Felipe Arizon | Partner, Arizon Abogados SLP
THE magistrate of the Commercial Court of Almería, well-known in shipping and commercial law following the English Court of Appeal decision of 2009 in the case of the Wadi Sudr, where the effects of his decision was questioned under the European Commission council regulation number 44/2001, has issued a judgment which holds that the owners of Iran Hamzeh are not responsible for the consequences of an accident that occurred with a shore crane in Carboneras on January 26, 2008.
In his 49-page judgment, the magistrate found the ship’s master was not negligent during the berthing manoeuvre that led to the accident. The judgment represents harsh news for the terminal operator, an international cement group company, which following the accident applied for the arrest of the ship in the amount of €1.4m (£1.7m). Wrongful arrest damages could follow.
The early evidence obtained during the first months after the accident, where the magistrate, in an unprecedented move in Spain for this type of case, agreed to an early hearing to cross-examine the master and the pilot, turned out to be of paramount importance to ensure the court had early and proper records of what actually happened during the manoeuvre.
The judgment is good news for the other two defendants involved — the pilot and the tugs.
While the tugs have been held to have contributed to the cause of the accident, they are exempted from liability as the magistrate considered the terminal’s non-removal of the old crane from the dock was the cause of the accident, and in any case the court held that the crane was of no value.
Furthermore, the magistrate said the terminal did not act loyally with the shipowners by failing to cancel the shipment, while the ship had been declared off hire by the time charterers.
He held that the terminal was in breach of its obligation to mitigate losses, act in good faith and cancel the shipment.
Nevertheless, in the magistrate’s view the loss of hire before the arrest of the ship cannot be passed on to the terminal as the chain of causation was broken by the fact that the ship could not leave port before it complied with the Almería harbour master’s request concerning the extent of the ship’s damages.
This compliance, achieved by the report of Lloyds’ Register on the ship’s condition and class, was delivered to the harbour master the very same day the ship was arrested by the terminal.
The magistrate has gone further and agreed that the representative of the ship agent office in this case, a company nominated and belonging to the terminal group, should have refused to become the protecting agent for obvious conflict-of-interest reasons.
This is an important decision that follows the line of the Spanish Supreme Court judgment of 2007, which considers that in a collision case with a shore crane, the master’s tort liability for damages has to be objectively and subjectively arising from his way of acting, otherwise the master, and hence the shipowner, will be exempted from liability.