Hugh Kennedy

Kennedys, Dublin

Hugh.Kennedy@kennedyslaw.com  

A recent Irish Admiralty Court judgment analysed the responsibilities of a port and a ship following a grounding in an entrance channel, by balancing with the duties of the port with those navigating the ship, including the pilot.

The judgment includes a detailed consideration of English case law and may resonate in other common law jurisdictions.

Background

Ship owners brought a claim against the Port of Drogheda (‘the Port’) following the grounding of the ARKLOW VALOUR on a sandbar within the harbour limits. Three days before the grounding, a survey was performed by the Port which determined that there was a loss of depth in the entrance channel due to sand accretion. The survey results were conveyed to the Port’s licensed pilots and the ship’s agent. On the evening preceding the ship sailing, based on weather forecasts for increasing winds, the Harbour Master considered that there would be additional sand accretion into the channel and a resulting loss of depth. The Harbour Master informed both the ship’s agent and pilot of the additional estimated loss of depth.

There were significant disputes as to whether the Port had accurately estimated the additional loss of depth at the channel entrance, if the information related to under keel clearance only (between the bottom of the ship and the seabed) or a safe maximum permissible draft.

The ship owner’s claim was advanced in very wide terms and significant reliance was placed on the information given by the Harbour Master as to the sailing draft of the vessel. However, the Port argued that the appropriate draft of the vessel, and indeed all navigational decisions are matters for the ship which must bear ultimate responsibility for its safe navigation.

Court’s decision

The court concluded, after an extensive review of both English and Irish legislation and authorities, that the Port is the occupier of certain elements of the Port in accordance with the provisions of the Occupier’s Liability Act 1995 (the 1995 Act), and that ’duties and liabilities which arise under the 1995 Act now have effect in place of the duties and liabilities which previously existed at common law’.

In assessing the ship owner’s claim under the 1995 Act, the Port, as an ‘occupier’, was held to have certain responsibilities to ships as ‘visitors’. Section 1(1) of the 1995 Act defines an Occupier as a person ‘exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon’. It was held that the Port was an occupier of areas of the harbour over which it exerts control, which included the navigable channel which was regularly surveyed and dredged by the Port.

Section 3(2) of the 1995 Act defines the duty of an occupier is to take such care as is reasonable in all the circumstances ‘having regard to the care which a visitor may reasonably be expected to take their own safety.’ Therefore the duty on the Port is not absolute. Assessing the Port’s duty also necessitates considering the conduct of the visiting ship and the skilled navigators responsible for its safety. The conduct of those navigating the ship as the ‘visitor’ is relevant because a Port can expect that those navigating the ship will take care to ensure its safety.

The court carefully assessed the decisions and actions of those in charge of the ship, including the information available as to the particular dynamic features of the ship and the predicted and actual weather and tides. The presence of a pilot on board and the information available to the pilot was also relevant, as the pilot is deemed to be an agent of the ship.

The judgment highlighted that there was a wide variety of navigational information available to mariners about the Port, tide and the channel. The existence of, and the effects of weather on, the bar was also clearly highlighted. The Port provided a number of aids to the mariners to assist them in assessing the likely depth of the water available, including tidal predictions and, importantly, physical and digital tidal gauges which showed in real time the actual height of the tide.

The judge concluded that where there was no basis to criticise the estimated loss of depth in the channel by the Harbour Master and the claim by the ship against the Port was dismissed in its entirety.

Considerations for ports and ship owners

As is often the case, each incident will be decided on its own specific facts, but this case gives a helpful steer towards where the duties and responsibilities of both ports and the ship lie.

Key points within the judgment include:

• The Port may expect that those navigating a ship including the master and pilot would consider not just the predicted tide but also the actual height and time of the tide. Real time information as to the actual tide was available by a visual gauge at the terminal, another gauge 400 metres up river from the port entrance, and, also a digital tidal gauge was available to the pilot on his mobile phone.
• The Port was entitled to expect that the ship would take appropriate account of all relevant dynamic features of the ship including the effect of both squat, and, of wind and swell as the ship emerged from the protection of the breakwaters.
• High tide on the day did not achieve its predicted height and was later than predicted. It was determined that, even without taking the effects of dynamic factors (such as waves and squat) the actual under keel clearance was some 66 per cent less than calculated by the ship’s captain and the pilot.
• When squat was taken into consideration (the effect of increasing a ship’s draft when in motion), and the effect of a two-metre swell at the entrance, a further increase in draft occurred immediately prior to the grounding.

Case reported in Lloyds Law reports [2022] Vol 1. 291

(Kennedys acted on behalf of the successful Port in this case)