My paper is about tenacity – a vital attribute for success in both of our professions – that is both for professional Seafarers and for Lawyers. There is luck of course, but that is incidental to an enquiring mind.
My introduction to the law from being at the Port Botany Terminal was the Nomad Aircraft case – the Australian built “short take off and landing” (STOL) aircraft, built by the Commonwealth aircraft factory. It had been designed for great things with target markets both in Australia and South East Asia.
But there had been a number of unexpected failures of the tailplane mechanism that had led to crashes and fatalities both in Australia, Indonesia and New Guinea.
It was a classic “Product Liability” claim – the largest ever to go to the Federal Court at that time.
In part due to the enormous volume of paperwork involved and the consequent legal costs, the case settled without going to trial.
My next large case was the grounding of the vessel TNT Alltrans on Lady Musgrove Island in the Capricornia Group of the Barrier Reef on 24 March 1985 at approximately 0340. The Court of Marine Enquiry was chaired by a well known Federal Court Admiralty Judge and there were some amusing moments in what was otherwise a serious exercise.
By a fortuitous coincidence, the Master of the vessel had written night orders in the book that evening – after a lapse of some 8 weeks.
The Lookout, when questioned about the proximity of the lighthouse on Lady Musgrove to the vessel’s bow, which had all but ploughed it down, advised the court that , “he thought it was getting a bit close!”
Evidence was given supported by the engine room readout, that the vessel had been aground for some 20 minutes, with the engines at “Full Ahead.”
It was only when the 4- 8 watch came to the bridge that the Chief Officer sized up the situation and commendably put the engine telegraphs to stop.
Expert evidence given by a Psychiatrist called by the Court, in relation to allegations of drinking on board the vessel. After giving evidence that it was his usual practice to consume a “Slab” before breakfast, the Psychiatrist was called to provide expert evidence into the culture of drinking on the vessel and its possible effect.
When questioned by counsel assisting the Board of Enquiry, the Psychiatrist gave the following evidence:
“Anyone who consumes 2 standard drinks or more a day is in danger of becoming an alcoholic. Anyone who needs 2 or more standard drinks a day is an alcoholic....!”
Towards the end of the Court of Enquiry the Master, developed a tumour on his spine and he was hospitalised and he confided in me that he had written the night orders after the event – something which had been clear from the start.
Subsequently the Court found that although the Master had misled the enquiry, it had not materially affected the outcome.
Maritime Law is a truly fascinating subject and it has through the years played a major part in the evolution of jurisprudence.
So many legal principles have been developed and distilled from our profession, many from incidents on ships in Australia. For example, the formulation of “Damages for pure Economic Loss,” from the case of Caltex v. The Dredge Wilhelmstad, where the dredge cut the underwater pipe line in Botany Bay, preventing transfer of product from Banksmeadow terminal to the Refinery.
The famous cases of the “Wagon Mound Nos. 1 & 2,” whereby the vessel Wagon Mound leaked furnace oil at a wharf in Sydney Harbour and some cotton waste became embroiled in the oil on the surface of the water. Sparks from welding taking place nearby, ignited the oil. The ensuing fire rapidly spread causing destruction of some nearby boats and the wharf itself. This case founded the “remoteness of damage” test based on foreseeability and regardless of whether the full extent of the damage was foreseeable or not, that the luckless Defendant was nevertheless liable for the lot!
Shipping cases have been in the vanguard of many key legal principles including the doctrine of “Forum Non Conveniens”, a method of “Forum Shopping” or attempting to have your case heard in a jurisdiction favourable to the outcome desired by your client.
The Oceanic Sun was a Greek flagged liner cruising in the Greek Islands. Whilst clay pigeon shooting from the fantail on the aft deck, an activity organised by the vessel and with guns supplied by the vessel, one of the passengers a Mr Fay, was severely injured when the gun he was firing discharged into his stomach.
We were instructed by the vessel’s owner to defend the claim and as a first step we opposed the jurisdiction of the NSW Supreme Court.
We were unsuccessful as notwithstanding that an injury may be suffered outside of NSW, (ie in another State /Territory of Australia as well overseas), if pain, suffering and distress from that injury occurs in NSW, then the NSW courts have jurisdiction.
Mr Fay was a Vet and it was clear that he would be entitled to a large sum in damages from any award of the NSW Supreme Court – far more in fact than would be likely to be awarded by a Greek Court.
We sought to have the question decided by a Greek Court on the basis of the doctrine of “Forum Non Conveniens”. The leading world case was Spiliada Maritime Corporation v. Cansulex Ltd, concerning a vessel that had caught fire in British Colombia whilst loading sulphur.
Hitherto Australia had followed the principles of “Spiliada”, which had been decided by the House of Lords.
We argued that based on the principles of “Spiliada”, that Greece was a “more convenient” forum and that there were a number of factors that clearly militated against the case being heard in NSW. These included that:
The ship was Greek, the accident took place in Greek waters, the crew and medical staff – all potential witnesses were Greek and domiciled in Greece or Europe. It would be prejudicial to our client, we argued, to have to bring all of these people here to Australia for what undoubtedly would be a lengthy trial.
We were unsuccessful in the Supreme Court of NSW and so we obtained Special Leave to go to the High Court.
But in a very narrow decision against us, the majority of the High Court, refused to follow “Spiliada”, holding that for an argument of “Forum Non Conveniens” to succeed in Australia now, it was necessary not to show that there was a “more convenient” forum elsewhere, but that Australia (more particularly in this case NSW), was an “inconvenient” Forum - a much more difficult onus to satisfy.
One of the outstanding cases in which I was fortunate enough to be intimately involved, was the sinking of the Russian Liner Mikhail Lermontov off Cape Jackson at the mouth of Marlborough Sound in the South Island of New Zealand.
No alteration of course could have been subject to greater forensic examination than the last 4 minutes of that fatal turn to port made by the Mikhail Lermontov and to make matters more complex, every clock told a different tale.
One trait that I consider is vital for a lawyer to possess, is an inquisitive mind and never to take anything at face value.
Two matters from the Mikhail Lermontov case are indelibly printed on my mind. The first was the transcript from Wellington Radio of the emergency just before the sinking of the vessel in Gore Cove. The transcript of the emergency stated that Captain Vorobeyov, the Liner’s master, had declined assistance.
However in discussions with the ship’s bridge crew, including the helmsman Mr Gusov and Captain Melnik, the Staff Captain, they were insistent that the Master had called for assistance. We called for the original recording from Wellington and together with a voice recognition expert we listened, whilst meticulously checking the written transcript against the spoken words. We found many admittedly non- contentious errors, but after listening and re-listening to the crucial passage, we discerned beyond any doubt that the Master had indeed requested assistance and the transcript was wrong.
The second matter concerned the whereabouts of the Second Officer, who was navigating and charting the ship’s position at the time. The Harbour Board as the employer of the Pilot, sought to argue that the vessel had in fact grounded, but that the Master had failed to drop the anchors in time and she had slid off into deep water.
It was vital to provide evidence from the navigator who had been marking the ship’s positions on the chart at the time. The allegation was that the Second Officer had erased the position where the ship had grounded.
Our Russian colleagues at the Baltic Shipping Company denied that they could find the officer concerned – indeed they told us that he was no longer working with the company.
In discussions with the Russian crew, quartered in Sydney for the Trial, we were told that they believed that the man concerned was still employed by the company.
Calling for crew lists of all of the Baltic Shipping Company vessels to our surprise, we found the very man. He was serving as on a Baltic Shipping Company vessel, which was about to leave Adelaide.
Through the embassy in Canberra, we managed to get him to Sydney to the Trial and his evidence proved vital to show that the vessel, although it had come close to grounding, had not grounded and the position where it came to rest was too deep to drop the anchors.
Sometimes it is a matter of luck – always however it is a matter of forensic tenacity that wins in the end.
To illustrate this need for forensic tenacity, in the face of overwhelming evidence to the contrary, I can do no better than give the example of the case of the Japanese Fishing Trawler allegedly caught fishing in Australian coastal waters off Norfolk Island.
Coastal command had shadowed the trawler for some time, taking detailed photographs and using heat seeking radar images. The aircraft ordered the trawler to proceed to an Australian port “under arrest,” for illegal fishing. Unfortunately the surveillance aircraft ran low on fuel and was forced to return to base. Instead of continuing on its course to Australia, the trawler turned and ran for home.
One of the central points of the case was the evidence of the surveillance aircraft that the port smoke stack – there were twin smoke stacks within a goal post framework on the after deck – was emitting heat and smoke.
That in turn indicated that the trawl winch was operating or at least had power to it – something the Japanese Fishing Company denied.
After a meeting with the Japanese and then the Attorney General’s Department and officials from the Fisheries Department in Canberra, I flew to Southern Japan arriving shortly after the trawler had berthed.
Taking evidence through an interpreter, both the Master and the Fishing Master denied that the trawl winch was being used or that it had power to operate it at the relevant time.
We examined the “as built” plans of the vessel, which clearly showed the division of the exhausts - the starboard exhaust for the main engine and the port exhaust for the trawl winch.
Even though it was a breach of Australian Fisheries Law for a foreign flagged vessel to traverse coastal waters without stowing all fishing gear out of sight and off the deck – a breach which the Japanese did not deny, they alleged that they were only cleaning their equipment and not fishing.
Together with the chief engineer, I climbed up the outboard side of goalpost structure of the twin smoke stack exhausts and then traced the relevant exhaust, down through the casing and into the engine room, where it was obscured by what looked like a large void, with a steel bulkhead. Emerging from the void, the exhausts lead down the port side to the trawl winch boiler and the starboard side to the main engine
The shipbuilder’s representative, present at the time at our request, advised that this was some sort of a coffer dam and that the design had been changed so that it was no longer required. The bulkhead appeared to be one piece of steel, without any visible manholes or cover plates. Prising off the deckhead head abutting it, there appeared a very small cover plate.
Removing the cover and shining my torch up inside, I saw that in some inexplicable engineering volte face, the exhausts crossed within this large cofferdam. We had proved that the vessel had not been fishing and that there was no power to the trawl winch.
I prepared a detailed report with photographs and an amended plan of the exhaust system drafted by the shipyard and subsequently we petitioned the Attorney General for a “Nolle Prosequi” or “A stay of any proceedings”, which was eventually granted.
Had I not decided to carry out such a detailed tracing of the exhausts, prosecution would have been inevitable. Even the builders of the vessel, were unable to explain how the two exhausts had been crossed - let alone why!
It is perhaps a slightly extreme illustration of the maxim “Never take anything at face value and always verify information for yourself.”
If possible, “beyond reasonable doubt” – the Criminal standard of proof.
But if not, then certainly “on the balance of probabilities,” or the Civil standard of proof.
Even in this sophisticated era of electronic media, the old legal maxim holds good:
“Find out the Facts and the law will take care of itself – if you only have time to find one or the other – then know your facts.”
AUTHOR: Captain Peter Murphy who contributed significantly to raising the awareness to the decline in standards of international shipping and the plight of its seafarers, both in Australia and overseas.
He spent over 20 years at sea and has a British Masters Foreign Going Certificate. He served in numerous types of vessels, including general cargo, reefer, passenger liners, tankers and offshore supply vessels in an era on the cusp of containerisation.
Peter is an internationally recognised maritime lawyer, with over 25 years experience as a solicitor, barrister and consultant, practicing both in Australia, Europe and the Middle East. Through his work with the various organisations and committees, including the International Bar Association and the Inter Pacific Bar Association, he became a much sort after speaker at legal, maritime and aviation conferences both in Australia and overseas.
This article was based on Peter’s address to the Sydney branch on 13th June, 2012, after he had been presented with his certificate, as the recipient of the Company of Master Mariners of Australia - Outstanding Achievement Award for 2011.
Source: Captain Frank Pickering, Sydney Branch Member