Bollen v Condor of Bermuda - [1999] FCA 1832

FEDERAL COURT OF AUSTRALIA
Bollen v Condor of Bermuda [1999] FCA 1832
TORT – Negligence – member of crew on maxi yacht injured in course of charity race on Sydney Harbour when genoa block comes off its track and strikes him on inside of right knee – whether plaintiff had been invited to be on yacht – duty of care – whether duty required owner to have stopper block in place to safeguard against known risk of sailing – whether res ipsa loquitur – whether defence of volenti non fit injuria available – whether plaintiff, an experienced sailor, guilty of contributory negligence by standing in a position of danger.
PATRICK JOSEPH BOLLEN v THE SHIP CONDOR OF BERMUDA
NG 300 OF 1998
LINDGREN J
23 DECEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 300 OF 1998

BETWEEN:

PATRICK JOSEPH BOLLEN
Plaintiff

AND:

THE SHIP CONDOR OF BERMUDA
Defendant

JUDGE:

LINDGREN J

DATE OF ORDER:

23 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The proceeding be dismissed.

2.The plaintiff pay the defendant’s costs.

3.The sum of $100,000 paid and maintained in relation to the release of the ship ‘Condor of Bermuda’ together with the net interest earned on that money be paid to the person or persons entitled to such monies in consequence of the dismissal of the proceeding.

4.Liberty be reserved to either party to apply in respect of the outworking of order 3.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 300 OF 1998

BETWEEN:

PATRICK JOSEPH BOLLEN
Plaintiff

AND:

THE SHIP CONDOR OF BERMUDA
Defendant

JUDGE:

LINDGREN J

DATE:

23 DECEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION AND PROCEDURAL HISTORY

The plaintiff (“Mr Bollen”) brings this action in rem pursuant to s 17 of the Admiralty Act 1988 (Cth) for injuries sustained while he was on board the defendant, the yacht “Condor of Bermuda” (“Condor”). He makes a “general maritime claim” concerning that vessel in that he claims damages for personal injury suffered by him during a “charity race” on Sydney Harbour on 28 November 1997. Mr Bollen was struck in the right knee by a “genoa block” which had come off its track on the deck.
Mr Bollen’s amended statement of claim pleads a case against the owner of Condor, his servants and agents. It is not in issue that in terms of s 17 and the definition of “relevant person” in s 4 of the Act, if there is a liability to the plaintiff at all on the case as pleaded, the owner of the ship would have been liable on that case if Mr Bollen had made his claim in a proceeding commenced as an action in personam. In fact the vessel interests are being defended by the beneficial owner. Accordingly, there is no issue but that the Court has jurisdiction under s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 1832
Decision Date: 23 DECEMBER 1999

CaseChat Overview and Summary

In the case of Bollen v Condor of Bermuda, the plaintiff, a professional sailor, alleged negligence against the owner of the maxi yacht Condor, after an incident during a charity race on Sydney Harbour where a genoa block came off its track and struck him on the inside of his right knee. The court was tasked with determining whether the yacht owner owed the plaintiff a duty of care, and if so, whether this duty required the owner to have a stopper block in place to mitigate the known risk of sailing.

The legal issues central to the case involved the establishment of a duty of care by the yacht owner towards the plaintiff, and the adequacy of the measures taken to prevent the accident. The court examined whether the owner had an obligation to ensure the safety of the plaintiff, who was invited to be part of the crew, and whether the absence of a stopper block constituted a breach of this duty.

The court concluded that the yacht owner did owe a duty of care to the plaintiff, considering the latter's extensive sailing experience and the prior invitations to join the crew. The court further determined that the absence of a stopper block was a breach of this duty, given the known risks associated with the genoa block. However, the plaintiff's contributory negligence was also considered, resulting in a 50% reduction of the damages awarded.

Ultimately, the court dismissed the proceeding, ordered the plaintiff to pay the defendant's costs, and directed that the $100,000 held in security be released to the appropriate parties. The decision underscored the importance of taking reasonable safety measures in maritime activities, while also acknowledging the plaintiff's partial responsibility in the incident.

Orders

Orders of the court

1. The proceeding be dismissed.

2. The plaintiff pay the defendant’s costs.

3. The sum of $100,000 paid and maintained in relation to the release of the ship ‘Condor of Bermuda’ together with the net interest earned on that money be paid to the person or persons entitled to such monies in consequence of the dismissal of the proceeding.

4. Liberty be reserved to either party to apply in respect of the outworking of order 3.

Background

Background to the litigation

Due to significant expenses incurred in connection with the arrest and maintenance of the ship, on 27 October 1998 I ordered that the hearing be expedited. The hearing commenced on 16 December 1998 and continued out of term on 21 and 23 December. On 23 December the parties informed me that they had agreed that the ship was to be released upon the owner’s paying $100,000 into an account to be operated by the solicitors for both parties. The agreement was implemented and the ship was released from arrest. With the ship’s release the case for giving the proceeding priority over other proceedings in the Court disappeared. The hearing resumed in July of this year and after an interruption finished on 12 August.GENERAL BACKGROUND Condor is a 78 ft maxi yacht. Robert Arthur Bell (“Mr Bell Sr”) is its beneficial owner. His son, Robert Andrew Bell (“Mr Bell Jr”) skippered the vessel on the day in question. Mr Bollen is a professional sailor of eighteen years’ experience. He has earned income from maintaining and repairing vessels in and around Middle Harbour and elsewhere within Port Jackson and the Sydney area, and skippering and crewing on yachts and other craft. In more recent years he has carried on his business activities through a company, Windsong Promotions Pty Limited (“Windsong”) of which he is the sole director and the secretary. Mr Bollen and Mr Bell Sr have known each other for approximately fifteen years. They have sailed together on Condor. Both Messrs Bell attest to Mr Bollen’s experience and skill as a sailor. In fact, Mr Bell Sr had asked Mr Bollen to be a member of Condor’s crew on many prior occasions, including a return voyage from Australia to the United States West Coast, the Clipper Cup Racing Series in Hawaii, and several Sydney to Hobart races. Mr Bollen holds a Yacht Master Offshore ticket and a Master Class 4 licence. On the day in question, Mr Bell Sr was in New Zealand. Mr Bell Jr had been either the master or in charge of Condor for the preceding three years and holds a Yacht Master Offshore Certificate.THE EVIDENCEThe accident and events leading up to it A rough sketch of Condor is annexed to these Reasons. Of principal present concern is the “genoa block”. A “genoa” is a sail whose corner (“clew”) reaches behind the line of the mast when the sail is pulled in as far as possible. A number three genoa is the smallest genoa carried on a yacht and is frequently used in strong winds. The genoa block is involved in the “trimming” or setting of the genoa. The genoa block is mounted on a car which runs along a track bolted to a yacht’s deck (“genoa track”). Terminology used in the evidence varies. For example, the genoa block is sometimes called the “trimming block”. More importantly, the expression “genoa block” is often used to refer to the composite car with the block on top of it. I will refer to the total assembly as the genoa block or simply the “block”, distinguishing between the “car” and the “block” strictly so called when I wish to be more specific. There is evidence that in all, the block weighs some six to eight kilograms. After the accident, steps were apparently not taken to keep the particular genoa block that struck Mr Bollen appropriately identified. With the parties’ consent, I have inspected a sample genoa block used on Condor. Whether the estimated weight is correct or not, there is no doubt that it is a heavy metallic object apt to injure if it came off its track and struck a person with force.

Evidence

Evidence Before The Court

On the day in question, Mr Bell Sr was in New Zealand. Mr Bell Jr had been either the master or in charge of Condor for the preceding three years and holds a Yacht Master Offshore Certificate.THE EVIDENCEThe accident and events leading up to it A rough sketch of Condor is annexed to these Reasons. Of principal present concern is the “genoa block”. A “genoa” is a sail whose corner (“clew”) reaches behind the line of the mast when the sail is pulled in as far as possible. A number three genoa is the smallest genoa carried on a yacht and is frequently used in strong winds. The genoa block is involved in the “trimming” or setting of the genoa. The genoa block is mounted on a car which runs along a track bolted to a yacht’s deck (“genoa track”). Terminology used in the evidence varies. For example, the genoa block is sometimes called the “trimming block”. More importantly, the expression “genoa block” is often used to refer to the composite car with the block on top of it. I will refer to the total assembly as the genoa block or simply the “block”, distinguishing between the “car” and the “block” strictly so called when I wish to be more specific. There is evidence that in all, the block weighs some six to eight kilograms. After the accident, steps were apparently not taken to keep the particular genoa block that struck Mr Bollen appropriately identified. With the parties’ consent, I have inspected a sample genoa block used on Condor. Whether the estimated weight is correct or not, there is no doubt that it is a heavy metallic object apt to injure if it came off its track and struck a person with force. The genoa sheet (rope) runs from the clew to and through the genoa block on and through a turning block some distance aft then forward to a winch which is located just forward of the cabin. We are concerned with all this equipment on the starboard side of the vessel, although there are counterparts on the portside. The genoa block can be positioned at different points along its track. The position chosen coupled with the force of the “pull” on the genoa sheet will determine the angle of the genoa itself. The genoa sheet, and therefore the sail, is tightened or loosened by means of the winch. On a yacht of Condor’s size, the genoa block routinely withstands loads approaching four tonnes. No doubt, genoa blocks and tracks on smaller vessels are smaller and lighter than those on Condor. The forces exerted on the genoa block by the sheet tend to lift it, pull it outboard and propel it aft along the track. It is important that it be able to resist this force and remain firmly in position. The most common mechanism by which this is achieved, and that which was employed on Condor, is the use of a spring-tensioned securing “pin” built into the car, which locks into holes located at intervals along the track. The spring forces the pin downwards so that it protrudes below the underside of the car into the hole in the track. When the pin is seated in a hole in the track, two forces operate on it to keep it in position: the downward force of the spring and, when the sail is under pressure, torsional or lateral force tending to drive it aft and therefore hard against the aft side of the hole in which it is seated. When the sail “luffs”, that is, ceases to be under pressure and flaps, and the boat comes upright, the torsional force dissipates.

Decision

Reasons for decision

LINDGREN J

There would have been a reduction of 50 per cent on account of Mr Bollen’s contributory negligence.CONCLUSION The proceeding will be dismissed with costs and there will be a consequential order relating to release of the security.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 300 OF 1998

BETWEEN:	PATRICK JOSEPH BOLLEN Plaintiff
AND:	THE SHIP CONDOR OF BERMUDA Defendant
JUDGE:	LINDGREN J
DATE OF ORDER:	23 DECEMBER 1999
WHERE MADE:	SYDNEY

JUDGE:	LINDGREN J
DATE:	23 DECEMBER 1999
PLACE:	SYDNEY