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McKenna v Clarke [1979] PGLawRp 704; [1980] PNGLR 175 (25 July 1979)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 175 - Brian McKenna v Nicholas Clarke�

[1980] PNGLR 175

N241(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BRIAN MCKENNA

V

NICHOLAS CLARKE

Kieta

Wilson J

11-13 October 1978

29-31 January 1979

25 July 1979

SHIPPING AND NAVIGATION - Collisions - Negligence - Yacht owner securing rope to another�s mooring - Rope submerged - Duty of care to warn of existence of danger - Whether adequate or reasonable warning given to motor launch returning to mooring - Rope entangled in propeller - Sinking of launch - Total constructive loss.

SHIPPING AND NAVIGATION - Collisions - Damages - Measure of - Total constructive loss - Pre-accident value of vessel allowed - Cost of recovery and survey.

The plaintiff, the owner of �M.V. Wanderer� was returning to his mooring in Kieta harbour in mid afternoon, when its propeller became entangled with a submerged rope, which was attached to the defendant�s motor vessel and had been placed across the plaintiff�s mooring by the defendant in the plaintiff�s absence in order to secure the defendant�s boat. Becoming entangled with the rope, the �M.V. Wanderer� sank and was completely written off: the plaintiff sued to recover damages in negligence.

Held

N1>(1)����� The duty of the owner of a vessel whether it be a motor launch or a yacht, is to take all due care in relation to the management and control of his vessel and to take all reasonable precautions for the safety of other vessels and persons on board them and not to leave them in risk of danger.

N1>(2)����� A vessel which lays out at anchor in navigable waters and thereby creates danger for other vessels is under a duty to mark the anchor by buoy or otherwise, so as to give warning of the danger.

The Harkaway [1928] P. 199;

C. Burley Ltd. v. Edward Lloyd Ltd. (1929) 45 T.L.R. 626;

Harmond v. Pearson (1808) 1 Camp. 515 applied.

N1>(3)����� A vessel which is aground in navigable waters and thereby creates danger for other vessels is under a duty to take proper means to apprise other vessels of her position.

The Industrie [1835] EngR 712; (1871) L.R. 3 A. & E. 303 at p. 308; and

The Bromsgrove [1912] UKLawRpPro 11; [1912] P. 182 applied.

N1>(4)����� In the circumstances the defendant, in laying out the rope to the �M.V. Wanderer�s� mooring in the harbour, created a danger for that vessel when approaching its mooring and was therefore under a duty to mark or give notice of the rope or to warn or otherwise apprise the �M.V. Wanderer� of the existence of that rope.

N1>(5)����� In the circumstances the defendant was in breach of this duty of care in not having given reasonable or adequate warning of the danger created by him, and was liable in damages.

N1>(6)����� The plaintiff�s vessel having become a constructive total loss, damages should include, cost of recovery and survey, pre-accident value of vessel as at launching and additional items added after launching.

Action

This was the trial of an action in negligence in which the plaintiff claimed damages for the loss of his yacht, which sank after its propeller became entangled in a rope.

Counsel

G. Payne, for the plaintiff.

G. B. Evans, for the defendant.

Cur. adv. vult.

25 July 1979

WILSON J: This is an action in negligence brought by the plaintiff, who was the owner of a motor launch, �M.V. Wanderer�, against the defendant, who was the owner of a yacht, �M.V. Galaxy�. The plaintiff alleged that, as a result of the negligence of the defendant, �M.V. Wanderer� sank in Kieta harbour on the afternoon of 30th October, 1977.

The action was a hard-fought contest between the parties and the hearing occupied six hearing days in all.

The main contention of the plaintiff was that on the day in question, when the plaintiff was out at sea spending the afternoon on �M.V. Wanderer� with some friends, the defendant secured a rope-line (hereinafter referred to variously as �the rope� and �the line�) from �M.V. Galaxy� to the plaintiff�s unoccupied mooring in Kieta harbour �without colour of right in such circumstances that he should reasonably have foreseen that such line was likely to cause damage to another vessel�. The plaintiff further alleged inter alia that the defendant failed to give adequate or reasonable warning of the existence of that line; that the defendant failed to comply with the provisions of r. 33 of the International Regulations for Preventing Collisions at Sea 1972, in that he failed to install, carry, or provide on his vessel some means of making an efficient sound signal; and that the defendant failed to install or carry on his vessel a sufficient anchor or a sufficient number of anchors. The plaintiff further alleged that subsequently he manoeuvred �M.V. Wanderer� back to her mooring and, as she was about to be made fast to the mooring, the propeller of �M.V. Wanderer� became entangled with the defendant�s submerged line. As a consequence, the engine stalled, �M.V. Wanderer� was damaged, she took on water, and within a few minutes she sank in ninety feet of water. The sinking of the vessel, together with the resultant damage, was solely due, so the plaintiff contended, to the negligence of the defendant.

The plaintiff claimed K26,649.98 damages for the loss and damage suffered.

There was a denial of negligence on the part of the defendant. Very late in the trial, in fact on the fourth day of the hearing, the defendant, having previously denied that he had secured a line from his yacht to the plaintiff�s mooring while the �M.V. Wanderer� was absent, admitted that he had done so, but he maintained his contention that such action was taken in circumstances of unusual danger and peril to his yacht and those upon her and in order to prevent the loss of his yacht or the lives of those upon her. Furthermore, the defendant argued that adequate or reasonable warning of the existence of the line was given to �M.V. Wanderer� and those on board her and that the line was clearly visible above the surface of the water.

The defendant also pleaded contributory negligence against the plaintiff. The defendant argued that, if the plaintiff suffered the loss and damage as alleged, it was due wholly or in part to the negligence of the plaintiff. Included amongst the particulars of contributory negligence alleged against the plaintiff were allegations of negligent seamanship and of negligent construction and maintenance of his vessel. Other defences were pleaded, including the defence of inevitable accident.

The questions in issue in this case are whether the defendant was negligent and, if so, whether the plaintiff was guilty of contributory negligence. If negligence is established, damages will need to be assessed. If the defendant is successful in proving contributory negligence, then further questions will arise including inter alia whether, by reason of the degree of culpability on the part of the plaintiff, the judgment against the defendant on the claim will be for a proportion of the damages as assessed and, if so, in what proportion.

Before I proceed to make my findings of fact, I make reference to the several witnesses who were called and I deal with the issues of credibility and reliability which arose in this case. I was impressed by the plaintiff and all of his eye-witnesses.

[His Honour then dealt with the aspect of credibility in relation to various witnesses and continued:]

I now proceed to make my findings of fact. These findings are made on the balance of probabilities. I find that on the afternoon in question there was a twelve to fifteen knot wind gusting to twenty knots blowing from the south-south-east. The seas were choppy. The plaintiff on �M.V. Wanderer� was returning to his mooring at about 3.00 p.m. after being out game-fishing and after those on board had watched some yachting manoeuvres.

Whilst the plaintiff was out on his vessel, �M.V. Galaxy�, which had been at her mooring (No. 20), moved her position towards the shore. She had shifted about twenty yards down-wind from her mooring and was close to shallow water. With a view to preventing any further shifting and with a view to reducing the risk of damage to his vessel, the defendant then got into his dinghy and attempted to row out an anchor; he intended to use that anchor for the purpose of pulling his yacht further out to sea. This was unsuccessful because the anchor was fixed to a steel chain, the weight of which made it impossible for the defendant to row very far. He then returned to �M.V. Galaxy� and obtained a long white nylon rope. When he had it, he rowed up-wind towards the plaintiff�s unoccupied mooring (No. 21) with the rope in the back of the dinghy, and then he attached the rope, which he had been trailing behind the dingy as he rowed, to the mooring. He proposed to return to �M.V. Galaxy� and then use the white nylon rope to haul himself, the dinghy, the anchor and chain, along in the direction of mooring 21. He then proposed to attempt to lower his anchor near mooring 21 and, after that had been done, to pull �M.V. Galaxy� out into deeper water.

The defendant rowed back to �M.V. Galaxy� after he had tied the end of the rope to the mooring. Difficulties were encountered when, having placed the anchor and chain in the back of the dinghy, he was in the process of hauling himself and the dinghy along the rope. The anchor became stuck on the back of the dinghy. Susequently, the defendant overturned the dinghy in order to free the anchor. The dinghy remained tied by its painter to the nylon rope. The defendant swam back to his yacht. After taking tension on the rope, which at this stage ran from the bow of �M.V. Galaxy� to the mooring, and hauling in on the chain, the defendant paused for a drink, feeling relieved that he had prevented �M.V. Galaxy� from running aground. At this stage �M.V. Galaxy� was secured by the rope and the anchor.

The defendant then saw �M.V. Wanderer� on the far side of Kieta harbour. Upon sighting her again later, he decided that, rather than further organizing his lines (as he was doing) or swimming to mooring 21 to untie the rope, he would attempt to attract the attention of those on board �M.V. Wanderer� from his position on board �M.V. Galaxy�. At this stage �M.V. Wanderer� was approaching her mooring in an arc.

I accept that the defendant and his wife shouted and waved for a short while to attract attention prior to the final approach of �M.V. Wanderer�, but they were not noticed doing that. They did not shout and wave continually. The defendant did not sound a horn or ring a bell or otherwise make any efficient sound signal. Neither the defendant nor his wife waved or shouted during the final approach of �M.V. Wanderer�, because the defendant had wrongly assumed that an apparent change of course by �M.V. Wanderer� was an acknowledgement of their earlier waves and shouts and an acknowledgement that the rope had been seen.

The plaintiff�s return route brought him from the northern area of the harbour in a starboard arc until he was continuing his starboard arc in a roughly northerly direction and until finally, as he made his final approach to mooring 21, he was heading up into the breeze in a roughly south-south-easterly direction. As he approached mooring 21, he reduced speed first to about five knots and finally (when he was about sixty to eighty feet away) to about three knots. At this stage the upturned dinghy was sighted; it is a not uncommon sight in Kieta harbour to see an upturned dinghy in the water. Mr. Barry Shorthouse was on the bow with a boat-hook preparing to pick up the short piece of rope that was normally attached to the mooring and to secure the vessel.

The defendant was not holding his rope, that extended from �M.V. Galaxy� to mooring 21, clear of the water. It was not taut; it was largely submerged. Conditions were abnormal. The rope was clear of the water at the bow of �M.V. Galaxy�, but where it was connected to the top of mooring 21, which was bobbing up and down in the water and over which waves were breaking, it would have only been visible spasmodically. It was not clear of the water near the dinghy and on either side of it, as the defendant and his wife maintained. The rope was not clearly visible.

Ultimately, as �M.V. Wanderer� was making her final approach to her mooring almost directly up-wind and with �M.V. Galaxy� astern and when she was about three feet from the mooring, the plaintiff put the engine into reverse and increased the revs instantaneously and momentarily to stop the vessel dead in the water. The stern of �M.V. Wanderer� was in line with �M.V. Galaxy� and mooring 21. The propeller of �M.V. Wanderer� became entangled with the defendant�s submerged rope. Suddenly the engine stalled and it made a loud noise. �M.V. Wanderer� immediately started to take on water. After Mr. Shorthouse had made fast the vessel to the mooring, he was then sent over the side to see if anything was wrong underneath.

Mr. Shorthouse�s underwater inspection revealed that there was a white nylon rope around the propeller; the rope was the defendant�s rope and was leading towards �M.V. Galaxy�. The plaintiff gave Mr. Shorthouse a knife and told him to cut the rope free, which he did.

Within fifteen to twenty minutes, �M.V. Wanderer� sank stern first and stern to the wind, taking the mooring buoy, to which she had been secured, with her. The depth of water was approximately ninety feet. �M.V. Wanderer� was substantially damaged as a result of the entanglement with the rope and the subsequent sinking, and was a write-off. The sinking of �M.V. Wanderer�, together with the resultant damage, was caused by the acts and omissions of the defendant.

All on board �M.V. Wanderer� eventually came to shore in a dinghy.

�M.V. Galaxy� was at the time equipped with a bell and a horn.

Regarding exhibit 4, the defendant�s rope that was tendered at a very late stage in the trial, was evidence which could have assisted the defendant greatly. If his rope had not been the one that became entangled in the propeller of �M.V. Wanderer�, as the defendant maintained throughout, one would have expected that rope to have been preserved in its whole, uncut and in untampered-with condition and that the defendant would have hastened to have it admitted in evidence. When it was eventually tendered (largely at my instigation), the defendant, curiously, was unable to recall whether he had whipped either end of that rope on or after the late afternoon of 30th October, 1977. He was not prepared to deny having done so. His testimony on this topic was such that I am drawn to the conclusion, on the balance of probabilities, that the rope was not in a whole condition and was cut at one end when he recovered it after the incident, and that he whipped and burnt the cut end sometime later.

The questions now arise as to whether on the facts as found, the defendant was negligent and, if so, whether the plaintiff was guilty of contributory negligence. It is, therefore, necessary to consider the law as it applies to this case. The owner of a vessel, whether it is a motor launch or a yacht, is under a duty to take all due care in relation to the management and control of his vessel and to take all reasonable precautions for the safety of other vessels and persons on board them and not to leave them in risk of danger against which some precautions at any rate can be taken.

I have to consider what, if any, duty of care is owed to the owner of a motor launch such as the plaintiff by the owner of a yacht finding himself in the situation in which the defendant found himself on the afternoon in question and what, if any, reasonable precautions ought to have been taken to eliminate or reduce the risk of danger. It is my duty to say what a man of ordinary prudence would have done if confronted with the situation in which the defendant found himself.

If I find the defendant guilty of a breach of that duty of care, I have to consider also what, if any, duty of care is owed by the owner of a motor launch finding himself in the situation in which the plaintiff found himself on the afternoon in question to use reasonable care for the safety of his own vessel and what, if any, reasonable precautions ought to have been taken to eliminate or reduce the risk of danger to his own vessel. It is my duty to say what a man of ordinary prudence would have done if confronted with the situation in which the plaintiff found himself.

In deciding these questions it is highly material that the defendant knew that the line had been secured from �M.V. Galaxy� to the plaintiff�s unoccupied mooring (No. 21)�he had secured it himself�and that the plaintiff was unaware of its existence.

A vessel which lays out an anchor in navigable waters and thereby creates danger for other vessels is under a duty to mark the anchor by a buoy or otherwise (see The Harkaway[ccxcvii]¹).

In C. Burley Ltd. v. Edward Lloyd Ltd. Wright J. said[ccxcviii]²:

�It had been said in The Harkaway that there was an absolute duty to place a buoy over an obstruction in a navigable channel, but whether there was so wide a duty or not there was a duty to give warning in some way or other ...� (The emphasis is mine.)

In Harmond v. Pearson Lord Ellenborough said[ccxcix]³:

�It is a peremptory law of navigation, that when any substance is sunk in a navigable river, so as to create danger, a buoy shall be placed over it for the safety of the public. This is the proper and specific notice, which all understand and are bound to attend to.�

These principles are fairly applicable to this case, except that in The Harkaway[ccc]⁴�the Court was dealing with an anchor in a river and here I am dealing with a rope in a harbour and in Harmond v. Pearson[ccci]⁵�the Court was dealing with a barge that had been sunk and here I am dealing with a largely submerged rope laid out to a mooring.

Apart from any regulations, those in charge of a vessel aground at night in the fairway of a navigable channel are bound to take proper means to apprise other vessels of her position. See The Industrie[cccii]⁶�and The Bromsgrove[ccciii]⁷.

This principle is also applicable to this case, except that in both of those cases the court was dealing with a vessel aground at night and here I am dealing with a largely submerged rope laid out to a mooring.

The essential duty which all these cases highlight is the duty to mark or give notice of that which creates the danger. That duty may be expressed, alternatively, as a duty to warn or to apprise other vessels of the existence of the danger. Applying those principles to the present case, it is the law that the owner of a yacht who lays out a rope to another vessel�s mooring in a harbour and thereby creates danger for that other vessel when approaching his mooring is under a duty to mark or give notice of that rope or to warn or apprise that other vessel of the existence of that rope.

When a vessel has given another a foul berth, she has no right to demand that the other should take extraordinary precautions, and when the difficulty calls for instant decision, the other may not be to blame for an error of judgment (see Halsbury�s Laws of England, (3rd ed.), vol. 35, p. 675 and the cases cited as against footnotes (m) and (o)). Applying this principle to the present case, the defendant, having given the plaintiff a foul berth when he laid out the rope to the plaintiff�s mooring, had no right to demand that the plaintiff should take the precautions set out in par. 9(i) and (ii) of the defence, both of which may be characterized as extraordinary precautions in the circumstances.

During Mr. Payne�s final address, he submitted that the negligence of the defendant �consisted of leaving (the rope) there where it could endanger other boat-owners�leaving it there and failing to notify other boat-owners of its existence�. Mr. Evans, in his final address, acknowledged that �once the line was out, there was a duty to take care�to warn approaching vessels of the existence of an obstacle or so present it that others who may be injured by it could themselves exercise reasonable care to avoid it�. I have emphasized portions of the submissions of each counsel to show that each of them appeared to rely upon or acknowledge, as the case may be, the principles of law to which I have been referring.

I conclude that the defendant did owe to the plaintiff such a duty as was contended for by Mr. Payne on the plaintiff�s behalf. I conclude that the defendant ought to have taken the precaution of giving adequate or reasonable warning of the existence of the line. The defendant was not in breach of r. 33 of the International Regulations for Preventing Collisions at Sea 1972; he did have on his vessel some means of making an efficient sound signal, viz. a bell and a horn, but he did not use either of them. I draw no conclusions adverse to the defendant regarding his failure to install or carry on his vessel a sufficient number of anchors; such a failure was a remote cause. In summary, I conclude that a reasonable and prudent man would have done more than the defendant did on this occasion, whether by means of making an efficient sound signal or otherwise, to warn or apprise the plaintiff or those on board �M.V. Wanderer� of the existence of the rope. The efforts made by the defendant were, in my judgment, inadequate and unreasonable.

I conclude that the plaintiff did use reasonable care for the safety of his vessel, notwithstanding the submissions made by Mr. Evans on the defendant�s behalf. I conclude that a reasonable and prudent man would have done no more than the plaintiff did on this occasion. In the abnormal circumstances as existed, he could not reasonably have been expected to notice the defendant�s rope or to observe such of it as was visible above the surface of the water or to have seen and heeded such signals as were given by the defendant and his wife. There is no substance in the allegation of negligent seamanship and of negligent construction and maintenance that were made against the plaintiff in sub-pars. (iii) to (vi) of par. 9 of the defence. Indeed, I am satisfied on the balance of probabilities that the plaintiff navigated and manoeuvred his vessel with skill, care and prudence and in a seamanlike fashion; that his vessel was constructed and maintained in a proper, sturdy and seaworthy condition; and that, in any event, the sole cause of the damage to the plaintiff�s vessel was the defendant�s negligence.

It follows that I conclude that the defendant was guilty of negligence and that the plaintiff was not guilty of any contributory negligence.

Regarding the claim for damages, the plaintiff not unreasonably decided to recover his vessel, a 27�6� Hartley cruiser, from the bottom of the harbour. This involved hiring a twenty ton capacity crane and a semi-trailer and having the services of three divers over a period of three days. Other equipment, including air-bottles, was hired.

Incidental to the recovery of the vessel, I allow the following items by way of damages:

K

Once the vessel was recovered it became clear to the plaintiff (or ought to have become clear to him) that the vessel was a constructive total loss. Mr. Fall was of the opinion that it was �not worth the expense to rebuild the vessel� and he stated that he �would strongly suggest the vessel be considered a complete write-off�. Whilst the plaintiff maintained his stand that he was entitled to claim the cost of items not recovered, the estimated cost of rebuilding the vessel, and the estimated cost of rebuilding the engine and transmission, he made some concession of the true legal position when (on 29th January, 1979�on the fourth day of the trial) he successfully applied to amend his statement of claim to claim, in the alternative to his claim for the costs of rebuilding, �the pre-accident value of his vessel, whichever is the lesser�.

I am satisfied on the evidence that the pre-accident value of the vessel was less than the cost of rebuilding (the latter being, on the evidence, in excess of K20,000). The opinion evidence of pre-accident value was given by the plaintiff himself (initially K14,000 being the value �placed on the vessel at launching�, and later K16,000 being �a more accurate figure�), by Mr. Fall (from whose evidence I infer that his assessment of the pre-accident value was �in the region of K12,000 to K14,000�), by Captain Porteous (who stated that the �estimated market value of the vessel at that time in Kieta would have been approximately K15,000�) and by Mr. Hamilton (whose evidence was A$25,000). I reject the valuation evidence of Mr. Hamilton who, despite his qualifications and experience as a boat-builder, lacked knowledge of values that was relevant to the Papua New Guinea market at the relevant time. I agree with Mr. Evans that Mr. Hamilton�s opinion was out of line with �the consensus of values� given by the other witnesses. His opinion was largely based on the cost of the various component parts rather than on an overall valuation of a vessel in good working condition. His knowledge and experience were based on Australian conditions which were not proven to be relevant to Papua New Guinea. Mr. Fall�s evidence was not very convincing, and he seemed to lack both precision and a real knowledge of local market conditions at the relevant time. Mr. Fall rather acknowledged his own limitations as a valuer and seemed to have doubts himself about the relevance of his own evidence. Both the plaintiff and Captain Porteous had knowledge of local conditions and a real degree of expertise regarding values. I agree with Mr. Evans that the plaintiff is �not a man who is likely to undervalue his vessel� and his opinion �should not lightly be rejected�. As the difference between his final opinion (K16,000) and the written opinion of Captain Porteous (�approximately K15,000�) is not great, and as, in any event, Captain Porteous�s opinion was an �approximate� one and one which was not tested under cross-examination, I am disposed to allow as the pre-accident value the plaintiff�s own figure of K16,000; I accept his explanation for the variation between his initial figure of K14,000 and his later �more accurate� figure of K16,000, and in any event, his later figure is substantially corroborated by Captain Porteous�s opinion.

It was not disputed by the defendant that, in the event of the defendant being liable in damages, an item of K1,354 should be allowed for �additional items not recovered�. I understood these items to be ones that were added to the vessel after launching and after the plaintiff�s value �at launching� had been determined.

I see no basis for allowing the plaintiffs claim for loss of use of the vessel. It was not shown that he needed a vessel for his livelihood or that his loss was other than a loss of enjoyment in pursuing a recreational activity.

I therefore assess the plaintiff�s damages as follows (the plaintiff�s vessel having become a constructive total loss):

I propose to exercise my powers under s. 42 of the Law Reform (Miscellaneous Provisions) Act 1962, and order that there be included in the sum for which judgment will be given interest at the rate of 8% per annum on the whole of the damages (which I round off for this purpose to K19,000) for the whole of the period between the date of the issue of the writ herein and the date of judgment herein. I will allow, therefore, K3,927.

There will be judgment for the plaintiff against the defendant for the sum of K23,164 with costs to be taxed.

Judgment accordingly.

Solicitors for the plaintiff: Warner Shand, Wilson & Associates.

Solicitors for the defendant: Gadens.