Under a time charter on the Baltime 1939 form, Owners chartered the 4,200 dwt containership "Fintermar" to the Defendants. The Court of Appeal ruled that, despite clause 48 of the Baltime charter, the Defendant Charterers were liable for injuries caused to the Chief Officer during operations of the hatches. Accordingly, now charterers may be faced with an action for damages even where the charterparty expressly states that loading/ discharging is the Master’s responsibility.
A MATTER OF DESIGN
"Fintermar" is a modern design vessel, with a single double-skinned hold capable of being subdivided by removable bulkheads into two or three single-deck holds. Being capable of carrying 112 containers under and 133 on deck, the hatch cover to the hold was comprised of 11 interlocking pontoons. There was also a central "baby" pontoon, usually left in place to strengthen the vessel. The interlocking arrangements of the pontoons required a specific opening order using the vessel’s own specialised hatch gantry crane.
As "Fintermar" was primarily used as a ‘feeder’ for clients operating extensive liner services, in practice alternate, faster methods of operation were often used. Agreement was made to allow the Charterer’s stevedores to use a shore crane to deal both with containers and the pontoons. No additional payments were asked by nor demanded of the Owners so long as all cargo operations were completed by the stevedores within their shift.
THE LOSS
On 16 September 1995, 5 containers needed to be discharged from the hold, which required the shifting and replacement of 16 containers. To do this using the hatch gantry crane would delay the process by two to three hours and so the accord was put into effect and the shore crane used. Whilst the Chief Officer added the necessary slings to the narrower, ‘baby’ pontoon the crane driver inexplicably and "unaccountably" lifted the pontoon, causing the CO to drop 9 metres into the hold.
THE LEGAL ISSUES
Although it was overwhelmingly likely that the injuries were caused as a result of the stevedores’ negligence, the Charterers made various claims, most notably that the Owners were responsible due to the wording of the charterparty, and that the stevedores were carrying out "Owners work" during the hatch operations.
The Charterers relied upon clause 48 of the Baltime 1939 charter that stated with reference to discharging operations, "the full and ultimate responsibility shall always remain with the Master of the vessel". They also relied on various precedents, notably "The Azuero" [1967] 1LLR 464, that showed hatch operations were part of discharging operations and thus were the "primary responsibility" of the Owners.
Lord Justice Rix concluded that although this was the case, it was not a carte blanche rule that meant that charterers could never be responsible for cargo discharge operations. Here the facts of the case provided that it was the Master’s decision to choose how to load and discharge, but the Charterers and their stevedores to execute the operations without negligence. As a direct result of the special agreement between the parties, the hatch operations were carried out by the Charterers’ stevedores at no extra charge to the Owners. Thus, Charterers’ negligence had caused the loss.
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