Pan-United Shipping Pte Ltd v Cummins Sales and Service Singapore Pte Ltd

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 14 August 2017
• Neutral Citation: [2017] SGHC 198
• Docket Number: Suit No 225 of 2011/D
• Date: 2017
• Published date: 08 December 2017
• Plaintiff Counsel: Tay Twan Lip Philip and Yip Li Ming (Rajah & Tann Singapore LLP)
• Hearing Date: 17 August 2016,14 March 2017,06 May 2016,23 August 2016,13 March 2017,15 August 2016,22 August 2016,15 March 2017,05 May 2016,16 August 2016,27 July 2017
• Defendant Counsel: Campos Conrad Melville and Charis Toh Si Ying (RHTLaw Taylor Wessing LLP)
• Court: High Court (Singapore)
• Subject Matter: Acceptance,Discharge,Contract,Formation,Breach,Contractual terms,Exclusion clauses

Chan Seng Onn J: Introduction

The port main engine, a Cummins KTA-50-M2 four stroke V16 engine (“PME”), of the Plaintiff’s tugboat PU 3202 (“tugboat”) was top overhauled by the Defendant from 16 to 31 January 2007 pursuant to a contract evidenced in writing by the Defendant’s quotation dated 24 January 2007 accepted by the Plaintiff. After completion of the top overhaul and in the course of a free running test by the Defendant on 31 January 2007, the PME seized up after running for between five¹ to seven² minutes. Thereafter, the PME could not be started electrically and was not able to rotate freely by manual cranking.

The PME was brought back to the Defendant’s workshop and stripped down. It is undisputed that all the main bearings and journals were variously and severely wiped out and unevenly scored.³ However, the connecting rod bearings (“conrod bearings”) were not damaged. The crank journals were severely scored with a deep crack also found on the centre main journal.⁴ The crankshaft was bent beyond the maximum allowable limit.⁵ The main bearing bore was also out of alignment beyond the maximum allowable limit.⁶ The piston, liners, cylinder heads, connecting rods and camshaft appeared to be in normal condition.⁷ Metallic particles were also found in the lubrication oil (“lube oil”).

Hence, the Plaintiff brings this suit against the Defendant for causing damage to the PME by failing to prime the PME before starting it for the free running test. Mr Peter Anthony Ryan (“Mr Ryan”), the Defendant’s expert, provides a good explanation of the meaning of “priming” in the context of engine lubrication. Mr Ryan states⁸ that priming is an engineering term that describes the action of pumping, filling, flooding or distributing sufficient lube oil around the engine lube oil system including pipes, manifolds and filters prior to any mechanical movement of the engine. Priming is a process that ensures that all components are coated in lubricant whilst the engine remains static in advance of any mechanical movement. For the purposes of this case, parties have adopted a loose meaning of “priming” and not the strict sense of the engineering term as described by Mr Ryan.

To prime the PME, the electrical wire from the fuel pump solenoid valve must first be disconnected in order to shut off the fuel to the engine. Otherwise, the engine operates at full combustion load upon starting, placing the crankshaft under such load before the lube oil is sufficiently circulated through the engine that it may seize up and be damaged.⁹ That is what the Plaintiff says occurred in this case. From the specifications for mandatory gauges and alarms for the Defendant’s engines found in the Defendant’s Marine Application Bulletin on Controls, Gauges and Alarm Engine Protection,¹⁰ it appears that there will be a risk of engine damage if the engine runs for at least 15 seconds with engine lube oil pressure below 12 psi.¹¹

The pleadings

The Defendant accepts that its own “Operation and Maintenance Manual Marine Propulsion Units” for “N-NT-NTA-855-M, VTA28-M and K Series Worldwide” (“Engine Manual”) sets out a procedure (see [36]) to prime the lube oil system before starting the engine when the engine has been shut down for more than five days or where there has been a change of lube oil.¹² As is admitted at para 17(b) of the Defence, the priming procedure stipulated in the Engine Manual is to “safeguard against damage to the main bearings caused by multiple dry starts. Multiple dry starts over a period of time would cause damage or accelerated wear to the main bearings.”¹³

It is not disputed in this case that the PME was not only shut down continuously for a total of 15 days for the whole duration of the top overhaul, but there was also a complete change of lube oil. At this juncture, it is important to note that either of these circumstances on its own calls for the priming procedure to be adopted. In fact, the period of 15 days’ shutdown for the top overhaul far exceeds the maximum period of five days beyond which the Engine Manual requires priming. Logic would dictate that the need for priming was all the more necessary given that both circumstances were present.

Although the Defendant admits at para 9 of the Defence that it did not prime the PME prior to starting the PME on 31 January 2007 despite both the extended shutdown of 15 days and the complete lube oil change, its defence is that the PME had sustained pre-existing damage which caused the seizure, and non-priming of the PME was not the cause.¹⁴ The Defendant pleads that excessive vibrations from a bent or damaged port propeller or port propeller shaft had earlier damaged the PME.¹⁵ No other pre-existing cause of damage to the PME has been pleaded.

I accept the Plaintiff’s submission that the Defendant is not entitled to raise in its submissions other pre-existing causes that have not been pleaded. In any event, I shall consider them for completeness.

Sudden impact

The Defendant relies on an “extremely unusual incident”¹⁶ on 10 January 2007 when the tugboat, which was then towing a barge laden with coal from Banjarmasin, Kalimantan (Borneo) to Ko Si Chang (Gulf of Thailand), had to be diverted midway through its paid voyage to Singapore. The Defendant says the problem was so serious that the tugboat could not continue with its voyage and had to be replaced midway by a chartered tugboat, the Marina Venus 2, on 15 January 2007.

An email dated 10 January 2007¹⁷ was sent from the Plaintiff’s operation control to the tugboat crew stating: 1) We r arrging [sic] diver for release of rope at propeller, ETA 15/01/07. …

The tugboat arrived at the outer port limit of Singapore on 15 January 2007, where an underwater inspection of the propellers was performed by Commercial Diving Services (Singapore) Pte Ltd. The divers did not find any rope or other foreign object at the propellers. Instead the propellers were found to be damaged. The Commercial Diving Report of 15 January 2007¹⁸ described the various damaged areas at the tips of the port and starboard propellers, parts of which were bent. The tip of one blade of the port propeller measuring 32cm (L) by 6cm (D), and the tips of two blades on opposite sides of the starboard propeller measuring 10cm (L) by 13.5cm (D) and 5cm (L) by 5cm (D) respectively, were broken off. A divers’ drawing¹⁹ of the damage to the propellers is attached to the report. The port propeller blade was found touching the Kort nozzle,²⁰ and there was an extremely wide clearance of approximately 2.5cm in the port stern tube bearing.²¹ No clearances were measured for the starboard stern tube bearing as this was not part of the scope of the divers’ inspection work.

I am of the view that the damaged propellers may have been a sufficient cause per se for the tugboat to be diverted to Singapore to have them repaired. It does not necessarily follow that the crankshaft of the PME must have been damaged at the same time just because the propellers were found to be damaged and the vessel had to be sent to Singapore for repairs to the propellers. Damaged propellers and damaged engines do not always go hand in hand. Propeller tips may be damaged without any associated damage to the engines. The American Bureau of Shipping Class Survey Report²² for the tugboat dated 16 January 2007 described the damage as being “in non-critical area at the blades’ tips” and recommended that the propellers be repaired.

Sudden impact to the port propeller causing damage to the PME is an unpleaded theory raised by the Defendant. I shall disregard it. In any event, I find it hard to accept that the engine could have been damaged through the shock load of the sudden impact, without there being any signs of damage in the Vulkan coupling of the gearbox or damage to the gear teeth. The Plaintiff relies on the Trans-Matic visual inspection report of the port gearbox on 8 February 2007²³ to prove that the gearbox was not damaged and the input side of the gearbox was able to rotate freely. The sudden shock load at the propeller must be transmitted first through the gearbox and Vulkan coupling before it can reach the PME engine crankshaft to bend or crack it. The lack of any apparent damage to the gearbox and coupling as stated leads me on balance to conclude that it is unlikely that the shock load transmitted to the PME (if any) was sufficiently large to cause the PME engine crankshaft to bend or crack.

Vibration

The Defendant’s service report dated 16 January 2007,²⁴ acknowledged and signed by the Plaintiff’s Chief Engineer La Hasan on board the tugboat, recorded that the “[c]ustomer also complained PORT engine [PME] with excessive vibration while on load”. I accept that it is likely that there was some degree of vibration at the PME when it was on load. With damage to the port propeller and the wide clearance in the port stern tube bearing, it would not surprise me if there had been vibration. As there was also damage to the starboard propeller, I would also expect some vibration on the starboard main engine (“SME”). What is far more important is the degree of vibration, rather than the mere presence of vibration. However, there was no sea trial to establish the degree and nature of the vibration at the PME caused by both the damaged port propeller and the wide clearance in the port stern tube bearing. No measurements were taken of the frequencies and amplitudes of the vibrations (be they torsional and/or whirling vibrations) transmitted to the PME, which were alleged by the Defendant to be “excessive” but disputed by the Plaintiff. One cannot tell how “excessive” is excessive without the benefit of measurements. As stated by the expert for the Plaintiff, Mr Mark Alexander McGurran (“Mr McGurran”), little can be made of the vague term “excessive” vibration. No evidence was produced to show how long the engine was subjected to these vibrations and...