Zweite Ms "Philippa Schulte" Shipping GmbH & Co KG & another v PSA Corp Ltd

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 28 June 2012
• Neutral Citation: [2012] SGHC 135
• Court: High Court (Singapore)
• Docket Number: Suit No 82 of 2009
• Published date: 05 October 2012
• Year: 2012
• Hearing Date: 03 October 2011,13 October 2011,09 October 2011,06 October 2011,26 January 2012,30 March 2012,14 October 2011,12 October 2011,05 October 2011,08 October 2011,07 October 2011,25 January 2012,11 October 2011,27 January 2012,10 October 2011,04 October 2011
• Plaintiff Counsel: Mohamed Goush Marikan and Syed Isa bin Mohamed Alhabshee (Oon & Bazul LLP)
• Defendant Counsel: Toh Kian Sing SC, Vellayappan Balasubramaniam and Lim Junming (Rajah & Tann LLP)
• Subject Matter: Tort,Negligence
• Citation: [2012] SGHC 135

Tan Lee Meng J:

This first plaintiff, Zweite MS “Philippa Schulte” Shipping GmbH & Co KG, claimed that it was the owner of a container vessel, The APL Sokhna (“the vessel”), when an accident occurred on 6 January 2009 while she was berthed at a container terminal belonging to the defendant, PSA Corporation Limited (“PSA”), which provides port operation services. The second plaintiff, St Philonas Shipping Co Ltd, claimed to be the demise charterer of the vessel at the material time. The plaintiffs alleged that the PSA negligently lifted and dropped one of the vessel’s hatch covers (“the hatch cover”) during cargo discharging operations. This accident (“the accident”) damaged the hatch cover, the vessel and the PSA’s property. The PSA denied liability and counterclaimed against the plaintiffs for, inter alia, damage to its wharf.

Background

On 6 January 2009, the vessel berthed at the PSA’s Brani Container Terminal Berth 06 at around 11.12 am. She moored port side alongside Berth 06.

Four quayside gantry cranes were deployed to discharge the vessel’s cargo. One of the gantry cranes was Gantry Crane 901 (“the gantry crane”). A Spreader, numbered BSPT 16, (“the Spreader”) was installed onto the gantry crane. The Spreader’s task was to lift hatch covers and containers from the vessel to the wharf and vice-versa.

For the purpose of lifting hatch covers, the Spreader was fitted with four twistlocks and four Top of Container Pins (“TOC Pins”), which are also known as “landing pins”. Hatch covers are fitted with fixed lifting points, known as “lifting sockets” or “casting sockets”, to enable them to be lifted by the Spreader. The Spreader twistlocks lock within the lifting sockets of a hatch cover before the cover is lifted. A schematic diagram of the Spreader and the hatch cover lifting sockets (“the lifting sockets”) is set out below:

The gantry crane system has various built-in operational and safety features. It is equipped with a lighting system that will indicate to the gantry crane operator that the Spreader twistlocks have properly engaged the hatch cover lifting sockets so that he knows that it is safe to lift the hatch cover.

The PSA deployed three key persons at the time the hatch cover was lifted. They were the gantry crane operator, Mr Wong Chee Hong (“Mr Wong”), the ship traffic assistant, Mr Udaiyappan Balraj (“STA Balraj”) and the wharf operations supervisor, Ms Nur Aleena, (“WOS Nur Aleena”). Mr Wong was tasked to operate the gantry crane to lift containers and hatch covers from vessels and to land them safely onto the wharf. STA Balraj, an employee of Goldin Enterprise Pte Ltd, a contractor of the PSA, was deployed to check that all hatch covers to be lifted by the gantry crane operator were clear of people and foreign objects and safe to be lifted. He was the gantry crane operator’s eyes on the ground and responsible for guiding the latter in lowering the Spreader twistlocks into the opening of the lifting sockets and for ensuring that the Spreader sits squarely on all the four lifting sockets. STA Balraj and Mr Wong each had a radio set, which enabled them to communicate with each other. After a container or hatch cover had been hoisted past the vessel’s rails, it was WOS Nur Aleena’s task to ensure that cargo operations were carried out safely at the wharf side.

At the material time, the plaintiffs deployed able-bodied seaman, Managbanag F Clemente (“AB Clemente”) to monitor the lifting of the hatch cover from the vessel. He explained in a statement on 6 January 2009 that he had been deployed on deck to “observe and watch for possible damage to the hatch cover and also damage of [the] ship’s superstructure”.

Before the accident occurred, many containers and two hatch covers were lifted from the vessel without any mishap. At around 9.35 pm, STA Balraj, who was on the vessel, informed the crane operator, Mr Wong, through his radio set that their next task was to lift the hatch cover. The vessel’s deck was well lit by floodlights. After the deck had been cleared of loose matter and the hatch cover cleats had been unfastened, Mr Wong lowered the Spreader to position it onto the hatch cover for its twistlocks to fit into the openings of the lifting sockets. This is a precise operation and it is not uncommon for a few attempts to be made before the twistlocks land properly within the openings of the casting sockets of a hatch cover.

The parties’ position on what followed after the Spreader landed on the hatch cover differed. The plaintiffs asserted that AB Clemente stood with STA Balraj on top of the starboard side hatch cover during the lifting operation and asserted that the latter did not walk around the Spreader to check whether the Spreader twistlocks had properly engaged the hatch cover lifting sockets. On the other hand, the PSA contended that STA Balraj walked around the Spreader after it had landed on the hatch cover to check whether it was properly aligned with the lifting sockets and that AB Clemente, who followed STA Balraj, appeared to be conducting the same checks. The PSA added that after confirming that all four corners of the Spreader had landed properly on the hatch cover, STA Balraj gave an “all ok” hand signal to Mr Wong to proceed with the lifting of the hatch cover. As the lighting system in the gantry crane cabin confirmed that the Spreader twistlocks had properly engaged the lifting sockets, Mr Wong started to lift the hatch cover.

According to the PSA, after the hatch cover had been lifted slightly above the vessel’s deck, the lifting operation was paused as part of the safety measures. After Mr Wong observed that the hatch cover remained stable in its suspended position, he proceeded to lift it to a height of about 10 meters under the close supervision of STA Balraj. However, the hatch cover suddenly dropped down and landed diagonally on the wharf, with one side leaning on and damaging the gantry crane. Damage was also caused to a portion of the PSA’s wharf at Berth 6, a gantry over-height frame and the gantry crane sea side sill beam and left-side portal beam.

After the accident, the PSA inspected the Spreader and its twistlocks. A piece of casting socket that was detached from the hatch cover was found attached to the Spreader’s forward starboard twistlock. The detached casting socket was removed from the Spreader. In his preliminary report dated 8 January 2009, just two days after the accident, Mr Sio Beng Huat (“Mr Sio”), the surveyor appointed by the vessel’s hull and machinery insurers, recommended a metallurgical examination of the detached lifting socket as well as the part of the hatch cover plate from where the lifting socket was ripped off because he was concerned that the lifting socket may have been defectively welded to the hatch cover. However, no action was taken by the plaintiffs to implement his recommendation.

As for the Spreader, no cracks or other defects were found on it or its twistlocks. Functional tests were conducted and as the Spreader was found to be in good order, it was re-deployed for cargo operations.

The plaintiffs wanted the PSA to pay for the cost of repairing the hatch cover, which amounted to $203,548, as well as the cost of surveys. When the PSA denied liability for these expenses, the plaintiffs instituted the present proceedings and sought damages as well as an indemnity for claims and losses suffered by third parties as a result of the accident.

Apart from denying liability, the PSA filed a counterclaim against the plaintiffs for damage to its property.

The expert witnesses

The plaintiffs called two expert witnesses. The first expert witness, Dr Jonathan Sykes (“Dr Sykes”), is the director of the Singapore office of Dr JH Burgoyne & Partners (International) Ltd, a firm of consulting forensic scientists and engineers. The second expert witness, Captain Jonathan Lee Lai Chuan (“Capt Lee”), is a marine surveyor at GL Noble Denton, which provides consultancy services for, inter alia, maritime casualties.

The PSA called one expert witness, namely Captain Nicholas Edward Haslam (“Capt Haslam”), a Master Mariner and the managing director of London Offshore Consultants Pte Ltd, a company that provides marine surveying and consultancy services to the shipping industry.

Whether the plaintiffs are entitled to sue the PSA

The PSA contended that the first and second plaintiffs were not entitled to sue it because they did not prove that they were the owner and bareboat charterer of the vessel respectively.

In Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] 1 AC 785, the House of Lords held that it has long been established that for a plaintiff to have a right to claim in negligence for loss or damage to property, he must have had either the legal ownership or a possessory title to that property when the loss or damage occurred. The first and second plaintiffs averred in paragraphs 1 and 2 of their Statement of Claim that they were and are the owners and bareboat charterers of the vessel respectively at the material time. When the PSA filed its defence more than 2 years ago in May 2009, it made it clear that these averments were not admitted. As such, the plaintiffs had to prove that they were entitled to commence the present proceedings against the PSA.

Considering that the question of title to sue had been an issue since 2009, it was surprising that the plaintiffs did not furnish the court with the certificate of registration, which is regarded as prima facie evidence of ownership: see The Opal 3 ex Kuchino [1992] 2 SLR(R) 231 and The Ivanovo [2001] 1 SLR(R) 263. Neither did they adduce evidence from any of their own staff with personal knowledge of the ownership and bareboat charter of the vessel. Instead, they chose to rely on the evidence of Mr Frank Wilhelm Heidrich (“Mr Heidrich”), who was merely the technical director of the technical managers of the vessel,...