ALCATEL CABLE CONTRACTING NORWAY AS AND ANOTHER v. TITAN LOGISTIC(S) PTE LTD. AND ANOTHER

HCCL259/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO.259 OF 1996

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J U D G M E N T

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1. This is a claim for damage to and loss of cargo which occurred on board the vessel "MV MARIS" during her passage from Gothenburg to Oslo on 17 October 1995.

2. The 1st plaintiff ("Alcatel"), a Norwegian company, was the owner of this cargo. The 2nd plaintiff is a Norwegian underwriter which insured the cargo in question and which was joined to this action in anticipation of potential locus difficulties which did not in fact transpire, so that, no subrogation point having been taken, for all practical purposes Alcatel is the operative plaintiff.

3. The 1st defendant ("Titan Logistics") is a Singaporean company, which was run by a gentleman named Mr Karamjeet Singh, and which was retained by Alcatel to organize the discharge and repatriation of its trenching equipment and machinery from Hong Kong to Norway. Neither Mr Singh nor any other representative of Titan Logistics has attended at this trial, leave having been granted to Titan Logistics' former solicitors, Messrs Boase, Cohen & Collins, to come off the record some two weeks prior to its commencement.

4. The 2nd defendant ("Kania"), which did attend, is a local transportation company which was retained by Titan Logistics as its sub-contractor to unload and thereafter to load and lash the cargo the subject of this claim.

The factual background

5. The 1st plaintiff, Alcatel, is a company which specializes in the supply and installation of communication cables, much of which involves the laying of such cables along the ocean floor. Part of this process involved the use of a 'Cap Jet' underwater cable trencher, a sophisticated and expensive piece of equipment which is employed to dig a trench in the seabed, lay a cable in that trench, and then bury the cable. In effect, therefore, a sort of underwater computerized mole, which in turn is operated from a support vessel.

6. In about 1994 a company within the Alcatel Group was awarded a contract to lay a communications cable in the Yellow Sea between China and Korea and the 1st plaintiff, as subcontractor, was awarded part of this trenching work. Accordingly, at around Easter 1995 the "Cap Jet" cable trencher belonging to the 1st plaintiff was dispatched to the Far East, and a suitable support vessel for this work, the "CSO Alliance", was chartered in for the project.

7. It was at this early mobilization stage that Titan Logistics, and Mr Singh, first became involved, being engaged by Alcatel to arrange the installation on board the "CSO Alliance" of the cable trencher and all of its ancillary equipment, an operation which required some of the equipment, in particular the base of the crane, to be welded to the deck of the vessel for the duration of the project.

8. This outward operation went smoothly, and so it came to be that at the completion of the Yellow Sea trenching project, Titan Logistics was re-engaged by Alcatel to deal with the demobilisation phase, which involved all the equipment having to be returned to Oslo. Originally it had been anticipated that demobilisation would take place in Korea, but the occurrence at the relevant time of Korean national holidays rendered harbour access difficult, and caused a decision to be made to transfer the demobilisation process to Hong Kong, which port was en route to Singapore, whereat the "CSO Alliance" would come off-charter. This action has its principal focus therefore, upon that which occurred in Hong Kong in mid-September 1995.

Events in Hong Kong

9. Having received various fax instructions from Mr Olaf Rusten, the project manager for the 1st plaintiff's trenching operation, Mr Singh of Titan Logistics arranged for the individual 'Cap Jet' trencher unit to be air freighted back to Norway, and at the same time made arrangements for the shipment of all other related equipment, of which there was a considerable amount, to be ocean carried from Hong Kong back to Norway. Accordingly, space was booked in Titan Logistics' name on a vessel called the "KITANO", which was used in a container liner service operated by Hapag-Lloyd AG; in fact, the bill of lading issued by Hapag-Lloyd, dated 20 September 1995, names Titan Logistics as Shipper and Alcatel as Consignee. The list attached to this bill of lading detailed shipment of three 40-foot flat rack containers, and one 20-foot container. Two of these flat racks - which are, as the name implies, in effect large reinforced flat pallets with corner stanchions, and are designed for the carriage of oddly-configured cargo - each held three smaller containers of various sizes and weights, and the third flat rack is recorded as containing "one unit umbilical winch" and "one unit crane with foundation".

10. The specific cargo the subject of this claim for loss and damage was lashed and stowed on two of these flat rack containers : first, a three ton "mechanical workshop container" stowed in the middle of the three containers on flat rack No.LCU4663142, and second, the umbilical winch which was stowed on flat rack No.LCU4685624.

11. But this is to get slightly ahead of the story. It is common ground that the "CSO Alliance" arrived in Hong Kong on 5 September 1995. Mr Olaf Rusten, who gave evidence by video link from the British Virgin Islands, and whose evidence I fully accept, has described how, during the voyage to Hong Kong, he personally supervised the packing into containers of all the equipment that had been used in the trenching operation. Accordingly, on arrival in Hong Kong, these containers, together with winch and crane, were largely in a position to be immediately discharged from the "CSO Alliance"; in the case of the crane, which had been welded to the floor of that vessel, this also necessitated cutting some deck welds forming the foundation of that crane.

12. It was for the purpose of such discharge that Titan Logistics, through Mr Singh, had engaged the services of Kania, a local land and sea transportation company whose task it was to obtain delivery of the three flat rack containers supplied by Hapag-Lloyd (delivery of which took place on 14 September 1995), and thereafter to attend alongside the "CSO Alliance" the following day, 15 September, together with Kania's derrick barge "HILITE", in order to discharge, load and lash the equipment from the "CSO Alliance" onto the flat racks.

13. This is substantially what occurred. On 15 September, six containers were offloaded from the "CSO Alliance" and lashed onto two flat racks, Nos.HLCU4663420 and 4663142. At the same time the umbilical winch and crane were offloaded onto the barge, but the winch was not loaded and lashed onto the third flat rack, No.HLCU4685624, until three days later, 18 September, at Yaumatei Public Cargo Working Area, and later that day the crane was loaded and lashed onto the same flat rack container at Kwai Chung Container Terminal, this last location being selected by reason of the dimensions of the crane.

14. Thereafter, on 18 September, the three loaded flat racks (in addition to one conventional 20-foot container also owned by the 1st plaintiff) were delivered to Modern Terminals Limited, and on 20 September 1995 these flat racks were loaded on board the "KITANO", pursuant to bill of lading No.34985732 for carriage to "Oslo via Hamburg CY".

The loss and damage

15. It is not known where on the "KITANO" the three flat rack containers were stowed during the voyage to Hamburg, but reach Hamburg they did without incident. On 16 October 1995 all the 1st plaintiff's containers were transshipped at Hamburg Container Yard onto a 'feeder' vessel called "MARIS", a considerably smaller vessel than the "KITANO", being approximately one third its size, for onward carriage to Oslo via Gothenburg.

16. The evidence indicates that the two flat rack containers involved in this claim - Nos.4685624 and 4663142 - were both loaded on the aftermost starboard position on the vessel at the uppermost level, five 'storeys' above the tanktop, the flat rack holding the umbilical winch, No.4685624, being inboard of the flat rack holding the electrical workshop container, No.4663142, the latter being positioned at the outermost position above the starboard rail. This data, as interpreted by the 2nd defendant's expert, Captain Wild, was available from the stow positions of these containers indicated in the Voyage Report of the Master of the "MARIS" dated Oslo, 18 October 1995, wherein the Master recorded that during the passage from Gothenburg to Oslo, the "MARIS" met with bad weather on the evening of 17 October 1995 between 8.00 pm and midnight, with Force 7 winds and sea. His report continues :-

"Remarks:

Vessel on Departure Gothenburg in full seaworthy conditions. During her passage to OSLO vessel is rolling very heavily in increasing W'ly sea and swell (rolling period 25o-35o)

On Arrival OSLO we observed that from Flat HLCU 4663142, Stow pos.5712/11 one small Workshop was missing, no broken lashings etc. found and from Flat HLCU 4685624, stow pos.5312/11 one cablewinch was slipt onto Container top HLCU 4090837, stow pos.4212/11. Container roof badly damaged. One turnbuckle from the lashing of the cablewinch was broken, and two turnbuckle hooks went off.

The size of the turnbuckle were to small for the lashing from this machinery."

17. This incident caused a number of inspections once the "MARIS" had arrived in Oslo, and in this regard the court has heard evidence from Mr Rusten (who had, of course, been involved with the discharge of this equipment from the "CSO Alliance" in Hong Kong), and who attended at the "MARIS" at the Oslo docks at the request of Mr Frank Johnsen, a Maritime Technical Manager of Alcatel (who has provided a statement dated 20 August 1998 as to the insurance recovery from Gerling Norge AG). The court has also received a survey report dated 23 October 1995 from one Mr Otto Larsen, an independent surveyor instructed by underwriters Gerling Norge A/S, together with a supplementary statement dated 21 June 1998.

18. As might be expected, a number of photographs were also taken on board the "MARIS" at Oslo, and two sets in particular have been of considerable assistance, namely a set of five photos forming part of the insurance claim, referred to throughout as "the Gerling photographs", together with a further set of ten photos forming part of an International Surveyors AS report which has been available to the court and to which reference is made in the reports of both of the respective experts, Captain Andrew Moore of Andrew Moore & Associates Limited, for the 1st plaintiff, Alcatel, and Captain Clay Wild, for the 2nd defendant, Kania.

Recovery

19. Subsequent to this incident, a claim was lodged by Alcatel Cable upon the underwriters, Gerling Norge AS. This claim was made at the level of Norwegian Krone 3,855,780, and in the event was settled at the sum of NOK3.3 million. The present claim, however, is for NOK2,813,530, which is a figure based on a Det Norske Veritas report dated 4 December 1995, which represents the sum assessed for the reasonable value of the lost and damaged equipment. This figure has not been challenged during this trial, and is the amount for which Mr Sussex SC, counsel for the plaintiff, has asked for judgment.

The cause of the loss

20. Prior to considering the responsibility for the loss and damage, an issue which has occasioned vigorous debate, I should, I think, advert to the cause of this incident. Having heard and considered the evidence, in particular that of both experts, Captains Moore and Wild, who have each attempted to reconstruct that which occurred, and having had the advantage of the various post-incident photographs, there can be no doubt, and I so find, that the loss overboard of the electrical workshop container from its position on the outermost flat rack, and the shifting of the umbilical winch from its position on the adjacent inboard flat rack, resulting in its fall of some 60 centimeters onto the roof of an unrelated container below, can only have been the result of lashings which had become slackened, taken in combination with the shock loading induced by the severe rolling of the "MARIS" as was occasioned by the rough weather conditions; as Captain Wild observed in cross-examination, "once a 13 ton item moves in a 35o roll, something is going to let go".

21. Although there is no evidence as to the condition of the lashings on the two flat rack containers involved at the time of transshipment from "KITANO" to "MARIS" at Hamburg, I am satisfied on the probabilities that there had been an easing of the tension in the lashings, relating both to the missing container and to the umbilical winch, which had occurred during the 25-day voyage from Hong Kong to Hamburg, and that such slackening would have been exacerbated by the significant rolling of the ship in the heavy sea. In this connection, it does not seem to me greatly to matter whether (as Mr Sussex strongly contended in a detailed submission on the point) such loosening of the lashings arose by virtue of a slippage of the 18 mm lashing cable due to the employment of an insufficient number of 'bulldog' 20 mm clips, the deployment of which to secure the cable loops constituted an integral element within the lashing system adopted, or whether slippage was due to the acknowledged omission to seize the thread of the turnbuckles (which linked the loops of the lashing structure) either by means of seizing wire or by locknut, which omission thereby enabled the 20 mm turnbuckles to "walk back" under constant vibration. It may well have been a combination of both.

22. In any event, there can be no doubt of the shockloading that ensued, given the mute evidence of snapped turnbuckles which had formed part of the winch lashing structure, together with the open hooks of other turnbuckles which were discovered deformed and pulled out under what must have been enormous stress. In this connection it seems fairly clear that use of the 'closed eye' type of turnbuckle may have been preferable, or at least a closing over of the open-ended hook (as to which both experts concur), albeit I am disinclined on the present state of the evidence to enter into speculation as to the relative strength of the 20 mm turnbuckles in fact used. No load tests have been conducted on these turnbuckles, and I suspect, in the circumstances of severe shockloading such as was imparted by the shifting of the very heavy umbilical winch, that bigger turnbuckles similarly may have failed.

1st plaintiff's case against the 1st defendant

23. The absence of Titan Logistics created an unsatisfactory situation, and has to an extent distorted the shape of this trial, not least in light of the contribution notices which are in place between the 1st and 2nd defendants.

24. In any event, Mr Sussex SC shortly submitted that the 1st plaintiff's claim against the 1st defendant was a straightforward contractual claim. There was no doubt, he said, that there was an oral contract concluded in early September 1995 whereby Titan Logistics was engaged by Alcatel to arrange for the dispatch to Oslo of the demobilized trencher and ancillary equipment, and that part and parcel of that contractual service was to arrange for the lashing and securing to the three flat racks of the 1st plaintiff's demobilized equipment in preparation for ocean carriage. As such there was an implied term, implied by section 5 of the Supply of Services (Implied Terms) Ordinance, Cap.457, that the 1st defendant would carry out the service with reasonable care and skill to ensure that the cargo was sufficiently lashed and secured to withstand the carriage - a matter of which Mr Singh appeared well aware, given his fax admonition to Mr Rusten in his fax of 7 September 1995 as to the necessity to ensure that all sea fastenings were secure and adequate against the possibility of rough weather in the voyage of the "CSO Alliance" to Hong Kong. That term was breached, maintained Mr Sussex, given that the lashing clearly had proved defective, as the result of which his client had suffered loss. In the event no case had been put up at this trial by the 1st defendant, and he asked for judgment against Titan Logistics.

25. I have come to the view, on the facts of this case and in light of the available evidence, that the 1st plaintiff has proved its claim in contract against the 1st defendant. Having perused the fax exchanges between Mr Rusten and Mr Karamjeet Singh, and in light of Mr Rusten's evidence, I am persuaded that there was indeed a contract in the broad terms contended for - indeed, the overall sequence of events, Mr Singh's actions and the invoice rendered to the 1st plaintiff leave little room for doubt as to the 1st defendant's position - and given the court's finding as to the loosened lashings, together with the undoubted lack of any device to seize the turnbuckles, whether by wire or locknut, I have concluded in the circumstances that liability has been established against Titan Logistics.

26. I further accept - and this was one of the main burdens of the 2nd defendant's evidence - that Mr Singh (whom, I was told by Mr Kenneth Leung of the 2nd defendant, enjoys the status of a qualified cargo superintendent) throughout supervised the discharge from the "CSO Alliance", and oversaw and approved the loading and lashing to the flat rack containers, and given the view of Captain Moore (with whom in this respect Captain Wild was ultimately obliged to agree) that some form of seizing of the thread of the turnbuckle should have been employed in connection with such lashing configuration as was adopted, I find that the contractual breach alleged has been established.

27. Given that the 1st defendant has chosen not to appear and to move the court either in defence of the 1st plaintiff's claim nor pursuant to its claim for contingent indemnity against the 2nd defendant, I have not considered further the matters variously pleaded on its behalf, although I note in passing that its primary defence of agency, which included engaging the services of the 1st defendant - and which, if established, would have resulted in a contractual link between the 2nd defendant and the plaintiff as undisclosed principal - would have failed in limine upon the evidence presently before this court.

28. I hold that the 1st plaintiff is entitled to judgment against the 1st defendant in the sum of NOK2,813,530. I further order that interest is to run on the said principal sum from the date of the writ herein, 13 September 1996, to the date of judgment herein, at the rate of 8% per annum, and thereafter at the judgment rate from time to time prevailing until payment.

1st plaintiff's case against the 2nd defendant

29. The 1st plaintiff pursues the 2nd defendant in tort. There is, of course, no contractual relationship in existence, and Mr Sussex SC says in all the circumstances of this case that Kania owed a duty of care to Alcatel to ensure that the cargo was sufficiently lashed and secured to the flat rack to withstand ocean carriage, and to employ materials of sufficient strength for such purpose. He contends that Kania was aware of the identity of the third party who owned the cargo and for whom the work was being done, and that the 2nd defendant was aware, also, that the cargo was being lashed and secured in order to withstand the ordinary incidents of carriage by sea to Oslo, via Hamburg. He further submitted that there was sufficient proximity for the law to impose a duty of care to the 1st plaintiff upon Kania, and argued that the loss of which the 1st plaintiff now complained was not too remote.

30. The tortious basis of the 1st plaintiff's case against the 2nd defendant raises a number of difficulties, and Mr Edward Chan SC, on behalf of Kania, attacked it root and branch. Mr Chan SC argued strongly that, in all the circumstances of the case, his client owed no duty of care whatever to the 1st plaintiff. The evidence was that Kania had been subcontracted by Titan Logistics to undertake the discharge from the "CSO Alliance", the lashing onto the flat racks, and the delivery of the secured cargo to Modern Terminals prior to its stowage on the "KITANO". He submitted that his client had done no more and no less than that which it had been specifically required so to do by Mr Karamjeet Singh, who had attended and supervised at all stages of the operation, and who had checked and signified his approval after the completion of the lashing onto each of the flat racks. So that, in this situation, wherein Kania had complied with its contractual duty to the letter in doing precisely as it had been instructed, why, Mr Chan asked, should Kania owe an expanded duty to a third party with whom it had not contracted? If Kania was not in breach of contract to Mr Singh, why should the law impose a wider tortious liability to Alcatel? Moreover, said Mr Chan, the 2nd defendant was not the consultant in this case, Mr Singh was - indeed the uncontradicted evidence was that Mr Singh was a qualified cargo superintendent and the plaintiff clearly had placed its trust in him. That Mr Singh was in charge and on the spot had been confirmed by Mr Rusten, and it had always been the 2nd defendant's case that Mr Singh had directed the manner in which the lashing was to be done, and had taken responsibility for the job.

31. In the course of this argument, Mr Chan noted that he had been unable to find a case bearing any factual similarity to the present, although he brought to the attention of the court the English Court of Appeal case of Norwich City Council v. Harvey & anr., [1989] 1 WLR 828, in which the defendant, a subcontractor on a building project, negligently set fire to the works and was sued by the owner. The standard form contract between the owner and the main contractor, to which the defendant was not a party, provided that the owner was to bear the risk of fire damage, whilst the terms of the contract between the main contractor and the subcontractor were such that the subcontractor was bound "to the same terms and conditions as those of the main contract". In that case the Court of Appeal held that in all the circumstances of the case, and having regard to the contractual obligations undertaken by the main contractor and the subcontractor, there was no duty of care arising between the subcontractor and the owner.

32. I do not consider that on its facts this case particularly assists, given that there was a clear assumption of risk by the owner in Norwich City Council, in itself a clear factor impacting upon the proximity analysis, and Mr Chan does not (and could not) suggest that in the present case Alcatel had assumed a like risk in terms of ocean carriage, albeit he does rely on this case to emphasise that in addition to the elements of foreseeability and proximity, the final element in the negligence equation is that the court should consider what is "just and reasonable" on the facts of each case. In this regard May LJ in his speech in Norwich City Council expressed the position thus (op.cit., at 836G-H) :-

" In my opinion the present state of the law on the question whether or not a duty of care exists is that, save where there is already good authority that in the circumstances there is such a duty, it will only exist in novel situations where not only is there foreseeability of harm, but also such a close and direct relation between the parties concerned, not confined to mere physical proximity, to the extent contemplated by Lord Atkin in his speech in Donoghue v. Stevenson [1932] A.C. 562. Further, a court should also have regard to what it considers just and reasonable in all the circumstances and facts of the case."

33. I respectfully adopt this formulation in terms of the attribution of a duty in fact situations not otherwise governed by authority. Absent anything to the contrary, I am also inclined to accept the 2nd defendant's evidence before the court as it relates to the contractual relations between the 1st and 2nd defendants, albeit at times during the evidence of Mr Stephen Lau and Mr Kenneth Leung the assertion that Kania at all times "had been acting on the instructions of Mr Singh" was perhaps repeated with a frequency bordering upon the over-zealous, and it was in this area that the absence of evidence from Mr Singh was most keenly felt.

34. Be that as it may. In accepting the 2nd defendant's evidence, I accept also, the fact of the Oslo destination aside, that the 2nd defendant had had no knowledge of Mr Singh's contractual relationship with the 1st plaintiff nor any details of the carriage, save, as must have been obvious in the circumstances, that there was to have been a container ship involved in the ocean carriage. I further accept, as Mr Stephen Lau said in his evidence, that the way in which the cargo was lashed was entirely "normal" in terms of Hong Kong practice, in particular the cross-lashing configuration used for the three containers on flat rack No.4685624, from which the middle electrical workshop container had disappeared overside. I pause at this stage to reject the lingering suspicion (it was put no higher) that the middle flat rack may not have been lashed at all. I consider it most unlikely that Mr Singh would have permitted this to occur, or, if such had taken place, that the flat rack would have been accepted at Modern Terminals for shipment on the "KITANO". I find as a fact that the middle container was lashed in a like manner to the two other containers at each end of the flat rack, and that when it fell into the sea it duly took all its lashings with it. So far as the lashing of the umbilical winch was concerned, there could not, of course, have been a similar standardization of approach, given its irregular and awkward shape, albeit in this connection I find that four lashings were also used, as indeed appears to have been indicated by the lashings which remained and which were inspected at the Oslo dock.

35. Accordingly, when looked at overall, I find that in discharging its contractual duty to the 1st defendant, the 2nd defendant had complied with Mr Singh's wishes in the matter of the lashing, and also had had the finished work approved by Mr Singh prior to the delivery of the lashed and stowed flat racks to Modern Terminals. Against this factual background, therefore, should a duty of care be imposed and, if so, to what standard?

36. Mr Sussex SC submitted that the presence of Mr Singh in overseeing the lashing operation could not be such as to absolve Kania from liability, and that a reasonable man in the position of the 2nd defendant should have recognised that the lashing job was being done for the purpose of withstanding the entire voyage to Oslo. Moreover, the 2nd defendant must have appreciated not only that these flat racks would be stowed on a container ship, but that such stowage would either be on the top tier under deck or on the top tier on deck, it being clear that containers of this nature could not be overstowed, Mr Sussex in this regard relying upon observations in the evidence of Captain Wild.

37. To the contrary, submitted Mr Chan, if there was a duty of care on his client in circumstances such as the present, and if the court did not accept his primary submission to the effect that no duty of care arose at all by reason of the terms of the 2nd defendant's contract with the 1st defendant - so that Kania, having done precisely what it was engaged to do, should necessarily signal an end to the matter - then at least a duty of care should not be imposed to the extent that the lashing must have been good enough to withstand the particular rigours of deck cargo. In this regard, said Mr Chan, even the carrier (against whom suit had earlier been discontinued in this case) was protected by a specific contractual provision, Clause 15 within the bill of lading, which provided for carriage on deck without notice to the merchant, which in turn was in line with the usual rules relating to the carriage of deck cargo which recognised the necessity for specific authorisation for deck stowage : see Scrutton on Charterparties and Bills of Lading, 20th Ed. (1996), Article 88, at page 168. Nor did his client have any knowledge of the transshipment position, said Mr Chan, noting here the possibility that any lashings then loosened could reasonably have expected to have been tightened, via use of the turnbuckle, at the time of such transshipment.

38. It seems to me that this is the type of case where the concepts of duty of care and standard of care may in practice tend to elide. In principle I find it difficult to accept at face value Mr Chan's bold submission that any potential duty of care of someone in the position of his client necessarily is proscribed by the ambit of a contractual obligation such as that prevailing with the 1st defendant, so as to preclude the existence of such a duty to third party cargo interests. To adopt Mr Sussex's cross-examination example, it is hardly likely, if Kania had been instructed by Mr Singh to do no more than secure the containers to the flat rack with an elastic band, that any third party duty of care could have been negated on the simple basis that that was all that Kania had been instructed to do under the terms of their contract. This, of course, is emphatically not this case, but it serves to demonstrate in general terms the difficulties inherent in blanket assertions as to the existence or otherwise of a duty of care.

39. Equally, however, I do not think it flows from this that the plaintiff is able to advance to a position in which a defendant in the position of Kania in this case necessarily can be said to be in breach of a duty of care imposed by law in a situation wherein cargo shifts from its lashings when stowed on the topmost aft outer tier of a smaller feeder vessel (on which the cargo had not been originally stowed) rolling at 35o on a rough night in the Baltic Sea. To the contrary. Whether the analysis be expressed in terms of duty or standard of care does not in my view greatly matter. Absent the existence of knowledge on the part of the 2nd defendant that the cargo would be so stowed on this vessel (patently not the case here), I do not consider it "just and reasonable in all the circumstances and facts of the case", to repeat the formulation of May LJ in Norwich City Council, op.cit., to ascribe a duty of care in this situation. The lashing as was in fact used clearly would have been sufficient under less extreme conditions, and certainly if there had been stowage under deck, as was suggested could have occurred in the International Surveyors Report (as cited by Captain Moore), which concluded "We are of the opinion that the cargo on the flat racks was not securely fastened and should have been stowed under deck".

40. It should also not be forgotten, notwithstanding criticism that has been made of the intrinsic security of such lashings as were adopted, that the 11-ton container and the 2-ton container stowed on either side of the missing 3-ton electrical workshop container in fact remained in place, and were not lost or damaged, albeit there is no doubt on the post-incident photographic evidence that the lashings on these units were also found to be considerably loosened by the end of the voyage. It is this latter fact - that is, the survival in place of two out of the three containers on the topmost outer starboard tier - which fuels the suspicion that the middle container was lost not solely by reason of the independent parting of its own lashing, but because it appears eminently possible, judging from the position in which the umbilical winch came to rest (with part of the winch projecting into the space formerly occupied by the missing electrical workshop container), that the winch had fallen and had struck the side of the missing container, thereby propelling it overside. If this situation did in fact occur, then in terms of the duty of care analysis it seems probable that in addition the plaintiff would face remoteness problems also.

41. There is, however, presently no need to go that far, nor to make any specific finding in that regard, tempting though it may be to further speculate. Having considered all the factual circumstances as have been established, together with the expert evidence and the submissions of counsel, I decline to find that the 2nd defendant is liable to the 1st plaintiff in negligence, and I so hold.

42. Accordingly, the Order of the court is that the plaintiffs' claim against the 2nd defendant is dismissed. I make an order nisi that the 2nd defendant is to have the costs of the plaintiff's action, such costs to be taxed if not agreed.

Claim by the 2nd defendant against the 1st defendant

43. It follows from the foregoing conclusion regarding the absence of liability on the part of Kania that its contingent claim against Titan Logistics for contribution and/or indemnity does not arise. In the circumstances, this claim is dismissed. I make an order nisi in terms of this claim that there be no order as to costs.

Claim by the 1st defendant against the 2nd defendant

44. The claim by Titan Logistics against Kania for indemnification against the 1st plaintiff's claim is made by Amended Notice of Claim dated 21 May 1997.

45. The 1st defendant has not appeared at this trial to pursue this claim, nor has any evidence been adduced on its behalf. In any event, given that I have accepted the evidence of the 2nd defendant that it loaded the cargo onto the flat racks in specific compliance with the requirements of the 1st defendant, and that the 2nd defendant inspected and approved the work of the 1st defendant, such indemnity claim by the 1st defendant, if mounted, in any event would not have succeeded on the basis of these findings of fact.

46. The claim by the 1st defendant against the 2nd defendant is dismissed. I make an order nisi that the 2nd defendant is to have its costs of such claim, such costs to be taxed if not agreed.