Dick v "The Percy and Jean"
[2000] TASSC 140
•5 October 2000
[2000] TASSC 140
CITATION: Dick v "The Percy & Jean" [2000] TASSC 140
PARTIES: DICK, Leslie Walter
v
The vessel "PERCY & JEAN"
(formerly "COWRIE") and
DBD (TAS) PTY LTD as owner
of the vessel "PERCY & JEAN"
(formerly "COWRIE")
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 250/1993
DELIVERED ON: 5 October 2000
DELIVERED AT: Hobart
HEARING DATES: 5, 15, 18, 19 September 2000
JUDGMENT OF: Blow J
CATCHWORDS:
Shipping and Navigation - Admiralty jurisdiction, law and practice - Practice matters - Commonwealth and Territories - Preservation of arrested ship - Directions to Marshal.
Aust Dig Shipping and Navigation [68]
REPRESENTATION:
Counsel:
Applicant Marshal: In Person
Plaintiff: S R Worsley
Defendants: T J Williams
Solicitors:
Plaintiff: Abetz Curtis & Worsley
Defendants: Gunson Pickard & Hann
Judgment Number: [2000] TASSC 140
Number of Paragraphs: 37
Serial No 140/2000
File No 250/1993
LESLIE WALTER DICK v
The vessel "PERCY & JEAN" (formerly "COWRIE")
and DBD (TAS) PTY LTD as owner of the vessel
"PERCY & JEAN" (formerly "COWRIE")
REASONS FOR JUDGMENT BLOW J
5 October 2000
The Marshal has applied to the Court pursuant to the Admiralty Rules (Cth) ("the Rules"), rr48(1) and 50, for directions and/or orders as to the preservation and management of the ship "Percy & Jean", which has been under arrest since 12 March 1993 in an action which has yet to be tried. I have conducted a hearing in relation to pars2 and 3 of his interlocutory application, by which he sought orders as follows:
"2 Pursuant to rr 48 and 50 of the Admiralty Rules (Cth) directions and/or orders from the Court with respect to the preservation of the ship. Alternatively, that the Marshal be directed to offer the ship for sale and in doing so be authorised to arrange for specifications to be prepared of the ship and be further authorised to pay from the proceeds of any sale costs and expenses (including commission) reasonably incurred.
3 A direction for the prepayment to the Marshal by the First Respondent [ie, the plaintiff] by a date to be determined by the Court of a deposit of $17,000.00 (or such sum as the Court deems) to be applied to meet any expenses directed to be incurred by the Marshal pursuant to paragraph 2 hereof in respect of either the preservation of the ship or in offering it for sale."
Neither the Marshal nor either counsel submitted that I should give directions or make orders in relation to the sale of the vessel. It is common ground that some directions or orders should be made with respect to its preservation. However, the parties are poles apart as to what orders are appropriate. That is no doubt why, generally speaking, the Marshal thought it appropriate to apply to the Court, rather than making decisions of his own.
The vessel was apparently built in 1955 or 1956. At some stage it was converted to carry general cargo and containers. It has worked as a fishing boat. It has been laid up at various locations in the Port of Launceston for about 16 years. The present owner purchased it for $40,000 in or about 1992, and engaged the plaintiff to do some work on it with a view to it carrying petroleum products for BP to and from Flinders Island, and with a view to it carrying general cargo to and from Flinders and King Islands. The plaintiff worked on the vessel in late December 1992 and January 1993. A dispute arose as to his remuneration and the quality and timeliness of his work. He commenced an action in rem against the vessel, claiming for work done and materials supplied, and had the vessel arrested. I have recently made an order that the action be set down for trial, with the trial to commence on or after 6 February 2001.
Under the Rules, r47(2), the Marshal has a duty to "take all appropriate steps to retain safe custody of, and to preserve" an arrested ship, unless the Court otherwise orders. There is no suggestion that I should order otherwise in this case. But there is substantial disagreement as to what steps are appropriate for the preservation of the ship. It seems that very little has been said in reported cases as to the principles a court should apply when called upon to decide what steps are appropriate for a ship's preservation. It seems self-evident that, to an appropriate extent, steps should be taken to preserve any arrested ship so that the plaintiff will have some means of enforcing his judgment if he or she is successful in the action, and so that the owners will not suffer unduly if they are successful and their vessel is returned to them. Another obvious factor is that "a stitch in time saves nine". It would generally not be appropriate to spend so much money on a ship that it is placed in better condition than it was at the time of arrest, unless such expenditure is warranted for the purpose of selling it. Further, I think it would be inappropriate and unreasonable to require the Marshal to preserve an arrested vessel in exactly the same condition that it was in when arrested. Some degree of deterioration is, for practical purposes, unavoidable. I gather from the evidence before me that, when a ship is laid up for reasons unconnected with litigation, the steps taken for its preservation will vary according to the intended length of the lay-up. It must follow that the likely duration of an arrest is a factor to be taken into account in determining what steps are appropriate for a ship's preservation. Generally speaking, the authorities that I have been referred to add nothing to these self-evident propositions. However, it may be of some significance that Tamberlin J in Patrick Stevedoring (No 2) Pty Ltd v The Ship "Turakina" [1998] 244 FCA, cited with approval a passage from McGuffie's British Shipping Laws, Vol 1, Admiralty Practice (1964) par262, as follows:
"Various precautions involving expense may be taken by direction of the marshal to keep the vessel within the jurisdiction eg, placing a ship keeper on board, immobilisation of the main engines in a small vessel, provision of a skeleton crew if she is unmanned and port regulations call for a minimum number of men to be aboard, etc. These and similar steps in addition to stopping customs clearance and warning harbour authorities, are taken in the course of a normal arrest and if it should be reported that a defect on the vessel was causing or likely to cause serious deterioration in the value of the res then steps would be taken to investigate and possibly remedy the defect; when an arrest lasts more than a week or two it is usual for the marshal to take the necessary minimum steps ...".
Obviously when a ship is under arrest for years, the steps appropriate for its preservation are likely to be much more than minimal.
Under the Rules, r41, an application for an arrest warrant constitutes an undertaking to pay the Marshal the amount of his fees and expenses in relation to the arrest. It was of course the plaintiff who applied for the arrest warrant in this case. With this case nearing trial, it is to the advantage of the defendants to maximise the expenditure on the vessel. In the event that they are successful at trial, they will gain the benefit of any such expenditure, at the expense of the plaintiff. If the plaintiff's case is a strong one, he might be encouraged to settle on terms favourable to the defendants if taking the case to trial will necessitate substantial expenditure, particularly if his prospects of successfully enforcing a judgment otherwise than by the sale of the vessel are not strong. Against that background, it is perhaps not surprising that the defendants are urging me to make directions which would involve substantial expenditure on the vessel, whilst the plaintiff contends that much less expenditure is appropriate.
In May 1999, the Marshal engaged a marine surveyor, Mr Wells, who did not give evidence, to advise him as to the preservation of the vessel. Mr Wells made a series of recommendations which have been referred to in these proceedings by the letters (a) to (k), inclusive. In or about June 1999, the Marshal engaged a second marine surveyor, Mr Lucas, to advise him, not only as to the preservation of the vessel, but also as to its value. Mr Lucas inspected the vessel on 2 July 1999 and 29 August 2000, swore two affidavits which were read at the hearing, and was cross-examined on them. Following his first inspection, Mr Lucas adopted all of Mr Wells' recommendations and added three more of his own, which have been referred to by the letters (l), (m) and (n). At that stage he also made six further recommendations which have been referred to by the numbers (i) to (vi), inclusive. He has also recommended that the ship be dry docked (or "slipped") so that the underwater hull and fittings could be examined. In the course of the hearing, it has been suggested on behalf of the defendants that there are further steps that should be taken in order to preserve the ship. The plaintiff agrees with a few of Mr Lucas' recommendations, contends that cheaper alternatives are appropriate in relation to some other recommendations, and contends that many of them, including the recommendation that the ship be slipped, are inappropriate at this stage. I will deal first with the question of slipping, then the other recommendations, and finally with the steps suggested at the hearing on behalf of the defendants.
Slipping
The vessel has a riveted steel hull with sacrificial anodes. It has not been slipped since it was in the plaintiff's yard shortly prior to its arrest in 1993. Mr Lucas recommended slipping because he believed that the hull was probably no longer being protected by the paint applied to it immediately before its arrest, and because he believed there was a risk that, after 7 years since their last inspection, the anodes might be spent and the hull consequently at risk of corrosion. The plaintiff, who is the proprietor of a shipping business, gave expert evidence that there is minimal electrolytic action in the water in the relevant parts of the Tamar River, and said that the vessel had sat in the river for about 11 years before it was last slipped without the anodes being eroded. Mr Lucas conceded in cross-examination, based on his experience, that it was quite on the cards that the anodes could still be in almost perfect condition. However, he did not resile from his recommendation because there is no way of telling what condition the anodes are in without checking them. His recommendation was supported by a naval architect who gave evidence for the defendants, Mr Seward. One of the plaintiff's witnesses, Mr Bakes, an experienced marine engineer whose company has been looking after the vessel for the last three years, inspected three of the anodes on 5 September 2000 by means of a periscope tube and concluded that their wastage was minimal. Another marine engineer who gave evidence for the plaintiff, Mr Frost, regarded the slipping of the vessel as unnecessary. The plaintiff gave uncontradicted evidence that the cathodic protection on vessels that work at sea is normally only checked every five years. This vessel has been moored in fresh water, where electrolytic activity would normally be minimal, since its last inspection. There was evidence that the hull actually sits in mud at the bottom of the river at low tide, but no suggestion that this was significantly more harmful to the anodes than fresh water.
As I have said, Mr Lucas thought that, because of the limited life span of marine paints, the hull is probably no longer being protected by the paints that were applied to it in January 1993. It appears from the plaintiff's particulars of the work done by him in 1993 that substantial work was done repairing the hull and its rivets. Mr Seward prepared a report on the vessel in March 1994 from which it appears that many rivets were seal welded or replaced during the 1993 refit. As I understand it, the purpose of painting the hull of such a ship is to prevent corrosion, and there is greater potential for corrosion at the site of a rivet since the juxtaposition of different metals at the site of a rivet involves a potential for electrolysis. I do not know how long before 1993 it was that the hull was previously painted.
In all probability the ship will be released from arrest, one way or another, after the trial of the action next year. What I am being asked to decide is whether the next slipping of the vessel should occur now, at the plaintiff's expense, or whether such a step should not be taken in the next six months or thereabouts. Mr Lucas estimated the likely cost of slipping the vessel and inspecting the hull at $4,000 or $5,000. After the action has been tried and judgment has been entered, the vessel will either be sold or returned to its owners. If it is to be sold, it will probably be necessary for it to be slipped, for the hull to be inspected, and for work to be carried out, not necessarily on the hull, with a view to maximising the return on its sale. If it is returned to the owners, substantial expenditure will be required before it can be put back to work. Mr Lucas estimated in July 1999 that at least $300,000 would need to be spent to get the vessel back into survey. Mr Seward, more optimistically, estimated in 1994 that it would cost only about $40,000 for the works necessary for State survey, a further $60,000 for Federal survey, and a further $50,000 to carry dangerous goods. Unless and until there is some prospect of work being found for the vessel to do, it will be appropriate for it to remain laid up. If no work can ever be found for it to do, no doubt a time would come when the owners would, as a last resort, sell it for scrap. Against this background, it is my view that the purposes to be served by slipping the vessel and inspecting the hull relate to its possible sale and to its possible return to work, rather than to the need to preserve it pending the determination of the action. There is no suggestion that the state of anodes, the hull paintwork, or the hull rivets might be so bad that the slipping of the vessel should be undertaken now for the sake of its preservation, rather than undertaken after six months or thereabouts with a view to its sale, return to work, or continued life-term lay-up. I have therefore decided not to give a direction that it be slipped.
Recommendations (a) and (b) ¾ Refitting of manhole doors
I need not go into detail about these recommendations, since it is common ground that the recommended work should be carried out. Mr Bakes costed recommendations (a) to (j) for the Marshal in September 1999, and gave evidence that his estimates should be increased by about 20 per cent to allow for inflation and the GST. His 1999 estimates for (a) and (b) totalled $796. The present cost should therefore be about $950 in round figures.
Recommendation (c) ¾ Pumping dry of engine room bilge and No 1 hold bilge
Mr Wells and Mr Lucas recommended that these bilges be pumped dry. When cross-examined by Mr Worsley, Mr Lucas said that this would be for the purpose of guarding against one of the bilges filling with water and the vessel sinking. He conceded that weekly or fortnightly inspection of the vessel would also guard against such a consequence, though he also recommended the fitting of a bilge alarm. That was his recommendation (e). Mr Frost and Mr Bakes conceded in cross-examination that pumping water out of bilges would be of some advantage in preventing or reducing rust. It would also seem that pumping the bilges dry from time to time might reduce any problems associated with mould and condensation. Mr Bakes' estimate of the cost of pumping out these bilges was $1,700 in September 1999. The present cost would therefore be about $2,000.
These bilges have not been pumped out since the vessel was arrested, and no harm has come to it as a result. There is no suggestion that rusting is a serious problem, let alone a threat to the ship's preservation. There is evidence that there is a problem with mould, but no evidence as to mould being any more than a cosmetic problem. There is no evidence that condensation is a problem. I will go into more detail in relation to the evidence about rust, mould and condensation later. The hull has been marked so that observers can check whether it changes its position in the water in any way. Mr Bakes and a sheriff's officer are keeping the vessel under regular observation. I think Mr Wells and Mr Lucas have been a little too cautious in their recommendations. I do not see a need for the bilges to be pumped at this stage.
Recommendation (d) ¾ Heating
Mr Wells and Mr Lucas recommended the fitting and maintaining of suitable heating to all electric motors and the main switchboard. Mr Lucas had in mind heaters of a very low wattage, not to heat the vessel up, but just to keep moisture away. Heating has already been installed, apparently after this interlocutory application was made. There is no evidence to suggest that these new arrangements are inadequate. No doubt the Marshal will make his own assessment of their adequacy in due course. I see no need to give any directions as to heating at this stage.
Recommendation (e) ¾ Bilge alarm
Mr Wells and Mr Lucas recommended the fitting of a bilge high level alarm to the engine room bilge, connected to an external visual alarm indicator. Apparently the engine room bilge was chosen because it is the bilge most susceptible to the ingress of water. I think Mr Wells and Mr Lucas were being a little too cautious. The visual inspections that I have referred to in relation to recommendation (c) are adequate in my view. I will not give a direction for the installation of a bilge alarm.
Recommendation (f) ¾ Pumping unit and hoses
Mr Wells and Mr Lucas recommended the provision of "readily available either on board or at dedicated premises ashore self-contained suitable pumping unit (minimum say 2" diameter) together with necessary suction and delivery hoses". This proposal relates to the pumping out of water, rather than fire-fighting. Mr Bakes costed it at $2,175 in September 1999. The present cost would therefore be about $2,600.
The plaintiff said in his affidavit that the pumps are available for immediate use at the site where the vessel is laid up. He provided descriptions of four pumps. Mr Bakes said in his affidavit that appropriate pumps are available from his company. I have no reason to doubt that. He said that the use of his company's pumps was covered by the daily charge it is making for the care of the vessel. Acquisition of the recommended pumps and hoses is not necessary or appropriate for the preservation of the vessel. The Marshal can make appropriate arrangements for the use of Mr Bakes' company's equipment, or for the borrowing or hire of other pumps and hoses, when and if any pumping is needed. I need give no direction in relation to this recommendation.
Recommendation (g) ¾ Welded steel covers
Mr Wells recommended, in relation to various deck penetrations, the replacement of existing temporary plywood covers and wooden plugs with welded steel covers. Mr Lucas adopted that recommendation. He explained when giving evidence that a plywood cover on the starboard side of the weather deck has been stuck down with silastic or silicon, but that it had been dislodged and was open. He said that on the port side the material used showed signs of coming away from the edges of the plywood. Under cross-examination he explained that the purpose of the recommendation was to stop the ingress of water through the deck, and said that alternative solutions would be to re-glue the plywood covers down or weld covers over. When asked as to the adequacy of the plywood covers for their present purpose, he said that that would depend on how much longer the vessel is going to be laid up, and conceded that re-gluing with a similar glue should suffice until Christmas, assuming the case would be resolved by Christmas. That assumption has become invalid. The case is unlikely to be resolved until a reserved judgment is given after a hearing next February.
Mr Bakes costed the relevant labour and materials at a total of $910 in September 1999. I need not bother adding 20 per cent to that. I am not convinced that expenditure of that order is necessary. The plywood covers can be re-glued, and I will give a direction accordingly. If re-gluing becomes necessary again over the summer, the Marshal can no doubt have that attended to.
Recommendation (h) ¾ Securing hatches and refitting aft peak tank lid
Mr Wells and Mr Lucas made this recommendation, in these terms:
"Steering gear space and No 1 hold/forecastle access hatches to be secured (locked). Aft peak tank lid to refit."
It is common ground that this work should be done. Mr Bakes' costings for the relevant labour and materials in September 1999 totalled $506. The present day equivalent must be about $600.
Recommendation (i) ¾ Engine room access door
Mr Wells and Mr Lucas recommended that the engine room access door in the ship's accommodation be secured to prevent unauthorised entry because of the potential for malicious damage to machinery and the flooding of the engine room. The door is an internal door. It has a lock that is not being used. Mr Lucas stressed in his evidence that it was not locked with a heavy duty lock. Mr Bakes costed the work at $400 in September 1999. For reasons that I do not understand, his costing included $320 for skylight repairs.
Vandalism does not appear to present a significant problem. The position of the ship is such that it is within sight of the employees of Mr Bakes' company. One of the sheriff's officers attends the vessel weekly and enters the engine room. The site is fenced with a cyclone wire fence on three sides, so that the vessel is accessible only by water outside working hours. The vessel's anchor light has been broken at some stage, possibly as a result of vandals throwing stones at it. There was another incident, apparently just before the second inspection by Mr Lucas, when fire hoses and nozzles were stolen. At the same time a nearby shop was burgled and cigarettes were stolen from it. Otherwise security appears not to have been a problem. Against that background I consider it unnecessary and inappropriate to give any direction for the implementation of this recommendation.
Recommendation (j) ¾ Barring over of engines
Mr Wells and Mr Lucas recommended that the main engines and auxiliaries be barred over on a regular basis, suggesting a weekly basis. This is being done. I do not need to give a direction.
Recommendation (k) ¾ Fire-fighting equipment
Mr Wells and Mr Lucas recommended the provision of suitable readily available "immediate response" fire-fighting equipment in a suitable steel locker fitted at the main deck, with suitable signs. That recommendation was made prior to Mr Lucas' second inspection, when he noted that the nearest fire hose box had two hoses but no nozzles, and that another contained neither hoses nor nozzles. The missing equipment had been stolen in the incident I have referred to. It has now been replaced. There is no significant risk that it will be stolen again. The Marshal can have his subordinates check the on-shore fire-fighting equipment when they make their regular inspections. I see no need for the Marshal to go to the expense of acquiring fire-fighting equipment for installation on the vessel when there are fire hoses nearby and the Launceston Fire Brigade is not far away. Counsel for the defendants made the point that Mr Bakes' company may be under no contractual duty to maintain or use its fire-fighting equipment in connection with this vessel. I have no reason to think that, in the event of a fire, Mr Bakes and his company's employees would refrain from taking reasonable steps to extinguish the fire. I expect the contract with Mr Bakes' company for the mooring of the vessel includes at least an implied term requiring the company to take reasonable care of the vessel, and that that term would require the company to take reasonable steps to extinguish any fires that come to its employees' attention.
Recommendation (l) ¾ Pumping out No 2 hold
After his first inspection of the ship in July 1999, Mr Lucas recommended breaking the welds precluding access to the No 2 hold and pumping it out if required. The No 2 hold has been sealed for some time. No-one knows how much water, if any, is in there. Again, I think Mr Lucas was being a little too cautious. If a problem involving entry of water into the No 2 hold develops, the position of the vessel in the water will start to change, and the change will be noticed. Appropriate action can be taken when and if that occurs. Meanwhile, given the likely duration of the arrest, I believe that it would be unnecessary and inappropriate to implement this recommendation.
Recommendation (m) ¾ Re-rubbering of ports, etc
After his first inspection, Mr Lucas recommended that the portholes in the accommodation section of the ship be re-rubbered and screwed closed in order to prevent the entry of water. In his oral evidence he said an alternative would be to undertake a makeshift job by putting some adhesive or heavy grease around the porthole frames. On 22 February 2000, Mr Bakes told the Marshal this would require about two hours' labour at a cost of $40 per hour. It seems to me that the materials are unlikely to cost very much, and that this is an appropriate alternative, given the likely duration of the arrest. I have therefore decided to direct that the portholes in the accommodation section be made waterproof by means of heavy grease or an adhesive.
Recommendation (n) ¾ Timber frame on the monkey island
After his first inspection, Mr Lucas recommended the erection of a timber frame, covered with a tarpaulin, on the monkey island to prevent water access into the wheelhouse. In his oral evidence he suggested as an alternative the caulking of the monkey island deck and re-pitching of the seams. In cross-examination he said that smearing an adhesive over the seams would provide a relatively sound short-term solution. Subsequently, Mr Frost inspected the vessel on 14 September 2000, when it happened to be raining very heavily, and identified a hole in the roof of the monkey island deck where the water was coming in. He recommended the plugging of the hole with a wooden plug. I have decided to direct that this be done. No doubt the Marshal will have the appropriate officer check to see whether there is any sign of a continuing problem after this has been done. If a wooden plug fixes the problem, there will be no need for the installation of a timber frame and a tarpaulin. On 22 February 2000 Mr Bakes told the Marshal that recaulking would cost about $500. Installing a single wooden plug would no doubt cost much less.
Recommendation (i) ¾ External casing of main engine
After his first inspection, Mr Lucas recommended the removal of corrosion from the casing of the main engine, and the repainting of its external casing. After his second inspection, he said he did not consider that there was corrosion on the external casing, and that he did not consider there was a need to repaint that casing. It has not been submitted that this recommendation should be implemented. I will therefore give no direction in relation to it.
Recommendation (ii) ¾ Weathering to the timber deck sheeting
After his first inspection, Mr Lucas recommended that weathering to the timber deck sheeting be made good. After his second inspection, he decided that the only step that needed to be taken was the installation of a wooden frame and a tarpaulin over the wheelhouse in accordance with recommendation (n). It has not been submitted that the original recommendation should be implemented. I will therefore give no direction as to it.
Recommendation (iii) ¾ Corrosion on the stern upper deck
Mr Lucas recommended the making good of corrosion on the stern upper deck, but said under cross-examination that this was not something that was of sufficient concern to need attention now in his view. He was not contradicted as to this. No direction is called for.
Recommendation (iv) ¾ Loose scale in the stern deck area
Mr Lucas recommended the removal of loose scale in the stern deck area, and making good, if required. When cross-examined as to this, he said that the biggest problem was rubbish on the deck, particularly old tins of paint. He agreed that it would be appropriate to remove the rubbish and then decide whether it was necessary to do anything at all. I have therefore decided to direct only that the rubbish be removed. I will leave it to the Marshal to assess the situation thereafter.
Recommendation (v) ¾ Funnel cover
The vessel is equipped with a cover which is intended to go over the top of the funnel. After reading in a report from a Captain Peters a statement to the effect that the top of the funnel was not covered from the elements, Mr Lucas recommended that the funnel uptake be covered. Subsequently, during his second inspection, he found the cover and put it back in place. I need give no direction about this. Obviously checks will need to be made from time to time to ensure that the cover remains in place.
Recommendation (vi) ¾ Locking device for the hatch
Mr Lucas noticed that the welds holding down the screw-down dogs of the hatch for the forward access hold had been removed, so that the hold is accessible. He recommended that a locking device be fitted to the hatch to prevent unauthorised access. In his oral evidence, the plaintiff estimated that this work would cost about $50. My impression is that he tended to underestimate or understate the cost of various proposed works. Although this is by no means a costly item, I do not think it would be appropriate to give a direction requiring this work to be carried out since trespassers have not presented a problem and the end of the arrest is not far away.
Removal of mould
During the hearing, counsel for the defendants spent a lot of time cross-examining about mould. No doubt the installation of the two heaters that I have referred to in relation to recommendation (d) will do a lot to obviate the mould problem. I am not in a position to predict whether those heaters will completely overcome the mould problem, or improve it without eliminating it, or maintain the status quo. I have no evidence as to what harm mould will do. Mr Frost gave evidence that there are solvents readily available that could be used to remove the mould. In my view, I have inadequate information to warrant the giving of any direction about mould. I recommend that the Marshal see what difference the heaters make and, if the problem persists, investigate the cost, effectiveness and utility of removing such mould as remains.
"Megger" testing
Counsel for the defendants submitted that the ship's electrical system should be "Megger" tested because of the risk that condensation and mould had damaged the wiring and/or electric motors. There is no evidence as to what such testing would cost. I am not persuaded that the risk of damage to the wiring or motors is sufficiently strong to warrant a direction that the appropriate testing be undertaken. Neither Mr Wells nor Mr Lucas saw fit to recommend such testing. The defendants have not adduced any expert opinion evidence to the effect that such testing should be undertaken. Neither the plaintiff nor either of his witnesses conceded any need to have such testing undertaken. The plaintiff gave evidence that the electrics all worked well during a test run in 1993, and that the system was extremely robust. He said that condensation would not be a problem if the vessel was appropriately pre-warmed before starting it up.
Rust in radio room
Counsel for the defendants cross-examined about some rust in the radio room. He tendered a photograph of it. I accept Mr Frost's evidence that this rust problem has existed for many years. I have no reason to think it is affecting the integrity of the vessel. I see no need to give any direction in relation to it.
Conclusion
I direct the Marshal to cause the following works to be undertaken:
(a)the refitting of manhole doors referred to in recommendations (a) and (b) in the report of Mr C J Wells, dated 6 July 1999;
(b)the re-gluing of the plywood covers referred to in recommendation (g) of that report;
(c)the securing of hatches and refitting of the aft peak tank lid as referred to in recommendation (h) of that report;
(d)the waterproofing of the portholes in the accommodation section of the vessel by means of heavy grease or an adhesive;
(e)the installation of a wooden plug to mend the hole in the roof of the monkey island deck; and
(f)the removal of the old tins of paint and any other rubbish from the stern deck area.
As I have said, based on Mr Bakes' cost estimates of September 1999, the likely cost of refitting the manhole doors is about $950, and that for securing the hatches and refitting the aft peak tank lid about $600. The other works are relatively minor. I expect the likely cost of complying with my directions will be in the vicinity of $1,800. The Marshal relied on rr50 and 78 in seeking an order for the payment of a deposit by the plaintiff. Counsel for the plaintiff did not make any submissions as to the appropriateness of his client being required to pay a deposit, rather than being required to reimburse the Marshal's expenses after the event in accordance with his implied undertaking given pursuant to r41. I therefore order that the plaintiff pay a deposit of $1,800 to the Marshal within 21 days in respect of the works directed to be undertaken.
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