EMERGENCY PROCEDURES FOLLOWING THE INCIDENT
19. The Vopak and SPC emergency procedures were immediately activated following the Incident.
20. Vopak personnel immediately contacted Ship personnel by radio to stop pumping ULP. The Ship's discharge pumps were shut down as soon as practicable by the crew. The Vopak Site B Terminal emergency shutdown system was also activated and all operations ceased. The BLB area was secured and made ready for fire fighting operations to commence if required.
21. SPC personnel had observed the incident. SPC personnel and Vopak operators assisted in the clean-up of spilt ULP from the BLB. No absorbent materials were required in the clean up of the BLB.
22. Because of the volatility of the ULP, together with the evaporative effect of the day time ambient temperature (which was 24oC) the ULP that sprayed onto the hull of the Ship and entered the waters of Botany Bay, evaporated.
23. SPC assessed the situation and considered that there was no need for further action. The ULP on the water's surface had evaporated within minutes of the Incident.
24. The transfer operation in respect of ULP from the Ship recommenced at 2.00pm on 24 September 2003 after the failed gasket was replaced and the system pressure tested again by Vopak personnel. The transfer operation was completed at 8.35pm on Wednesday 24 September 2003. The ship left Port Botany the next day.
INVESTIGATIONS AND ACTIONS FOLLOWING THE INCIDENT
25. Vopak has carried out an investigation and exhaustive review of transfer operations following the incident, with the aim of preventing any further incident of this nature.
26. The system being used at the time for the discharge of ULP from the Ship had satisfactorily discharged approximately 3.4 billion litres of fuel (approximately 3,400 hours of discharge time) over a seven year period and was operating as per design at the time.
27. Pig Launcher gasket was replaced, on average, every two ships. Vopak's inventory and purchasing records show that 20 x 14" gaskets (of the type used solely on the Pig Launcher) were used in the period of 15 April 2002 to 24 September 2003. During this period, 31 ships were discharged, equating to approximately 821 million litres of fuel over 82 hours.
28. Vopak has made operational changes to further lower any risk of an incident in the future.
29. Vopak has discussed the Incident with SPC and implemented maintenance and operational procedural changes including:
(a) New procedures whereby Marine Loading Arm operators will change gaskets on the Pig Launcher prior to each ship discharging. The gaskets are to be changed every time the flanges are broken (unsealed) on the Marine Loading Arm and Pig Launcher.
(b) Installation of a pressure recorder on the Marine Loading Arm to record changes in pressure in the Marine Loading Arm;
(c) Instructions to operators that any changes in a ship's discharge pressure are to be investigated immediately;
(d) Changes to the maintenance system used for the Pig Launcher flange, surfaces and bolts. Maintenance of these components is now performed quarterly using computer software which programmes the work to be carried out, records the work completed and specifies timing of future work. Previously this work was carried out six monthly without the assistance of a computer programme;
(e) The type of gasket used on the Pig Launcher has been reviewed and a different type of gasket is now in use;
(f) Vopak employees and contractors have attended refresher training conducted by the SPC to ensure that they are up to date with emergency procedures the BLB ; and
(g) Commissioned an expert to determine the effect of pressure surges (Surge Study), in relation to the Main Loading Arm whilst vessels are discharging.
30. Vopak has co-operated fully with SPC over the Incident and has provided copies of all maintenance and testing records for the relevant equipment.
31. The Vopak costs of the clean-up, investigation and changes to procedures is at least $30,000.
32. Vopak personnel have spent over 100 hours in time carrying out training, reviewing the incident and implementing procedures to further reduce the risk of another incident.
33. Vopak understands that it will be expected to pay the costs associated with this Prosecution.
C. THE DISPUTED ISSUE OF THE CAUSE OF THE GASKET BLOWOUT
17 It is important at the outset to appreciate the nature of this disputed issue and the relevance of that issue to the charge, the subject of these proceedings, in the overall context of a hearing on sentence for an admitted offence.
18 The Defendant is charged with what is, in truth, a status offence. Its liability for that offence (which the plea of guilty admits) arises because of its status as an "appropriate person" in respect of the discharge that occurred from "a place on land in connection with a transfer operation".
19 It is an "appropriate person" by virtue of being the occupier of a place on land (see par (d) of the definition of "appropriate person") where that place is a "pipeline" (see par (d) of the definition of "place on land").
20 It is apparent that the offence admitted by the Defendant depends upon the mere occurrence of the discharge, rather than upon the Defendant's involvement in the "cause" of the discharge (A separate liability from the status liability imposed upon an "appropriate person" is also imposed by s 27(1) of the Act upon "any other person whose act caused the discharge").
21 In these circumstances, the question of the relevance of the "cause" of the discharge, the subject of the present charge (where "cause" is not an element of the offence) is not entirely clear. In this respect, it is to be noted that it is by no means unusual that in prosecutions for offences under s 8 or s 27 of the Act the cause of the discharge is never revealed. In the present case it is not in dispute that the "cause" of the discharge was the failure of the gasket in the flange cover to the pig launcher in the Defendant's pipeline. (It is this undisputed fact that establishes that the discharge occurred from a "place on land" (rather than from the "ship") "in connection with a transfer operation" and hence establishes the status liability of the Defendant as the "appropriate person in relation to a discharge from a place on land".)
22 But what has been doggedly in issue in these proceedings is the "cause" of the failure of that gasket. The Defendant has raised this issue because it has asserted that the failure of the gasket was caused by circumstances beyond its control, and more specifically, because it asserts that it was caused by a pressure surge created in the pipeline by the manner in which the "Team Neptun" crew pumped the petroleum from the ship's holds into the Defendant's receiving pipeline. The relevance of this issue so raised by the Defendant (but disputed by the Prosecutor) is that if it is established that the gasket failure was caused by the ship's pumping action creating a pressure surge in the pipeline, the Defendant says that that fact so significantly mitigates its responsibility for the admitted offence as to justify the Court exercising in favour of the Defendant the discretion conferred by the Crimes (Sentencing Procedure) Act 1999, s 10 by dismissing the charge.
23 Alternatively, if that discretion is not so favourably exercised, the Defendant relies upon that mitigating factor as justifying a much lighter penalty than might otherwise be imposed.
24 The Prosecutor has disputed the issue sought to be raised by the Defendant, by adducing competing expert evidence in reply to the expert evidence called by the Defendant, disputing the Defendant's case that the cause of the gasket failure was the ship's pumping action or inaction creating a pressure surge in the Defendant's pipeline.
25 Additionally, the Prosecutor has sought to establish that there are more probable causes of the gasket failure than the cause of a pressure surge created by the ship's pumping action (namely the fact that the failed gasket had been previously used contrary to the manufacturer's recommendations and warnings and recognised industry practice) and the fact that the bolts on the flanges clamping the gasket had not been tensioned by employing the conventional industry equipment, namely a torque spanner).
26 However, in adducing this evidence of more probable causes of the gasket failure than the cause asserted by the Defendant, the Prosecutor has not sought to establish a case of aggravation of the Defendant's liability.
27 The final and discrete aspect of the Prosecutor's case disputing the issue sought to be raised by the Defendant in mitigation is one that assumes that the Defendant can successfully establish that a pressure surge caused the gasket failure. This is its reliance upon the provisions of Australian Standard AS 4041 - 1998 "Pressure Piping" requiring that pipelines (such as the Defendant's pipeline) be designed "to withstand the impacting forces caused by external or internal conditions, including hydraulic, shock, pressure surges and water hammer". In relying upon this Australian Standard, the Prosecutor submits that the Defendant cannot avoid responsibility for the gasket failure because its pipeline is expected to be able to withstand pressure surges of the type that it alleges the ship's pumping action created in the present case.
28 As I have earlier held, it is for the Defendant to prove on the balance of probabilities the factual issue that it has raised in mitigation. In disputing the issue and seeking to raise a case to the contrary, the Prosecutor carries an evidential, but not the legal burden on that issue. In particular, it is not the Prosecutor's duty to negative beyond reasonable doubt the issue raised by the Defendant (in the manner that it is incumbent upon a prosecutor to prove guilt beyond reasonable doubt by negativing all manner of exculpation raised in proceedings: see He Kaw Teh v The Queen (1985) 157 CLR 523).
29 Ultimately, if the Defendant fails to establish the issue on the balance of probabilities, the result will be that the cause of the gasket failure will simply not be proved, but as I have earlier noted, this gap or lack of proof will not affect either the Defendant's admitted liability for the offence or the appropriate sentence to be imposed for that admitted offence, including the undisputed fact that the discharge occurred because of the gasket failure. Nor will that result (to the extent that it is not known how and why the known cause of the discharge occurred) be an unusual feature of prosecution for an offence against s 8 or s 27 of the Act where the full extent of relevant causation is not often known.
30 It is against the foregoing legal matrices that I come to consider the evidence relevant to the disputed issue of how and why the relevant gasket failed.
31 In considering the overall evidence, it is instructive to see whether and how the issue first came to be raised by the Defendant before the present proceedings were commenced, and following that commencement (on 10 March 2005) how it was raised and presented in the evidence.
32 The Defendant first raised the issue (albeit far less directly than in its presented evidence) in its third written communication dated 30 September 2003 to Sydney Ports Corporation as part of its investigation into the pollution incident. The communication (Exhibit 7) was in the following terms;
Attention: Jim Pullin (Sydney Ports Corporation)
Location Bulk Liquid Berth
Date 30th September 2003
Re: Unleaded Gasoline Spillage at Bulk Liquid Berth 24/9/2003
At a post incident meeting brief this morning attended by you and Vopak personnel, the following reports were tabled, and recommendations were made.
Just prior to the incident 2 operators were stationed at the berth George Cifranic and Graham Myer, who gave the following details of the events. At 1230 hours on the 24th September 2003 George and Graham were standing at the door of the operators shelter at the berth when they heard the ships pumps decrease in sound, which indicates the ship discharge pump rate is falling. George went to the Vopak loading arm and noticed the pressure on the pressure gauge located on the loading arm had fallen, so he contacted the ship via the 2-way radio inquiring for the reason.
After a very short period of time 30 secs to a minute, Graham said there was a loud bang similar to a water hammer and turned to look at the marine loading arm to see fuel spraying from the pig sender. The ship was contacted immediately and told to stop pumping, also Graham went to the isolation valve below the pig sender and closed the valve to limit the spillage. Graham then radioed to the terminal asking Paul Blazek (Leading Hand) to close the motorised valve on the loading arm, to prevent any flow back from the ship, therefore isolating the pig sender and stopping the flow.
I contacted the ship (Team Neptun) yesterday via the shipping agents and asked them to confirm the reason for the stoppage in flow from the ship during the discharge and the subsequent restarting of pumping and they denied any involvement at all. It is unfortunate the above did not come to light before today, as Graham and George left the wharf half an hour after the incident occurred and were not interviewed until today.
Certain measures ie. Operations notice and change in procedure to fit new gaskets to the pig sender were taken immediately after the incident, to prevent a re-occurrence and other measures were discussed today and will be implemented in the near future.
I have listed the recommended changes below and noted status:
1. Operations notice was DOC NO NOP03021 issued 26/09/2003. Completed
2. Procedure changed requiring gaskets to be changed on each ship completed on 26/09/2003. To be presented at Operations Meeting Wednesday 1st October. Completed
3. Installation of pressure recorder to be installed on the Connex Arm to record changes in pressure, to be investigated immediately. Quotation received.
4. Quarterly maintenance on pig sender flange surfaces and bolts to be set up in Mainpac to ensure frequent checks are carried out by maintenance personnel. Pig sender serviced by Trinor on 1/10/2003 and work requests added to Mainpac for quarterly checks on flange faces and bolts.
5. Review of gaskets being used on Connex Arm and pig sender being reviewed as asbestos type gaskets (Tesnit Solvenit) are the better types and are being phased out. The gasket used during the spillage on the 24th was a Klinger Sil which is being trialled as a replacement gasket for the Tesnet Solvnit. I will be contacting other users of gaskets in similar locations to see what they use. Until this review is completed Tesnit Solvenit gaskets will be used in all critical flanges. Review is currently under way by Vopak Engineering Manager Eric Strautins.
6. Refresher training of operating personnel at the BLB. Vopak to discuss with Jim Pullin
7. Installation of 2 foam extinguishers at the head of the BLB wharf to use in case of minor spillage's or fuel accumulating in the pit. Action Jim Pullin
8. Investigate the possibility of installing voice recorders on the two-way radios, as this would have enabled the review of conversation between the Team Neptun and the shore prior to the spillage during the discharge. BTW communications have been contacted and are preparing a quotation.
Brian Williamson
Site B Terminal Manager
33 Prior to that communication being sent to Mr Pullin, there had been two earlier written Incident Reports provided by Mr Williamson to Mr Pullin, following the latter's request made a few hours after the pollution incident that both the ship's Master and the Defendant "prepare a preliminary report on the cause of the spill"
34 Mr Pullin was employed by Sydney Ports Corporation as Manager of the Bulk Liquids Berth at Port Botany. He attended the scene of the incident a few minutes after the spill had occurred. He made certain observations of the aftermath of the spill and interviewed the ship's Master and Mr Williamson, the Defendant's Site B Terminal Manager. After receiving the Master's written report about one hour after requesting it, Mr Pullin spoke on the telephone to Mr Williamson when he read aloud the Master's report, in response to which, according to par 22 of Mr Pullin's affidavit, Mr Williamson said words to the effect: "That seems about right, I don't disagree with any of that".
35 In the first of Mr Williamson's written Incident Reports dated 24 September 2003 (Exhibit 5), Mr Williamson stated the following:
Attention: Jim Pullin (Sydney Ports Corporation)
Location Bulk Liquid Berth
Date 24th September 2003
Re: Unleaded Gasoline Spillage at Bulk Liquid Berth
The incident occurred at 1230 on the 24th September 2003 when a gasket on top of the pig launcher on the Site B line at the base of the Marine Loading Arm gave way spraying approximately 200 litres of gasoline onto the berth and against the side of the Team Neptun. The majority of the gasoline was contained within the confinement of the concrete bunded area of the berth, but a small amount sprayed onto the side of the ship and landed in the water.
After the gasket on top of the pig launcher flange was replaced and pressure tested to 650 kpa (with no leaks), the BLB was washed down with water and pumped into a slops tank. Permission was given by Sydney Ports to recommence the discharge from the Team Neptun at 1340 hours. I, accompanied by the Port Officer went to the Chief Officers office on the ship and resigned the ship to shore check list and the discharge was recommenced at 1400 hours.
The gasket on top of the pig launcher that gave way was inspected by the operators before the start of the discharge and found to be in good order, and the Marine Loading Arm including the pig launcher were pressure tested to a pressure of 650 kpa with no leaks from the flange. This is the normal practice after connecting the loading arm to the ship and repeat checks by the operators are made (every 15 minutes) during the ship discharge, as the operators are required to complete a wharf shipping log.
As a preventative measure, the shipping procedures will be changed immediately, that requires the gaskets on the pig launcher and the Marine Loading Arm connection to the ship to be replaced every ship, and a Operations Notice will be raised, alerting the operators to the change in procedures.
Regards
Brian Williamson
Site B Terminal Manager
36 The evidence does not reveal what, if any, action was taken by Sydney Ports Corporation, in respect of the three Incident Reports it had received from Mr Williamson on behalf of the Defendant, before the present proceedings were commenced by summons filed on 10 March 2005. There is nothing in the evidence to indicate any further investigation of the ship the "Team Neptun" which left Port Botany the day after the pollution incident after completing the transfer operation and after the Master had provided his report on the incident to Mr Pullin. It may readily be inferred that that report was accepted by Mr Pullin, particularly after he had obtained Mr Williamson's acceptance of it in his telephone conversation. Although Mr Williamson's third Incident Report had raised questions as to the ship's pumping action at the time of the pollution incident, his Incident Report records the denial by the ship's agent of any involvement by the ship in the incident. Significantly "no letter of protest" was lodged by the Defendant with the ship's Agent (which would normally occur if a claim against the ship was contemplated). What is significant in the Defendant's case at the sentencing hearing is that it is asserting fault on the part of the ship two years after the incident where that fault, if established, probably would involve an offence separately committed by the ship in circumstances where the investigations into the incident have long since been concluded.
37 On 12 May 2005, the Defendant entered a plea of guilty when the following directions were given:
1. Defendant to serve a draft Statement of Facts by 26 May 2005.
2. Defendant to respond to Draft Statement of Facts by 16 June 2005.
3. Unless parties settle Draft Statement so as to produce an Agreed Statement of Facts, the following directions apply to the filing of evidence -
(i) Defendant to file and serve any affidavit evidence by 30 June 2005.
(ii) Prosecutor to file and serve any affidavit evidence in reply by 4pm 14 July 2005
(iii) Statement of Agreed and Disputed Facts to be filed by 28 July 2005
4. Direct the parties to approach the Registrar to obtain a hearing date after 28 July 2005 on basis of parties' estimate of 1 day hearing.
38 Thereafter, the parties obtained a hearing date for 16 August 2005.
39 On 20 July 2005, further directions were given for the filing by the Prosecutor of evidence in reply on the basis that the Defendant had then filed all of its evidence. (That evidence comprised five affidavits (all sworn in July 2005), including the affidavit of Christopher Flannery, a consultant mechanical engineer with 30 years specialisation in the chemical and petrochemical industries.) Further directions were also given for the filing of a Statement of Agreed and/or disputed facts.
40 On that hearing date, it became apparent that the case was not ready for trial. This was principally because of the unavailability of one of the Prosecution Witnesses, Mr Dennis Petersen, a consultant marine engineer, whose affidavit principally in response to Mr Flannery's affidavit, had been filed by the Prosecutor. Since Mr Petersen was required by the Defendant for cross-examination and he was unlikely to be available for an extended period, the Prosecutor obtained the Court's leave (without objection from the Defendant) to obtain the evidence of another Marine Engineer, Mr Burge, who had been asked to review and comment on Mr Petersen's affidavit.
41 At the adjourned hearing, the parties' legal representatives informed the Court that they had been unable to agree upon a Statement of Facts, although they had conscientiously attempted to produce an agreed statement.
42 The result of the absence of an agreed Statement was the tendering of multiple affidavits, all sworn in 2005. However, only three deponents (the competing experts (Mr Flannery and Mr Burge) and Mr Williamson) were cross-examined.
43 The issue of the ship "Team Neptun" creating the pressure surge in the Defendant's pipeline causing the failure of the gasket clamped between the flanges in the pig launcher cover to the Defendant's pipeline is directly asserted by Mr Williamson in his affidavit when he says the following at pars 16 and 17:
In my opinion, this action by the ship created the surge in pressure known as the hammer effect.
In my opinion, the Incident was caused by this pressure surge (or hammer effect) which caused the flange gasket, being the weakest part of the pipeline, to fail between 2 bolts.
44 Mr Williamson's affidavit makes it clear that he formed these opinions as a result of his contemporaneous investigations into the incident, especially his conversation with Mr George Cifranic, one of the Defendant's two contract employees in attendance at the Bulk Liquids Berth on the day of the pollution incident.
45 There is nothing in Mr Williamson's evidence to suggest that his contemporaneous investigations into the pollution incident revealed anything more than what he had asserted (far less emphatically and directly) in his third written communication to Mr Pullin of Sydney Ports Corporation (the contents of which communication have been fully set forth earlier in these reasons).
46 Mr Williamson, in giving these opinions, is not presented as an expert witness. He has had some 16 years experience working for the Defendant and its predecessor at the Bulk Liquids Terminal at Port Botany, holding successively various senior positions of Operations Coordinator, Terminal Superintendent and Terminal Manager.
47 Furthermore, Mr Williamson's non-expert opinions on the cause of the gasket failure depend upon what he had been informed of the events surrounding the pollution incident by Mr Cifranic and Mr Graham Meyer, two contract employees of the Defendant, who were stationed at the wharf when the gasket failed and the discharge occurred. (Both these employees swore an affidavit in these proceedings.)
48 Before examining the sworn evidence of Mr Cifranic and Mr Meyer, it is important to note the dependence upon Mr Williamson's view of the facts surrounding the pollution incident, of the expert opinions proffered by Mr Flannery, as is revealed in the following extracts (pars 9 and 10) of his affidavit, sworn 14 July 2005: -
9. I have reviewed a statement of facts about the Incident dated 21 April 2005, which states at par 4 that at about 12.30 hours on 24 September 2003, within a period of approximately 30 seconds, the ship ceased and recommenced pumping at full pressure. Normally the ship would recommence pumping incrementally over a period of time after any stoppage.
10. I have assessed the effect that the actions of the ship as set out in paragraph 9 are likely to have on the pipeline. My report dated 6 July 2005 is annexed and marked A
49 The reference in Mr Flannery's affidavit to the statement of facts (from which he recites par 4) is apparently a reference to a version of the facts that the Defendant had proffered to the Prosecutor in accordance with the Court's Directions relating to a Statement of Agreed Facts (with which version the Prosecutor declined to agree).
50 It is apparent that the relevant opinions expressed by both Mr Williamson (as a non-expert) and Mr Flannery (as an expert) are essentially premised upon the fact that within a period of approximately 30 seconds, the "Team Neptun" both ceased to pump petroleum product from the Ship's tanks (four tanks were being concurrently pumped) into the Defendant's pipeline and recommenced pumping at full pressure. It is also clear that the premised fact was based upon what Mr Williamson had been informed by two contract employees, Mr Cifranic and Mr Meyer, who were stationed on the wharf when the gasket failed and the discharge occurred, when he questioned them a few days after the occurrence of the discharge (as he records in his third Incident Report given to Mr Pullin).
51 In his affidavit sworn on 13 July 2005, Mr Cifranic gives the following evidence of his relevant observations at the scene of the pollution incident:
5. On 24 September 2003 I was on duty from 0600 hours until 1300 hours with my work partner, Graham Meyer.
6. I recall that when I commenced duties it was a nice clear early Spring day and the ship Team Neptun ( Ship ) was already connected and discharging unleaded petroleum ( ULP ) to the Vopak Site B Terminal ( Terminal ).
7. My duties were to monitor the pressure at the base of the marine loading arm (known as the cluster), take samples of ULP and maintain radio contact with the Ship, the Terminal control leading hand operator and the Sydney Ports Corporation office.
8. I recall that during my shift everything was running smoothly with not much flow fluctuation and no ULP leaks.
9. At approximately 1230 hours, I came out of my bunker and checked the pressure gauge.
10. I noticed that there was little pressure, indicating that there was no flow from the Ship. I had received no notice from the Ship about the reduction in pressure.
11. I immediately made radio contact with the Ship and made enquiries as to what was happening.
12. The response from the person onboard the Ship over the radio was words to the effect of changing tank or changing pump .
13. I then turned to observe the pressure gauge and observed a zero pressure reading.
14. I then heard a loud bang or hammer like noise emanating from the Ship's deck.
15. I then observed that ULP leak appeared, which began spraying horizontally at the level of my head and in the direction of the Ship. The Ship was approximately 9 metres from the pig launcher.
16. I immediately called the Ship over the radio and said stop pumping, stop pumping, stop pumping .
17. I observed that the Ship stopped pumping and the leak stopped within 30-60 seconds.
52 In his affidavit sworn on 13 July 2005, Mr Meyer gives the following evidence of his relevant observations at the scene of the pollution incident:
3. On 24 September 2003 I was on duty fro 0600 hours with my work partner, George Cifranic.
4. At approximately 1230 hours on 24 September 2003 I was in the staff shelter adjacent to and 15 metres from the unloading ship Team Neptun ( Ship ), which was unloading unleaded petroleum ( ULP ) to the Vopak Site B Terminal ( Terminal ) and could not see the Ship.
5. I heard a loud bang and turned the corner of the shelter to see fuel spraying from the pig sender (launcher).
6. I waved at the Ship's crew to stop pumping. They responded and ceased pumping and I then went below the isolation valve to the shore side of the pig sender and closed it.
53 It is apparent that there are significant differences between Mr Williamson's contemporaneous record of what he had been informed were the relevant observations of the two contract employees concerning the pollution incident and the contents of the two affidavits (sworn nearly two years after the occurrence of the pollution incident). But most significantly of all, there is nothing in the content of either the contemporaneous hearsay record or the testimonial record (two years after the event) that supports the premised fact that within a period of approximately 30 seconds the ship's pumps stopped and recommenced at full pressure (my emphasis).
54 Not only does the testimonial evidence of the Defendant's two contract employees not establish the factual premise upon which Mr Flannery's opinion is based, but there is other evidence that raises doubt as to (i) the existence of the loud "bang" noise deposed to by the Defendant's two contract employees; and (ii) the source and nature of that noise, if it existed.
55 As to the doubt as to the existence of the "bang" noise, there is the affidavit evidence of Robert Strelis, Port Officer employed by the Sydney Ports Corporation. He was in attendance at the Bulk Liquids Berth on the day of the pollution incident. His duty that day was between 0630 and 1830 hours, when he conducted random inspections of the bulk cargo transfers occurring at the Berth. In his affidavit sworn 3 March 2005 in par 5 he makes the following relevant observation:
I had just boarded the ship Team Neptun and was standing 2 metres from the gangway speaking to 2 crew members of the Team Neptun and signing the ship's Register. I turned due to the sound of increased noise from the ship's pumps. Suddenly there was unleaded petrol spraying under great pressure from the pig sender unit of Vopak's Marine Loading Arm, onto the side of the ship Team Neptun , into the water and onto the Bulk Liquids Berth wharf. I immediately told the crew to stop pumping and signalled to the cargo room on the Bulk Liquids Berth to stop pumping.
56 In his affidavit in reply sworn 1 September 2005 he states the following:
1. I refer to my affidavit sworn on 3 March 2005 and in particular refer to paragraph 5 thereof and say whilst standing on the deck of the ship Team Neptun I heard an increased noise from the ship's pumps. I turned due to the increased noise of the pumps which was like a whirring sound like an increase in the pumps. It was steady but swift increase in the sound of the ship's pumps.
2. I do not recall a bang or hammer sound as described by Mr Cifranic in paragraph 14 of his affidavit of 13 July 2005. Had I heard a bang or hammer sound I would have included that in my report which I wrote on the same day as this event occurred. The only noise that I heard was the increased whirring sound from the ship's pumps.