Fire on board because of unseaworthiness?
A ro-ro carrier, UND Adriyatik, owned by the defendants UN Ro-Ro IsletmeleriAS,washalfwaybetweenPort Pendik (Istanbul) in Turkey and Trieste in Italy, on 6 February 2008 in Croatian watersintheAdriaticSea.At05.30,afire signal appeared on the bridgeâ€™s control panel. As it was not clear if this was a real alarm, the chief mate sent one crew member from the bridge and one from the engine room down to check as fast as they could.A fire, the cause of which was unknown, was raging on the main deck where trucks were carried.
The technical management and ISM/ISPS management were carried out by a ship manager established in UK.The crewâ€™s certificates, as required by STCW Rules in force at the time that UND Adriyatik was built (2001), were genuine and accurate. The requirements of the ISM Code were satisfied and proper logs were kept.
However, the crew failed in fighting the fire in practice.The master of UND Adriyatik decided to abandon the vessel 38 minutes after the first fire signal on the control panel.The vessel stayed on fire for approximately six days,following which she was declared a total loss and sold for her scrap value. Despite the fact that all necessary certification and equipment were appropriate according to the SOLAS rules in force, all crew attempts to extinguish the fire failed due to inexperience and panic in heavy smoke, which impaired breathing and caused poor visibility.
More than 350 court cases are pending in Turkish courts with truck operators and their cargo owners and insurance companies as claimants. In Ã‡obantur TurizmTicaret ve Naklyat Ltd v UN Ro-Ro Isletmeleri AS,1 the truck operator sued the ro-ro carrier. The Admiralty Court judge regarded the case as a test case.
The claimants argued that the ro-ro owner/carrier was under strict liability since the vessel was unseaworthy at the beginning of the voyage, per findings in the report of the Italian coastguard indicating that the fire pumps failed and the sprinkler system did not work. However,the defendants argued that the carrier was not liable since the damage had occurred due to navigational fault and/or the fire. Even if damage had occurred due to crew negligence, those two exceptions were envisaged in s1062/2 of the Turkish Commercial Code (TCC) and Hague-Visby Rules (HVR), art IV rule 2(a) and (b).
The defendants also disputed the claim on the ground that the certifications were clear and the fire extinguishing and pumping systems were operational.They argued that the fire had originated in one of the trucks on the main deck and that therefore cargo owners were liable.
Expert findings of fact
The judge requested the views of two court experts: one oceangoing master and one academic and practising lawyer regarding the responsibility of the ro-ro carrier.They concluded the following.
The fire had started at the trailer trucks stationed in the main deck of UND Adriyatik and spread from vehicle to vehicle, resulting in the destruction of the ship. She was built in 2001 and compliant with all relevant rules in force as of the construction date. There was no conclusive evidence concerning the true cause of the fire. The documents of the fire detection alarm system and fire extinguishing equipment on UND Adriyatik seemed to be in compliance with rules in effect on the date of the fire. The fire detection system of UND Adriyatik worked properly. However, due to the failure to report the fire and to raise the alarm on time, early firefighting measures of vital importance became impossible because of the lack of confidence and experience of the crew and a period of 15 to 20 minutes was wasted. The fact that an insufficient number of crew tried to reach the fire and that the firefighting equipment was not operational, probably due to high heat, caused doubts about the seaworthiness of the ship. The expert report also noted that the findings in the present case were insufficient to support the argument that the technical competence of the ship was insufficient. There was a want of solid evidence of the technical incompetence of the ship.
Cross-examination of witnesses showed that only the chief mate (second officer) was on the bridge, although one officer and one crew member were required to be on bridge duty. The court expert captain found inconsistencies in the witness statements and concluded that the manning was inadequate for navigating the vessel. Once the fire alarm had fulfilled its function, the best thing to do was to reset the system and send someone to the main deck to check the accuracy of the alarm and, if there was a fire, start firefighting according to the regulations. As the crewman was not at the bridge a visual inspection of the fire could not be performed in time. Indeed the chief mate was in such disarray that, although he reset the alarm a few times, alarms went not only from the section where the first alarm went, but also from other sections to the bridge. As the crewman was not with him, he had the bosun woken, notified the master and sounded the fire alarm. Crucial minutes were wasted, being the main reason for the fire spreading throughoutthevessel.Ifthefirefighting had started when the first alarm went, the fire could have been extinguished.
There was evidence that the two crewmen sent to the main deck were improperly equipped â€“ they did not use their gas masks and one of them wore no protective suit; they could not breathe and abandoned the main deck.They thus failed in their mission of preventing the fire spreading due to non-compliance with the firefighting requirements.
The court experts concluded that the reason for the spread of the fire was not technical incompetence of the ship in firefighting, but crew failure to perform their duties during the fire.On this crucial finding, the court experts based their opinion. The shipowner could be held liable because of the unseaworthiness of UND Adriyatik. She was unseaworthy before and at the beginning of the voyage due to crew incompetence, although the documents reflected the contrary. This was the situation envisaged in TCC s1019/1 and 2 and HVR art III rule 1(a) and (b). The court experts concluded that the vessel was unseaworthy just before the beginning of her voyage with regard to crew competency. According to TCC s1019 a shipowner is responsible for making the vessel seaworthy in all respects for her voyage, including crew competency:
â€˜In every kind of contract of carriage of goods by sea, the carrier is obliged to ensure that the ship is seaworthy and suitable for her voyage (s817) and to ensure that cargo holds including the cooling system are suitable for accepting to load, carry and preserve them (cargoworthiness). The carrier is liable for damage resulting from unseaworthiness unless the carrier exercised due diligence but he could not discover the incompetency until the beginning of the voyage.â€™
Proof of due diligence in searching for unseaworthiness before the start of the voyage would have been the only possibility of exemption from liability for the shipowner.There might have been a causal link between the damage and the actual operational incompetence of the crew in firefighting, although their professional papers showed satisfactory competence, but the experts could not find any clarification of how a shipowner could discover crew incompetence where IMO certificates and training records were adequate. Their report emphasised that although it was open to debate whether the crew was incompetent in actual firefighting, the shipowner would in any case have been unable to detect their incompetence until the start of the voyage.
There was also a separate issue about the electricity cables of UND Adriyatik. IMO made amendments which came into force in 2005. UND Adriyatik was built in 2001 and exempt from any compulsory obligation to comply with those rules, including the requirement for heat resistant electricity cables. Although there was no compulsory regulation the court experts left the issue open as being academic whether a prudent shipowner should have taken action to renew all electricity cables to provide a more secure vessel for his employees, cargo owners and even for itself. The shipowner was not under any legal obligation to replace the electricity cables due to the fact that the revised IMO regulation put no obligation on older vessels.
The experts discussed limitation of liability with reference to the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC) art 6(1)(b), to which Turkey has been a party since 1998. UND Adriyatik was 22,900 gross tonnes. 167,000 units of account per 500 tonnes and 167 units of account per tonne between 501 tonnes and 26,496 tonnes x 25,995
tonnes, that is, 4,341,165 units of account plus 167,000 makes 4,508,165 units of account. One SDR equals 1,8761 Turkish lira as of 6 February 2008, therefore global liability will be 4,508,165 SDR x 1,8761 = 8,457,768.36 TL. The sum of such of the amounts together with interest thereon from the date of the event giving rise to liability until the date of the constitution of the fund per LLMC art 11(1) should be added to the liability.
In the report it was stated that the certificates of seaworthiness of UND Adriyatik and the crew competence have the force of being prima facie evidence open to rebuttal; thus the claimant could not succeed in proving that the shipowner had failed to exercise due diligence in checking the seaworthiness of the ship at the beginning of her voyage.Therefore the ship was, de facto, seaworthy, unless the contrary was proven by the claimant. The claimant could not prove the unseaworthiness of the vessel at the beginning of her voyage. The judge also expressed his decision on the ground that this was a case of loss by fire, and that such loss was an exception from liability for the carrier not only under TCC s1062/2 but also under the new Turkish Commercial Code (NTCC) in force in July 2012, HVR and indeed the Rotterdam Rules.
TCC s1062 stipulates absolute non- liability for the carrier (see also NTCC s1180) if the damage results from fire or navigational fault:
â€˜The carrier is responsible for the faults of his workers and seamen as if it is his own fault. If the damage results from a technical fault or a fire, then the carrier is only responsible for his own fault. The precautions related to the benefit of carried goods are not considered as navigation or management of the ship. In case of uncertainty, the damage shall be deemed as not being a consequence of technical management.â€™
For this reason, the opinion in the expert report that â€˜TCC is already very old; in new conventions non-liability for navigational fault is abandonedâ€™ is arguably inappropriate. In this case, there is no possibility for the carrier to discover the deficiency resulting in theunseaworthinessoftheshipatthe beginning of her voyage:TCC s1019. In conclusion, the carrier cannot be held liable for loss caused by fire, nor for the unseaworthiness of the vessel before her voyage since due diligence was exercised in accordance with TCC s1019.
There is in the event no place for applying TCC s1019/2, and, by concluding non-liability of the owner/ carrier under s1062/2 TCC, it is understood that the defendant is liable neither for fault in the navigation or management by the crew members nor for the fire damage. In accordance with the expert report, the judge thus held that the defendant was right in its reliance on the exception in s1062/2 of TCC.The judgment has been appealed to the Appeal Court of Turkish Republic â€˜YargÄ±tayâ€™.
The Rotterdam Rules art 17(5) provides that the claimant must prove that the loss, damage or delay was or was probably caused by or contributed to by the unseaworthiness etc â€“ the expectation that the claimant proves the unseaworthiness is therefore inevitable. Furthermore, seaworthiness is required throughout the voyage, not only in the beginning. NTCC will not modify the rule in TCC s1019. The shipowner is still not responsible for any defects giving rise to unseaworthiness if the shipowner can prove that it exercised due diligence in this respect and was not privy to any defect before the beginning of the voyage.
This should be changed in Turkish maritime law. The shipowner should be responsible for making the vessel seaworthy and keeping her in this condition throughout the voyage. In the present case, the judge should have discussed the issue of whether actual crew incompetence in firefighting might lead the discussion into the shipownerâ€™s liability for making the vessel seaworthy. If the Turkish
Government adopts the Rotterdam Rules, NTCC will require amendment.
Government adopts the Rotterdam Rules, NTCC will require amendment.
Author: Prof Dr Vehbi S Ataergin