of the "Fiji Gas" to the berth at the time when the fishing vessel, "Torres Pearl", was still berthed at the Caltex Wharf. On his version the "Fiji Gas" was being affected both by the tide and reduced speed as it -- 43 of 60 -- 37 made its initial approach to the wharf and in consequence was drifting down onto moored fishing vessels. On Captain Pope' s version, the pilot, because it became apparent that the vessel "Torres Pearl" would not leave the Caltex Wharf in time to allow the "Fiji Gas" to berth, ordered hard to port which on Captain Pope's evidence would have put the vessel towards the shore and at risk of grounding. I do not accept Captain Pope's version of the events leading up to the collision. I accept the evidence of Captain Pelicanos the pilot. His evidence as to the "Fiji Gas" aborting its approach and commencing a full circle to starboard is confirmed by Mr. A. Smith, an engineer who was at the relevant time employed by Torres Industries. Mr. Smith was on Cal tex Wharf at the relevant time. He gave the following evidence in cross- examination:- "When you got to 'Fiji Gas'?-- He wharf. He would halfway between the the wharf, whereabouts was the was making his approach to the have been a little less than main wharf and the Caltex wharf. Can you put an estimate on the distance?-- Oh, probably 300 yards at the most. After that, he came past your wharf, is that right?- That's right. And in the meantime, the 'Torres Pearl' was off?-- Yes." The version of events given by Captain Pelicanos is in part confirmed by a shipping casualty report given by Captain Pope on 25 September, 1987 (ex. 27). The report is, in my view, inconsistent with Captain Pope's later oral evidence. There was a considerable amount of cross-examination of Captain Pope and others directed at the failure of the "Fiji -- 44 of 60 -- 38 Gas" to wait for the pilot at the pilot boarding ground. If it had done so it would have added 50 minutes to the arrival time of the "Fiji Gas" at the Caltex Wharf. I find that it would have been more probable than not that the fishing vessel, "Torres Pearl", would by that time have vacated the wharf. It was submitted by counsel for the first plaintiffs that if the "Fiji Gas" had been delayed 50 minutes it would have gone straight into the berth and not come into collision with the "Antonia". That the "Fiji Gas" did not wait at the pilot boarding ground was a reasonably common occurrence on the evidence of Captain Pope and a fact known to Mr. Fletcher the defendant owner's marine superintendent, although the latter swore that his understanding was that the vessel on those occasions when it did not wait at the pilot boarding ground had the permission of the pilot to enter port limits and meet the pilot at a point short of the boarding ground. The submission when analysed really is:- "but for the "Fiji Gas" not being delayed a further 50 minutes the collision would not have occurred", or, "because of the presence of the 'Fiji Gas' in the vicinity of the Caltex Wharf at the same time as the 'Torres Pearl' the 'Fiji Gas' collided with the 'Antonia'". In my view, the factor (that the "Fiji Gas" did not wait at the pilot boarding ground) which secures the mere temporal presence of the "Fiji Gas" at the location it was at at the time the collision occurred is not a factor which is causally connected with the collision. In March v. E. & M.H. Stramere -- 45 of 60 -- 39 Pty. Ltd. (1990-1991) 171 C.L.R. 507 at 516 Mason C.J. with whom Toohey and Gaudron JJ. agreed said:- "The commentators acknowledge that the 1 but for 1 test must be applied subject to certain qualifications. Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater: see Hart and Honore, at p. 122. As Windeyer J. observedin Faulkner v. Keffalinos [1970] A.C. 467:- 'But for the first accident, the [plaintiff] might still have been employed by the [defendants], and therefore not where he was when the second accident happened; but lawyers must eschew this kind of "but for" or sine qua non reasoning about cause and consequence. 111 His Honour the Chief Justice had earlier expressed the rule that causation is a question of fact which must be determined by applying commonsense to the facts of each particular case (at p. 515, see also Deane J. at 522-523). The presence of the vessel "Torres Pearl" at the Cal tex Wharf was not in a commonsense way a cause of the collision. Nor was the fact that the "Fiji Gas" did not stand off until the "Torres Pearl" had cleared the wharf as submitted by counsel for the defendant owner. On the evidence of Captain Pelicanos, which I accept, when the decision was made to abort the approach and execute a full circle to starboard and that manoeuvre was executed to the point of passing the wharf and the "Torres Pearl", the presence of the latter became irrelevant to what occurred thereafter. This follows because firstly, the "Fiji Gas" had cleared the "Torres Pearl", and secondly, the "Torres Peal" had cast off and cleared the wharf before the "Fiji Gas" would have made a second approach to -- 46 of 60 -- 40 berth at the wharf. The presence of the "Torres Pearl" in no way impeded or restricted the ability of the "Fiji Gas" to move safely to clear water and to make a further approach to the wharf. I find that the acts on the part of Captain Pope which led to the collision were:- (a) his refusal to accept the advice of Captain Pelicanos to "stop the engines, come astern and then come ahead again" when I find that it would have been apparent to a reasonably competent Master that the action of wind and tide was carrying the "Fiji Gas" into a position of danger. (b) his assessment that the "Fiji Gas" could safely complete a circle to starboard to attempt a second approach to the wharf without endangering the safety of fishing vessels, including the "Antonia", moored inside the line of the wharf, after the "Fiji Gas" had commenced to swing to starboard and come under the adverse effect of wind and tide, and, his persisting in his opinion that the vessel would and could safely execute the turn, when it ought to have been reasonably apparent to him that the vessel could not do so in safety. (c) his countermanding of the order of the pilot to turn the vessel hard to port such order being the first step in a manoeuvre to swing the stern of the vessel to starboard and clear of the "Antonia" and which order would in the normal course have been followed immediately by a further -- 47 of 60 -- 41 order altering the course again to starboard to bring the vessel back on track into the wharf. I find that if the Master had not countermanded the pilot's order it is more probable than not that the "Fiji Gas" would have cleared the "Antonia". I am led to this view by the fact that, on Captain Pelicanos' evidence, in consequence of the starboard wheel being taken off and the steering brought amidships preparatory to the wheel being put hard to port, the vessel straightened sufficiently for the stern of the "Fiji Gas" to clear the hull of the "Antonia", which immediately prior to that movement, was in imminent danger of collision with the hull of the "Fiji Gas". Further, I find that the manoeuvre intended to be executed by the pilot involved no significant risk of grounding of the "Fiji Gas" or of its colliding with other vessels moored inside the line of the wharf. It was submitted by counsel for the defendant owner that each of the actions of Captain Pope set out above was a question of judgment as to a matter of navigation and seamanship made on board by the Master unconnected with any act, neglect or default of the defendant owner. Put briefly, the defendant owner submitted that the Master made a simple miscalculation as to the effect of wind and tide on the turning circle of the vessel and misunderstood the intention of the pilot in ordering the vessel hard to port. The first plaintiffs submit that to the extent that the Master's judgment was faulty there was evidence that his judgment was impaired by either the consumption of alcohol or -- 48 of 60 -- 42 sleep deprivation. The evidence relied upon as founding a finding that the Captain was affected by alcohol is contained in the evidence of the pilot and in the evidence of Mrs. Jean Bryant, who at the relevant time worked for the ship's agent, South Sea Enterprises at Thursday Island. Captain Pelicanos who was called by the defendant owner said:- "Do you recall that in your opinion Captain Pope appeared to be affect by alcohol?-- That was the first conclusion I was drawn to. And he, on board, made smart comments and remarks?-- Yes, he did. Such as?-- I can't recall exactly what they were, but I just thought that having come to the bridge and seen a person that I was familiar with and I'd also been friendly with, I just thought it was outof character to come out with these remarks. They were sarcastic remarks. I can't recall exactly what they were, but I just recall them being sarcastic and that threw me a bit because I didn't expect that from a person I knew. And his attitude was difficult?-- Yes. And the atmosphere was difficult?-- Yes. BY HIS HONOUR: Was this before or after the collision?-- Before. BY MR. WALL: And he appeared - you've seen people who are under the influence before?-- Yes, I have,yeah. And he appeared to be under the influence?-- That was the - the opinion I had was that either he hadbeen drinking or he was suffering from a hangover. Drink related, I suppose. You said that he, in your op~n~on, was irrational in countermanding your order?-- Yes. You said that if there was a misunderstanding between the two of you, he could have thought that you would run the ship aground. To say that means this, does it not Captain Pelicanos, that when you gave your hard to port order, there are only two interpretations as to that: (1) your manoeuvre, or (2) turning to head the vessel straight into shore?- Yes. -- 49 of 60 -- 43 And one would have to be pretty, would have to have some type of major misunderstanding if he thought you would order the ship to be driven into the shore?-- I would think so, yeah. BY HIS HONOUR: Is that necessarily right? I mean, if you order hard to port and there is sufficient water to the port side, you simply do a large arc, don't you, to the port side?-- Yes, you do, but the position we are at, there was not sufficient water on the port side. So, there was no question of you doing an arc to port and coming back on yourself?-- Absolutely not. Absolutely not. From the position we were, you could see if we continued to port we would have gone aground or hit the wharf. How far were you standing off the wharf at this stage?-- Again, my recollection is that we must have been somewhere in the vicinity of 80 to 1 00 metres to the west and to the south west/southwest. And what depth of water did you have underneath you? I mean, how far could you go on port before you would run aground?-- Well, laterally from where the shallow water was - the 'Antonia', to give you a clearer picture, where the 'Antonia' was· berthed and all those small cray boats were berthed were in the shallow water to the north of the face of the wharf and all that is shallow wharf. So, we hit the 'Antonia' and she would have been - by getting her anchor cable and the propellers and dragging it towards us, we were in the deep water, but we were so close to the shallow water that we actually connected with the anchor chain of the 'Antonia' . So, I'd say in the vicinity of 10 to 15 metres." Mrs. Bryant who was called by the first plaintiffs said:- "Did the Master of the 'Fiji Gas', come to your office some time after?-- Captain Pope, He did. MR. THOMPSON: I would ask my learned friend not to lead. BY MR. WALL: What did he do at the office?-- He came in through the office door asking to use the telephone. He then phoned Boral. Were you in the office during the phone call?-- I was just in the office for a couple of minutes during the phone call. -- 50 of 60 -- 44 How long does a phone call last?-- It would havelasted three to five minutes, I'd say. Did you have an opportunity to observe the conditionof Captain Pope?-- When he came through the door he was quite agitated and wanting to use the telephoneseeing we wouldn't do any calls for him. He cameand used the telephone at my desk. He appeared to be uneasy on his feet and his speech appeared to be slurred. Had you observed him on previous occasions?-- Yes, I had observed him on two or three occasions prior to that. Was there any difference between your observations on this day and the previous occasions?-- Well,normally he was quite a friendly chap as he came in. What was his speech like that you heard over the phone?-- His speech seemed to be slurred, but I didn't stay in the office for the length of the phone call. How was his speech on the other occasions?-- Quite clear. Quite clear. Did you form any conclusions at the time as to his condition?-- Well, I thought that he may have beenunder the influence of alcohol. As a result of those observations?-- Yes, yes. Did you smell on any alcohol on his breath?-- No, I didn't smell any alcohol." In cross-examination Captain Pope made the following concessions as to his drinking after the death of his wife:- "Captain Pope, just on a personal note, your wife died towards the end of 1986?-- Yes. And you have two daughters?-- Three. How old were they when your wife died?-- My eldest daughter was 16, my son was 1 4 and my two younger kids were 8 and 6, I think. So you had thrust upon you the looking after those as well as Yes. responsibility of doing the job?-- Was that a difficult responsibility for you to assume?-- Wasn't easy. -- 51 of 60 -- 45 Did your performance at work suffer?-- think so at all, not at the time, no. I don't Did you feel in yourself you started drinking more?- Maybe in port I could have increased my consumption a bit, yes. Because the complaints that Mr. Fletcher is talking about seem to relate to the period consequent following on - from your wife's death?-- It could have been, yes. Does that appear to ring a bell with you?-- I would think so, yes. Because it was taking some considerable time to get over your wife's death, of course, and organise the children while you were away?-- Yes. You in fact received a letter from Mr. Lesley expressing his condolences following the death of your wife?-- Yes. Were you given any leave following that?-- Yes. How much?-- About three months, I would think, yes. But was that a normal swing leave?-- It was a swing leave plus extra, yes. How much extra?-- I don't know. The swing - I had only been on board the ship ten days, may be two weeks before I was flown home, so it would probably have been about half a swing extra, maybe a swing extra. So at least six weeks extra?-- I would think, yes. The problems continued though after your leave?-- Well, yes. I just want to ask you now a couple of questions about the evidence you gave in Cairns. You were asked or you said that you left for personal fairly reasons. What were they specifically, Mr. Pope?-- ! had to leave my kids in the hands of a housekeeper and it appeared to me when I went back on leave the family unit was sort of degenerating. Disintegrating?-- and I decided that I would try and give up the sea and get a shore job in Sydney closer to the family. In this period following the death of your wife were you drinking at sea too?-- Not too much, no. I mean, a normal beer at lunchtime and may be one -- 52 of 60 -- 46 before dinner, that's about it engineer. with the chief What about excessively?-- No, I don't think so. You may have?-- No, I wasn't, no. I mean had you been drinking before youThursday Island harbour on this occasion?-- entered No. Would you have described your condition as - whenyou entered Thursday Island harbour on this occasion - as being under the influence of alcohol?-- No. Speech slurred, unsteady on your feet?-- No. Argumentative?-- No. Did the company have any instructions about drinking on the job?-- It was stated in the standing orders that drunkenness was an instant dismissal. It was all right to have an occasional beer, but you weren't to get drunk?-- That's correct, yes." As appears from his evidence Captain Pope denied drinking on the voyage to Thursday Island or that he was affected by alcohol at the relevant time. The question of Captain Pope's sobriety was not raised in evidence in chief by Captain Pelicanos. He was questioned by counsel for the defendant owner in re-examination:- "You referred to an opinion you had formed about the Master. Did you detect the smell of alcohol on his breath?-- No, I didn't. Did he appear to stagger?-- No, he didn't. Could his appearance to you have been consistent perhaps with something else other than that?-- That was as I said, the immediate conclusion I was drawn to when I saw him was that he had been under the influence of alcohol. After a recent conversation where it was suggested to me that he may have been suffering from sleep depravation as a result of being awake all night pathing his ship through the Torres Straits in retrospect, and as far as my recollection of the incident goes, it may havebeen behaviour consistent with someone suffering from sleep depravation, but on that day that wasn't the immediate conclusion that was I was drawn to." -- 53 of 60 -- 47 There was no elucidation as to who suggested to the witness that the Master's behaviour was consistent with sleep deprivation or that the Master had been awake all night "pathing his ship through the Torres Straight (sic)". However, Captain John Rahilly, a retired Master Mariner and marine superintendent called by the defendant owner also raised the possibility that Captain Pope did not sleep on the voyage from Port Moresby to Thursday Island. He said:- "Just take this, for example: after this collision, Mr. Fletcher is told by Captain Pelicanos that when he boarded the vessel, Captain Pope appeared to be affected by alcohol. Now, Captain Pope, when spoken to, denied that. Would you have just left it there?-- I'm certainly very much aware of the trip from Moresby down to - I would put myself in Captain Pope's position on that trip. He left, as far as I can remember, 9 o'clock at night. Don't put yourself in his position?-- No, this is what I' m thinking, sir, and I don't think I wouldhave slept that night coming down and I have to think that Pope didn't sleep either that night." There is one further piece of evidence. Captain Pelicanos had a telephone conversation on 1 October, 1987 with Mr. Fletcher who recorded a memorandum of the conversation (ex. 28). Admission of the memorandum as evidence of the truth of the contents of the pilot's allegations was objected to and the memorandum went into evidence as evidence of the occurrence of the conversation and the fact that the statements were made but not as to the truth of the statements themselves. The pilot complained that the "Fiji Gas" was travelling at full speed when met and had not waited at the pilot boarding area. This allegation is established by other evidence. The pilot also stated that the vessel had to be -- 54 of 60 -- 48 requested to slow down so the pilot could catch up and board. This allegation is established by other evidence. The memo says inter alia:- "On board smart comments/ remarks from Master,attitude/atmosphere difficult (appeared affected by alcohol). After berthing gave Master forms to fill out for Marine Board - returned to ship at 14.30 - asleep " The log of the "Fiji Gas" (ex. 20) shows that 29.5 hours elapsed between the vessel clearing Port Moresby and the collision. At 1300 hours hoses were connected and discharge of LPG commenced at 1330 hours. No attempt was made by the defendant owner to call evidence from Captain Pope as to what he did between 0630 on Tuesday, 22 September, 1987 and 1206 on Wednesday, 23 September, 1987. Nor was any attempt made to investigate whether the allegation that the Master was asleep at 1430 hours on 23 September, 1987 was true and if he was asleep why this was so. Captain Pope was well known to Captain Pelicanos and Mrs. Bryant and his conduct on 23 September, 1987 was completely out of character. The failure of the defendant owner to call any of the officers or crew of the vessel where there were serious allegations as to the sobriety and behaviour of the Master at the relevant time assumes some importance. Those witnesses as employees were within the power of the defendant owner to call. Some at least, and in particular the third officer, must have had relevant evidence as to the Master's sobriety ashore and afloat on the voyage -- 55 of 60 -- 49 leading up to the collision, as to his sleep and behaviour in those periods and as to his conduct from the time the pilot boarded up to and including the time of the collision. The onus on the defendant is to call all evidence relevant to the circumstances giving rise to the collision and not simply evidence of those circumstances giving rise to the primary cause of the casualty as found or admitted (Gaggin v. Moss [1984] 2 Qd.R. 513 at 420 F.C.). The allegations as to the Master being affected by alcohol and being asleep within 2. 5 hours of the collision are serious. The allegations of abnormal behaviour on the part of the Master and that the Master may not have slept for an appreciable period or at all in the 29.5 hours preceding the collision are also serious. This is particularly so when the allegations are placed in the context of the evidence of the duration of the voyage which comes from the log, the evidence of the speed of the vessel into port and evidence of two independent witnesses of the unexplained and uncharacteristic conduct and attitude of the Master all of which evidence I accept. The evidence as it stands does not allow me to make any finding one way or the other as to whether the Master was affected by alcohol. Although Captain Pope denied "drinking before Thursday Island harbour" and denied being "under the influence of alcohol" when he entered Thursday Island harbour, there is no evidence from Captain Pope as to what alcohol, if any, he consumed when the vessel overnighted at Port Moresby on the Monday night, 21 September, 1987, or on the day or evening of 22 September, 1987 when the vessel was at sea. -- 56 of 60 -- 50 I am satisfied that in the period during which the pilot was on board, at the time of the collision and in the ·period thereafter, Captain Pope was acting in an inappropriate manner and in such a way as to raise as a reasonable hypothesis or supposition that his conduct and judgment in the management and navigation of his ship was, and had been, adversely affected. I am further satisfied that there is evidence to raise as a reasonable hypothesis or supposition that his conduct and his judgment were adversely affected by substantial deprivation of sleep in the period that the vessel sailed from Port Moresby to Thursday Island. I come to this view primarily on the evidence of Captain Pelicanos and Mrs. Bryant and the contents of the log. It is also the view arrived at by Captain Rahilly. I am more ready to draw such a conclusion from the failure of the defendant owner to call any of the other officers or crew or to raise the subject in the evidence of Captain Pope. I am not on the evidence, prepared to find as an hypothesis or supposition that Captain Pope was affected by alcohol. Sleep deprivation in the context of the known facts, seems to me a more reasonable and rational hypothesis. The case as put by the defendant owner made no attempt to exclude sleep deprivation on the part of the Master as a contributing cause of the casualty. Indeed, in an attempt to exclude alcohol as a contributing cause, the defendant owner itself raised (perhaps inadvertently) the issue of sleep deprivation as an explanation of the Master's conduct other than alcohol, yet left the evidence as to its being such a cause, and the allegation that the Master was -- 57 of 60 -- 51 asleep at 1430 hours on 23 August, 1987, unanswered. The defendant owner, having failed to exclude the hypothesis or supposition of sleep deprivation of the Master as a contributing cause of the casualty, or, if such an hypothesis or supposition was indeed a causative fact, to exclude any conduct on the defendant owner's part as being causally related to that fact and the casualty, the defendant owner has failed to discharge the onus which it bears in order to establish its right to limit liability (Barameda Enterprises Pty. Ltd. v. O'connor [1988] 1 Qd.R. 359 at 363-364, and the cases cited there, per Kelly S. P. J. with whom Macrossan J. agreed on this issue at 378). It is not a sufficient answer on the part of the defendant owner to point to the existence of an adequate system in numerous respects (which evidence was challenged by the first plaintiffs as a fact in any event) if the circumstances giving rise to the casualty, involving as they usually do some error of judgment in the navigation or management of the ship, cannot be established with sufficient certainty to demonstrate that a contributing cause was not a failure in some respect of the system of supervision put in place and administered by the ship owner. In this case the defendant owner has not, and cannot, on the evidence establish that the sole cause of the collision was a simple error of judgment in seamanship and navigation on the part of the Master and nothing more. The reasonable hypothesis or supposition that the Master's conduct and judgment was adversely affected by sleep deprivation stands in the way of such a finding. -- 58 of 60 -- 52 Having come to the view that I have I do not intend to deal· with the numerous alleged deficiencies in the defendant owner's system. Suffice to say that many of the alleged deficiencies were simply not made out (acknowledging that the first plaintiffs bore no onus in this regard) and such matters as proceeding beyond the pilot boarding ground and a failure to maintain a clear and certain line of communication as to berth bookings and estimated times of arrival, while raising questions as to the adequacy of the system in this regard, could not in the circumstances of this casualty have been causative for the reasons I have set out above. Certain other submissions of law as to the proper construction of the International Convention are unnecessary to determine. The defendant owner's claim for a declaration that it is entitled to limit its liability in accordance with the provisions of the Navigation Act 1912 in the circumstances which have occurred is dismissed. There will be judgment for the first plaintiffs against Liquified Gas Carriers (Fiji) Ltd. on their claim in the sum of $249, 050.52 and judgment for the first plaintiffs on the defendant owner's counterclaim. I order that Liquified Gas Carriers (Fiji) Ltd. pay the first plaintiffs' costs of and incidental to the action and counterclaim including reserved costs, if any, to be taxed. There will be judgment for Liquified Gas Carriers (Fiji) Ltd. on the second plaintiffs' action. I order the second plaintiffs to pay the costs of Liquified Gas Carriers (Fiji) Ltd. limited to the issues -- 59 of 60 -- 53 raised on the second plaintiffs' action and the defence of Liquified Gas Carriers (Fiji) Ltd. on those issues, including reserved costs, if any, to be taxed. The defendant owner sought to obtain against the second plaintiffs a binding declaration as to its entitlement to limit its liability. In that it failed. Accordingly, the second plaintiffs ought to recover such costs as they incurred in resisting the counterclaim, notwithstanding that they ultimately failed on their own claim to recover damages. There will be judgment for the second plaintiffs on the counterclaim. I order that Liquified Gas Carriers (Fiji) Ltd. pay the second plaintiffs' costs on the counterclaim, including reserved costs, if any, to be taxed. -- 60 of 60 --