Alstergren, I.M. v The Owners of the ship Territory Pearl

Re: IAN McDONALD ALSTERGREN
And: THE OWNERS OF THE SHIP "TERRITORY PEARL"
No. T G7 of 1991
FED No. 367
Admiralty
(1992) 36 FCR 186
(1992) 112 ALR 133

COURT

FEDERAL COURT OF AUSTRALIA

IN ADMIRALTY
TASMANIA DISTRICT REGISTRY
Heerey J.(1)

CATCHWORDS

Admiralty - grounding of fishing trawler - master falling asleep on watch - damage to plaintiff's fish farm - shipowner's claim for limitation of liability - s.333 Navigation Act 1912 (Cth) - actual fault or privity - extent of obligation or responsibility of shipowners - characteristics of orange roughy fishing - knowledge of master's tendency to work long hours - equipment of vessel - system of watch keeping - degree of risk - failure to give directions - failure to provide available equipment.

Navigation Act 1912 (Cth): s.333.

Marine (Lifesaving Appliances and Miscellaneous Equipment) Regulations 1985 (Tas): reg.8(1).

Barameda Enterprises Pty Ltd v O'Connor (1988) 1 Qd R 359

Cook v Cook (1986) 162 CLR 376

The England (1973) 1 Lloyd's Rep 373

James Patrick and Co Ltd v Union Steamship Co of New Zealand Ltd (1938) 60 CLR 650

The Lady Gwendolen (1965) P 294

Lennard's Carrying Co v Asiatic Petroleum Co Ltd (1915) AC 705

The Marion (1984) 1 AC 563

Ian McDonald Alstergren v The Owners of The Ship "Territory Pearl"

HEARING

MELBOURNE

#DATE 5:6:1992

Counsel for the plaintiff: Hon W.M. Hodgman QC with Mr R.E. Sugden

Solicitors for the plaintiff: Finlay Watchorn

Counsel for the defendants: Mr S. Carter

Solicitors for the defendants: Page Seager

ORDER

IT IS ORDERED THAT:-

1. The cross-claim be dismissed with costs, including reserved costs.

2. The plaintiff's claim for damages be adjourned to the next directions hearing.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

I Collision in the Channel

On a calm, clear night in November 1990 the trawler "Territory Pearl" was steaming down the D'Entrecasteaux Channel headed for the orange roughy fishing grounds off the south coast of Tasmania. The master, Mr Murray Cameron, was alone in the wheelhouse. He had slept for less than six hours in the previous forty eight. At about the time the vessel passed abeam of Gordon, Mr Cameron fell asleep. The vessel continued on for probably another 15 minutes at its top speed of 10.5 knots until it collided with the plaintiff's Atlantic Salmon fish farm on the shores of Satellite Island.

Extensive damage was caused to the fish farm and some 4,000 fish escaped. The plaintiff, the owner of the fish farm, has sued in Admiralty for damages. The defendants, the owners of the "Territory Pearl", have admitted liability but by a cross-claim seek to limit their liability by reliance on the Brussels Convention which at the time of the collision was applicable by virtue of s.333 of the Navigation Act 1912 (Cth). If that claim is successful, the damages recoverable are limited to $34,131.40. If the limitation claim fails, the amount of an award of damages is likely to be of the order of several hundred thousand dollars. The limitation claim has been tried before me as a preliminary issue.
II Limitation Claims
The onus lies on the defendants to establish that the plaintiff's loss was not caused by the defendants' "actual fault or privity". In James Patrick and Co Ltd v Union Steamship Co of New Zealand Ltd (1938) 60 CLR 650 at 654 Dixon J said:

"Unless (the shipowners) discharge the burden of excluding actual fault or privity on their part, they cannot obtain a decree for the limitation of their liability, and, if a given fact or state of facts would stand in the way of their doing so, it is enough that its existence appears probable or even to be a reasonable supposition. It is not necessary that it should be positively found."

In The Lady Gwendolen (1965) P 294, described by McPherson J in Barameda Enterprises Pty Ltd v O'Connor (1988) 1 Qd R 359 at 382 as "now the leading English authority", Winn L.J. said (at 348):

"First, a shipowner who seeks to limit his liability must establish that, although he is responsible for the immediate cause of the occurrence on the basis of respondeat superior, in no respect which might possibly have causatively contributed was he himself at fault. An established causative link is an essential element of any actionable breach of duty: therefore, 'actual fault' in this context does not invariably connote actionable breach of duty. Second, a shipowner is not himself without actual fault if he owed any duty to the party damaged or injured which (a) was not discharged; (b) to secure the proper discharge of which he should himself have done, but failed to do, something which in the given circumstances lay within his personal sphere of performance." (His Lordship's emphasis)

It is sufficient if the alleged fault might have been a contributing cause of the loss; it does not have to be the sole or dominant cause. As Megaw L.J. said in The England (1973) 1 Lloyd's Rep 373 at 380:

"It is for the (shipowners) to prove that the fault was not a cause of the casualty - and I stress the words 'a cause'; because in my judgment, here, as in so many other cases where causation is relevant, it is not necessary that it should be established that a particular matter is the one and only sole and exclusive cause of the casualty. It is sufficient if it is established that it is a substantial cause."

A frequent issue raised in limitation claims is the dividing line between the responsibility of owner and master. Earlier authorities stress the paramount responsibility of the master in matters of navigation and seamanship and disclose a greater readiness to hold that the shipowner has discharged the onus resting on him when the alleged fault lies within that area. In James Patrick, where the alleged fault was the failure to post a man especially as a lookout, Dixon J said (at 671):

"The truth is, I think, that the maintenance of a proper look out is such a plain necessity, the variation in the conditions determining what must be done to fulfil it is so continual and it is such a practical matter of ordinary everyday seamanship, that it did not present itself to (the owner) as a thing upon which there was any need for him to lay down rules, to give instructions or to institute inquiries."

In more general terms his Honour stated, (at 672):

"No doubt an owner may be in actual fault because he has not taken some measure or measures to insure that his servants perform duties necessarily delegated to them, or because he does not sufficiently define what is to be done by them. But the master of a ship is no ordinary servant. Both in responsibility and in authority his position is special. Seamanship and navigation constitute a technical art the practice of which requires great skill and experience. An owner not only may, but must, place his ship under the complete control and authority while at sea of a master duly qualified to navigate and command her. But the responsibility and authority of the master is vested in him by the law and is not derivative. It is easy to understand why a shipping company with a fleet of ships and a body of highly skilled experts ashore should find it desirable to prescribe in many particulars the mode in which the members of its maritime service, including masters of ships, should carry out their duties at sea and that they should devise means of enforcing the rules prescribed. But it does not follow that it is wise or prudent for every shipowner to take into his own hands the systematic control of the performance of any of the multifarious duties of seamanship and navigation which are at sea the responsibility of the master. Still less does it follow that it is blameworthy in an owner to rely completely upon a master for the proper navigation of his ship and the due observance of the precautions for safety."

However there has been, as McPherson J pointed out in Barameda (at 382), since the decision in James Patrick in 1938:

"... a shift in emphasis in the direction of placing a heavier onus upon the shipowner who seeks to invoke the statutory limitation provisions."

The Lady Gwendolen is an important authority in this development of the law. In that case the shipowner failed to disprove actual fault or privity notwithstanding that the relevant fault was the speed at which the vessel was steaming at the time of the collision. On the more traditional view, setting a speed for a vessel appropriate to the prevailing conditions might seem to be very much a navigational decision within the sole province of the master. The Lady Gwendolen had been steaming at full speed in heavy fog with the master navigating by radar. Sellers L.J., after referring to a Ministry of Transport notice about the navigation in fog by ships equipped with radar, said (at 332):

"If the master of The Lady Gwendolen had been given some additional warning from managerial quarters about the safe use of radar, it might have served to make him more cautious and urged him to comply with the regulations and advice given as, I think, he recognised in his evidence. That might have been effective, even if the master's previous habitual excessive speed in fog had remained undetected by the marine superintendent, or anyone else and had not, therefore, been the subject of a warning and reprimand...

A primary concern of a shipowner must be safety of life it sea. That involves a seaworthy ship, properly manned, but also requires safe navigation. Excessive speed in fog is a grave breach of duty, and shipowners should use all their influence to prevent it. In so far as high speed is encouraged by radar the installation of radar requires particular vigilance of owners." (Emphasis added.)

His Lordship continued (at 334):

"The (shipowners, the trial judge) held, did not consider or appreciate, as their duty and function required, the problems which had arisen through the use of radar; their failure in that respect and their consequent failure to bring home to the master of The Lady Gwendolen the gravity of the risks he was running was a contributory cause of the collision." (Emphasis added.)

Winn L.J. said (at 351):

"It may be accepted that it would be not merely unreasonable conduct on the part of a shipowner but arrant folly to interfere with the discretion of a qualified and experienced master in controlling one of their ships in relation to weather or traffic encountered: in respect of such matters and of other maritime hazards their responsible function may be limited to supplying relevant information, e.g., charts or notices ... It is a different matter when any question of policy is involved in which the shipowner realises or should realise that there is implicit an effect or potential effect upon the safety of his vessel or of other property or persons; ... Any determination of a speed at which their ships are to travel or which they are not to exceed, whether general or related to specific circumstances, and whether explicit or implicit in wider instructions, appears in all common and commercial sense to be a responsibility of shipowners." (Emphasis added.)

After discussing the information which a shipowner might have about the routes his ship is likely to follow on scheduled voyages, Winn L.J. continued (at 352):

"This poses for any owner who is reasonably alive to his duty the dilemma whether he shall, for commercial or other practical reasons, require his masters, expressly or by more covert hints, to keep so near as ever may be to the schedule or whether, cost what it may in convenience and profits, he shall make it plain to them that they should make safety the first consideration and feel secure that there will be no recrimination or loss of standing with the management."

Thus The Lady Gwendolen shows that a failure by a shipowner to give warnings or directions to the master as to the carrying out of functions of navigation or seamanship may defeat a limitation claim.
The case also shows that where the shipowner is a corporation, actual fault need not necessarily be confined to the conduct of a person who is, in the words of Viscount Haldane in Lennard's Carrying Co v Asiatic Petroleum Co Ltd (1915) AC 705 at 713 "... the very ego and centre of the personality of the corporation ... ... somebody for whom the company is liable because his action is the very action of the company itself." Willmer L.J. (at 343) said, referring to Lennard:

"But neither in the Court of Appeal nor in the House of Lords was it said that a person whose actual fault would be the company's actual fault must necessarily be a director. Where, as in the present case, a company has a separate traffic department, which assumes responsibility for running the company's ships, I see no good reason why the head of that department, even though not himself a director, should not be regarded as someone whose action is the very action of the company itself, so far as concerns anything to do with the company's ships. In the present case Boucher was not only the head of the traffic department, but he was also the registered ship's manager."

After discussing The Charlotte (1921) 9 Lloyd's Rep 341 and Bolton (HL) Engineering Co Ltd v T J Graham and Sons Ltd (1957) 1 QB 159, his Lordship concluded (at 344):

"On the principles stated in these cases I should be disposed to say that actual fault on the part of Boucher, as registered ship's manager and head of the traffic department, would be sufficient in the particular circumstances of the present case to constitute actual fault or privity of the company. But I do not find it necessary to reach any final conclusion upon this point - for it seems to me that in the particular circumstances of this case all concerned, from the members of the board downwards, were guilty of actual fault, in that all must be regarded as sharing responsibility for the failure of management which the facts disclose. Certainly I would not dissent from the judge's view that D.O. Williams, the responsible member of the board, must be regarded as guilty of actual fault."

The trend towards greater responsibility of shipowners was clearly endorsed by the House of Lords in The Marion (1984) 1 AC 563. In the speech of Lord Brandon of Oakbrook, with whom all the others members of the House concurred, it was said (at 572):

"The question whether, where damage had been done by a ship, such damage occurred without the actual fault of her owners or managers is primarily one of fact, to be decided by reference to all the circumstances of any particular case. Such a question involves nevertheless an element of law, in that the answer to it must depend, in part at least, on what approach courts dealing with contested limitation actions adopt, in relation to safety of navigation, to the responsibilities of masters on the one hand and shipowners or ship managers on the other. There was a time when courts dealing with contested limitation actions considered that shipowners or ship managers sufficiently discharged their responsibilities if they appointed a competent master and thereafter left all questions of safe navigation, including the obtaining at their expense of all necessary charts and other nautical publications, entirely to him. That former approach of such courts has now been out of date for more than 20 years, as appears from the decision of the Court of Appeal in Rederij Erven H. Groen v The England

(Owners) (The England) (1973) 1 Lloyd's Rep 373. The issue in that case was whether Mr Groen, the owner of a motor coaster which traded frequently to the port of London without the assistance of a pilot, was guilty of actual fault contributing to a collision between his ship and another in the River Thames, in that he had failed to take any, or any proper, steps to ensure that the master of his ship had on board, and available for his use, a copy of the latest Port of London River Byelaws. It was held by the Court of Appeal, reversing the Admiralty judge, that Mr Groen had been guilty of actual fault in this respect, and that it has not been proved that such fault did not contribute to the collision.

In relation to that issue, Sir Gordon Willmer, who was the acknowledged master of Admiralty law in his time, said at p 383: "It may be that 20 years ago what Mr Groen did and did not do might have passed muster; but the decision of the House of Lords in the case of The Norman (1960) 1 Lloyd's Rep 1, seems to me to have thrown quite a fresh light on the extent of the managerial duties of owners and managers, especially in relation to the supply of navigational information and publications to their vessels. It seems to me that it is no longer permissible for owners or managers to wash their hands so completely of all questions of navigation, or to leave everything to the unassisted discretion of their masters. This relatively new approach, as I think it is, was well illustrated by the decision of this court in The Lady Gwendolen (1965) P 294. I am not going to go into the details of that case, the facts of which were very different from those of the present case, but I venture to quote two sentences from the judgment which I myself delivered in that case .... On p 345 of the ... report I am reported as saying: '.... It seems to me that any company which embarks on the business of shipowning must accept the oblication to ensure efficient management of its ships if it is to enjoy the very considerable benefits conferred by the statutory right to limitation."

"Then, after referring to anther case called The Radiant

(1958) 2 Lloyd's Rep 596, where again the facts were quite different from those of the present case, I proceeded to quote a sentence which I had used in delivering judgment in that case, and which again I think is appropriate to this case: '.... The fundamental fault in respect of which I am disposed to blame Mr B. (-that is the manager-) is that he never had any proper comprehension of what his duty as managing director of a fleet of this sort was ....' It appears to me that Mr Hendrikus Groen was very much in the same position as the managing owner in that case." My Lords, I am of the opinion that what Sir Gordon Willmer there described as "this relatively new approach", begun by your Lordships' House in Northern Fishing Co. (Hull) v Eddom (The Norman) (1960) 1 Lloyd's Rep 1 and continued by the two subsequent decisions of the Court of Appeal in The Lady Gwendolen (1965) P 294 and The England (1973) 1 Lloyd's Rep 373 should now be regarded as the correct approach in law to the problem of actual fault of shipowners or ship managers in contested limitation actions. It follows that I regard it as right to apply that approach to the facts of the present case."

In The Marion itself an oil pipeline on the sea bed was damaged by the anchor of the vessel because the master was navigating with the aid of an obsolete chart on which the position of the pipeline was not marked. The shipowner made the master solely responsible for keeping the vessel's charts up to date, but there was no system for supervising the way in which the master performed that task and therefore no means by which the shipowner could know whether those responsibilities were discharged or not. It was held that the shipowner had not established absence of actual fault or privity.

The Marion thus complements The Lady Gwendolen. It shows that failure by a shipowner to supervise, equally with failure to warn or direct, can amount to actual fault or privity.
It was argued by Mr Carter on behalf of the defendants that these authorities are limited to circumstances where there has been some event which puts the shipowner on notice that direction or supervision of the master is required. I do not agree. While there was some evidence in both The Lady Gwendolen and The Marion of facts which should have prompted enquiries by the shipowner, and such evidence was obviously relevant to the issue of actual fault or privity (as it is in the present case), the judgments do not suggest that the responsibility of the owner is conditional on such a finding. In respect of The Marion Mr Carter pointed to evidence which showed that the shipowner had received, prior to the accident, a report of a Liberian Government inspection which included, to use Lord Brandon's words (at 577F), the "devastating comment" that corrections of charts had been omitted for several years. However a perusal of the report at 576-577 shows that this remark related to a second criticism of the shipowner. There was a first, and quite independent criticism, viz that the owner had no proper system for ensuring that charts on the vessel were not obsolete or, if current, were kept up to date. This was held to be actual fault of the owner (see also 579E) notwithstanding that it did not depend on prior notice of the master's default.
I should add that in The England there was no suggestion of any circumstance prior to the collision which should have put the owner on notice to supply the master with a copy of the Port of London River By-laws.
In Barameda the Full Court of the Supreme Court of Queensland, although acknowledging the change brought about by the English authorities to which I have referred, reached a conclusion that the shipowner had discharged the onus. Mr Carter relied strongly on Barameda, but it is in the final analysis a decision on its own facts. There are superficial similarities with the present case; both involve fishing vessels and the issue of watch keeping. But the present case has other important features. These include the absence of certain equipment, the special characteristics of orange roughy fishing and the actual knowledge of the shipowners of the master's tendency to work excessive hours.
Before leaving the authorities I would make the respectful comment that the primacy of Australian authority established in Cook v Cook (1986) 162 CLR 376 at 390 is in no way inconsistent with the payment of particular regard to English decisions in the field of maritime law, coming as they do from a jurisdiction where that speciality is so well established.
III Orange Roughy Fishing
Although known in New Zealand for some time, the orange roughy has only been discovered in Australia quite recently. The first commercial season, at least in Tasmanian waters, occurred in 1989. The natural habitat of this fish is at a depth of some 900 metres. The fishing method used is trawling. Large, powerful and consequently expensive vessels are needed. The fish has come to be regarded as a delicacy and fetches high prices. The net landed value of a good catch for the "Territory Pearl" at Hobart could be of the order of $70,000.
There are some other features of orange roughy fishing relevant to the present case. In 1989 and 1990 the fishing for orange roughy in Tasmanian waters was regulated by what was known as the total allowable catch system (TAC). There was no quota for individual vessels, but a quantity of 12,000 tonnes was fixed and the season would end as soon as that quota was filled. By November 1990 it was known that the fleet was close to its aggregate quota. Therefore there was a powerful incentive for each vessel to catch as much as it could before the total quota was filled. Mr Jim Raptis, the senior officer of the defendants responsible for the orange roughy operations, was asked:

Q. "You knew that it was every man for himself, to get as much orange roughy as you could before the amount that you could take ran out? You knew that, did you not?

A. But all the fishing operations we were involved in operate like that, including the northern prawn fishing. Q. Right, so it was exactly the same in the northern prawn fishing, was it, a race?

A. Yes."

The fishing grounds off the south coast of Tasmania are about ten hours steaming from Hobart. These waters are notorious for bad weather and time was frequently lost while vessels either ran to avoid the weather ("dodging") or took shelter at anchor. There was further time lost in queuing, that is a vessel waiting its turn to shoot its nets in the vicinity of one of the mounds on the ocean floor where the fish gather. This could involve a wait of up to four hours. Although the "Territory Pearl" had fuel capacity to stay at sea for a month or more, from the time orange roughy was taken on board and put on ice the vessel had at most seven to ten days before returning to port.
The plaintiff called Dr Jeremy Lyle who is employed by the Tasmanian Government Sea Fisheries Laboratories. Dr Lyle has been engaged for a number of years on research into orange roughy and has had practical experience of fishing operations. Dr Lyle said that the TAC system "tended to encourage operators to go flat out to get the largest share of the catch possible." He described in detail the fishing techniques used in what he called an "extremely demanding" process. Speaking of the burdens on masters of orange roughy fishing vessels, Dr Lyle said:

"... skippers have to act responsibly and have a great deal of skill. They have to investigate the bottom and the school thoroughly, using their echo sounder, before they take any shots. They do this in order to decide how best to make the shot.

On top of this, the skippers are responsible for the safety of the vessel and have to watch the conditions and the positions of other vessels.

When the skippers are taking their shots, they concentrate intensely and sometimes do so for long hours. Fishing operations are conducted all day and all night, weather permitting, until the boat is full of fish or until they have to go back to port. When the fishing begins on the grounds and while it continues, the skipper cannot be relieved because it is he who is familiar with the bottom and the position of the fish and consequently he has to set up the shots and take them. Further, he is in charge of the fishing operation. The skippers will generally take a sleep when they can but this will usually only occur if they have to lay up or heave to for bad weather or other reason or when they are steaming in the open sea to and from port while the going is smooth. It is to be noted that in the enclosed areas like the D'Entrecasteaux Channel, the skipper or the mate will always take the vessel. Orange roughy crews get very tired. The skipper probably works the longest hours. Falling asleep at the wheel is a problem in the fishing industry generally including the orange roughy industry. There have been instances where vessels have run aground or even sunk. An example of which I am aware was the Tasmanian orange roughy boat "Bonanza II" which ran aground and sank. I am aware of other boats that have been lost. In my experience, orange roughy skippers work long hours. It is not uncommon for a crewman to go well over 24 hours without getting any sleep."

IV The Charter Agreement

The "Territory Pearl" was operated under a charter agreement between the owner Raptis Investments Pty Ltd as trustee for the partnership A Raptis and Sons and Mr Cameron. The owner received 72.5% of the net landed value of the catch and the remaining 27.5% was distributed according to a separate agreement between the master and crew. Mr Cameron's share was 8.5%. Neither master nor crew received any retainer or other form of remuneration. Thus the master and every member of the crew had a practical motive for getting as much work out of the vessel as possible and also limiting the size of the crew. There was apparently no industrial award or other statutory provision governing the hours worked by master and crew. The "Territory Pearl" was a paradigm of the deregulated workplace.
V A Raptis and Sons
A Raptis and Sons is a large and experienced fishing organisation. In 1990 it was operating eighteen trawlers, three of which were in the southern fishing zone. One of those was based in Adelaide and the other two, the "Territory Pearl" and the "Noble Pearl", operated out of Hobart. Mr Jim Raptis in Adelaide was the Southern Vessel Manager and had responsibility for these three vessels. The firm had a fleet manager in Hobart, Mr Anthony Gibson. Mr Gibson's role was to oversee the day to day operations of the two Hobart based vessels. At fixed times twice each day the master of each vessel would radio Mr Gibson and report as to such matters as the vessel's position, catch, need for provisions and any mechanical or other problems with the vessel or her equipment. Mr Gibson in turn would report once a day by fax to Mr Raptis. There was also frequent telephone contact between them. There was a radio facility for direct contact between Mr Raptis and the vessels, but this was not used regularly.
When the vessels arrived in port it was Mr Gibson's responsibility to arrange for provisioning and repairs and to organise the unloading of the catch. Both Mr Raptis and Mr Gibson have had substantial practical fishing experience themselves and hold Master's tickets.
VI The "Territory Pearl"
The vessel is of steel construction, 27.16 metres overall and 8.10 metres beam, with a gross tonnage of 206 tonnes. It was built in 1983 for use as a prawn trawler in the Gulf of Carpentaria, but in late 1989 and early 1990 was refitted for deep sea trawling for orange roughy. It was in current survey and also in a voluntary survey of the Det Norske Veritas.
The vessel was equipped with an automatic pilot and global positioning navigational system (GPS). As part of the GPS there is an optional facility, referred to by Mr Cameron as an arrival alarm, which can be set so that when the vessel reaches a predetermined position an alarm will sound. There were two watch alarms on the vessel. A watch alarm is a device which, if switched on, will sound an alarm unless a switch is operated at predetermined periods of, say, ten minutes. Its purpose is to prevent crew members on watch from going to sleep. One watch alarm was a facility built in to the GPS and the other was a separate instrument. It appears this latter alarm was disconnected at the time of the accident. Mr Cameron said it had never been switched on since he had been on the vessel.
There is another relevant device which was not fitted, viz a radar alarm. This is a device which will sound an alarm when an object is encountered by radar at a predetermined distance.
VII The Vessel's Movements
On 6, 7 and 8 November 1990 the vessel was in port in Hobart. It put to sea on 9 November and did not return to port until 13 November. During this period the weather was bad and no fishing was done. The vessel was sheltering at anchor.
The vessel returned to Hobart on 13 November and left again at 1200 hours on 14 November. Bad weather was again encountered during the next three days. On 18 November there was a large catch but some gear was damaged so the vessel had to return to Hobart. The vessel arrived in Hobart at 0600 hours on 19 November. During the morning the catch was unloaded. The crew worked the winches but the actual unloading was done by contract labour. Mr Cameron assisted with the repair of the gear.
At about mid afternoon Mr Cameron finished his duties and went to his home at Blackman's Bay, about 20 minutes drive from Hobart. There he played with his two children and had a meal and two glasses of beer. He then returned to Hobart and the vessel put to sea at 2030 hours. Mr Garry Perkins, who is a qualified mate, joined the crew. He had not been engaged in the previous voyage or the repairs or unloading during the day. In accordance with his usual practice Mr Cameron was at the helm as the vessel steamed down the River Derwent and into the D'Entrecasteaux Channel. The four other members of the crew, including Mr Perkins, were engaged in cleaning out old ice and fish juices from the hold and distributing fresh ice. Mr Cameron was on watch by himself in the wheelhouse.
As helmsman Mr Cameron's tasks involved monitoring the radar, observing the vessel's position on the plotter and navigating from point to point through the Channel. To perform some of this work he had to move around. The radar could not be seen when seated. His recollection of the last alteration to course is approximately two miles north of Satellite Island "give or take a mile." He then fell asleep and woke up as the vessel grounded on the shores of Satellite Island in the middle of the plaintiff's Atlantic Salmon farm at approximately 2245 hours.
VIII Admission by Mr Raptis
The plaintiff called Mr William Fotheringham who is the manager of the fish farm. He woke up at the noise of the collision and went down to the bottom of the cliff face at the island and discovered the "Territory Pearl" aground at the foot of the cliff. He went on board and found the master still sitting in the skipper's chair, apparently in a state of shock.
A few days after the collision Mr Raptis came from Adelaide to Satellite Island to view the extent of the damage. Mr Fotheringham met him in Hobart and the two men travelled down by car to Middleton and then across by boat to Satellite Island. During the course of this journey there was some discussion about Mr Cameron. Mr Raptis expressed concern about Mr Cameron, saying that he (Cameron) was very upset and felt that his career might be at an end. Mr Raptis said that that would not be case, that he was not going to dismiss him because he felt he was a particularly good operator. He instanced this by saying that in the previous twelve months prior to his coming to Tasmania Mr Cameron had fished for some 300 days in the Great Australian Bight. Mr Raptis said that Mr Cameron "had fished harder than other skippers" and that he (Raptis):

"... was impressed by Mr Cameron's capacity to be able to push himself beyond the limits of most of his other - well, all his other trawler operators."

The evidence of Mr Raptis was that he could not recall exactly what he said at the time of the conversation with Mr Fotheringham, that at the time he felt very distressed and embarrassed because of the damage and the problem that had been caused to Mr Fotheringham's company. He did not deny making the statement just quoted. I accept Mr Fotheringham's evidence that this admission was made.
3 What Mr Raptis admitted is shown by other evidence likely to be in fact true. Mr Cameron said that he had at times been on the bridge more than 24 hours straight without sleep. If Mr Raptis can be credited with knowledge of the burden placed on masters of orange roughy fishing vessels as described by Dr Lyle, as I think must be the case given Mr Raptis' practical experience as a fisherman and his close contact with daily operations, then for him to say that Mr Cameron was an exceptionally hard worker even in that company is of considerable significance.
By the time he had the conversation with Mr Fotheringham, Mr Raptis must have become aware that the accident was caused by Mr Cameron falling asleep. Mr Raptis was speaking in the context of his embarrassment as to the damage caused to the plaintiff's fish farm. His reference to Mr Cameron pushing himself beyond the limits of other masters suggests that Mr Raptis was not paying a random compliment to Mr Cameron but was recognising there was a link between the way Mr Cameron did his work and the occurrence of the collision. It is at least a reasonable supposition that what Mr Raptis was really saying was that it would be unfair for him to dismiss Cameron because the accident had been caused as a result of Cameron doing his work for the benefit of Raptis and in a way of which he (Raptis) was well aware.
The admission also does not sit well with the case presented by the defendants before me. Consistently with that case, Mr Raptis would have said something like:

"I am very surprised at this accident, because as far as I knew Mr Cameron organised regular watches which were changed every two hours. I cannot understand how he came to fall asleep."

IX Risk

Since the defendants have to show that they are free of any culpability or blameworthiness in respect of a cause of the loss or damage (James Patrick at 670) one has to look at the degree of the risk which the defendants say they were under no obligation to avoid.
On this issue the plaintiff called Captain John Lewis who is the Superintendent of the Navigation and Survey Authority of Tasmania. That body is established under the Marine Act 1976 (Tas) and is responsible for the safety of life at sea in Tasmania. As part of his duties Captain Lewis conducts preliminary enquiries into marine accidents. He gave the following evidence:

Q. "Sir, as Superintendent of the Navigation and Survey Authority, have you been concerned about extreme fatigue of those involved in the orange roughy fishery? A. As a consequence of the preliminary enquiries we have found in a number of cases that fatigue or the fact that the watch keeper or the master wasn't on the bridge, or was asleep in his cabin, or that he had allowed somebody else to take over the navigation of the vessel, fatigue and requirement for sleep was the cause, yes.

Q. That concerned you as to the extent to which some persons have been prepared to push themselves physically? A. Well, in the heady days of the total allowable catch, the season was only operating for a short period of time, and so you did have vessels which went out for, if they were lucky, short periods of time and got a quick turnaround. Because of the numbers of trawlers on what is regarded as a fairly restricted underwater territory, vessels often have to wait to get on what we call the trawl."

Captain Lewis produced the files of some fifteen preliminary enquiries into groundings or sinkings. Four of these incidents occurred in the period between the start of orange roughy fishing in early 1989 and the grounding of the "Territory Pearl" in November 1990. Of these, two were caused by inattention due to falling asleep. These were the sinking of the "Bonanza II" in January 1989 and the grounding of the "Rockaway" in March 1990. It was not the policy of the Authority to publish the results of these enquiries. Indeed Captain Lewis said that on some occasions he was asked about the results of enquiries by curious persons in the industry, but would decline to answer. The highest the plaintiff could put it was that fishing in Tasmania is something of a "cottage industry" (which I take to mean that it was close knit and gossipy rather than small and domestic in scale) and that it might be expected that news of a vessel's grounding and the cause thereof would get around.
I do not think I need to place any reliance on the precise extent to which knowledge about particular incidents of vessels grounding as a result of loss of sleep might have become generally known within the fishing industry in Tasmania. For present purposes it is sufficient, I think, that the evidence establishes as a fact what a moment's thought would show to be likely, namely that falling asleep by helmsmen is a dangerous eventuality which can result in accidents.

The preliminary enquiries conducted by Captain Lewis all related to groundings and sinkings which in the usual course of things will only put at risk the vessel itself and its crew. What I think is of equal concern when assessing risk and reasonableness of precautions taken to avoid that risk is the fact that a helmsman falling asleep may also result in collisions with other vessels. The enclosed waters of southern Tasmania and in particular the River Derwent and the D'Entrecasteaux Channel are frequented not only by fishing and other commercial vessels, but also numerous pleasure craft - yachts, motor boats and even rowing shells. The prospect of a 200 tonne steel trawler proceeding at more than 10 knots with the helmsman asleep at the wheel in these waters creates a clear and obvious risk of collisions involving loss of life and serious injury as well as damage to other vessels.
The evidence in this case has not satisfied me that there were not steps which could have been taken by the defendants, steps which would be simple, inexpensive and not significantly disruptive of the defendants' fishing operations, and which would have avoided or greatly minimised this risk.
X Privity
Privity involves actual knowledge by the shipowner of the conduct which caused the loss. In the present case that would require, I think, not only knowledge that on 19 November 1990 Mr Cameron put to sea when he had gone for a long period without sleep, but also that he was likely to remain alone at the helm of the vessel for a substantial further period. While the knowledge of Mr Gibson was the knowledge of the defendants for these purposes, nevertheless I think the defendants have shown absence of privity in the requisite sense. This was not a case where the evidence showed that Mr Cameron visibly displayed lack of competence at the time the vessel left port. There was also the fact that the mate, Mr Perkins, was quite fresh and could reasonably be expected to take the helm.
I think that where the defendants' case fails is not so much in actual knowledge of the events of 19 November 1990 but in the failure to establish adequate systems of warning and supervision and also to provide equipment adequate to cope with the risks to the safety of others that orange roughy fishing entailed.
XI Radar Alarms
As to causation, the defendants did not attempt to argue that, had a radar alarm been fitted to the vessel, this accident would still have happened. Moreover this is one aspect of the case when we are not concerned with any division of responsibility between owner and master. The fitting out of a vessel with appropriate equipment is indisputably the responsibility of the owner.
Mr Cameron said that a radar alarm is "... a facility that's in most modern radars now and in the last few years it's becoming more and more common, but radars built previous to the last few years did not have that facility within them." Mr Cameron also agreed that had a radar alarm been fitted, the vessel, even at 10.5 knots, could have been pulled up in an emergency situation in about 100 metres.
Captain Green, a marine surveyor called by the defendants, said that radar alarms were a lot more sophisticated than they had been a few years ago and were improving all the time. He pointed out the practical difficulty of using them in confined channels where they would be "going off all the time." He said that radar alarms were not required by survey. He stressed that all electronic equipment is only an aid. He said that radar alarms that work satisfactorily had been available for the last six or eight years and were a standard fixture on fishing trawlers which have been re-fitted or re-equipped recently.
He was asked whether there were on the market radar alarms which could be added on to existing systems. He said that electronically there would be no reason why they would not be on the market. He was not aware of an actual model, but "from an electronic point of view it wouldn't be too difficult to get something that would connect into the interior part of the set."
Mr Ian Cowie, who is the Fleet Manager of another substantial fishing company which operated two vessels out of Hobart, said that one of those vessels was fitted with a radar alarm and was probably so fitted when the vessel was commissioned in 1988. The other vessel had a complete refit of all its electronic gear in Perth in 1991 and he believed that she now had a radar alarm. He believed that if you had to replace radar now you would get one with a radar alarm because, "I believe they are all fitted with radar alarms now, all the later model ones."
Mr James Laduke, a radar technician working in Hobart, was called by the defendants. He thought that the cost of adding on a radar alarm would be between $1,000 and $1,500. He did not know whether an add- on radar guard alarm was available for Amritsu (the make of radar on the "Territory Pearl") at the time the vessel was refitted in late 1989 and early 1990. Although he had not seen an add-on kit himself, the radar alarms he had seen were basically modern ones fitted within the last three to four years. He did not know how long radar alarms had been available for Amritsu radar and it may well have been the case that they were available back in 1983.
The evidence establishes that, by the time the collision occurred, radar alarms were a well known safety device which had been fitted to vessels comparable to the "Territory Pearl". Further, they were a device specifically designed to reduce the risk of accidents caused by helmsmen falling asleep, this being an obvious risk in the fishing industry and orange roughy fishing in particular.
The evidence is less clear as to precisely what radar alarms were available at the time the "Territory Pearl" was built and when it was later refitted. But it seems a reasonable supposition that by the time the "Territory Pearl" was refitted in late 1989 and early 1990 radar alarms were available for fitting to the vessel at a relatively modest cost. Indeed there is nothing in the evidence to suggest that a radar alarm could not be fitted at any time, without waiting for a complete refitting of the vessel. The defendants' evidence has not excluded these possibilities. Certainly there is no evidence that the defendants turned their minds to the question. Further, the defendants have not established that it would not have been feasible to set the alarm at a distance sufficiently long to enable the vessel to stop in an emergency but not of such a distance that it would be sounding too frequently. The evidence has not excluded the possibility that a distance of, say, 100 metres would meet that requirement and that it would be practicable to navigate in waters where the "Territory Pearl" did with an alarm so fixed. The evidence that other fleet owners of comparable vessels had radar alarms fitted suggests that it was regarded as a practical device for use in southern Tasmanian waters.
I find that the defendants have not established that they were not at fault in failing to have a radar alarm fitted to the "Territory Pearl" and that they have not established that such a failure was not a cause of the plaintiff's loss.
XII Watch Alarms
A functioning watch alarm would probably have prevented the collision. Since at least one of the two alarms fitted to the vessel was in working condition at the time of the collision, the alleged fault here lies in the failure of the defendants to give a direction as to the use of watch alarms, especially in circumstances where a helmsman was alone in the wheelhouse.
As a matter of technology, there is nothing particularly sophisticated about a watch alarm. In essence it is a form of alarm clock. Mr Laduke said that about half of the fishing vessels he saw in the course of his work were equipped with these devices.
However the evidence revealed a surprising degree of hostility towards what one might think was a simple and effective way of minimising a substantial risk to the safety of lives and property at sea. Mr Raptis said that in his experience at sea, working under ten different masters, "we never ever used watch alarms, even when they were fitted on the boats." Referring to voyages from the Gulf of Carpentaria to Cairns along the Barrier Reef while engaged in the northern prawn fishery, where vessels would be less than half a mile from the nearest reef, he said:

"If we travelled three minutes in the wrong direction we would be on the reef. Now, to be setting the watch alarm at three minute intervals is totally ludicrous and I just see that they are an inappropriate equipment for fishing vessels."

Mr Raptis did not explain why watch alarms would be equally inappropriate in Southern Tasmanian waters, a view apparently not shared by the many vessel owners who fitted them.
Captain Green said that the use of watch alarms could be "detrimental." He cited two examples in the past 12 months in the Portland area involving loss of or serious damage to vessels. The examples were remarkably similar. Both involved the master leaving two crew members on watch and going to sleep, the two members tossing a coin, one going to sleep and the other turning off the watch alarm and then himself falling asleep. When I suggested to Captain Green that that was a criticism of the people concerned rather than the device itself, he answered:

"It is in a way, but the devices are there for those people to use. Yes, it is a human thing rather than a mechanical thing. But also mechanical things, watch alarms and alarms, do break down and don't function at times, which is a reason why there is a very large industry that gets paid to repair them. Quite often alarms don't work properly when they are tested. So if you rely on them and they are not working property I think it is also a down side."

Captain Green also spoke of occasions when he had seen the alarm left on but old sweaters and socks stuffed in the hooter so that it could not be heard.
I am not persuaded of the logic of the defendants' case on this aspect. It is like saying that seat belts and bicycle helmets are of no use as safety devices because some people will not wear them. As well as mechanical failures, there can also be human failures, as this very case shows.
In the conditions in which the "Territory Pearl" was to operate, in my opinion the defendants have not established that there was no fault on their part in failing to direct the regular use of watch alarms, at least where there was only one man in the wheelhouse, and the defendants have not established that such fault was not a cause of the collision.
XIII Logs and Watch Keeping
The plaintiff's case was that there was fault by the defendants in permitting the vessel to be operated with only one man on watch and failing to require the keeping of logs which would show when that had occurred.
The Charter Agreement by clause 5.1.10 required Mr Cameron to keep a ship's log. However the relevant legislation, the Marine (Lifesaving Appliances and Miscellaneous Equipment) Regulations 1985 (Tas) by reg. 8(1) had the effect that class 3B vessels, into which category the "Territory Pearl" fell, were not required to keep an official log book but only a "vessel record book." Such a book would not record the number of persons present on watch. There was also evidence that fishing vessels rarely, if ever, keep ship's logs.
In regard to keeping a ship's log, I think that the defendants have established that there was not fault. In this particular respect I think practice and legislative requirements are important and I would be slow to find that it would be reasonable to import excessive bureaucracy in what is a rather informal industry.
However the fact remains that the way orange roughy fishing was carried out at this time did mean that if there was one crew member on watch for substantial periods, there was a substantial risk of him falling asleep. The defendants to my mind have not established that this was not a dangerous practice. Here is a good example of the situation spoken of by Winn L.J. in The Lady Gwendolen in the passage already quoted (at 351). There is a question of policy in which the shipowner should realise that there is implicit an effect or potential effect upon the safety of his vessel or of other property or persons.
This is particularly so when the shipowner, personified in Mr Raptis, was a fisherman himself and well aware of the pressures involved in everyday fishing work. Moreover the defendants operated the "Territory Pearl" and other vessels using modern technology to keep closely aware of their day to day operations. All this was done for the purpose of making profit. It is not unreasonable in my opinion to expect that this close awareness of day to day operations should have extended to measures of safety. The attitude of Mr Raptis emerged from the following evidence:

Q. "Were you aware as to whether Murray Cameron had any system to organise watches on the vessel?

A. Well, he was the master of the vessel and he, you know, it depended on his qualifications in holding his Certificate of Currency, to operate the vessel according to the regulations. So I never ever discussed with him these details, but I know that from time to time when I went aboard the vessel I would see notepads with people's names, who referred to the crew members on board, and their watches which was something like two hourly intervals.

Q. And you took them to be watch lists?

A. I presumed that they were. Having seven years experience I think I knew what they were. So I presumed that they were watches.

Q. Did you ever interfere with those decisions? A. No."

I think this lack of concern, given the knowledge of Mr Raptis of the way operations were conducted and in particular the hard work of Mr Cameron himself, was not reasonable.
XIV A Combination of Factors
As may be inevitable when industrial or commercial operations are analysed in litigation, there has been a tendency in this case to look at the various issues in isolation. But it is ultimately the defendants' conduct as a whole that has to be considered. If the defendants had taken the view that the provision of all available devices such as watch alarms and radar alarms, together with firm directions that they be used, was enough to discharge the obligations of a shipowner and thereafter matters of watch keeping were purely within the province of the master, one could have some sympathy with that view. Conversely, if the defendants had believed that technical devices are only an aid and can create a false sense of security and what is important is a firm direction that there never be a man alone on watch for any significant period, that again would be understandable. I am not saying that on either hypothesis the defendants would have necessarily established lack of actual fault. But in fact the defendants really displayed no concern at all. They allowed this vessel to operate, for its own profit, in conditions where the combined effect of deficiencies of equipment and crew organisation created a substantial risk of causing loss to others.
In my opinion the defendants have failed to establish that the collision on 19 November 1990 and consequent damage was caused without their actual fault.
XV Orders
The cross-claim will be dismissed with costs, including reserved costs. The plaintiff's claim for damages will be adjourned to the next directions hearing.

[1992] FCA 367

05 JUNE 1992