Introduction
It follows from the jurisprudence that the relationship between a stevedore and a vessel is not always rosy. Dutch judges often had to consider a in which a vessel was damaged during loading or discharging.
The Owner (or his underwriter(s)) will subsequently hold the stevedore responsible in order to receive payment for the damage sustained by the vessel. Recently, a similar court case of the District Court of Rotterdam was published (District Court of Rotterdam 27 November 2013, S&S 2013, 86). In this matter the District Court had to examine the question whether a stevedore was liable for the damage sustained by an inland vessel.
Facts
The vessel was moored alongside the terminal of the stevedore in the Europahaven at Rotterdam on 29 August 2010. On that date a strong wind of a about force 6 to 7 was blowing. The stevedore would unload several 20ft-containers from the vessel. The stevedore used a mobile shore crane during the unloading. The crane operator operating this shore crane, was employed by the stevedore. One of the containers that was to be discharged, was located on the last bay on the starboard side of the vessel’s hold. The vessel was damaged during the discharging. The spreader of the mobile shore crane made a lateral movement, whereupon the spreader subsequently came into contact with the vessel’s wheelhouse.
The Owner and the underwriter of the vessel held the stevedore liable and claimed payment of inter alia the damage to the wheelhouse. They argued that the stevedore is obliged to pay the damages, because he is responsible for the damages caused by the fault of the crane operator. By damaging the vessel, the stevedore would have allegedly infringed Owner’s property right and thereby committed a wrongful act towards the owner.
Judgment
Whilst judging the question whether or not the stevedore was liable for the damages to the vessel, the District Court made use of a consideration which is already to be found in a judgment of the Dutch Supreme Court (Dutch Supreme Court 6 March 1953, NJ 1953, 791) and which has subsequently been repeated several times (see e.g. District Court of Rotterdam 19 August 2009, ECLI:NL:RBROT:2009:BJ5767):
“That the spreader of [the stevedore’s] crane collided with the wheelhouse of the [vessel] and that as a result thereof the vessel was damaged, is in itself not an infringement of [Owner’s] property right, and is so not an unlawful act. Therefore, no liability of [the stevedore] can be accepted on this basis. Thus, the question remains whether or not – briefly – the crane operator performed his work with the due diligence that reasonably could be expected from him whilst unloading the container from the vessel.”
The mere fact that the mobile shore crane’s spreader came into contact with the wheelhouse of the vessel as a result whereof damage has arisen, is in itself not an unlawful act. It is required that the Owner proves that the crane operator performed his work without the due diligence that reasonably could be expected from him during the mechanical unloading.
In this matter, the Owner and the underwriter inter alia argued that the crane operator was at fault because he drove the shore crane towards the wheelhouse during the strong wind, whilst the spreader was unnecessarily at the height of the wheelhouse. Because the stevedore disputed this substantially, Owner and his underwriter received an interlocutory order to produce evidence to prove their assertions. To that end, the Owner and his underwriter examined two witnesses; the shipper and a sailor of the vessel. Both witnesses declared that the last containers was at the bottom of the hold and that they saw the crane moving with the spreader at the height of the wheelhouse. Subsequently, the stevedore examined two of her employees (including the crane operator) in a counter hearing. In summary, these statements come down to the fact that the spreader hung on that particular height because of the height of the container (third level) and that the shore crane was not moved after this was positioned for the purpose of unloading the container.
The District Court of Rotterdam subsequently held that:
“2.11. Taking paragraph 2.7. and 2.8. into consideration, the District Court deems that [Owner] had in principle successfully provided evidence, but this evidence is refuted by the different version of the facts given by the witnesses in a counter hearing, which version also fits (several of) the submitted documents. […]
With this state of affairs the situation of ‘non liquet’ occurs, by which a situation is meant wherein (the evidence produced has been refuted in such a way) that it is not possible to ascertain with sufficient certainty what factually has taken place. That uncertainty is for the risk of the party who has been ordered to produce evidence, in this matter [Owner] After all, the risk of nonpersuasion also follows from the division of the burden of proof. Because the correctness of the constellation of facts on which [Owner] based her claim on (the cause of the incident) has not been ascertained, and [Owner] bears the risk of nonpersuasion hereof, the claim has to be rejected.
Based on the available facts, circumstance, documents and declarations, it was not possible to ascertain the actual cause of the incident of the vessel. Thus, it was not possible to ascertain whether the crane operator had acted negligently. The Owner and underwriter’s claim has therefore not been granted.
What can we learn from this judgment?
It follows from this recently published judgment of the District Court of Rotterdam that success of a claim of Owners against a stevedore depends on the available evidence. Owners’ claim against the stevedore will be rejected, if it is unclear whether the stevedore acted negligently. It is therefore very important to immediately collect relevant information when a vessel is damaged during loading and or discharging operations. You could think of inter alia taking pictures of vessel’s damage, taking pictures of the situation on the shore, noting down names of and taking statements of (potential) witnesses. On the basis of that information it can be assessed whether a claim against the stevedore will be successful. It is self-evident that the same applies for the stevedore, who will have to defend himself against a claim of the Owner. The party who is able to substantiate her version of the facts with evidence, will have a head start in possible proceedings and will be on the way to a judgment in her favor.