MOBIL OIL HONG KONG LIMITED AND ANOTHER v. HONGKONG UNITED DOCKYARDS LIMITED

1984, No. 3143

1985, No. 1785

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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The action

1. This is a consolidated action brought by Mobil Oil Hong Kong Limited ("the lst plaintiff") and Dow Chemical (Hong Kong) Limited ("the 2nd plaintiff") against Hong Kong United Dockyards Limited ("the defendant") in respect of damage sustained by an oil  terminal jetty, berthing dolphins and facilities owned by the 1st plaintiff at Tsing Yi Island, and a pipeline and handling facilities belonging to the 2nd plaintiff and situated upon and adjacent to the 1st plaintiff's oil terminal jetty.

2. The damage was caused on 9th September 1983 during typhoon Ellen when the port anchor cable of the roll on roll off passenger and cargo ferry Hua Lien parted and she broke loose from typhoon mooring buoy number A42 situated to the south east of Tsing Yi Island in Victoria harbour and collided with the plaintiffs' installations.

3. The parties have agreed to proceed to trial first on the issue of liability. Accordingly the proceedings at present before the court are not concerned with the assessment of damages.

Events leading up to the casualty

4. On 29th May 1983 the Hua Lien struck a submerged rock off Taiwan and after suffering extensive flooding was beached in order to prevent her from sinking. When it became apparent that the vessel could not be repaired in Taiwan the defendant and a number of shipyards from Japan and Korea contested with each other for the repair contract. The defendant accepts that the ship repair industry was depressed at that time and that in its anxiety to forestall its competitors from Japanese and Korean shipyards it sent representatives to Taiwan to negotiate for the contract.

5. Ultimately the vessels owner, the Taiwan Car Ferry Company Limited ("the owner"), instructed the Nippon Salvage Company Limited to tow her to the defendant's shipyard at Tsing Yi Island where she was to be moored while the owner invited and considered tenders for her repair. The owner also gave instructions to the defendant to carry out certain emergency repairs on the vessel on her arrival in Hong Kong on 29th May. I think I should observe at this juncture that the defendant was eventually paid $4,500,000 for all the work it performed.

6. Prior to the vessel's arrival the defendant, in response to a telex from the owner's solicitors, accepted that it would be responsible for all oil pollution control and disposal measures while she was in Hong Kong. On 26th May and before the owner had appointed a local agent or superintendent, a meeting was held at the office of Captain Shearman of the Marine Department for the purpose of discussing the procedure for the entry of the vessel into Hong Kong waters and, in order to minimise risk and inconvenience to shipping, to make arrangements for her to be handed over by the salvors to tugs of the Hong Kong Salvage and Towage Association at a location off Lamma island from which a safe route could be taken to the defendant's dockyard.

7. It is plain from minutes of that meeting kept by Mr. Temple, the Senior Project Manager assigned by the defendant to take charge of the work on the Hua Lien, that it was agreed that on arrival at the dockyard the vessels port cable should be fitted with a 'D' buoy shackle as a typhoon precaution. The minutes further reveal that the Marine Department agreed that in the event of a typhoon the vessel could be moored at a typhoon buoy in Victoria harbour. The need to secure permission to moor the vessel to a buoy in a typhoon no doubt arose due to the defendant's requirement that all vessels leave its yard on the hoisting of number 3 typhoon signal.

8. On 27th May the owner's solicitors telexed the defendant and suggested that it assume responsibility for the vessel from the moment she came alongside at the dockyard on 29th May. In the same telex the solicitors stated that the owner had nominated a Japanese superintendent for the repairs and that he would arrive in Hong Kong within 24 hours of the telex.

9. At a meeting held on 27th May between representatives of the salvors and Mr. Temple it was agreed that on her arrival at the dockyard the vessel would become the responsibility of the defendant. It is clear from the first item of the minutes of that meeting recorded by Mr. Temple that Eastern Worldwide Shipping Company ("the agents") had been appointed as the owner's local agent.

10. On the following day the defendant sent a copy of its standard conditions to the owner's solicitors in Hong Kong. Clause 19 of these conditions, states:

"(a)      The Customer shall be responsible at all times for ensuring that the Vessel is kept safe from the effects of all external forces, such as fire, weather, wind including typhoons, currents and all other perils of the sea. The Customer warrants that at all material times its agents and/or servants will take all proper and necessary steps and/or decisions for the safety of the Vessel and in particular for the navigation and management of the Vessel including (in particular but without prejudice to the generality of the foregoing) the security of the Vessel's moorings, keeping a weather and fire watch, heeding typhoon warnings, putting out additional lines or anchors, shifting her place of mooring, employing tugs, closing openings and valves, and maintaining the Vessel's buoyancy and stability.

(b)       Nothing done by the Customer (Servants) in carrying out the obligation under (a) above shall in any way affect and/or prejudice the possessory lien of the Contractor."

11. Notwithstanding this clause, Mr. Temple implemented on behalf of the defendant the agreement reached at the meeting of 27th May and formally signed an acceptance of the transfer of the custody of the vessel from the salvors at 3 p.m. on 29th May.

12. On the same day the defendant rigged and hung off one shackle length of anchor cable from the port bow of the vessel and attached a 'D' shackle to the last link as typhoon precautions in the event that it became necessary to tow the vessel from the yard and moor her at a typhoon buoy in the harbour. As an additional precaution the defendant carried out a simulated drop of the starboard anchor to ensure that it was in proper working condition for use in a typhoon. The first three shackles of port anchor cable with the anchor attached had been severed by the salvors at the scene of the grounding in Taiwan and transported on the salvage tug to Hong Kong where they were lifted on board the Hua Lien at the dockyard and left in a heap on the forecastle deck adjacent to the port windlass and guillotine stopper. On 1st June the vessel was placed in dry dock and then refloated on 6th June.

13. On 28th May the defendant protested to the owner about the appointment of the Japanese superintendent, and at a meeting on 6th June at which the President and Vice President of the owner were present for the purpose of discussing the removal of cargo from the vessel and the emergency repairs to be effected on her, it was agreed that the owner would appoint a local technical company instead of the Japanese superintendent to prepare the repair specifications. On the following day a Mr. Wort of J. D. Wort & Co. Ltd. was appointed to fulfil this function.

14. The minutes of the meeting of 6th June reveal that Mr. Temple raised the matter of arranging a crew to man the vessel in the event of a typhoon and that it was agreed that the owner would request its local agent to employ such certificated officers and crew as was necessary to comply with Marine Department regulations. It is also plain from the minutes that the Vice President of the owner, Mr. Tsu, was authorised to act in all matters on its behalf and that he approved and signed copies of all work orders that had already been prepared by the defendant.

15. On 10th June the agents telexed the defendant that they had been informed by the Marine Department that while the vessel was in her present condition the minimum crew requirement was a properly certificated master, a qualified bridge watch keeper (second mate), a mechanic and a sufficient number of competent deck hands to handle the windlasses and anchor cables if called upon to do so. Undoubtedly this direction from the Marine Department stemmed from regulation 20(1) of the Shipping and Port Control Regulations which states:

"A ship shall, while in the waters of Hong Kong, have on board at all times such number of crew as is, in the opinion of the Director, qualified and capable of carrying out all duties which may reasonably be required to ensure the safety of the ship having regard to the circumstances pertaining thereto."

Indeed this sub-regulation was quoted in full in a notice concerning the typhoon season and sent to the agents on 29th June.

16. As a consequence of this the agents notified the defendant by telex on 14th June that they had employed a Liberian certificated master, a second officer, a Panamanian certificated engineer, two bosuns and two seamen "to attend watching the vessel on 16th June 1983". The telex went on to say, "Please allow them to board the vessel accordingly. Three of them will stay on board consecutively. We have instructed the master to sign a letter prepared by your goodselves on behalf of the owners assuming responsibility for the safety of the vessel".

17. On 16th June the master formally signed a document accepting transfer of the custody of the "Hua Lien" on behalf of the owner with effect from 12.00 noon that day. On the same day at the instruction of the owner the defendant discharged the security guards who had previously been engaged to work on board the vessel as watchmen.

18. Mr. Wort began his survey of the vessel on 7th June, and on 16th June he notified the owner's local solicitors that he was preparing a specification for repairs and that his provisional "ball park" estimate was US$3,500,000 at published shipyard rates.

19. Minutes of a meeting held on 24th June between a Mr. Munro of the defendant company and representatives of the owner disclose that the owners informed Mr. Munro that they wanted the vessel to be restored to "as new condition" and that Mr. Munro gave his assurance that the defendant "was best qualified for such a job". The owner expressed concern that a low tender by the defendant would result in short cuts being taken and that as a consequence the quality of work would suffer.

20. The following day the defendant submitted a tender in the sum of $21,000,000 for the repairing of the vessel, excluding all costs incurred up to the date of the award of the contract and the cost involved in the removal of vehicles. It seems that the underwriters reacted unfavourably to this for on 11th July the defendant withdrew its tender and on 19th July submitted a fresh one in the sum of $15,985,400 subject to certain adjustments. The owner accepted the defendant's tender in preference to those submitted by one Singaporean and four Japanese shipyards. However, acceptance was made conditional upon the defendant's agreement to undertake certain work included in the repair specification and that, when that work was completed, the owner would have the option of terminating the repair contract. The defendant responded by confirming acceptance of the owner's terms and indicated that work on the vessel was "being put in hand".

21. In the meantime on 27th June the defendant sent to the owner a copy of its standard terms to which I have already referred. On 11th July the defendant took upon itself to ballast numbers 1 and 9 tanks of the vessel as a precaution in view of the approach of typhoon Vera. After this ballasting work had commenced Mr. Temple advised Mr Wort of what was being done. It emerges from the contents of a telex that Mr. Wort had wanted the metacentric height ("GM") to be calculated before ballasting began. Notwithstanding that this calculation had not been performed, Mr. Wort confirmed the order. He insisted however that the calculation be done. When cross examined about this telex Mr. Temple agreed that the ballasting had begun before Mr. Wort was informed of it, and that at Mr. Wort's request Mr. Temple had then advised the master that he was carrying out the operation. A telex from Mr. Wort to the defendant on 11th July discloses that the purpose of his request was to ensure that "the master/officer in charge [be] kept fully aware of the ballasting arrangements now being carried out".

22. On the same day the defendant notified Mr. Wort by telex of its quotation of $771,778 for a further dry docking of the vessel to enable inspection work to be carried out and for removing the propellors, rudder and stabiliser fins, blanking off the openings and doing various dismantling work on the engines, propeller control units and steering gear. It was in this telex that the defendant cancelled its original tender in the sum of $21,000,000 and undertook to submit a revised tender by 20th July.

23. On 16th July when number three signal was hoisted for typhoon Vera and the vessel was towed to a typhoon buoy in Victoria harbour. Fortunately the typhoon passed by harmlessly without any higher signals having been raised.

24. On 24th July typhoon Wayne approached Hong Kong and warning signal number one was hoisted, but the alarm was shortlived and the typhoon veered away. Since it is the practice of the defendant to remove vessels from the shipyard only after the hoisting of number three signal, the Hua Lien remained at her berth in the yard on this occasion.

25. On 28th July the vessel again went into dry dock for a further inspection and the taking of keel and deck sights. She returned to her berth on 2nd August. As a result of his findings during that inspection Mr. Wort advised the owner on 4th August that the vessel was a constructive total loss and not worth repairing. Shortly after this the owner tendered a notice of abandonment but this was rejected by the underwriters.

26. Later, on 26th August, Mr. Wort submitted an additional specification to the defendant for work that the owner considered necessary. In response to this the Salvage Association of Hong Kong advised the underwriters that with a minor adjustment for increased steel weight the hull could be repaired within the terms of the initial specification and that, apart from doubt as to the condition of one tailshaft which was the subject of further discussion, the further repairs requested by the owner would not increase the final cost by more than US$500,000. The Salvage Association further informed the underwriters that they would advise them on the matter after they had discussed it with Mr. Wort.

27. On 7th September, when it became apparent that typhoon Ellen was threatening Hong Kong, Mr. Temple advised Mr. Wort that it would be necessary to move the vessel to a typhoon buoy once number three typhoon signal was hoisted and that the cost of the move would be against owner's account.

28. There can be no doubt that at this stage the Hua Lien was a dead ship. Her main engines, generators and electrical system, auxiliary machinery, steering gear and windlasses were not operational and her rudder and propellors had been removed. Some time after the number one signal had been hoisted one of the defendant's employees completed a pro forma typhoon check list in which he acknowledged the existence of these disabilities and ticked off that the anchor and cable and buoy shackle were operational and that there was adequate communication, typhoon stores and crew aboard the vessel. It is plain from what is stated on it that the purpose of the check list is to provide information for the benefit of the defendant's typhoon committee. At 0745 hours on 8th September the number three signal was hoisted and at 1015 hours three tugs owned by a sister company of the defendant towed the Hua Lien to typhoon buoy A42.

29. A transcript of the taped conversation between the master of the Hua Lien, the pilot and the masters of the three tugs conducted over VHF radio at the time of the mooring operation discloses that the pilot boat crew encountered considerable difficulty in securing the 'D' shackle to the buoy due to the shackle nut being badly rusted. Eventually, however, the nut was freed and the port anchor cable was attached to the buoy at a stay of one shackle.

The casualty

30. Neither the master nor any member of the crew was called as a witness by either party but, pursuant to section 47 of the Evidence Ordinance, the defendant tendered two statements made by the master and one made by the second officer. Before I embark on a consideration of these statements, however, I propose to refer to the most significant features of the transcript of a VHF radio conversation conducted principally between the master of the Hua Lien, a tugmaster Mr. Leung and the defendant's dockmaster, and recorded by the defendant from an unspecified time on the early morning of 9th September before the vessel's port anchor cable parted. It has been possible to relate some parts of the conversation to specific times either because of an announcements by the Marine Department as to the hoisting of a particular typhoon signal or because of records in the Marine Department log book of the times at which the master made specific calls to the department.

31. I am of the view that it is highly probable that what is recorded on the tape accurately reflects the events of that morning in so far they were perceived by the various parties. Not only is this a contemporaneous record of those events but the circumstances in which the recorded words were spoken satisfy me that it is a true reflection of the state of mind of each of the parties and that there is no real likelihood that any of them said anything other than what he believed to be the truth. I mention this because although Mr. Steel, who appeared for the defendant, tendered as part of the defendant's case certain statements subsequently taken from the master and the second officer, he was at pains to highlight certain passages in those statements that he submitted either contained discrepancies or conflicted with what was recorded on the VHF radio transcript, and suggested that the master and the second officer had been less than truthful in these statements.

32. The first indication that the Hua Lien was in difficulty was when the master announced to the Marine Department that the anchor cable had run out to the last shackle and that there was a danger of collision with another vessel whose cable having parted had then dropped anchor. He requested the Marine Department to contact the defendant and inform it of the predicament in which the Hua Lien had been placed. When one of the defendant's officers responded to this request the master repeated that the port cable had slipped to the last shackle and that although the adjacent vessel had dropped its anchor the Hua Lien was unable to do likewise. This is the first indication that the Master had been attempting to release his starboard anchor.

33. The defendant's dockmaster then came to the radio and asked the master to explain the nature of his problem. The master replied that the anchor cable "had slipped out because the stopper was not tightened in the yard" and again explained his situation. The dockmaster enquired whether he had dropped the compressor. I pause here to explain that constant reference is made in the transcript to "the compressor". In fact the anchor cables on the Hua Lien were not secured forward of the windlasses by compressors but by guillotine stoppers. It is clear, however, that although the parties frequently used the word "compressor" they were referring to the guillotine stopper. Frequent reference is also made to "the last shackle" of the port anchor chain. This is an understandable error because both anchor cables of the Hua Lien were 10 instead of the usual 8 shackles in length due to the particularly deep waters off the coast of Taiwan where the vessel had been in operation.

34. No doubt being initially puzzled by the dockmaster's use of the word "compressor", the master asked him what compressor he was referring to. After the dockmaster had explained what he meant the master informed him that the stopper had "jumped out" and that, as the windlass was not operating, the crew were unable to move the cable from an awkward position. It is tolerably clear that this meant that the crew were unable to drop the guillotine stopper into position to secure the cable because, after the port cable had run out, the link in way of the stopper bar was in a vertical instead of a horizontal position. The dockmaster then suggested that the master drop his starboard anchor. The master replied that the crew were unable to do so because "the compressor is jammed dead and rusting, we can't lift it up".

35. The dockmaster went on to explain that the conditions had made it difficult for tugs to go to the master's assistance for the time being and urged him to try and drop the anchor. The master replied that he was doing his best and was endeavouring to find some . seizing wire in order to secure the port stopper. He added that the adjacent ship had now moved further away from the Hua Lien and that there was no imminent danger of collision. He emphasised, however, that there was "no way we can drop the starboard anchor. I have thought about it for some time". On being asked how many shackles of port cable had run out, he replied that he thought that it was "at one of the very last shackles".

36. Once again the dockmaster urged the master to do his best to drop the starboard anchor; and yet again the master complained that it was "completely dead" and "cannot be moved at all". He repeated that the crew had tried their best to free the stopper bar but "there is nothing we can do". Not to be deterred, the dockmaster asked "Do you mean that you have continuously failed to hammer off the compressor". Again the master affirmed "HUD, it is completely jammed".

37. At 0208 hours the Marine Department announced over the VHF radio that signal number 10 had been hoisted at 0200 hours. The dockmaster then promised to see if he could arrange for a tug to be sent to the Hua Lien and requested the master to try and make fast the tug's wire onto the bow of the Hua Lien so that the tug could hold her. This indicates that the dockmaster considered that despite the severe weather conditions it might be feasible to effect a connection between a tug and the Hua Lien. The dockmaster then suggested to the master that he pay out more port cable in order "to put the compressor on and lock it with the locking pin ...... otherwise it will jump out again". The master replied that the crew had been unable to lock it but that they were going "to put a wire through the compressor and make it fast to the deck".

38. On being further asked by the dockmaster whether he could find a way to move the cable into a suitable position so that the stopper could be secured with the stopper pin, the master responded "we did put the chain in position with the compressor on but the chain is still slipping".

39. When with obvious surprise the dockmaster asked "What? How can the chain slip even with the pin on?", the master replied "Yes, yes. Because this side (port side) has no locking pin. We have already tightened it, we can only hope that the wind will calm down, there is no other way". This reply does not make it clear whether the pin had not been placed in position to secure the port stopper bar when the vessel was first moored to the buoy or whether it had fallen out during the typhoon. I am satisfied though that the crew had earlier attempted to prevent the cable from running under the stopper bar by securing it with seizing wire - an operation that proved to be unsuccessful.

40. Some time later the master repeated his fears to the dockmaster about the port anchor cable and asked him "to try and find a tug to come to the ship's side to stand by". The dockmaster again enquired whether the starboard anchor had been dropped and was told that "there is no way to let it go, we do not have on board any tools or hammer, not even a big hammer ..... there is no way to hammer it out".

41. Ultimately the tug Lamma was sent to the assistance of the Hua Lien. The transcript does not give any indication of the time of its arrival but the tug master, Mr. Leung, testified that he had departed from the Kwai Chung wharf at 0625 hours on his way to the Hua Lien at buoy A42. When he first arrived at the buoy Mr. Leung had to be content to stand by and keep watch as he was unable to approach close enough to render assistance due to the fact that the Hua Lien was yawing at a long stay. Some time later the master announced to Mr. Leung "Lamma, our chain has broken, Lamma come and push us we can't drop anchor" and requested the tug to push the Hua Lien on the port side. Mr. Leung replied that the swell was very heavy. Although there is no indication on the transcript that the tug actually managed to come alongside the Hua Lien, Mr. Leung's unchallenged testimony was that he managed to push against her for 5 or 6 minutes before the friction on the rubber tyres secured to the tug's bow generated such heat that they began to emit smoke, and he was forced to withdraw for fear of damaging the Hua Lien's hull.

42. At 0751 hours the master announced to the marine Department that the Hua Lien's port cable had parted and that he was requesting the Lamma to render assistance. It seems very likely that this coincided with the time that the Lamma was about to come alongside to push against the Hua Lien. The cable must therefore have parted at or shortly before 0751 hours. Indeed, in the marine note of protest the master stated that this had occurred at 0745 hours.

43. At some unspecified later time the master announced that the crew had managed to drop the starboard anchor and that the position had improved. However, the anchor must have dragged due to the intensity of the wind because the transcript records that the master subsequently expressed the fear that the stern might have struck the Gulf Oil Company jetty on Tsing Yi Island. He then advised Mr. Leung that in his attempt to hold the vessel he had paid out more cable on the starboard anchor. Mr. Leung suggested in reply that the master should pay out even more cable and expressed the view that if he could manage to hold out for another hour or so the danger would pass. At 0824 hours the master announced to the Marine Department that he was anchored "in the fairway to the container Gulf Oil Terminal, Tsing Yi Oil Terminal".

44. Some time later Mr. Leung again advised the master to pay out more cable in an attempt to prevent the anchor from dragging. The master then informed the dockmaster that he had already veered seven shackles of cable but couldn't pay out any more because it had become jammed. Subsequently the master announced that the vessel had drifted towards the Mobil Oil jetty and that its movement had been arrested by two private mooring buoys 30 metres from the jetty. Eventually the Hua Lien broke free from the buoys and at 1112 hours it struck the Mobil Oil jetty and was restrained at its stern by one remaining dolphin. The master then voiced fears that, if the dolphin broke, the Hua Lien would strike the Tsing Yi bridge and that the lives of the crew were endangered.

45. Although the Lamma had lost some of the efficiency of one of its propellers as a result of striking some steel plates on the sea bed in the vicinity of the jetty, Mr. Leung managed to manoeuvre her to the stern of the Hua Lien from which position his crew were able to throw heaving lines onto her deck. The crew of the Hua Lien then chambered down the lines and jumped onto some disused Chinese hampers that the tug crew had placed on deck to break their fall. After the evacuation had been successfully completed the Hua Lien continued to drift until she finally ran aground in shallow water near the jetty.

46. According to Captain Weeks of the Salvage Association of Hong Kong, who was called on behalf of the defendant, 27 vessels, including two that had been moored to typhoon buoys, were stranded during the typhoon; some 23 vessels dragged anchor or broke from their moorings and were involved in various collisions, a floating dock dragged its moorings and the barquentine "Osprey" drifted and sank in waters to the south of Lantao Island with the loss of all but one of her crew.

Post casualty

47. The vessel was salvaged and returned to her berth at the defendant's shipyard on llth October, and on 12th October the defendant sent Mr. Wort a supplementary invoice for various work done on the vessel between 24th August and 30th September. This included an amount of $235,250 for typhoon precautions.

48. On 13th October typhoon Joe struck Hong Kong and the vessel was again towed to a typhoon buoy and secured by her port anchor cable. On this occasion the salvage crew on board used seizing wire and iron bars to secure the cable to the stopper. Notwithstanding this precaution the cable again parted. After this second failure of the port cable Mr. Temple informed Mr. Wort that the vessel's cables must now be considered to be suspect and advised him to recommend to the owner that it replace both port and starboard anchor cables as soon as possible. On 13th December Mr. Wort requested the defendant to accept delivery of "seven lengths" of anchor cable that had been purchased by the owner and to attach it to the port side and calibrate it. This indicates not only that the owner was concerned for the vessels safety but was prepared to incur expenditure for typhoon precautions.

49. Meanwhile negotiations continued between the owner and the underwriters in respect of the claim for a constructive total loss, and on 23rd December the defendant notified Mr. Wort that, due to shortage of berth space, priority would have to be given to vessels actually undergoing repair work and that therefore he should make arrangements to remove the Hua Lien from the shipyard. The defendant went on to assure Mr. Wort, however, that if the owner decided to make a firm decision to proceed with the repairs to the vessel it "would be more than happy to reconsider the situation with a view to continuance of the valuable contract work you have favoured us with to date".

50. Ultimately, on 20th December the owner abandoned the vessel to the underwriters and in mid 1984 began proceedings to go into voluntary liquidation. Although the court was not told of the precise nature of the court proceedings that were later taken or of the identity of the parties involved, it is clearfrom an affidavit tendered pursuant to section 47 of the Evidence Ordinance that "all claims by and against the owners of the Hua Lien were settled". It is suggested by Mr. Steel that the logical party from whom the plaintiffs should have sought to recover damages in the circumstances of this case is the owner, but that as no doubt it had become impractical to proceed against it, the only potential defendant was the defendant shipyard and that accordingly the validity of the plaintiff's claim should be considered in that light.

The claim

51. As the pleadings occupy 89 pages I propose for the sake of brevity to set out only their salient features and, in so doing, to refer to such parts of the evidence as may be convenient. As other aspects of the evidence do not lend themselves to this treatment I shall consider them later.

52. The plaintiffs allege that:- 

                and in addition is required to:

53. The defendant denies that in the circumstances of the case it was under a duty to take all reasonable precautions to ensure that the preparation, condition and mooring of the Hua Lien was such that she would not pose a danger to life and property of other harbour users during a typhoon. It contends that the responsibility for the safety and security of the vessel, including in particular the responsibility for her preparation in case of typhoon, rested solely with the owner, Mr. Wort, the master and the crew or alternatively with any one of them. In the further alternative the defendant contends that if it had been under such a duty as that alleged by the plaintiffs, then as from 1200 hours on 16th June that duty was solely that of the owner, Mr. Wort, the master and the crew or any one of them. The significance of the time of 1200 hours on 16th June is that that was when the newly appointed master signed a document on behalf of the owner that he had accepted transfer of the custody of the vessel on its behalf.

54. In yet a further alternative the defendant alleges that at all material times Mr. Wort and the master or one of them had represented to the defendant by their conduct that they were assuming and in fact had assumed full responsibility for the preparation of the vessel for typhoons. In support of this alternative the defendant seeks to rely, first, on the fact that the owner, Mr. Wort and the Marine Department or one of them were fully aware of the history of the vessel and that all her vital machinery spaces had been flooded and that she was a dead ship. I have the greatest difficulty in understanding how this lends support to the defendant's contention.

55. Secondly, the defendant contends that this alternative is supported by the fact that prior to typhoon Ellen Mr. Wort and the master or either of them had had ample opportunity to familiarise themselves with the vessel and her machinery and to decide what did or did not require repairing. Again I find this difficult to understand. The mere fact that Mr. Wort or the master might have been able to decide what items required repairing does not seem to me to amount to a representation by either of them that they were assuming full responsibility for the preparation of the vessel for typhoons. On the contrary, the fact that neither of them had initiated instructions that the precautions referred to in the Shipmasters Guide be taken should have indicated to the defendant either that they did not intend to have those preparations carried out or were ignorant of the requirement for them.

56. Thirdly, the defendant claims in support of this alternative that it was not permitted to supply or carry out repairs to the vessel or her machinery unless and until the owner or Mr. Wort had requested or authorised them. This overlooks clause 8 in the defendant's schedule of rates and charges. There was certainly no evidence that the owner or its representatives had forbidden the defendant to carry out such work or had insisted on being consulted in advance.

57. Fourthly, the defendant relies on the fact that Mr. Wort had instructed it to ensure that the master and crew were kept fully informed with the ballasting arrangements. It is significant however that the defendant had begun this operation of its own initiative and without prior consultation with the master or Mr. Wort.

58. Fifthly, the defendant seeks to derive assistance from the fact that on 12th July Mr. Wort instructed it to place typhoon boxes on board the vessel in view of the threat from another tropical storm, and sixthly, that on 15th July due to the approach of typhoon Vera he authorised the defendant to supply the vessel with a portable VHF radio set, a portable generator and a portable air compressor and requested the defendant to teach the crew how to use them. Mr. Temple agreed that on the first of these occasions, the initiative had come from the defendant and that Mr. Wort had simply authorised that which the defendant had recommended be done. He said that on the second occasion Mr. Wort had asked for advice as to what equipment should be placed on board the vessel in the event of a typhoon and that he accepted the advice that was given.

59. Curiously, the defendant pleaded in its defence that when the vessel arrived in Hong Kong the defendant attached a 'D' shackle to the port anchor chain and that this was the only work requested or authorised by the owners or Mr. Wort to be carried out by the defendant on the vessel's anchor chains, save for hanging out one shackle of the port anchor chain. However, the evidence clearly disclosed that the defendant attached the 'D' shackle and hung off one shackle of port anchor cable without any request or advice from the owners or Mr. Wort.

60. While denying that it was under the duty alleged by the plaintiffs, the defendant admits that it had required the vessel to leave the yard and that she was a dead ship. Indeed the defendant pleaded that at the meeting on 26th May 1983 at the Marine Department it had made it clear that it was not prepared to be held responsible for the safety of the vessel during typhoons.

61. In the course of his testimony Captain Shearman emphatically denied that the defendant had given any indication that it was not prepared to undertake such responsibility. He stressed that if he had thought that the defendant had expressed such an intention he would not have permitted the vessel to enter Hong Kong waters. As far as he was concerned the policy of the Marine Department is to look to the relevant shipyard to take care of any disabled vessel on which it is effecting repairs because the shipyard, not the owner, has all the necessary facilities at its disposal.

62. It is significant that Mr. Temple's own minutes of the meeting contain no reference to any assertion that the defendant was not prepared to be held responsbile for the safety of the vessel during typhoons. It is therefore not surprising that he failed to testify that any such disclaimer was made at the meeting. Indeed there was no evidence from any other source to support this positive allegation in the defence. On the other hand there is a clear reference in Mr. Temple's minutes to an undertanding that on the arrival of the vessel at the defendant's dockyard the port anchor cable would be fitted with a buoy shackle as a typhoon precaution, and that the Marine Department had agreed to allow the vessel to be moored at a typhoon buoy during typhoons. It seems to me that this indicates that the defendant recognised that it had the responsibility to take at least some typhoon precuations in respect of the vessel.

63. Mr. Temple did testify, however, that at the meeting on 6th June at his office with the senior representatives of the owner, and at which neither Captain Shearman nor any other Marine Department personnel was present, he had made it clear to the owner through Mr. Tsu that the defendant would not be responsible for the safety of the vessel other than in respect of the work that it was carrying out on it.

64. The background against which this disclaimer was made was that during the course of his testimony Mr. Temple was insistent that it had been only with the greatest of reluctance that the defendant had accepted responsibility for and custody of the vessel when it was handed over by the salvors on 29th May, and that accordingly it was anxious to hand back responsibility to the owners as soon as possible. It was his contention that the defendant had only agreed to accept responsibility for the vessel on 26th May because the owner had no representative in Hong Kong at that time to take over the vessel from the salvors and thus enable them to terminate the salvage contract. According to him the defendant assumed this responsibility on the expectation that the owner would have representation in Hong Kong within a few days after the vessel's arrival.

65. This does not accord with the facts. The owner's agent in Hong Kong had been appointed by the time the defendant had agreed with the salvors at the meeting of 27th May to assume responsibility for the Hua Lien. If the defendant had felt so reluctant to accept responsibility for the vessel, it is difficult to understand why it did not insist that the local agent should receive instructions to assume responsibility on the owner's behalf. Indeed, Mr. Steel sought to interpret Mr. Temple's testimony as meaning that the defendant had merely assumed responsibility for the vessel on behalf of the owner. Mr. Temple certainly did not say that and I am satisfied that his evidence cannot be so construed. Had this been so there seems to be no reason why he should have laid such stress on the defendant's reluctance to assume responsibility for the vessel and its anxiety to return that responsibility to the owner.

66. Moreover it is significant that there is no reference in Mr. Temple's minutes of the meeting of 6th June of any alleged disclaimer by the defendant of responsibility for the vessel. This does not sit easily with Mr. Temple's claim that the defendant viewed this as a matter of importance.

67. In a statement received under section 47 of the Evidence Ordinace Mr. Tsu denied that at that meeting or at any other time the defendant had stated that the Hua Lien was to remain the responsibility of the owner while she was at the defendant's yard, or that he or any other of the owner's representatives had agreed to such an arrangement. He added that he could not recall the defendant ever having stated that it would not be responsible for the vessel in typhoons. Mr. Tsu stated that he regarded the defendant as being responsible for the care and maintenance of the vessel whilst she was at the yard and for taking all necessary precautions for her to lie safely during the passage of a typhoon. He explained that the reason for this was that the owner relied on the specialist expertise of the defendant to take appropriate measures to ensure that, being in such a severely damaged and immobilised condition, the vessel would be kept in a safe state pending the carrying out of permanent repairs. He further stated that Mr. Wort had been appointed as superintendent engineer in Hong Kong to deal with the repair specifications and to attend to the technical aspects of the vessel's repair, and not to see to her navigational precautions or to ensure that appropriate typhoon precautions were taken. As to the local agents, they were appointed solely for the purpose of dealing with port agency requirements and the appointment of a crew.

68. Captain Weeks, who also attended at the meeting, testified that reference had there been made to the vessel becoming the responsibility of the owner while it was moored at the harbour buoy and that the defenant had said that it would assist by making arrangements for the provision of pilots and tugs and for the allocation of the mooring. This, of course, is vastly different from Mr. Temple's claim that he had made it plain that the yard would not be responsible for the safety of the vessel except in respect of the work it was carrying out on her. Moreover, the defendant left it until 16th June before it secured any formal written release from its responsibility for the vessel. Even then this was merely the release to the master when he and his skeleton crew went on board.

69. Having regard to all the circumstnces of the case, including the fact that the defendant did carry out certain typhoon precautions on the Hua Lien without instructions from the owners, Mr. Wort or the master, I accept what Mr. Tsu said in his statement.

70. Mr. Temple was an extremely defensive witness  who displayed great determination not to give an answer from which it might be possible to draw any conclusion adverse to the defendant. I am unable to place any reliance on his evidence in so far as it assisted the defendant. I am completely satisfied that the defendant was content to accept responsibility for and custody of the vessel on 29th May. There can be no doubt that, even before it had been asked to do so, the defendant accepted the responsibility as early as the meeting on 26th May of taking at least one typhoon precaution for the safety of the vessel and that, prior to the appointment of Mr. Wort and the employment of the master and crew, it actually carried out two typhoon precautions namely, hanging off one shackle of port anchor cable from the bow and performing a simulated drop of the starboard anchor. As to the ballasting of the vessel, it was not until Mr. Wort had requested Mr. Temple to notify the master that this operation had commenced that the defendant considered it appropriate to inform him. Mr. Temple agreed in cross-examination that it is normally the master who judges what stability he requires. Mr. Temple's failure to consult the master before commencing that operation serves only to reinforce the distinct impression conveyed by the evidence in general that the defendant regard the master as a mere figurehead and took the view that he and his crew had been appointed simply to fulfil marine Department regulations, to act as watchmen while the vessel was berthed at the dockyard and to function as a bare riding crew she was moored at a typhoon buoy.

71. I conclude that the defendant carried out the typhoon precautions to which I have referred without consultation with the owner or the owner's representatives because it accepted that the responsibility for taking all reasonably necessary precautions rested with it. In this connexion it is relevant that in the defendant's schedule of rates and charges, which it sent to the owner, clause 8 specifically states "all necessary costs and charges associated with typhoon or inclement weather precautions will be for owners account". This clearly indicates that the defendant recognised that the need to carry out necessary typhoon precautions might arise and had inserted this clause to cover itself in the event of any subsequent dispute with the owner of a vessel over the costs so expended.

72. The plaintiffs allege that the port anchor cable did not accord with the requirements of Lloyd's Rules and Regulations for the Classification of Steel Ships (Lloyd's Rules") in that as its most worn part it was reduced in mean diameter by more than 11% and had not been renewed. The defendant denies this allegation and I shall briefly deal with the relevant evidence at a later stage.

73. The plaintiffs also allege that the port guillotine stopper mechanism was defective in that it had become so loose that it allowed the port cable to be wrenched out under the stopper bar in response to the stress set up by the extreme weather conditions that prevailed during Ellen.

74. Of the many particulars of negligence pleaded, the following are the principal ones on which the plaintiffs rely to establish that the damage suffered by them was caused by the defendant acting in breach of the duty alleged:       

75. During the course of the trial the plaintiffs placed the greatest emphasis on particulars (a), (b), (d), (g), (h) and (i). It is fair to say, however, that although no great stress was laid on particular (b), the plaintiffs contended that even if the court were to excuse that particular failure, it served only to emphasis the importance of the defendant implementing the other precautions that it had failed to take.

76. The defendant contends that responsibility for securing the port anchor cable beneath the bar of the port guillotine stopper was the responsibility of the master and that as his crew had failed to ensure that this was done the port cable was able to run out under the unsecured stopper bar. The defendant also denies that the port guillotine stopper mechanism was obviously defective.

77. In short the defendant denies that it was guilty of any breach of duty or of any negligence that caused or contributed to the damage suffered by the plaintiffs, and claims that in so far as it might have been under any duty to the plaintiffs, it took all reasonable precautions to make the vessel as reasonably fit as was possible in the circumstances to moor at the buoy in the expected typhoon Ellen and that it received no instructions from the owners, Mr. Wort or the master to carry out any of the typhoon precautions or to rectify any defects that the plaintiffs allege the defendant was under a duty to carry out or to rectify.

78. Whilst conceding that it took the typhoon precaution of performing a simulated drop of the starboard anchor and then leaving it suspended outside the hawse pipe so that it could be released by the crew if and when required, the defendant denies that its failure to rig the disconnected port anchor into an emergency typhoon anchor system was a breach of any duty or amounted to negligence. The basis for this contention is that the precaution was not one that it could reasonably have been expected to take and was impossible, impracticable or hazardous to carry out.

79. The defendant pleaded that the parting of the vessels port anchor cable was either an Act of God or alternatively was caused or contributed to by the negligence of the master and his crew in failing

80. There does not appear to be any dispute that an Act of God is an accident due to natural causes directly and exclusively without human intervention which could not by any amount of ability have been foreseen or, if foreseen, could not by the exercise of all reasonable skill and care have been avoided. On the evidence before me I have no doubt that the casualty was not caused by an Act of God.

81. Further or alternatively the defendant pleaded that if it had been negligent in any of the respects alleged by the plaintiffs, such negligence was not causative of the accident as the wind forces exerted on the vessel were greater than the breaking strain of the port anchor cable even when new and the combined holding power of the starboard anchor and an emergency bower anchor. This pleading does not sit easily with the determined attempt by the defendant to undermine the evidence given by the plaintiff's expert, Mr. Byrne, as to the enormous loads imposed on the port cable by the wind forces.

The law

82. Both counsel have referred me to a host of authorities, but the real thrust of their submissions centred on the line of House of Lords decisions from Donoghue v Stevenson ⁽¹⁾ to Curran v Northern Ireland Co-ownership Housing Association ⁽²⁾, and the decision of the Privy Council in Yuen Kun Yeu v A G of Hong Kong.

83. It seems to me that there could be no better starting point than a reference to a passage beginning at page 709 of the judgment of their Lordships delivered by Lord Keith of Kinkel in Yuen Kun Yeu which, despite its length, has the advantage that it makes reference to most of the earlier authorities and puts the essential considerations into admirable focus.

"         The issues in the appeal raise importantissues of principle , having far-reaching implications as regards the potental liability in negligence of a wide variety of regulatory agencies carried on under the aegis of central or local government and also to some extent by non-governmental bodies. Such agencies are in modern times becoming an increasingly familiar feature of the financial, commercial, industrial and social scene.

          The foremost question of principle is whether in the present case the commissioner owed to members of the public who might be minded to deposit their money with deposit-taking companies in Hong Kong a duty, in the discharge of his supervisory powers under the ordinance, to exercise reasonable care to see that such members of the public did not suffer loss through the affairs of such companies being carried on by their managers in a fraudulent or improvident fashion. That question is one of law, which is capable of being answered on the averments, assumed to be true, contained in the appellants' pleadings. If it is answered in the negative, the appellants have no reasonable cause of action, and their statement of claim was rightly struck out.

 

         The argument for the appellants in favour of an affirmative answer to the question started from the familiar passage in the speech of Lord Wiberforce in Anns v Merton London Borough [1977] 2 All ER 492 at 498, [1978] AC 728 at 751:

 

'Through the trilogy of cases in this House, Donoghue v Stevenson [1932] AC 562 [1932] All ER Rep 1, Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465 and Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has sufferd damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the  former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise...'his passage has been treated with some reservation in subsequent cases in the House of Lords, in particular by Lord Keith in Governors of the Peabody Donation Fund v LinSir say Parkinson & Co Ltd [1984]3 All ER 529 at 534, [1985] AC 210 at 240, by Lord Brandon in Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] 2 All ER 145 at 153, [1986] AC 785 at 815 and by Lord Bridge in Curran v Northern and Co-ownership Housing Association Ltd [1987] 2 All Er 13 at 17, [1987] 2 WLR 1043 at 1047-1048. The speeches containing these reservations were concurred in by all the other members of the House who were party to the decisions. In Sutherland . Shire Council v Heyman (1985) 60 ALR 1 Brennan J in the High Court of Australia indicated his disagreement with the nature of the approach indicated by Lord Wilberforce, saying (at 43-44):

 

'Of course, if foreseeability of injury to another were the exhaustive criterion of a prima facie duty to act to prevent the occurrence of that injury, it would be essential to introduce some kind of restrictive qualification - perhaps a qualification of the kind stated in the second stage of the general proposition in Anns. I am unable to accept that approach. It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed". The proper role of the "second stage", as I attempted to explain in Jaensch v Coffey ((1984) 54 ALR 417 at 437), embraces no more than "those further elements [in addition to the neighbour principle] which are appropriate to the particular category of negligence and Which confine the duty of care within narrower limits than, those which would be defined by an unqualified application of the neighbour principle".' (My emphasis.)

 

Their Lordships venture to think that the two-stage test formulated by Lord Wilberforce for determining the existence of a duty of care in engligence has been elevated to a degree of importance greater than it merits, and greater perhaps than its author intended. Further, the expression of the first stage of the test carries with it a risk of misinterpretation. As Gibbs CJ pointed out in Sutherland Shire Council v Heyman (at 13) there are two possible views of what Lord Wilberforce meant. The first view, favoured in a number of cases mentioned by Gibbbs CJ, is that he meant to test the sufficiency of proximity simply by the reasonable contemplation of likely harm. The second view, favoured by Gibbs CJ himself, is that Lord Wilberforce meant the expression 'proximity or neighbourhood' to be a composite one, importing the whole concept of necessary relationship between plaintiff and defendant described by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580, [1932] All ER Rep 1 at 11. In their Lordships' opinion the second view is the correct one. As Lord Wilberforce himself observed in McLoughlin v O'Brian (19820 2 All ER 298 at 303, [1983] 1 AC 410 at 420, it is clear that foreseeability does not of itself, and automatically, lead to a duty of care. There are many other statements to the same effect. The truth is that the trilogy of cases referred to by Lord Wilberforce each demonstrate particular sets of circumstances, differing in character, which were adjudged to have the effect of bringing into being a relationship apt to give rise to a duty of care. Foreseeability of harm is a necessary ingredient of such a relationship, but it is not the only one. Otherwise there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forbears to shout a warning.

Donoghue v Stevenson established that the manufacturer of a consumable product who carried on business in such a way that the produce reached the consumer in the shape in which it left the manufacturer, without any prospect of intermediate examination, owed the consumer a duty to take reasonable care that the product was free from defect likely to cause injury to health. The speech of Lord Atkin stressed not only the requirement of foreseeability of harm but also that of a close and direct relationship of proximity. The relevant passages are:

'Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.' 'I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.'

'There will no doubt arise cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises.'

        Lord Atkin clearly had in contemplation that all the circumstances of the case, not only the foreseeability of harm, were appropriate to be taken into account in determining whether a duty of care arose. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465 was concerned with the assumption of responsibility. On the facts of the case no liability was held to exist because responsibility for the advice given had been disclaimed, but there was established the principle that a duty of care arises where a party is asked for and gives gratuitous advice on a matter within his particular skill or knowledge and knows or ought to have known that the person asking for the advice will rely on it and act accordingly. In such a case the directness and closeness of the relationship between the parties are very apparent. Dorset Yacht Co Ltd v Home Office [1970] 2 All ER 294, [1970] AC 1004 was an example of the kind of situation where a special relationship between a defendant and a third party gives rise to a duty on the part of the defendant to take reasonable care to to control the third party so as to prevent him causing damage to the plaintiff. Some borstal boys, under the supervision of prison officers, were encamped on an island off which yachts were moored. Some of the boys, in an attempt to escape from the island, boarded a yacht and manoeuvred it so as to damage another. This was the very thing that might reasonably be foreseen as likely to happen if the prison officers did not take reasonable care to control the activities of the boys. The relationship of the officers to the boys was analogous to that between parents and children, a relationship described by Dixon J in Smith v Leurs (1945) 70 CLR 256 at 261 - 262 as capable of giving rise to a duty of control, saying:

'... apart from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care withreference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognized that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger. Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others.'

It is true that in the Dorset Yacht case a question arose whether the decision of the Home Office to give borstal boys a measure of freedom in order to assist in their rehabilitation fell within the ambit of a discretionary power the exercise of which was not capable of being called in question. But that question did not reach into the conduct of the officers who were in charge of the boys in the circumstances prevailing on the island. Having regard to these circumstances, it was not difficult to arrive, as a matter of judgment, at the conclusion that a close and direct relationship of proximity existed between the officers and the owners of the yachits, sufficient to require the former, as a matter of law, to take reasonable care to prevent the boys from interfering with the yachts and damaging them."

84. It is abundantly plain from Yuen Kun Yeu that the expression "proximity or neighbourhood" as used by Lord Wilberforce in Anns v Merton London Borough Council⁽⁴⁾ is a composite one, importing the whole concept of necessary relationship between plaintiff and defendant, and that in determining whether a duty of care exists it is appropriate to take into account all the circumstances of the case that throw light on the nature of the relationship between the parties and not to focus exclusively on the essential ingredient of foreseeability of harm.

85. Two years earlier in his speech in Peabody Trust y Sir Lindsay Parkinson Ltd^.(5) Lord Keith made it plain that in examining all the circumstances of the particular case regard must be had to the consideration of whether it is just and reasonable that a defendant should be under a duty of care of the particular scope contended for.

86. His Lordship expressed himself thus at page 239:

                "Lord Atkin's famous enunciation of the general principles upon which the law of negligence is founded, in Donoghue v Stevenson [1932] AC 562, 580, has long been recognised as not intended to afford a comprehensive definition, to the effect that every situation which is capable of falling within the terms of the utterance and whichresults in loss automatically affords a remedy in damages. Lord Reid said in Dorset Yacht Co v Home Office [1970] AC 1004, 1027:

"It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion. For example, causing economic loss is a different matter; for one thing, it is often caused by deliberate action. Competition involves traders being entitled to damage their rivals' interests by promoting their own, and there is a long chapter of the law determining in what circumstances owners of land can and in what circumstance they may not use their proprietary rights so as to injure their neighbours. But where negligence is involved the tendency has been to apply principles analogous to those stated by Lord Atkin: cf. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. And when a person has done nothing to put himself in any relationship with another person in distress or with his property mere accidential propinquity does not require him to go to that person's assistance. There may be a moral duty to do so, but it is not practicable to make it a legal duty."

87. After referring to the well known passage from Lord Wilberforce in Anns his Lordship proceeded:

"There has been a tendency in some recent cases to treat these passages as being themselves of a definitive character. This is a temptation which should be resisted. The true question in each case is whether the particular defendant owed to the particular plaintiff a duty of care having the scope which is contended for, and whether he was in breach of that duty with consequent loss to the plaintiff. A relationship of proximity in Lord Atkin's sense must exist before any duty of care can arise, but the scope of the duty must depend on all the circumstances of the case. In Dorset Yacht Co v Home Office [1970] AC 1004, 1038, Lord Morris of Borth-y-Gest, after observing that at the conclusion of his speech in Donoghue v Stevenson [1932] AC 562, Lord Atkin said that it was advantageous if the law "is in accordance with sound common sense" and expressing the view that a special relation existed between the prison officers and the yacht company which gave rise to a duty on the former to control their charges so as to prevent them doing damage, continued, at p. 1039

 

"Apart from this I would conclude that, in the situation stipulated in the present case, it would not only be fair and reasonable that a duty of care should exist but that it would be contrary to the fitness of things were it not so. I doubt whether it is necessary to say, in cases where the court is asked whether in a particular situation a duty existed, that the court is called upon to make a decision as to policy. Policy need not be invoked where reason and good sense will at once point the way. If the test as to whether in some particular situation a duty of care arises may in some cases have to be whether it is fair and reasonable that it should so arise, the court must not shrink from being the arbiter. As Lord Radcliffe said in his speech in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, 728, the court is 'the spokesman of the fair and reasonable man.'

 

So in determing whether or not a duty of care of particular scope was incumbent upon a defendant it is material to take into consideration whether it is just and reasonable that it should be so."

88. Indeed Gibbs CJ in Sutherland Shire Counsel v Heyman (HCA⁾(6) respectfully expressed the view that what Lord Keith had said in Peabody was a correct statement of principle. Difficulty in a particular case will arise if the circumstances do not fall into a recognised category. As Gibbs CJ said at page 14 of Sutherland Shire Council :

                "None of this process will be necessary if the facts fall into a category which has already been recognized by the authorities as attracting a duty of care, the scope of which is settled - for example, no trial judge need inquire for himself whether one motorist on the highway owes a duty to another to avoid causing injury to the person or property of the latter, or what is the scope of that duty."

89. Interesting as the facts are of all the cases cited to me I do not think that anything will be achieved by subjecting them to an exhaustive examination and comparing their facts with the circumstances that arise for consideration in the present case.

90. The principles enunciated by their Lordships in the most recent House of Lords cases and by Gibbs CJ in Sutherland Shire Council are clear and unambiguous. What remains for determination is whether in applying those principles it can be said that the defendant owed the plaintiffs a duty of care of the scope contended for.

91. In embarking on that exercise I think I should refer to a submission by Mr. Steel that there is an important distinction between misfeasance and non feasance which is relevant to this case. He cited a passage in the speech of Lord Bridge of Harwich in Curran where at page 17 his Lordship referred with approval to an article by Professor JC Smith and Professor Peter Burns in which they were critical of the trend in the development of the law that tended to obscure that important distinction.

92. Mr. Steel submits that non feasance is not actionable unless a special relationship is shown to exist. In the absence of such relationship there is no duty to act. He contends that, after the master had been engaged and custody of the vessel had been transferred to him, the defendant had no vestige of control over her, and that such typhoon precautions as it did take cannot be said to have put either the plaintiffs or the owners at any disadvantage. Thus, he argues, the defendant neither had control over the vessel at the relevant time nor committed any misfeasance.

93. The degree of control that is necessary to give rise to a duty of care need not be absolute. It need only be a sufficient degree of control. The reality of the situation was that the defendant exercised a substantial measure of control over the vessel. Paragraph 3 of the defendant's own Standing Instructions for Typhoon Season states, inter alia:

        "On instructions from management, when it is considered that a typhoon is likely to affect Hong Kong the following action is to be taken:

(a)     Ships under repair.

 

(1)

Ships moored at Dockyard (also Alongside F/Docks).

i.

Ships will be prepared for towing out to typhoon buoys or anchorage in the order approved by the Operations Manager."

94. In this connection the pleadings are illuminating. Paragraph 6(i) of the amended statement of claim reads

"6(1) In order to avoid damage to their facilities it was and is the policy of the defendant not to permit vessels to be alongside the repair berths at the Tsing Yi Island shipyard during the passage of a typhoon close to Hong Kong."

95. To this the defendant pleaded:

                "4(i) Sub paragraph 6(1) of the amended statement of claim is admitted, save that the procedure followed by the defendant was the normal procedure followed when a typhoon approached and that arrangements were made for three other vessels in addition to the "Hua Lien" and that the defendant insisted that the vessel leave the yard and that arrangements had previously been made that the vessel should be allocated a buoy if a typhoon approached as pleaded in sub paragraph 4(iii) herein."

96. Indeed, on 7th September Mr. Temple sent a telex to Mr. Wort informing him that it would be necessary to move the Hua Lien to a typhoon buoy as soon as No. 3 signal had been hoisted and that the costs for the move would be against the owner's account.

97. Moreover, as I have already mentioned, paragraph 8 of the defendant's schedule of rates and charges clearly empowered it have recourse to the owner for all necessary costs and charges associated with typhoon or inclement weather precautions.

98. Not only was the Hua Lien a dead ship that would be gravely handicapped in a typhoon, but the defendant, who had aggressively sought to obtain the contract for the full repair of the vessel and was enjoying the fruits of having been engaged to perform the emergency repair work on her, had, in contrast to the owners, all the heavy machinery and technical resources required to carry out whatever precautions were reasonably necessary to ensure her safety at a typhoon buoy.

99. Mr. David Byrne, a deck officer and the head of the Ship operations and Engineering Division of British Martime Techology where one of his functions is to carry out as project leader work associated with anchoring and mooring systems, testified that in the light of three years experience he had acquired in working in a ship building and repair yard, he would expect a shipyard to be involved in the advance preparation for typhoons of all ships in its yard and that this would apply particularly to dead ships which by their very nature are clearly at the mercy of the environment.

100. I find it difficult to come to any conclusion other than that the defendant exercised a measure of control over the vessel sufficient to give rise to a duty of care to the plaintiffs to ensure that when the vessel was sent out to be moored at a typhoon buoy all reasonable precautions had been taken to prevent her from creating a danger to life and property. In my opinion it is incontestable that it is just and reasonable that the defendant owed that duty of care to the plaintiffs.

101. Accepting that the defendant did take some typhoon precautions preparatory to having the vessel towed to a typhoon buoy in the face of the oncoming typhoon Ellen, the question arises whether those precautions were reasonably sufficient in all the circumstances, bearing in mind that the Hua Lien was a dead ship without rudder and propellors and whose engines and windlasses were out of operation. Taking into account all relevant factors, it would have been obvious that the vessel would have to rely entirely on the integrity of the mooring system to ensure that she did not break adrift when riding out a typhoon at a buoy and that, if her cable did part, she would be completely at the mercy of the elements unless further precautions were taken to arrest her drift and bring her under control.

Technical evidence

102. I have already referred to the Shipmasters Guide published by the Marine Department and in particular to paragraph 2.2.2 which specifies the Marine Department requirements for dead ships under repair. It is clear from the fact that this paragraph appears in Part 1 of the Guide under the heading "Tropical Cyclones Affecting Hong Kong", and from the very wording of the requirements themselves, that they are typhoon precautions. The necessity for them is highlighted by the reference in paragraph 1.1.1 to the excessive number of casualties affecting dead ships and laid up vessels that had occurred in past years during the passage of tropical cyclones, and to the threat that they pose to life to other vessels and to port facilities. The defendant does not dispute this.

103. The plaintiffs lay emphasis on the fact that none of the following requirements of paragraph 2.2.2 was carried out:

104. It was suggested by Captain Weeks on behalf of the defendant that the purpose of the requirement for towing lines was not to ensure the safety of a vessel in a typhoon but to provide a safety measure in the event of a fire breaking out on board a ship berthed at a shipyard. The defendant sought to gain support for this interpretation by contending that the last two requirements in paragraph 2.2.2, namely, the installation of a harbourphone and the prohibition against cutting or hot work been carried out on board unless a gas free certificate had first been lodged, are not referable to typhoons.

105. While I have no doubt that towing lines are necessary fire precaution measures, I regard the suggestion as being no more than one of many attempts by Captain Weeks to shore up the defendant's case whenever possible. Even if it is correct that these two requirements, appearing as they do at the very end of the list, are not strictly typhoon requirements, the fact that the reference to towing lines appears within and not at the end of the sequence of the requirements in that list that necessarily relate to typhoon precautions, indicates that this is not so. Had it been tacked on the end of the list with those other two requirements the argument may have greater force. Moreover, apart from the obvious value of having towing lines on board in the event of the vessel breaking adrift, paragraph 4.1.5 of the Guide refers to the assistance the second bower anchor would offer "in holding the vessel pending any other action which may be possible under the circumstances."(my emphasis). It is difficult to imagine what more likely action there would be under those circumstances than an attempt to secure a towing line to a tug to enable it to arrest the vessel from drifting further.

106. During the course of the plaintiff's case suggestions were made on behalf of the defendant that the rigging of an emergency anchor and insurance wire as a typhoon precaution was unheard of. By sheer chance it came to light that a subsidiary company of the defendant had been involved in litigation as plaintiff in 1976 against the owners of a dead ship named Safina E Hujjaj whose anchor cable had parted in a typhoon in 1973 resulting in the vessel colliding with a seawall or pier belonging to the company. The plaintiff accordingly demanded discovery of all relevant documents concerning this matter.

107. One of the particulars of negligence set out in the statement of claim in that action was that the defendant therein had "failed to have a spare bower anchor prepared and ready for releasing properly, adequately in time or at all" and had "failed to have towing lines available fore and aft for use".

108. Furthermore, in the reply to the defence, the plaintiff admitted that three dead ships moored to buoys in Kowloon Bay had broken adrift in that typhoon, and in support of its contention that an emergency bower anchor should have been prepared and ready for releasing, pleaded that during the passage of typhoon Georgia in 1973 the vessel's spare bower anchor had been taken from its stowage position and connected to an insurance wire.

109. During the course of those proceedings the plaintiff called a meeting in the boardroom of Hong Kong United Dockyards Ltd, the plaintiff in the present action. Mr. Harris, who was Mr. Temple's superior at the time when the Hua Lien was at the defendant's dockyard, attended that meeting with others including Captain Austen of Carmichael and Clarke and Captain Alexander of Hong Kong Salvage and Towage Co Ltd. The minutes of the meeting contain the following passage:

"the dropping of a spare bower anchor may or may not have prevented the vessel from drifting and dragging her starboard anchor. Two anchors out, however, are better than one and the meeting considered that in the circumstances of having lost the port anchor and cable in the middle of the typhoon season and also in view of the considerable height and windage of the vessel the master was guilty of bad seamanship in not having his spare anchor slung on an insurance wire and ready for use."

110. There was also comment in the minutes to the fact that the vessel had appeared to have no towing lines available.

111. It therefore emerges that at the time the Hua Lien was in the defendant's shipyard at least Mr. Harris was aware, first, of the particular vulnerability of dead ships in typhoons, secondly, of the need to prepare an emergency anchor with an insurance wire and to have it available for dropping, thirdly, that this precaution was not novel and, fourthly, that the rigging of towing lines fore and aft was a typhoon precaution that should be taken. Furthermore, the stance taken on towing lines in the pleadings in that action serves to underline the specious nature of the interpretation Captain Weeks sought to put upon the reference to them in paragraph 2.2.2 of the Shipmasters Guide.

112. Captain Third, a marine consultant with an extra master mariner's certificate and a partner in Brookes Bell & Co., performed investigations aboard the Hua Lien on 14th November and 3rd December 1983 and submitted a report of his findings to which I now briefly refer.

113. He found that the anchor cables of the Hua Lien were of U2 steel and had a nominal breaking strain in the order of 150 tonnes. The Classification Societies, however, permit a maximum acceptable limit of 11% for wastage and wear. At this limit the breaking strain of a common link would be in the order of 118 tonnes.

114. In Captain Third's opinion the Hua Lien, with one shackle of port cable deployed to the buoy, had been moored at too short a stay in the conditions that prevailed during Ellen, and that as the wind force increased and the cable had been drawn taut the dampening effect provided by a catenary would have been minimal. The consequence of the vessel being attached to a virtually inelastic and rigid mooring was that the forces generated by the pitching and heaving motions of the vessel would have been transmitted directly into the system. At a stay of 2 to 3 shackles the vertical motions would have had a lesser effect because of the more effective catenary; and although at a long stay of 7 shackles, the cable weight and catenary would have contributed a dampening effect due to the storage of potential energy and the work done in lifting the cable off the harbour bottom, this beneficial contribution would have been outweighed by the magnitude of forces engendered as the vessel sailed across the wind while yawing.

115. Captain Third made rough static calculations that confirmed his own instinctive feelings as a seaman that 2 to 3 shackles is the ideal scope for a vessel such as the Hua Lien moored at a buoy in typhoon conditions.

116. Unfortunately that part of the port cable extending from the point at which it parted at the stopper to where it was attached to the buoy, was lost in the harbour after the casualty and could not be measured. However, Captain Third performed an examination on 16th March 1984 on ten common stud links from the cable recovered from the Hua Lien after typhoon Joe and found that the minimum per cent wastage from nominal diameter in two of them exceeded the maximum of 11% permitted by the Classification Societies. In one link the wastage was 11.87% and in the other it was 13.36%. As these measurements were not performed in as strict a manner as required by the Classification Societies, the results obtained by Captain Third were favourable to the links. Accordingly, on 4th September 1986 he examined a further sixteen links from the vessel. On this occasion he took strict measurements and found that the actual per cent wastage from the nominal diameter of four links was 11.44%, 11.54%, 16.35% and 16.49% respectively. Captain Third had no doubt that if links in the port cable that had been used during Ellen had been wasted and worn to the extent apparent in the links in the three shackles that had lain on deck and not been used in Ellen, they would have been below class requirements. He also expressed the view that it was very noticeable that the port anchor cable used in Ellen was corroded in excess of the Lloyds allowance.

117. Since Captain Third had measured the links for wastage and not for wear, the fact that, with the possible exception of the three shackles at the bitter end in the cable locker, the three shackles lying on deck during Ellen would previously have received more wear than the other shackles in the cable, was not a significant factor.

118. Certain tests were performed for the defendant by Gellatly Hankey Maritime Services on cable links that the defendant claims were used during Ellen. I do not find the results of those tests to be of much assistance because in order to determine their breaking strain Gellatly Hankey did not subject the links to impulse loads but applied a gradually increasing load. The evidence clearly established that the loads generated in the typhoon were impulse loads and that these subject the links to a stress that is different from that imposed by a gradually increasing load. Impulse loads give rise to brittle fracture whereas a gradually increasing load leads to plastic deformation before a link finally fails.

119. During the course of his earlier visits to the vessel Captain Third examined the port guillotine stopper and, with the added assistance of photographs that had been taken by Mr. Wort shortly after the casualty, he was able to arrive at a number of conclusions. He observed that there was considerable wastage of the hinge assembly, the safety pin was bent and the leading edge of the stopper bar was worn. There was also wear in the trackway over which the cable was fed through the mechanism. In his opinion this wear and wastage would have been present prior to typhoon Ellen and that, even if the stopper bar had been lowered and the safety pin inserted at the outset, there was such a degree of play in the system due to wear and wastage, he was sure that the stopper would not have held the common links under the stresses engendered in typhoon conditions.

120. Indeed he expressed the view that even if a link as large as a joining shackle had presented itself in a horizontal position to the stopper bar it might have passed under it. The relevant dimensions of a common link, an enlarged link, an open link and a joining shackle are 187mm, 208mm, 208mm and 218.5mm respectively. Unfortunately he did not measure the clearance between the guide track and the lower edge of the stopper bar when lifted to its maximum height in the secured position. Had he done so it is probable that any dispute as to whether the cable could have run out under the secured stopper bar would have been avoided. Despite the fact that Captain Third's evidence on this aspect was subjected to challenge he was the only witness who actually inspected the port guillotine stopper and is therefore the only person who is in a position to determine whether a shackle length of common links could have slipped under the stopper bar secured by a safety pin. Notwithstanding his failure to put the matter beyond argument by taking a measurement of the relevant clearance I am quite satisfied from what he observed as to the slackness of the stopper mechanism at the hinge and safety pin sockets, the distortion of the hinge and pin, the wear on the leading edge of the stopper, the wear in the track way and, the increased freedom for axial movement of the links due to wear at the places where they interlink, that the clearance was sufficient to enable a shackle length of common links to run under the bar with the safety pin inserted.

121. If the stopper bar had been lowered but not secured when the vessel was initially moored at the buoy there are several obvious explanations:

122. The second possibility seems highly unlikely. It is difficult to conceive that the crew left the pin in the body of the guillotine stopper and dropped the bar over it. It also appears unlikely that if the pin had been in the stopper when the vessel was moored the crew would have removed it. Even though it is possible that the pin had been misplaced at some earlier time, it seems equally unlikely that when the defendant dry docked the vessel the shipyard workmen would not have taken the utmost precautions to secure the anchors so that they would not run free and cause damage to the defendant's property. To do this they would almost certainly have ensured that the safety pins had been inserted. If therefore the pin had been misplaced it is most probable that this occurred after the vessel had been dry docked on the last occasion. Finally, if there had been a link standing vertically in way of the stopper bar thus preventing it from dropping between two links, it is difficult to believe that the master would not have eased, the windlass brake slightly in order to allow the weight of the cable hanging down through the hawse pipe to pull the cable to a more favourable position.

123. Some extremely scanty and almost completely illegible notes were taken during an interview of the master shortly after the casualty by a solicitor representing the owner. A telefax of "a translation" by the solicitor of his notes was produced during the trial and reads as follows:

                "when moored (supervised by pilot) moored to port cable about 1 shackle. Couldn't get stopper down."

124. There then appears an illegible passage in the telefax followed by:

"Moored 1150 8th".

125. It is suggested that this shows that the stopper bar had not been secured by the pin and that it was for this reason that the cable ran out to 7 shackles in the typhoon.

126. However, in the unsigned typed up statement prepared from this scanty note the following passage appears:

                "As is normal in these cases, the mooring was supervised by the pilot and a mooring party in a small boat supplied by the Port Authorities actually made the end of the port cable fast to the buoy. The deck hands assisted on the fore deck of the Hua Lien and once the end of the cable had been made fast to the buoy, we slacked off the cable to the first shackle. The brake was tightened and the stopper dropped across the cable. The locking pin was apparently missing and seizing wire was used to hold the stopper down. In addition to the cable, a wire rope was also led to the buoy."

127. After describing the events of the following evening when the cable slipped the statement continues:

                "A pin was found to lock the stopper in place and this effectively prevented the cable from slipping further out."

128. When interviewed by the plaintiff's solicitors a year later the master signed a statement that had been read and translated to him. The following is an extract.

                "The port anchor chain had already been locked secure by the compressor bar by HUD but one of my crew inserted a locking pin (found by my crew and not already in position) into the compressor bar, thereby locking it. Additionally an effort was made to tighten the brake, but it appeared to be fully applied. The starboard anchor was left untouched by us in its position, hanging down. In the afternoon two bosuns and myself rigged some seizing wire, which we found lying on the deck, around the port chain to the port compressor. My reason for doing this was because I feared that the compressor bar would not hold the chain. I did not wish to rely upon the worn and unreliable looking compressor bar holding under the severe strain to which it might later be subjected."

129. Later still, in March 1985, the master made a signed statement to the defendant's solicitors in which he said:

"When we completed mooring the Hua Lien I myself went to check and saw the compressor bar down on the port windlass but with no securing pin. A crew member went and found a securing pin for the compressor bar and I saw him put the pin in position. It was quite loose in the hole. I personally inspected everything because I did not have much confidence in the second officer. Using one of the many metal bars left there, I think by the Japanese, we were able to tighten the brake on the windlass as much as possible. The Hua Lien was not fitted with devil's claws. With hindsight I realise that it was not possible for the compressor bar on the port windlass of the Hua Lien to hold the port anchor cable in the conditions met in typhoon Ellen since the clearance between the cable and compressor bar proved to be too great and the cable slipped even with the compressor in position. We put the pin in the hole to secure the compressor bar and tried to put wire through the cable to seize it but this subsequently proved not to be effective. At the time I did not think that it was a very good arrangement but it was the best we could do."

130. Although there is evidence in the form of statements as to what the situation was at a later stage there is no other evidence from any other member of the crew as to whether the stopper bar was secured with a pin at the time when the vessel was initially moored to the buoy and, unless there is independent supporting evidence,. it is difficult to assess what weight should be given to a witness statement when the maker has not been subjected to cross examination.

131. I am satisfied that the port guillotine stopper was seriously defective and that its condition prior to Ellen was as is depicted in Mr. Wort's photographs and as seen by Captain Third in November and December 1983 and described by him in his testimony. The spontaneous complaint of the master recorded in the VHF radio transcript that "the chain has slipped out because the stopper was not tightened in the yard" (my emphasis) lends some support to this conclusion.

132. If the safety pin had been inserted at the time when the cable was attached to the buoy it seems that for the cable to have been able to run out to seven shackles during the typhoon the pin must have vibrated out of its socket as a consequence of the slack stopper bar being jolted up and down constantly either by the repeated action of the vessel snatching on the cable or by a sequence of the comparatively smaller common links running out under the bar. However, for the pin to have vibrated out of the socket it would have been necessary for it to work against gravity up an incline before it finally fell free. Alternatively, the pin did not vibrate out of its socket but instead, not only the common links, but also the enlarged links, open links and the joining shackles along the entire length of cable that ran out passed under the secured stopper bar.

133. In cross examination Captain Third expressed the view that he certainly would not rule out the possibility of the pin having vibrated free. Later, in re examination he said "it is certainly not beyond possibility, indeed I think it is very probable, that a loose fitting pin could be dislodged and fall free as a result of that vertical movement of the stopper".

134. If the pin had been inserted and had not vibrated free I think it would be most unlikely that all of the links larger than the common links in that six shackles of cable would have presented themselves horizontally rather than vertically to the stopper bar. Moreover, it seems clear from the statements that after the cable had run out to seven shackles and the starboard stopper pin had been inserted in the port stopper, it did not run out any further.

135. There is nothing in any of the statements of the other crew members or in the VHF radio transcript that materially adds support to the master's claim in the statements he gave to both parties' solicitors long after the event that the pin had been inserted in the stopper at the outset. I have come to the conclusion that with the passage of time the master allowed himself the indulgence of wishful thinking, and that in all probability the truth of the matter is that the safety pin had not been inserted in the stopper because it was missing. I do not think it is at all likely that if the pin had been present, the crew would have failed to insert it or that, if they had inserted it, it would not have slipped fully home. Thus while I accept Captain Third's opinion that if a pin had been inserted it is possible that the vibrations in the slack stopper mechanism could have caused it to be dislodged, an overall consideration of the evidence persuades me that the pin had not been inserted initially.

136. Dr. Baker, a highly qualified and widely respected metallurgist testified that, if the anchor had been regularly used, any corrosion that had occurred in the hinge pin sockets might well not have been readily visible, but that on the first occasion when the stopper bar was fully opened the corroded metal would have broken free and have revealed the extent of metal loss caused by the corrosion. Since the defendant had rigged one shackle of port cable to the vessel's bow on the first day she arrived at the shipyard, and had twice put her into dry dock, there can be no doubt that the badly corroded condition of the port guillotine stopper and the slackness of the whole mechanism would have been obvious to anyone who took the care to inspect it.

137. The failure of the defendant to subject the port stopper to an examination is indicative of the casual approach adopted by it in regard to typhoon precautions for the vessel. It knew or ought to have known that it was sending a dead ship with a defective cable stopper to a buoy to weather a typhoon. There is no advantage to be gained by taking measures to ensure the security of the cable at its point of connection with the typhoon buoy if the mechanism to secure the other end of the cable to the vessel is seriously defective.

138. Both Captain Third and Mr. Byrne made it plain that guillotine stoppers are of dubious reliability and that the hazards associated with them are well known in the marine industry. In view therefore of the seriously defective condition of the port stopper it was imperative that, at the very least, the hinge pin should have been replaced with a larger one and, as recommended by Captain Third and as the salvors on board the vessel had done in typhoon Joe, the stopper should have been secured with wire and iron bars. Had the owners through their representatives not asked for these measures to be taken it was incumbent on the yard to ensure that they were carried out and to charge the owners with the expense incurred instead of sending the vessel to the buoy in her extremely vulnerable condition without the benefit of those comparatively inexpensive and simple precautions.

139. In my judgment the principal cause of the port cable having run out to 7 shackles in the typhoon was that the safety pin was missing thus leaving the stopper bar unsecured. What effect the slackness of the stopper mechanism had in assisting the cable to run free is not clear. It seems reasonable to conclude, however, that it is likely to have had some influence on the release of the cable.

140. The sportaneous utterances recorded in the VHF radio transcript also satisfy me that after the port cable had run out but prior to it having parted, the master had for a substantial period of time been making unsuccessful attempts to drop the starboard anchor under foot. The transcript reveals that he had expressed his anxiety that the anchor cable had run out and that there was a neighbouring vessel whose cable had parted. He is recorded as saying to the shipyard employee who was then manning the radio that the other vessel "has already dropped anchor but we can't doing (sic) that." The radio was then handed to the dockmaster who advised the master "There should be another anchor on your ship, can you drop that anchor?" The master replied "How can we drop that anchor, it's dead, its completely dead". On being asked if he could "lift the brake", the master repeated "HUD, the compressor is jammed dead and rusting, we can't lift it up. "

141. Mr. Steel suggested that, in their anxiety, the crew had released the windlass brake before raising the stopper bar and that as a consequence the link abaft the bar had jammed hard against it and locked it in position. Although this possibility cannot be entirely discounted it seems to me to be more probable that after the defendant's workmen had performed the simulated drop of the starboard anchor some three months earlier, they had secured the stopper bar in the down position and allowed the link abaft the bar to ride against it and so take the strain off the windlass brake. I am informed by Captain Cloke that this would be the normal and sensible procedure. Although I recognise that in order to have the anchor in a state of preparedness for immediate dropping the master should have attempted to raise the stopper bar when the vessel went to the buoy, I am of the view that the yard should have ensured that the stopper bar was free for lifting before the vessel was towed from the shipyard, for there were no tools on board the vessel for the crew to use.

142. Bearing in mind that the windlasses were not operational and that the recommendation in paragraph 4.1.2 of the Shipmasters Guide that at a typhoon buoy "at least two shackles of cable "on deck" is required in the majority of cases", I am satisfied that the defendant should have hung off two shackles of port anchor cable for attachment to the buoy. Mr. Temple testified that one shackle was hung off because that was a convenient length. It seems to me this was a convenience for the defendant only. The tug crew who attached the 'D' shackle to the buoy would not have been put to any inconvenience because they simply received the bight of cable adjacent to the 'D' shackle after it had been lowered to them by the crew of the Hua Lien.

143. There is no reason to believe that this operation would have been any different had two shackles of cable (para 4.1.2 of the Shipmaster's Guide) rather than one been hung off the bow by the defendant at the shipyard and subsequently attachd to the buoy. Indeed, had this been done, a proper Length of stay for typhoon conditions would have been established initially and it is very probable that there would then have been no subsequent need for the master to release the secured stopper bar to pay out more cable in the typhoon. Both Captain Third and Mr. Byrne testified that in a typhoon the forces brought to bear on a mooring cable at a stay of one shackle are far greater than those at a two shackle stay. Furthermore, because of the absence of windlass power, it was clearly desirable to avoid the need for veering cable during adverse weather conditions for the windlass brake alone may have not have been capable of preventing the cable from paying out uncontrollably.

144. Mr. Byrne used a dynamic simulator program in a computer in order to estimate as accurately and realistically as possible the loads on the vessel's chain cable in response to the environmental conditions in typhoon Ellen. It was not in dispute that such a program has practical applications and has been used to design the mooring arrangements for a variety of ships including those moored by single and multiple cables in the offshore drilling business . The program has also been used by the Ministry of Defence. It is not disputed that in a number of live full scale comparisons the loads encountered had been monitored by the owners of the vessels concernd and had been found to conform with those predicted by the computer. The computer methods used by Mr. Byrne have been exhaustively checked for accuracy in a variety of tests at both model scale and full scale and have been found to be accurate to within about 5 to 10%.

145. Mr. Byrne testified that every effort is made to estimate uncertainties in the input quantities and that although the error band for those quantities would be within plus or minus 5%, he would add another plus or minus 5% to take into account effects that had not been included in the material fed into the computer, for example, possible variations in current and wind direction.

146. Using the wind speeds recorded at the Royal Observatory anenometer at the Star Ferry pier at Tsimshatsui between 0500 and 0600 hours and 0600 and 0700 hours on 9th September the mean windspeeds for each hour were 56 and 44 knots and the maximum gusts were 87 and 93 knots respectively. At stays of one, two and seven shackles the maximum tensions on the port anchor cable between 0500 and 0600 hours would have been 95, 84 and 173 tonnes, and at the same stays the maximum tensions between 0600 and 0700 hours would have been 123, 82 and 110 tonnes respectively. These results, which substantially agree with those independently arrived at by Captain Third using a much cruder method of calculation, give some idea of the comparative tensions on the cable at those three stays.

147. From these computer results, Mr. Byrne concluded that at a stay of one shackle from the buoy it is most likely that the vessel's port cable would have parted in the typhoon, that at a seven shackles stay the cable would also have parted, as indeed it did, and that if a stay of two shackles had been deployed as recommended in para. 4.1.2 of the Shipmasters Guide ("at least two shackles") then the cable's breaking load of 118 tonnes would not have been reached and the ship would probably have remained at her mooring without breaking adrift.

148. In arriving at these conclusions Mr. Byrne disregarded the beneficial dampening effect that a starboard anchor deployed under foot would have had in tending to reduce the velocity of the ship as it oscillated about the single mooring and thus lessening the peak tensions experienced by the cable.

149. On this analysis, had the defendant rigged two shackles of port anchor cable instead of one, the Hua Lien would probably have not broken adrift. Had the two shackles been rigged, as I am satisfied they should have been, the master would undoubtedly have used them, and the tensions that were created while the vessel was at a stay of one shackle would not have arisen. Whether the cable would still have run out under the unsecured stopper bar is not clear, but it is certain that the odds against it doing so would have been increased.

150. It is apparent from Mr. Byrne's figures that the highest load at a stay of one shackle occurred at 44 knots and not at 56 knots. At first sight this is surprising, but, as Mr. Byrne explained, at a stay of one shackle the behaviour of the ship is heavily weighted by the gusting intensity of the wind. At 44 knots mean wind speed the gust was more than twice the mean wind speed whereas at the 56 knots mean wind speed the gust was only approximately one and a half times the mean wind speed. It is the sensitively to short duration events that makes a one shackle stay fragile.

151. Both Captain Third and Mr. Byrne were of the opinion that the cable parted due to a sharp, sudden load known as an impulse load. Mr. Byrne explained that this caused brittle fracture of a link, a mechanism different from ductile fracture which is caused by much slower events. At a stay of one shackle the environmental loads on the ship cause frequent snatch loads, that is to say loads of high intensity but of short duration, and although there is restraint there is insufficient catenary to dampen the snatching. If the vessel is at a stay of one shackle and moves a metre further from the buoy the stress on the cable increases by a factor of about 10. Because  at a stay of seven shackles there is sufficient catenary to slow the rate of tension in the cable, the vessel is not jolted by frequent sharp snatches but sails across on an arc from one side to the other. While sailing in this manner the loads on the cable are generally quite small until the vessel reaches the limit of an excursion where it then becomes subject to very large shock loads. A stay of two shackles avoids both of these excesses; but as stay increases from a point between two and three shackles the loads begin to increase. Mr. Byrne expressed the view that his seaman's intuition would tell him that three shackles would be too much and would cause him some disquiet. He regarded a stay of three and a half shackles as being imprudent and that the shock loads at such a stay would be at approximately at the same level as those experienced at one shackle. He explained that with the shock loads being imparted at a stay of seven shackles the probability of brittle fracture of a link is greatest at the point of the cable's connection to the vessel.

152. Assuming that the wind speeds had been recorded by the Royal Observatory anemometer at Kwai Chung would more accurately reflect the wind forces to which the Hua Lien had been subjected at the critical times, Mr. Byrne performed a computer simulation based on the figures recorded there. The calculations revealed that, at the mean wind speed of 48 knots and the maximum gust of 76 knots recorded between 0600 and 0700 hours on 9th September, the maximum loads on the port anchor cable at one, two and seven shackles would have been 87, 80 and 117 tonnes respectively.

153. At between 0700 and 0800 hours when the mean wind speed was 60 knots and the maximum gust was 91 knots, the maximum loads at one, two and seven shackles would have been 124, 96 and 194 tonnes respectively. The conclusions therefore remain that during the critical period of the typhoon the breaking load of the cable would have been exceeded at a stay of seven shackles and the cable would have parted, but that if two shackles had been employed and the cable had not been wasted below the level permitted by the Classification Societies, the vessel would not have broken adrift.

154. Furthermore, the transcript reveals that the tug crew had experienced considerable difficulty at the buoy in freeing the pin which was found to have rusted in the 'D' shackle. While perhaps not greatly serious in itself, such lack of care in ensuring that the pin could be readily freed, is an indication of the careless approach the defendant took in regard to typhoon precautions for the vessel.

155. The testimony of several witnesses clearly establishes that the contents of the Shipmasters Guide are common sense to every seaman, that the guide contains basic precautions which should be taken when mooring a ship securely to weather a typhoon and for providing precautionary capacity in the event of her breaking adrift. In short the Guide is the distillation of generations of seafaring wisdom and experience. It is difficult to escape the conclusion that prima facie any failure to observe the requirements and advice in the Guide must be viewed as a departure from common sense and as being indicative of a measure of negligence.

156. The passive role that the master obviously played in the preparation of the vessel for possible typhoons and the lack of concern shown by the defendant in seeking his views, as exemplified by its commencing to ballast the vessel without consulting him, indicates to me that not only did the defendant look upon the master and crew as mere watchmen necessarily present to fulfil Marine Department regulations and to man the vessel at a typhoon buoy, but that the master and crew saw themselves in the same light.

157. Mr. Temple, whose task it was to supervise on behalf of the defendant the work being done on the Hua Lien, admitted that he had not asked whether the guillotine stoppers and the anchor cables had been checked by the master or Mr. Wort, and that he knew that no emergency anchor and towing lines had been rigged. In the course of cross examination his attention was drawn to instruction 1(b) of the defendant's standing instructions for typhoon seasons which provides that it is of utmost importance that certain work not be undertaken on a ship in the typhoon season without prior reference to both the Docking Manager and the Marine Manager. His response to this was that "it should be taken with a grain of salt" and that "it is open to some relaxation when and where weather conditions are judged to be non critical". If this is the light in which a responsible member of the defendant's staff regards instructions that are stated to be of the utmost importance, one wonders how seriously the yard personnel looked upon any of the other instructions. Indeed, instruction 1(b) continues without break in the same paragraph to stipulate that "Full cognisance must be taken of the regulations laid down by the Marine Department, Hong Kong, with regard to requirements for Dead Ships under repair (See Appendix 'A')". With the exception of the requirement for provision of towing lines fore and aft ready for use, Appendix 'A' in fact lists the first nine requirements specified in paragraph 2.2.2 of the Shipmasters Guide.

158. It is difficult not to gain the impression that over the years the defendant had managed to perform a minimum of typhoon precautions on vessels in its yard without any serious mishap having occurred and that this had lulled its staff into a false sense of security. If they did not consciously run risks they either discounted or underestimated them.

159. Mr. Temple sought to persuade the Court that the defendant's practice is not to undertake typhoon precautions on a vessel unless instructed to do so by the owners or their representative. I do not believe this. Not only does such an assertion fly in the face of the fact that the defendant did carry out some typhoon precautions on the vessel without receiving instructions to do so but Mr. Temple had to agree that "the record shows that [the defendant] had taken some initiative on behalf of absentee owners".

160. He conceded that if one of his staff had noticed that the guillotine stopper had been suspect it is possible that the matter "could have filtered back" to him. Likewise, if a stopper pin had been found to be missing his staff "might have brought that fact to his attention." If, however, "the stoppers had fallen to pieces on operation" he was sure that he would have been notified. Significantly, he agreed that if there had been a typhoon threat and he had seen the stoppers in the condition in which they appeared in the photographs taken by Mr. Wort, he would probably have been forced to do something about it. He also agreed that perhaps he had taken a chance in not performing a simple five minutes inspection of the stoppers. He sought to excuse this oversight on the ground that on 29th May when the vessel arrived at the shipyard he was faced with the more pressing priority of ensuring that she did not sink. This hardly explains why this five  minutes inspection could not have been performed within the next three months. Mr. Temple also accepted that the cost of inserting an enlarged hinge pin to take up the slack in the socket of the port stopper would have cost about $1000.

161. I have no doubt that the emergency anchor and insurance wire could have been rigged in the manner described by Captain Third in his testimony and that, if this precaution had been taken when the defendant was employing its cranes to rig the port anchor chain and to carry out the simulated drop of the starboard anchor, the modest expenditure involved would have been insignificant compared with the four million dollars worth of work done and paid for in performing the emergency repairs and opening up the ship for inspection.

162. Both Captain Third and Mr. Byrne were of the opinion that at least one towing line should have been rigged on board with a messenger attached so that it could be streamed astern to be picked up by a tug in the event that the port cable to the buoy parted.

163. Mr. Leung, the tugmaster, who was the only witness with first hand knowledge of the conditions at the relevant time, was of the opinion that he would have been able to make an attachment to the Hua Lien had the towing line been attached to the bow as recommended by Captain Third and streamed astern. In these circumstances, and assuming that the towing line did not part, he was confident that by using his duck propellors he would have been able to hold the Hua Lien in position. Had the towing line been made fast to the stern of the Hua Lien he would also have been able to pick it up and arrest her drift. Indeed he said that in the conditions that then prevailed this would have been an easier operation than making connection with a towing line made fast to the bow of the Hua Lien. This would seem to emphasise the soundness of the recommendation in the Shipmasters Guide that towing lines be attached fore and aft of a dead ship ready for use.

164. Although at one stage of his testimony Mr. Leung said that he would not have been able to accept the towing line from alongside the Hua Lien, it is clear that he had in mind those periods of time when it was not possible for him to approach close to the vessel, for as I have already observed, there was a stage when he had been able to push against the port side of the Hua Lien for five or six minutes before he was eventually forced to withdraw due to the intense friction generated between the bow of the tug and the vessel's hull. I imagine that had a towing line been made fast to the bow or stern of the Hua Lien so as to be available for dropping on the port side, the connection could have been made there and then. However, whether or not he would have been able to accept the towing line by coming alongside, he made it plain that had a line with a messenger been streamed astern from the Hua Lien he would have been able to make the connection.

165. Mr. Leung is a most experienced tugmaster He obtained his master's certificate for vessels of 300 tons in 1967, and in 1956 had received a certificate for vessels of lesser tonnage. He had served on the Lamma since 1978 and had been sufficiently highly regarded by his company to have been entrusted to take delivery of her from Japan as a new vessel. His testimony as to the feasibility of picking up a towing line and holding the Hua Lien in position is supported by that of Captain Third and Mr. Byrne. Indeed, even Captain Weeks agreed that it is very probable that the towing line could have been connected to the tug. I am satisfied that it is more likely than not that Mr. Leung would have been able to hold the Hua Lien in position in the conditions and circumstances that prevailed at the time.

166. Captain Third expressed the opinion that had an emergency anchor and a towing line been available when the port cable parted and, as happened in the typhoon, the crew had not then been able to deploy the starboard anchor, the proper procedure would have been to release the emergency anchor immediately and, by using the towing line, establish a connection with the tug. Had that been done the tug would at least have been able to exercise influence over the direction in which the vessel drifted. If the crew had then succeeded in releasing the starboard anchor her drift would have been brought under control and the tug would certainly have been able to hold her off the plaintiff's installations.

167. Captain Third was of the view that had the emergency anchor not been rigged the situation would have been more difficult but the tug would have been able to control the vessel's drift sufficiently to be able to steer her clear of the jetty and let her run aground at a safe position inshore. The fact that she had been held off the jetty for some time by two buoys lends considerable support to this view.

168. Moreover, Mr. Byrne concluded that had both the starboard and emergency anchors been deployed and a towing line secured to the tug, the vessel would not have struck the jetty and the casualty could have been avoided.

169. After Mr. Byrne had made his report, Mr. Randall, Principal Naval Architect of the Salvage Association, submitted a report in which he made a number of criticisms of Mr. Bryne's findings. These points of criticism were put to Mr. Byrne in cross-examination and were so soundly refuted that when Mr. Randall came to give evidence he ignored all but two of them and concentrated on other matters forming the subject of a further report of his in which he had commented on Mr. Byrne's testimony. One of the two points of his earlier criticisms that he did persevere with in his testimony was that the underwater shape of the vessel which Mr. Byrne used as his computer model did not feature a bulbous bow such as that on the Hua Lien. However, even on this point Mr. Randall could say no more than that he was "not satisfied, but could be satisfied" that the model test data of similar ships used by Mr. Byrne in his computer reflected accurately enough the particular need for a close similarity in the shape of the bulbous bow and deckhouses used in the model with those on the Hua Lien.

170. The main thrust of Mr. Randall's second report and testimony was his conclusion that the reason for the failure in the cable was that there had been a defect in the enlarged link which had not been caused or contributed to by any shock load.

171. He expressed the view that a dynamic load could not be transferred by a shock wave in a chain cable and that Mr. Byrne's thesis that a shock wave had passed along the port anchor cable from the guillotine stopper end and had broken a stronger link before arriving at a weaker one was not creditable. Dr. Baker completed disagreed with Mr. Randall's proposition. He explained that a load would be transferred by a shock wave in a chain cable in the same way as it would in a solid bar. What would change however, is the rate at which the shock wave would travel along the cable or bar and that would depend on the nature of the cable or the bar.

172. Leaving aside the factor of temperature, which was not relevant to the circumstances of this case, Dr. Baker stated that for the type of steel and section size in the anchor cable of the Hua Lien, brittle facture would, with the possible exception of a link containing a very large crack like defect, be, unlikely in the absence of a high strain rate.

173. Dr. Baker was of the view that in the light of the evidence before him there was a high probability that brittle fracture had occurred in the port anchor cable. He was not at all surprised that the fracture had occurred at the enlarged link rather than at the joining shackle trapped behind the stopper bar or at the open link connecting these links, because although, as Mr. Byrne had said, the highest stress would be encountered adjacent to the point of restraint, the difference in loading between one or other of those links would be minor as compared to variations in loading along the whole length of the cable. This was because the transient load progressively reduced as it travelled away from the stopper bar. In the circumstances it was a matter of pure chance whether it was the joining shackle, the open link or the enlarged link that had fractured. In his view had these three links survived the load that had actually caused the enlarged link to fracture, then on the balance of probabilities a common link would have failed.

174. When asked about other criticisms Mr. Randall had made of Mr. Byrne's testimony. Dr. Baker explained that Mr. Randall had been labouring under a misconception in asserting that because a chain cable has a catenary shape, the slack or springiness of the catenary would entirely mitigate any shock wave producing tendency of the impulse loads of several seconds duration produced by the yawing of the vessel. Dr. Baker explained that the energy absorbing capability of a catenary would not absorb a shock wave, and that where the load is great, its rate of application is so fast that it takes a finite time for the load pulse to travel down the cable and the cable necessarily experiences the stress pulse before the catenary can respond.

175. He also explained that Mr. Randall's assertion that where a vessel moored to a buoy is subjected to an environmental force, such as wind a shockwave would commence at the buoy and travel up the cable towards the vessel, was completely wrong and that in fact this was quite the reverse of what actually happened. In order to illustrate that the impulse comes from the moving force and proceeds along the line, Dr. Baker gave the example of a steam locomotive beginning to pull a line of wagons. He demonstrated that the impulse cannot possibly begin at the stationary end because there is no force and movement there at the outset. Thus in the case of a ship, since the force is the consequence of the movement of the ship with respect to the cable, the impulse must begin at the ship.

176. I do not propose to deal exhaustively with Dr. Baker's comments on Mr. Randall's views or with Mr. Byrne's repudiation of the criticisms Mr. Randall made of the findings in his report. Suffice it to say that I am entirely satisfied that Mr. Byrne's conclusions are substantially correct. I accept his testimony and that of Dr. Baker.

177. The evidence satisfies me that the load to which the port anchor cable had been subjected was a shock load in the order of those found by Mr. Byrne and that it caused the enlarged link to fracture in a brittle manner. I am satisfied that had the enlarged link survived the stress imparted by that load it is very probable that a common link would have succumbed to it. On the evidence before me I find that it is far more likely that the enlarged link failed because it had been exposed to a load in excess of that which it would be reasonable to expect a link within the permitted range of wastage and wear to survive. It is of course quite likely that this link had been weakened, as would many other links in the cable have been weakened, by a notch or imperfection. However, I am satisfied that this weakness did not materially affect the outcome.

178. I have referred briefly to Captain Week's testimony. Regrettably, I gained the distinct impression that he had allowed himself to become so identified with the defendant's cause that at times he lost his professional objectivity. In view, however, of his agreement as to what probably would have occurred at the relevant time had two anchors been deployed or had one anchor been released and connection been made by towline to the tug, I do not think that it is necessary to embark upon any further examination of his testimony. I should like to make it clear, however, that where it differed from that of Captain Third and Mr. Byrne on any matter of importance I have resolved the conflict in favour of Captain Third and Mr. Byrne.

179. Although I have expressed my views on Mr. Byrne's testimony, I think that I should refer to some of the criticisms Mr. Steel levelled at it. Whilst accepting that Mr. Byrne's work is to be preferred to that of Captain Weeks, Mr. Steel claimed that it exaggerated the loads to which the port cable had been subjected. He suggested that the model is somehow unreliable in that it is primarily a useful tool for the designer and thus in the interests of safety leaves a significant margin of error. This is a strange argument as it is difficult to conceive how a margin of error can be built into a system without knowing the limit at which failure will occur. It also overlooks the fact that in practice the results produced by the computer have been found to correspond to reality. Mr. Byrne's evidence as to instances when the predictions made by the computer matched reality was not challenged. Moreover, the fact that the failure in the cable occurred adjacent to the stopper is entirely consistent with Mr. Byrne's work. It certainly is more consistent with that than with the surmise that the enlarged link, which failed only one link away from the stopper, did so because of some latent defect that was more serious than any latent defects that might have existed in any of the many other inherently weaker links in the cable.

180. Mr. Steel also invited me to find that a photograph of the vessel indicates that score marks on both sides of the bow appear to be at the same height and angle, and that because it is known that the drag on the starboard anchor would have been approximately 40 tonnes the port cable could not have been subjected to a load much in excess of that.

181. This argument does not commend itself to me. First, I should observe that the port and starboard cables were at various times at various stays, and that when the port cable was at a stay of seven shackles it was attached to the buoy at the surface of the water whereas, the starboard anchor cable at its six or seven shackles reported maximum stay was attached to an anchor on the sea bed perhaps 11 metres below the surface. I am of the view that it is more likely that the cable score marks on both sides of the bow were, as Mr. Byrne explained, caused by the cable leading around the bow and were not the consequence of a direct load. Moreover, the suggestion that the port cable may have parted at a load as low as 40 tonnes strikes me as being unrealistic

182. Mr. Steel also drew attention to the fact that Mr. Byrne had used an imput of 0.62 for the block co-efficient of the vessel rather than the actual figure of 0.45. Mr. Byrne explained, however, that experience has established that the computer results are not sensitive to precision in this quantity and that, if the block co-efficient is reduced, the relative impact of the wind on the vessel increases, so that in the final analysis the tensions that would be experienced in the case of a block co-efficient of 0.62 would be only a little larger than those experienced where the block co-efficient is 0.45. Indeed subsequent tests run on the computer by a colleague of Mr. Byrne using a block co-efficient of 0.45 for the relevant readings revealed that this was so. Whilst I accept that the use of a block co-efficient of 0.62 would have expanded Mr. Byrne's error band, I am satisfied that it has no significant effect on his findings.

183. Apart from showing the potential for error if incorrect data is fed into the computer, I do not consider that Mr. Steel's point about the block co-efficient takes the matter any further. The results have been recalculated on the basis of the correct block co-efficient and, as Mr. Byrne predicted, they were very close to the original results.

184. Criticism was also levelled at Mr. Byrne's use of an exponent of 0.1 in his wind loading calculation He was referred to a paper by Professor Mackie of the University of Hong Kong in which the author expressed the view that for the determination of mean wind velocities acting on structures in fully exposed low lying locations in Hong Kong a power law exponent of 0.19 should be used. Mr. Byrne expressed himself to be in full agreement with this proposition but explained that a moored ship is entirely different from an immovable structure and that the marine industry invariably uses an exponent of 0.1 in calculations relating to vessels when the wind speeds are 30 knots or more.

185. Mr. Byrne's also explained that in respect of a calculation made by Professor Mackie for adjustments in height in the measurement of wind speeds, the professor had fallen into error if, in making that calculation, he had used the exponents stated earlier in his paper rather than the correct value of infinity alpha of 0.1. In the light of Mr. Byrne's clear evidence as to the distinction between immovable structures and moored vessels, and of the invariable practice of the marine industry I have no reason to think that Professor Mackie's paper throws any doubt on Mr. Byrne's selection of 0.1 as the appropriate exponent.

186. There was considerable cross-examination of Mr. Byrne on the subject of wind calculations, a great deal of which was unproductive due to confusion over terminology. Nothing that arose on this topic caused me to doubt Mr. Byrne's testimony as to the interpretation of the various anenometer wind traces, the information the anenometer recorded and the effect of wind and its change in intensity and direction on a moored vessel.

187. It was put to him that the multiplier of 0.91 that he used to convert the wind speeds recorded at the height of the Kwai Chung anenometer to those experienced at a height of 30 feet was incorrect and that the correct multiplier was 0.76 as derived by Captain Weeks from a calculation employing Professor Mackie's exponent. Mr. Byrne explained that it was not in the least unusual to calibrate the recording apparatus to the international standard height of 10 metres but that if that had not been done at Kwai Chung then a multiplier of 0.91 would be appropriate since it is the standard used in all United Kingdom measured mile trials and is included in a variety of documents and codes of practice including the ship design manual "Hydrodynamics" used by British shipbuilders. It originated from research done at the National Physical Laboratory at Teddington which is well known as a government research station of the highest international repute. I accept that 0.91 is the correct multiplier.

188. Based on the assumption that the mechanism was calibrated to the international standard height and thus not adjusted by Mr. Byrne in order to reduce them to that height, the wind values recorded between 0700 and 0800 hours at the Kwai Chung anenometer, give a mean wind speed of 60 knots and a maximum wind gust of 91 knots which would produce peak tensions at stays of one, two and seven shackles of 130, 105 and 217 tonnes respectively. If the multiplier of 0.91, is applied, the readings would be 55 and 83 knots which would produce peak tensions of 100, 94 and 164 tonnes respectively.

189. When a document on which the two multipliers represented by lines drawn across the appropriate wind trace was shown to Captain Weeks in cross-examination, he agreed that even when his own multiplier of 0.76 was applied it could be seen that if both the starboard and emergency anchors had been deployed between 0900 and 1015 hours on 9th September it is very probable that the vessel would have remained at her mooring. He further agreed that, if in respect of the same period of time, only one anchor had been deployed but a towing line connection had been established with the tug, the Hua Lien would have been held secure. In this connexion the VHF radio transcript shows that at 0751 hours the crew had managed to deploy the starboard anchor.

190. Mr. Steel contended however that even if Mr. Byrne's findings are correct they have almost no relevance to the issues to be decided in this case. If that be so, one wonders why so much energy was expended in an attempt to discredit them. In this connection Mr. Steel referred to the statement in paragraph 4.1.2 of the Shipmasters Guide that in the event of strong winds the length of anchor cable to be veered in order to achieve a reasonable catenary is a decision to be left to the discretion of each individual master, since the length, draft and trim of the ship must be taken into account when making a decision on this matter. The paragraph goes on to say that experience over the years nevertheless indicates that at least two shackles of cable "on deck" is required on the majority of occasions. While it is true that the master did not attempt to alter the one shackle stay at which the vessel had been originally moored, it seems to me that even had he done so the cable would still have run out under the unsecured stopper bar during the typhoon.

191. I have come to the conclusion that whilst by hanging off one shackle of cable and attaching a 'D' shackle to it the defendant had taken reasonable steps to ensure the integrity of the point of connection at the buoy end, it was negligent in failing to ensure the integrity of the connection at the other end, namely the guillotine stopper. It seems from the master's complaint recorded on the VHF radio transcript, "HUD our chain has slipped out because the stopper was not tightened in the yard", that he must have seen the defective condition of the stopper while the vessel was berthed at the dockyard, and that either he did nothing about it or any pleas that he made for it to be repaired fell on deaf ears.

192. But whether the master or Mr. Wort or the owner or all of them were culpable in this regard the fact remains that the defendant knew full well that the Hua Lien was an extremely vulnerable dead ship and that there was every likelihood that she would be sent to a buoy to ride out a typhoon. Nothwithstanding this Knowledge the defendant failed to satisfy itself by carrying out a short inspection that the port guillotine stopper was in good working condition.

193. This would have revealed that it was defective. Assuming that it was not feasible to restore the stopper to full working efficiency, the defendant, knowing as it must have, that guillotine stoppers are well known to be dubious pieces of machinery, took no measures to ensure that the cable was lashed and secured by iron bars. It was also aware that an emergency anchor had not been rigged and that towing lines had not been attached fore or aft. Having regard to all these matters, it is my view that the defendant plainly failed to discharge its duty of care to the plaintiffs and other harbour users.

194. Leaving aside the other precuations set out in para 2.2.2 of the Shipmaster's Guide, I am satisfied on the evidence before me that, had an emergency anchor been rigged on an insurance wire ready for deployment on the port side and a towing line rigged and attached to the bow, it is highly probable that the casualty would not have occurred.

195. At the time the vessel was being secured to the buoy, had the master instructed the crew to throw back the bar on the starboard guillotine stopper so that the anchor would be ready for immediate release when required, the rusted and seized condition of the mechanism which caused such difficulty for the crew when they later attempted to deploy the anchor, would have become immediately apparent and it could have been freed in comparatively comfortable conditions long before the emergency arose. However, had there been an emergency anchor available for use it could have been deployed instead of the starboard anchor at the early stage before the port cable broke when the master unsuccessfully attempted to drop the starboard anchor. As events turned out the starboard anchor was itself finally deployed very shortly after the port cable had parted.

196. Mr. Steel submitted that the wind figures at the relevant time were such that the cable would not have parted at stays of one, two or seven shackles. I have difficulty in understanding this submission as there can be no doubt that the cable parted at about 0745 hours, probably at 0751 hours, when the breaking strain of the cable was greatly exceeded both at a stay of seven shackles, if one applies the factor of 0.91 to adjust the relevant wind values, and at stays of one and seven shackles, if that factor is not applied.

197. I consider that had the defendant taken the precaution of checking the guillotine stopper before sending the vessel to the buoy it is more likely than not that at the very least it would have discovered that the safety pin was missing and that another pin would have been found which would have been used to secure the stopper bar. But whether or not the fact that there had not been a safety pin available for use in the port stopper was due to the fault of the defendant or the master or both of them, the fact remains that the defendant failed to ensure that those reasonably necessary precautions were carried out that the evidence establishes would almost certainly have prevented the collision with the plaintiffs' installations.

198. The typhoon precautions listed in paragraph 2.2.2 of the Shipmasters Guide are clearly meant to supplement each other. If one or more precautions fails for whatever reason, be it due to negligence, mismanagement or accident or to something beyond human control, it is envisaged that the other precautions will be available as a back up to ensure the safety of the vessel and that of other harbour users.

199. I am satisfied that the plaintiffs have made out their case against the defendant. I therefore give judgment for them with costs.

(1)     [1932] AC 562

(2)     [1987] 2 All E. R. 13

(3)     [1987] 2 All E. R. 705

(4)     [1978]  A. C. 728

(5)     [1985] A .C. 211

(6)    (1985) 60 ALR 1