Allison Pty Ltd t/as Pilbara Marine Port Services v Lumley General Insurance Ltd [2006] WASC 104

Allison Pty Ltd t/as Pilbara Marine Port Services v Lumley General Insurance Ltd [2006] WASC 104 - WASC 2006 case summary — Zoe

[101]

13 At one point, in the course of submissions advancing the proposition that the terms of a warranty may be modified by other express terms of the marine insurance policy, counsel for the plaintiff referred to the decision of Stone J in Hong Kong Nylon Enterprises Ltd v QBE Insurance (Hong Kong) Ltd (2002) HCCL 46/1999 where the provisions of cl 8.3 of the Institute Cargo Clauses (A) provided that the insurance should remain in force during delay beyond the control of the assured, any deviation, forced discharge, reshipment or trans-shipment during any variation of the adventure arising from exercise of the liberty granted to ship owners or charterers under the contract of affreightment. In that case, one of the carriers, in the course of a multi-stage trans-shipment of the cargo, transported the cargo otherwise than within a container which, prima facie, appeared to be in breach of an express warranty that the cargo would be shipped in containers. However, the bill of lading for that stage of the journey authorised that carrier to carry the goods in any commercially reasonable manner, including by trans-shipment or by the use of other carriers. Stone J held that cl 8.3 of the ICC (A) was equivalent to a "held covered" provision and was within the scope of the liberty granted to the ship owner so that the insurance remained in place. The breach of warranty was one which occurred within the parameters contemplated by cl 8.3 and, therefore, did not discharge the policy. It was not submitted that there was a "held covered" clause in the policy of marine insurance for the "Pilbara Pilot" or in the incorporated Institute Cargo Clauses Hulls but, Mr Stone, for the plaintiff, did submit that the combination of s 84(4) of the Marine Insurance Act, cl 14 of the Institute Cargo Clauses Hulls, as incorporated into the policy, and the master's/owner's duty to take steps to protect the vessel in the face of impending harm meant that the move of the "Pilbara Pilot" on the afternoon of 23 February 1995 from its usual mooring to the position on the western side of Hampton Harbour astern of the "Pilbara Jarrah", did not constitute a breach of the warranty to moor the vessel at a cyclone proof mooring.

[145]

"TC Bobby was noted for its movement prior to crossing the coast. The detailed track shown in figure 2 highlights the change of movement before coastal crossing. At 2 pm on the 24th Bobby was moving to the south at 15 km/h but by 11 pm it had slowed to just 6 km/h. The slower movement meant that severe winds were maintained along the coast longer than if the cyclone had moved faster. Gale-force winds were maintained at Dampier for about 50 hours. Although it is difficult to make comparisons with historical events, this duration of gales is likely to be one of the longest since cyclone records commenced.

Otherwise the winds at Dampier were not unusual either in terms of direction or intensity. The wind direction as shown in figure 3 is what would be expected for a cyclone in that location. Winds rotate clockwise around the centre of a tropical cyclone with a slight inward bias. At figure 3a at 9 am on February 23 Bobby was located north of Dampier and so winds were from a generally easterly direction. This easterly direction was maintained during the identified period of 10.30 am to 12.30 pm on 23rd. As Bobby moved to the south/south-west, Dampier became located in the south-east quadrant relative to the system's centre. So by late on the 23rd and on the morning of the 24th winds at Dampier shifted more to the north-east (as in figure 3b). As Bobby went south of the latitude of Dampier (as in figure 3c), the wind at Dampier shifted to the north then north-west. From then on Bobby was in the north-east quadrant of Bobby and Dampier winds remained a general north-westerly as shown in figure 3d.

Summary

Winds at Dampier during TC Bobby are estimated to have reached storm-force possibly for a period of approximately 12 hours. The period of gales appears to be about 50 hours. A distinguishing feature of Bobby's impact on Dampier was the duration of the gale-force winds. The maximum wind gust at Dampier was not recorded. At Karratha Airport the maximum recorded wind gust was 117 km/h. The maximum gust at Dampier would have exceeded that at Karratha Airport, possibly reaching about 140 km/h. Dampier was outside the zone of maximum winds of TC Bobby and did not experience hurricane-force winds (wind gusts of 170 km/h and greater)."

[261]

115 This argument proceeds from the plaintiff's submission that the decision to move the "Pilbara Pilot" from its usual mooring to the position astern of the "Pilbara Jarrah" after advice had been received from the two other captains was a reasonable decision taken for the protection of the vessel. The wisdom of that decision may certainly now be questioned and in hindsight much can be said to criticise it, but I have accepted the evidence of Captain Douglas, and Captain Hammonds, that it was a reasonable decision for Captain Hawes to take and I am quite satisfied that he was acting honestly and reasonably, with the advice of two of his captains, when the decision was taken. It was no doubt a difficult decision but one which had to be made urgently and I am satisfied that it was made entirely out of considerations for the preservation of the safety of the vessel, that is, that it was made in good faith by an experienced and competent officer of the plaintiff who was directly responsible for the safety of the vessel at the time. As observed earlier, once it was decided that it was necessary to shift the "Pilbara Pilot" there were very few alternatives on offer. It would have been an unacceptable peril to the vessel and to its crew to attempt to take it to sea. The only other area in Hampton Harbour where there was deeper water with some shelter was on the western side of the harbour to which the vessel was in fact moved. There, there were no moorings, let alone approved moorings, available for its use but one of the plaintiff's other vessels was secured to an approved mooring and, making the best improvisation practicable in the circumstances, it was decided to tie the "Pilbara Pilot" astern of that vessel. In this regard it should not be forgotten that a similar decision was made with regard to the "Pilbara Moonlight" and that she was also moved from the eastern side of the harbour and tied astern the "Trisha Kate" and that in that situation the "Pilbara Moonlight" safely rode out the passage of Tropical Cyclone Bobby.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (292 paragraphs)

Allison Pty Ltd t/as Pilbara Marine Port Services v Lumley General Insurance Ltd [2006] WASC 104 (8 June 2006)

Parties

Legislation Cited (11)

Cases Cited (24)