Fisher v The Ship Oceanic Grandeur

Fisher v The Ship Oceanic Grandeur - [1972] HCA 51 - HCA 1972 case summary — Zoe

[10]

There then ensued more than twenty-four hours during which matters were at a deadlock. The two ships remained at anchor quite close together; Captain Gar continued to reject or ignore Captain Fisher's repeated offers of assistance; however, both ships were, during this period, in communication with their owners. The weather remained fine and the seas calm and I find that Oceanic Grandeur made no further water in her tanks. Meanwhile public and official concern in Australia about the risk of extensive oil pollution in proximity to the Great Barrier Reef was increasing; so great was the concern that on 5th March the Premier of Queensland, with a number of senior officials, visited the scene. Ampol Petroleum Ltd., as the owner of Leslie J. Thompson and the charterer of Oceanic Grandeur and whose refinery affiliate was the owner of the offending crude oil which comprised Oceanic Grandeur's cargo, was acutely conscious of the need to prevent further spillage. It offered assistance to Oceanic Grandeur's owners and this was accepted, the deadlock between the two captains being thus broken. Leslie J. Thompson then went alongside the Oceanic Grandeur and, as I find, at some peril to herself and after great exertions on the part of members of her crew, engaged in a complex transhipment operation which had the effect of removing a substantial part of Oceanic Grandeur's cargo, raising its bows and correcting its list. The quite ingenious and very arduous method adopted of syphoning oil out of damaged tanks allowed divers to carry out repairs to the hull because, by raising the level of sea water in those tanks, it provided them with a safe barrier of sea water between their operations on the hull and the otherwise dangerous oil. I find the operation to have been almost exclusively planned and executed by officers of Leslie J. Thompson. After taking its first cargo to Brisbane Leslie J. Thompson returned to Oceanic Grandeur and took on board a second cargo; another tanker also took further cargo from Oceanic Grandeur and Oceanic Grandeur, after the temporary repairs had been effected to her hull while she remained at anchor, then sailed to Singapore where permanent repairs were carried out.

[30]

Neither of these courses was in fact attempted and their practicability is therefore not fully established; as one is reminded by the judgment in an American salvage case, The Roanoke [1] , "Wisdom born after the event is the cheapest of all wisdom." It is noteworthy that there was no mention of these possibilities in the course of cross-examination of those of the plaintiffs' witnesses who were officers of Leslie J. Thompson and who took part in the actual operation involving Oceanic Grandeur, nor was the practicability of transfer of oil from no. 1 port to no. 3 starboard referred to in the evidence of the only witness from Oceanic Grandeur, First Officer Li, whose duty it would have been to initiate and carry out this operation had it been undertaken. Expert witnesses who spoke of the use of compressed air stressed the need for careful consideration of stresses on deck members before compressed air is used, involving the obtaining and examination of precise information as to the design strengths of the deck structure before attempting its use. There was, I think, in these possible alternative measures, nothing akin to the situation which, in The Helmsman, [2] , a case on which the defendant relied, led Pilcher J. to conclude that that vessel was in no danger in any relevant sense because it could have readily taken steps to avert danger had any threat of it become acute. Evidence suggests that even if compressed air had been used not simply as an interim measure to move to a safer anchorage but in order to sail to Singapore, it would have been most hazardous to attempt such a voyage relying upon compressed air in the tanks for trim and adequate buoyancy. Neither as a measure to enable the vessel to move to more sheltered waters for temporary repairs nor as a means of enabling her to steam directly to Singapore for complete repairs do these proposals alter my view as to the existence of the necessary element of danger to Oceanic Grandeur when Leslie J. Thompson went alongside her.

[54]

The attitude of Ampol at and prior to these discussions appears to me to emerge clearly enough; at first it was concerned to protect itself against any expenses or losses which it might incur in going alongside Oceanic Grandeur; it accordingly instructed its master, Captain Fisher, at noon on 3rd March "on no account to hook up until instructed " It later supplemented this instruction by a message, passed through Thursday Island facilities, informing Captain Fisher that before taking any cargo from Oceanic Grandeur, a Lloyd's open form of salvage agreement should first be obtained from the master of Oceanic Grandeur. It did this because of concern as to its legal position should Leslie J. Thompson go to the aid of Oceanic Grandeur. Then followed the telephone negotiations with Oceanic Grandeur's owners to which I have referred. When these had been concluded on the evening of 3rd March, Ampol's representative in a telephone conversation with Captain Fisher informed him that Ampol had come to an agreement with the owners of Oceanic Grandeur and had a form of indemnity from them and that there was accordingly no need for the master of the Oceanic Grandeur to sign any salvage agreement. A radiogram from Ampol to Captain Fisher somewhat earlier on the evening of 3rd March had foreshadowed that instruction by informing him that, following a request from Oceanic Grandeur's owners to lighten cargo, Ampol had agreed to do so and that he was now authorized to take portion of its cargo on board. The following morning Ampol sent a further telegram to Captain Fisher again telling him that there was now no need for a salvage agreement to be signed. From Ampol's viewpoint this was no doubt so; it was satisfied with its indemnity and had done what it could to attend to two matters of great concern to it, the urgent provision of crude oil to its Brisbane refinery, which was running short of crude, and the minimizing of pollution, with which its name was being associated and which had created much publicity and both official and public concern in Australia.

[69]

towage service may be described as the employment of one vessel to expedite the voyage of another, when nothing more is required than the accelerating her progress. But towage may frequently form the whole or a substantial part of salvage services and towage not for the purpose of accelerating the progress of the towed vessel but to avoid risk of danger to her will be a salvage service - The Kangaroo [6] . If, in the present case, towage cases are to be used by way of analogy, it may be apt to describe lightening services as those where one vessel is employed to remove cargo from another when nothing more is required than the transhipment of that cargo so that it may be transported to its destination. Here the transfer of cargo was not by any means undertaken for that purpose alone but rather to assist Oceanic Grandeur, the arrangement between the respective owners taking the form it ultimately did because of the circumstances to which I have already referred. It accordingly appears to me to be erroneous to regard the arrangement as at any time one simply for lightening. In forming this view, I have not relied upon the particular hazards involved in the work itself, but if these be relevant, I find them to have been substantial and far greater than would be encountered in a normal ship-to-ship cargo transfer operation; moreover, apart from danger, the work involved was extraordinarily arduous for the deck officers of Leslie J. Thompson and imposed great responsibility upon her master. It is useful to recall what was said by the Judicial Committee in The "Sappho" [1] : The true rule appears to their Lordships to be, to consider, whether the services are in themselves of the nature of salvage services; and next, whether they are services which are within the contract which the Seaman originally enters into, so that he receives remuneration for them by his ordinary wages? Their Lordships concluded that if the first question were answered "yes" and the second "no", there was no good reason why salvage remuneration should not be awarded. 1. (1849) 3 Wm. Rob. 138, at pp. 139-140 [ 166 E.R. 914, at p. 915]. 2. (1875) 1 App. Cas. 58, at p. 63. 3. [1918] P. 327. 4. (1871) L.R. 3 P.C., at p. 695.

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Judgment (120 paragraphs)

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