Marine and Civil Construction Company Pty Ltd v SGS Australia Pty Ltd
[2012] FCA 907
FEDERAL COURT OF AUSTRALIA
Marine & Civil Construction Company Pty Ltd v SGS Australia Pty Ltd [2012] FCA 907
Citation: Marine & Civil Construction Company Pty Ltd v SGS Australia Pty Ltd [2012] FCA 907 Parties: MARINE & CIVIL CONSTRUCTION COMPANY PTY LTD (ACN 055 378 240) v SGS AUSTRALIA PTY LTD (ACN 000 964 278) File number: NSD 1620 of 2008 Judge: SIOPIS J Date of judgment: 24 August 2012 Catchwords: TRADE PRACTICES ACT – the plaintiff was required to transport a barge on which a crane was loaded, from Dampier to Koolan Island – the defendant, a marine surveyor, was retained to provide a survey report prior to the commencement of the tow of the loaded barge from Dampier to Koolan Island – the boom of the crane was secured to the barge by sea fastenings – the marine surveyor provided the plaintiff with a survey report – during the voyage the sea fastenings securing the boom of the crane failed and the crane was damaged - whether the marine surveyor made representations as to the suitability of the sea fastenings securing the boom of the crane to undertake the voyage from Dampier to Koolan Island. Legislation: Trade Practices Act 1974 (Cth) ss 52, 82, Pt VIA ss 87CB, 87CB(3), 87CC, 87CD, 87CD(1) Cases cited: Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357
Butcher v Lachlan Elder Realty Pty Limited (2004) 281 CLR 592
Shrimp v Landmark Operations Ltd (2007) 163 FCR 510
James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53
Oceanic Crest Shipping Company v Pilbara Harbour Services Proprietary Limited (1986) 160 CLR 626
Gunston v Lawley (2008) 20 VR 33
McAskell v Cavendish Properties Limited [2008] VSC 328Date of hearing: 5-8 December 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 200 Counsel for the Plaintiff: Mr GR Hancy with Mr JC Yeldon Solicitor for the Plaintiff: Blackstone Waterhouse Counsel for the Defendant: Mr PD Quinlan SC with Ms EL Blewett Solicitor for the Defendant: Corrs Chambers Westgarth
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
IN ADMIRALTY
GENERAL DIVISION
NSD 1620 of 2008
BETWEEN: MARINE & CIVIL CONSTRUCTION COMPANY PTY LTD (ACN 055 378 240)
PlaintiffAND: SGS AUSTRALIA PTY LTD (ACN 000 964 278)
Defendant
JUDGE:
SIOPIS J
DATE OF ORDER:
24 AUGUST 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The plaintiff is to pay the costs of the defendant, to be taxed if not agreed.
3.The defendant has liberty to apply within 14 days for any special costs order.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
IN ADMIRALTY
GENERAL DIVISION
NSD 1620 of 2008
BETWEEN: MARINE & CIVIL CONSTRUCTION COMPANY PTY LTD (ACN 055 378 240)
PlaintiffAND: SGS AUSTRALIA PTY LTD (ACN 000 964 278)
Defendant
JUDGE:
SIOPIS J
DATE:
24 AUGUST 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
In January 2006, Marine & Civil Construction Company Pty Ltd (Marine & Civil) was engaged in providing engineering services to a company, Aztec Resources Limited, to assist in the development of a proposed iron ore offloading wharf at Koolan Island, an island off the coast of Western Australia. One of the tasks which Marine & Civil was required to perform pursuant to its contract with Aztec Resources, was to arrange for the transport of a crane loaded on a barge, from Dampier, Western Australia to Koolan Island. The crane and the barge were to be used in the construction of the iron ore offloading wharf at Koolan Island.
On 20 and 21 April 2006, Marine & Civil loaded a 250 tonne lifting capacity crane on to the barge, Miclyn 131. The boom of the crane was fully assembled and extended when the crane was loaded on to the barge. Marine & Civil secured the boom of the crane to the barge by sea fastenings. Other equipment was also loaded on to, and secured to, the barge. On 24 April 2006, a marine surveyor, employed by SGS Australia Pty Ltd (SGS), a company providing marine surveying services, inspected the loaded barge for the purposes of producing a survey report. On 28 April 2006, SGS provided the written survey report to Marine & Civil.
On 29 April 2006, a tug, MV “Stirling Skate”, commenced towing the barge, Miclyn 131, with the crane loaded and the boom fully assembled and extended, on the ocean voyage from Dampier to Koolan Island.
During the course of the voyage, the sea fastenings securing the boom of the crane to the barge, failed and the boom slewed 180°. This caused extensive damage to the crane. In addition, the boom came into contact with other equipment which was secured on the barge deck, including a Toyota Landcruiser motor vehicle, and that equipment was also damaged.
In this proceeding, Marine & Civil alleged that in the course of providing the survey report, SGS engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth), which caused Marine & Civil to suffer loss and damage. Marine & Civil claimed damages from SGS under s 82 of the Trade Practices Act.
BACKGROUND
In October 2005, Marine & Civil entered into an agreement with Aztec Resources to assist in the development of a proposed iron ore offloading wharf at Koolan Island by providing engineering consultancy services. Mr Julian van der Meer, an employee of Marine & Civil, was the project manager for the Koolan Island wharf project. Other employees of Marine & Civil who worked on the project at the relevant time were Mr Alan Sweet, then the contracts manager, Mr Steve Seclier, then a piling foreman/supervisor, and Mr Patrick Quinlan, then a project engineer.
As mentioned, one of the tasks to be undertaken by Marine & Civil pursuant to this agreement was the towing of the barge with the crane loaded from Dampier to Koolan Island. Marine & Civil decided to obtain advice from International Maritime Consultants Pty Ltd (IMC) in relation to the measures to be taken to ensure the stability of the barge and crane for the voyage from Dampier to Koolan Island and the undertaking of the piling works intended to be carried out at Koolan Island.
On 20 January 2006, Mr van der Meer and Mr Seclier met with Mr Robert Williams and Mr Tiju Augustine, who was a naval architect employed by IMC. During the course of the meeting, Mr van der Meer said words to the effect that Marine & Civil was thinking of towing the barge with the crane onboard from Dampier to Koolan Island and that as Marine & Civil did not have a means of assembling the crane at Koolan Island, it would need to be towed with the boom assembled so that it would be ready for use when it arrived. Mr van der Meer then asked whether IMC could undertake the design for the sea fastenings of the onboard equipment and the crane, and prepare a towing plan and undertake a barge stability analysis. Mr Williams, on behalf of IMC, replied that IMC could meet the requirements of Marine & Civil.
Mr van der Meer sent a facsimile to Mr Williams dated 20 January 2006, in the following terms:
We are planning to mobilise the barge to Koolan Island in the following sequence:
1.Take delivery of barge from mooring in Dampier around mid February.
2.Assemble 250T Sumitomo Crawler Crane onto barge in Dampier. Note that the crane will need to be fully assembled for mobilisation to Koolan Island, which will require the fabrication of a boom rest. Note that the boom length will be 67.05m.
3.Tow barge to Port Hedland for completion of equipment installation.
4.Tow barge to Koolan Island, where the storm mooring will be installed, and piling operations will commence.
Also attached is the specification for the tug that will be chartered for the duration of the works. Structural drawings and stability books for the two other construction barges will follow in the coming week.
Please advise us of your fee for the above works and invoice quoting the number on the attached purchase order.
On 2 February 2006, Mr Augustine sent Marine & Civil a stability analysis in respect of the barge and crane. This analysis dealt with the proposed towing configuration and the piling configuration. In respect of the towing configuration, the analysis was made on the assumption that the boom of the crane would be held in position by a boom rest which would be located on the barge, and would support the boom at mid-span.
On 2 March 2006, Mr Augustine sent Mr van der Meer an email suggesting that advice be obtained from the manufacturer of the crane about the capacity of the crane to withstand bending movement during the transportation because this would determine the boom cradle position and arrangement. Mr van der Meer then contacted Mr John Buntain of Tutt Bryant Crane Hire (Tutt Bryant), the company from which Marine & Civil intended to hire the crane, and asked him whether the crane boom could be supported mid-span. Mr Buntain advised shortly thereafter, that the boom could only be supported at the butt and the head and was not designed to be supported anywhere else.
Mr van der Meer then relayed the content of his conversation with Mr Buntain to Mr Augustine. Mr van der Meer said to Mr Augustine:
Perhaps we should simply lash the boom back with soft slings on either side, as suggested by John, so that the boom will be self-supporting but the slings will restrain it from moving laterally.
Mr Augustine then said that he would “have a look at that”.
On 7 March 2006, there was a meeting between Mr Seclier and Mr van der Meer on behalf of Marine & Civil and Mr Williams and Mr Augustine on behalf of IMC. Nothing was said at that meeting to suggest that the advice from Tutt Bryant would cause a problem with the manner in which the crane was to be transported, or that the crane could not be transported safely in an assembled form.
On 8 March 2006, Mr Augustine sent Mr Seclier an email which attached the drawings for the sea fastenings for the base of the crane. Importantly, these drawings did not contain any drawing of sea fastenings for the boom of the crane.
At around this time, Mr Neil Brown, an insurance broker from Gault Armstrong Kemble Pty Ltd (GAK), insurance brokers, advised Mr Sweet that a warranty survey report would be needed as a condition for insurance cover. Mr Brown said that a report from SGS would be acceptable. Mr Sweet sent an email to Mr Christopher James Tickner, the operations coordinator of SGS in Perth. The email dated 20 March 2006, read:
Subject: Warranty Survey for Koolan Island Project
As discussed last week Marine and Civil are constructing the iron ore offloading berth at Koolan Island. We require maritime survey to be completed for onhire/offhire reports and warranty survey for towing purposes for tugs and crane barges mobilised from the following locations;
Dampier
Port Hedland
Fremantle
Koolan Island (off Derby)Could you please advise contact details and fee structures for SGS that would be suitable to allow these works to be organised.
Later that day, Mr Tickner sent an email in response to Mr Sweet’s email. The email stated:
Thanks for your inquiry and we are pleased to offer you our following rates and information.
For Onhire / Offhire reports:
1)Dampier – AU$1200.00 + AU$0.70 / km
2)Port Hedland – AU$1200.00 + AU$0.70 / km (would be serviced from Dampier)
3)Fremantle – AU$700.00
4)Koolan Island (off Derby) – AU$1500.00 + Airfares, Accommodation, Meals, Vehicle Hire = At cost + 15% (would be serviced from Perth)
Warranty Surveys are only conducted by the Classification Society however we are able to provide you with a survey report. This is a report of our findings at time and place of intervention but I must stipulate is not a Certificate of Seaworthiness for towing.
All work conducted is in accordance with SGS General Conditions of Service which I have attached for your reference.
Captain Leo Rego is our Shipping Manager and his contact details are as follows:
…
Please do not hesitate to contact myself or Leo to discuss further.
On 28 March 2006, Mr Augustine sent Mr Seclier an email enclosing a document entitled “Towing Arrangement”. The document contained towing resistance calculations and did not address the sea fastening arrangements for the boom of the crane.
On 10 April 2006, Mr van der Meer had a telephone conversation with Mr Russell Parker from Tutt Bryant. Mr Parker told Mr van der Meer:
When tying the boom back, soft slings must be used as there are fine tolerances on allowable damage to the boom. The boom must be restrained in two directions with equal tension on either side of the boom.
Mr van der Meer relayed this conversation to Mr Seclier. However, Mr van der Meer could not recall whether he relayed this information to IMC. I find that he did not.
By email dated 11 April 2006, Mr Augustine forwarded to Mr van der Meer, the document referred to as “the towing plan” for the barge. This document did not reflect any sea fastening arrangements in respect of the boom of the crane.
On 12 April 2006, the crane was delivered in pieces to the Dampier site by Tutt Bryant. During the period 13 April 2006 to 16 April 2006, Mr Seclier, who was in Dampier, supervised the assembly of the crane. Mr Seclier, also, oversaw the welding operations of the sea fastenings on to the barge and the tie down. Mr Seclier followed the drawings prepared by IMC for the sea fastenings for the base of the crane to the deck of the barge, which did not include any sea fastenings for the securing of the boom of the crane to the barge. Otherwise, Mr Seclier used the lashings he deemed appropriate. Photographs were taken of the sea fastenings which had been effected by Mr Seclier and sent to Mr Quinlan. The photographs were then used by Mr Quinlan, subsequently, when he prepared his “Tie-Down Works Methodology” document, to which I will refer later in these reasons.
On 19 April 2006, there was a meeting of employees of Marine & Civil. Mr van der Meer was present. Notes were kept of the meeting which included the following notation:
1.Mobilisation
…
·Piling barge: - in Dampier, due to leave 24/4 (Mon),
- warranty survey
- towing bridle
…
3.Design + Fabrication
…
Tie down:- …
- Crane as per IMC spec
By an email sent at 4:39 pm on 19 April 2006, Mr Ric Clarke of GAK, insurance brokers, engaged by Marine & Civil for the purposes of procuring insurance, sent Mr Quinlan an email in the following terms:
Further to our earlier telecon. To enable facilitation of terms for the voyage/transit risk we need details of the loading/lashing/stowage arrangements. As the cranes once loaded onboard will affect the barges stability have you engaged any external consultants to provide confirmation that the stowage/towage is sound etc etc.
It is customary for underwriters to be presented with some form of survey report that attests to the stowage and towage arrangements therefore I would appreciate this advice as a matter of urgency.
We are unable to bind cover until such time as we can present this information to underwriters and I look forward to your early reply as we discussed.
On 20 April 2006, Mr Sweet had a telephone conversation with Captain Narinder Bhalla of SGS. During the course of the conversation, Mr Sweet said:
We need a survey report done on our barge Miclyn 131 which is to be towed from Dampier to Koolan Island on 29 April. I’ll send you a scope of work.
Later that day, Mr Sweet sent an email to Captain Bhalla, in the following terms:
Thank you for your assistance this afternoon.
As discussed please find following a brief scope of requirement for the survey report required prior to towing the Miclyn 131 Piling Barge from Dampier to Koolan Island;
·Miclyn 131 Barge loaded with 200Tn Crane, Piling Hammer and miscellaneous construction equipment
·Departs from Mermaid Marine Supply Base in Dampier (planned pm Monday 24 April 2006 dependent on weather).
·Date and time of survey Monday 24 April 2006 approx 9am at the Mermaid Supply Base in Dampier
·Destination is Koolan Island for the Aztec Iron Ore Project (Construction).
·Towage by Mermaid Marine (vessel likely to be the Commando).
·M&C site representative Mr Steve Seclier who is available on…in Dampier.
·Insurance requires an independent report prior to accepting cover for the coastal tow.
·SGS scope of services to provide an independent survey report that verifies towing bridle and seafastenings (design and certification by International Maritime Consultants) prior to departure. My collegue [sic] Mr Julian Van der Meer will send copies of the tow plan and the approved seafastenings by seperate [sic] e-mail. The vessel details and towing winch are to be verified by the operator (Mermaid).
Survey Report to be sent via e-mail or fax to my address…with any issues communicated to M&C Site Superintendent Mr Steve Seclier who is preparing the barge in Dampier.
I have been provided with the SGS terms and conditions by Chris Tickner and agree with those terms – could you please send an account application form by fax to our office on…marked attention Ms Kay Giles and we will complete and return to you am Friday 21 April 2006. (Original emphasis.)
Captain Bhalla responded to the email in the following terms:
Thank you very much for the appointment. We hereby pleased [sic] to confirm our attendance as independent inspectors for the same.
-Inspection will be carried out as per SGS general conditions of service (a copy of which is attached).
-The cost of the inspection will be
A$1000 + GST.
-Please fill up the attached “SGS new A/C application Form”.
Also, on 20 April 2006, Mr Quinlan sent by an email addressed to IMC and Mr Ric Clarke, with a copy to Mr van der Meer, a memorandum he had written, entitled: “Koolan Island Ore Offloading Wharf: Tie-Down Works Methodology”. Incorporated within the memorandum were the photographs, taken by Mr Seclier, of the sea fastenings which Mr Seclier had effected on the barge. Mr Quinlan’s memorandum stated:
Introduction
This method statement applies to the tie-down of the crane, hammer & powerpack aboard the “Miclyn 131 Piling Barge”, which will be towed from Dampier to Koolan Island.
The objective is to outline the methodology and controls to prevent any accidents or incidents, which could arise in the event of the crane, hammer, powerpack or other equipment moving freely aboard the Micyln 131 whilst under tow.
Crane Tie-Down
1.Having successfully walked the crane onboard the Miclyn 131, the crane has been positioned and fixed directly to the deck for the entire journey.
2.To ensure that the crane is not liable to any movement, steel stubs are welded to the deck at the front & rear of the crane’s tracks and wedged with timber sections to minimise any possible movement. This can be seen in photos 1.1 & 1.2.
3.The crane boom has been lowered to 30 degrees & restrained to the deck by ropes tied to the boom.
There was no photograph among the photographs attached, which showed the tie down arrangements in respect of the crane boom. The photographs did show the tie down arrangements for the plant and equipment which was to be secured to the barge.
On 21 April 2006, in the morning, Mr van der Meer of Marine & Civil, sent an email to Captain Bhalla which attached the calculations supporting the towing arrangement report prepared by IMC. This email did not include any document showing the “approved seafastenings” which was referred to in the email of 20 April 2006 from Mr Sweet of Marine & Civil, to Captain Bhalla. Nor was any document showing the “approved seafastenings” sent to SGS by Marine & Civil, at any time thereafter.
On 21 April 2006, Mr Seclier of Marine & Civil, received a telephone call from Mr Williams of IMC. Mr Williams said:
I have seen the method statement sent to me by Patrick Quinlan. Everything looks OK. The crane looks OK. The tie downs look OK. However, I would like some extra fastenings or lugs on the hydraulic power pack for the hammer. These should be applied to the front and back of the power pack. Can you do that and email me some photos.
Mr Seclier agreed to do that. Mr Seclier carried out the works recommended by Mr Williams and took photographs of the additional tie down points to the hydraulic power pack for the hammer, which Mr Williams had recommended. Mr Seclier emailed the photographs to Mr Williams.
On 21 April 2006, Mr Seclier supervised and finalised the securing of the crane and the plant and equipment to the barge. Mr Seclier also supervised the securing of the boom to the barge. The boom was secured on the port and starboard sides by a single part 11 mm steel wire rope and eyelet, a tensioner and a metal hook, which were attached to the deck of the barge. The 11 mm steel wire rope was, also, attached to the boom at mid-span.
On 24 April 2006, Captain Raj Kumar Sharma of SGS, inspected the barge with the crane onboard in Dampier. At the time that Captain Sharma inspected the barge, the boom of the crane was secured in the manner which had been finalised by Mr Seclier. Mr Seclier advised Mr Sweet that Captain Sharma wished to be sent copies of the test certificates for the towing bridle.
On 24 April 2006, Mr Sweet sent an email to Captain Bhalla in the following terms:
Thank you for your survey today. As discussed between Steve and your Surveyor – please find attached copies of the certificates for the towing bridle and the emergency lines for your report.
By the morning of 27 April 2006, the survey report had still not been produced by SGS. At 11:04 am on 27 April 2006, Mr Sweet sent an email to SGS asking that SGS issue the survey report for the Miclyn 131.
Shortly after midday on 27 April 2006, Mr Clarke of GAK, insurance brokers, sent Mr Sweet an email in the following terms:
We confirm having received the Cyclone Contingency Plan and initial SGS advices relative to issuing the pre voyage towage and stowage surveys. We attach details of cover secured with Liberty International (transit/voyage only the operational cover having been bound with QBE) and we request:
1.your acceptance
2.date of voyage.
You will note the cover is subject to the warranty that you comply with SGS recommendations and it would be customary for SGS to issue a towage and stowage approval certificates in confirmation.
On 27 April 2006, Marine & Civil were engaged in negotiations for entry into a time charter party with Adsteam Harbour Pty Ltd (Adsteam) (now called Svitzer Pty Ltd, the former third defendant (Svitzer)) for the charter of the tug, MV “Stirling Skate”, for the purpose of undertaking the tow of the barge with the crane onboard from Dampier to Koolan Island. Adsteam sent Mr Sweet an email on 27 April 2006, whereby Adsteam asked that an additional clause be added to the standard clauses of the “Supplytime 89” uniform charter party in respect of the proposed charter of the MV “Stirling Skate”. Adsteam proposed that cl 37 state:
Clause 37 – Charterers to Provide.
In addition to the items detailed in Clause 8 of this Charter Party the Charterer will provide the following in their time and at their cost:-
(i)Towing bridle for barge “Miclyn 131”.
…
(iv)
Obtain the necessary Towage Approval, and Tow Worthiness certificates for the barge “Miclyn 131”.
Mr Sweet then emailed a copy of the proposed additional clause to Mr Clarke of GAK and asked whether he was “okay” with the proposed additional clause. Mr Clarke replied by email sent at 4:08 pm on 27 April 2006, that a charter party which included the proposed new clause, was acceptable.
On 27 April 2006, Marine & Civil entered into the time charter party with Adsteam for the charter of the MV “Stirling Skate”. The charter party included cl 37 and, also, cl 12, which was an exclusion clause which provided that Adsteam was not liable in contract and tort and that its employees were not liable in tort, for any loss or damage to any property towed by the tug.
By an email dated 28 April 2006, at 10:32 am, Mr Clarke advised Mr Sweet as follows:
We have bound cover as instructed and I would ask that you note 3 minor changes.
1.The prevoyage towage/stowage survey has been introduced into the schedule as a warranty.
2.Information to underwriters reflects Adsteam tow and Supplytime C/P.
3.Stamp duty is not payable thus premium reduction of $1,595.00.
Please forward SGS report/certificate when issued.
In the document headed: “Binding Slip Marine Cargo–Voyage Cover” attached to the email from Mr Clarke to Mr Sweet dated 28 April 2006, the following was recorded:
WARRANTY
SGS Australia Pty Ltd to undertake a pre-voyage towage survey. Lashing/stowage of cargo to comply with project engineers recommendations.
Under the heading, “INFORMATION GIVEN TO INSURERS” the following was recorded:
·We attach a copy of the Method Statement in relation to the Stowage and Tie Down arrangements.
·SGS Australia Pty Ltd will be undertaking a pre-voyage towage survey.
The reference to “Method Statement” was a reference to the statement prepared by Mr Quinlan.
On 28 April 2006, at 5:18 pm, Captain Bhalla sent Mr Sweet and, among others, Mr Neil Brown of GAK an email attaching what he referred to as the “inspection report”.
The attached SGS report relevantly stated:
SURVEY REPORT
DATE: 24 April 2006
OUR REF:…
In accordance with instructions received from Mr Alan Sweet of Marine & Civil Construction Co Pty Ltd. Our surveyors attended aboard the Dumb Barge Miclyn 131 on 24th April 2006 at 0815 hrs, at Mermaid Marine Supply Base, Dampier, to inspect “Arrangement of Towing bridle and Seafastenings (design and certification by International Maritime Consultants).
Particulars of Vessel
NameMiclyn 131
…
GENERAL DESCRIPTION OF VESSEL
The Barge “Miclyn 131” is a Welded Steel Flat top pontoon type dumb barge, with two Skegs Aft and Forward Round Bar. The vessel was built in 2000. There is a strengthened sheer strake running down each side continuing around the bow and stern. Slight to moderate marine growth was observed starting from just above the waterline to the area under water.
The Deck area was moderately rusted all over with thick rust patches and indentations in some places. There was no sign of any coating visible.
There is a Stockless Anchor and a manually operated winch on port side forward.
SURVEYOR REMARKS
At the time of inspection, the barge was found to be afloat drawing a draft of 1.00 meter (for’d & aft) and was reported to be without any ballast water in the ballast tanks. Inspection of the barge was carried [sic] with the assistance of Mr Steve Seclier, of Marine & Civil Construction Co Pty Ltd. Our surveyor checked following items which were loaded and secured on deck of barge.
Items were:
1.One number – winches/power pack.
2.One number 20 feet container.
3.Two numbers 10 feet containers.
4.Gas cylinder cage.
5.One no crane with the boom at an angle of 30 degrees to the weather deck.
6.One number vehicle (Make: land cruiser).
…
22.Two numbers – towing bridles (specifications as per drawing)
…
All these items were observed to be secured on deck with straps and eyes pads & plates (welded on to the deck).
Towing bridles were found to be secured on vessel’s deck. We examined bridles with shackles in the stowed position. Bridles and Shackles attached to the Bridles were found to confirm with the drawing supplied to us.
Seas fastening were checked by us, with barge in static condition. In that condition they appeared to be satisfactory (Please note that we were not provided with test certificates of the lashing material).
Please refer to the photographs attached with this report.
This report is submitted in good faith and constitutes our opinion of the “Arrangement of Towing bridle and Sea fastenings (design and certification by International Maritime Consultants). The surveyor assumes no responsibility for any defects and is to be held harmless for conditions subsequently arising.
This report is issued, attendance made and opinions formed all without prejudice to any party concerned.
Mr Sweet first saw the SGS survey report when he opened Captain Bhalla’s email on his home computer on the evening of 28 April 2006. Later that evening, at about 8:30 pm, Mr Sweet emailed a copy of the SGS survey report to Mr Peter Harris of Adsteam.
After having received the SGS survey report from Mr Sweet, Mr Harris advised the skipper of the MV “Stirling Skate” that he had a copy of the SGS survey report and that the sea fastenings had been approved.
On 29 April 2006, the Western Australian Bureau of Meteorology issued a bulletin which warned of strong winds for the region between the Port of Dampier and Koolan Island. This weather forecast issued at 4:05 am Western Standard Time on 29 April 2006, was to the following effect:
Strong Wind Warning
Wallal to Barrow Island
NE/SE winds expected to reach SE 20/30 knots, easing to below 25 knots by mid Saturday morning. Winds will increase to 20/30 knots on Sunday morning, easing below 25 knots by noon Sunday. Seas to 2.0m offshore. Swell to 0.5m.On 29 April 2006, at about 1:30 pm, the tow of the barge Micyln 131 from Dampier commenced.
In the evening of 29 April 2006, the wind, sea and swell conditions of the open sea, during the ocean voyage from Dampier, became quite rough.
Early in the morning of 30 April 2006, the crew on the MV “Stirling Skate” observed that the sea fastenings that were securing the boom of the crane to the barge had failed, that the fall‑wires and block of the crane had fallen into the sea and were trailing in the sea behind the barge. The crane boom had slewed 180°, causing severe damage to the crane. Also, the crane had come into contact with other equipment onboard the barge, including the Toyota Land Cruiser motor vehicle which had been badly damaged.
The reason that the steel wire ropes securing the boom of the crane became disengaged from the sea fastenings on the barge, was that the metal hooks which attached the steel wire ropes to the sea fastenings on the barge, straightened under the pressure.
On 30 April 2006, the MV “Stirling Skate” and the barge returned to Dampier.
On 15 October 2008, Marine & Civil commenced a proceeding in this Court against each of IMC and SGS. Marine & Civil contended that in producing the SGS survey report, SGS had engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act. On 13 October 2009, Svitzer was joined to the proceeding as the third defendant.
Subsequently, Marine & Civil settled its claim against each of IMC and Svitzer. By the time, therefore, that the matter came to trial, the only claim which Marine & Civil pursued at trial was its claim against SGS.
In its third amended statement of claim (the statement of claim), Marine & Civil claimed the sum of $435,349.17 as being the loss and damage suffered. This comprised the sum of $605,349.17 being the repairs to the crane and the boom (in respect of which there is no dispute), less the sum recovered from settlement with IMC of $170,000.
The amount agreed to be paid pursuant to the settlement with IMC was $220,000. However, that sum was paid inclusive of legal costs and without admission of liability. In deducting $170,000 from the costs of the repairs to the crane and the boom, Marine & Civil attributed $50,000 of the settlement sum of $220,000 to legal costs.
On 4 August 2011, Svitzer and Marine & Civil entered into a settlement deed. Pursuant to that deed, Svitzer agreed, without admission of liability, to pay Marine & Civil the sum of $40,000 in respect of its claim and $10,000 in respect of its costs. Marine & Civil accepted that a further $40,000 had to be deducted from the sum of $435,349.17 to reflect the settlement with Svitzer.
Insofar as the matters referred to in [6]-[59] above comprise statements of fact, I find those facts.
WITNESSES
Marine & Civil’s witnesses
Mr Alan David Sweet and Mr Peter Frank Harris gave evidence as part of Marine & Civil’s case and Captain Barry Clarke Hughes was called by Marine & Civil to give expert evidence. Each of these witnesses was cross-examined.
Marine & Civil, also, tendered at trial, affidavits sworn by Mr Edward Malcolm Wyndham Davies. Mr Davies is a legal practitioner who acted on behalf of Marine & Civil in settling the claims made by Marine & Civil against each of IMC and Svitzer. Mr Davies’ affidavits exhibited the settlement deeds which had been entered into by the respective parties. Further, Mr Davies gave evidence in support of Marine & Civil’s contention that of the settlement sum of $220,000 inclusive of costs, paid by IMC, it was reasonable to attribute the sum of $50,000 to legal costs. Mr Davies was not cross-examined. I accept Mr Davies’ evidence.
Mr Alan Sweet was first employed by Marine & Civil in 2000. In March 2006, Mr Sweet was the contracts manager for Marine & Civil and his duties included the negotiation and implementation of contracts for the company. There were aspects of Mr Sweet’s evidence which I have not accepted. I will refer to these aspects later in these reasons.
However, it is convenient to deal here with one issue which arose in relation to Mr Sweet’s evidence. This issue arose from an amendment which Mr Sweet made to his affidavit evidence, during his oral evidence. In an affidavit which he swore on 4 May 2009, Mr Sweet deposed that on 24 April 2006, Mr Seclier had told him that the SGS surveyor wished to be sent copies of the test certificates for the “lashings and towing bridle”. However, when he entered the witness box, Mr Sweet said that he had made a mistake when he swore that affidavit, and that Mr Seclier had not mentioned test certificates for “lashings”, but had only referred to the SGS surveyor asking for test certificates for the towing bridle. SGS challenged Mr Sweet’s oral evidence.
In my view, this issue is of negligible significance in the resolution of the case. This is because, the claim made against SGS is that it engaged in misleading or deceptive conduct. In this regard, the author of the SGS survey report made it plain that he had not been provided with test certificates for the lashings, and that his opinion was expressed subject to that limitation. A reader of the report would have, therefore, been aware of the fact that the report was prepared on that basis. In my view, therefore, nothing really turns on whether Mr Sweet failed to respond to a request by SGS to provide the test certificates for the lashings.
However, had it been necessary to do so, I would have accepted Mr Sweet’s evidence that he made a mistake when he swore the affidavit on 4 May 2009. I note that SGS, although it called Mr Seclier to give evidence, did not adduce evidence on the point from Mr Seclier.
Mr Peter Harris was in April 2006, the marine operations superintendent of Adsteam. During cross-examination, Mr Harris made concessions in relation to the extent to which he read the SGS survey report, which substantially undermined his affidavit evidence-in-chief that he had relied on the contents of the SGS report in authorising the commencement of the tow. I will deal later with this question.
Captain Barry Hughes is a marine surveyor. During the course of the proceedings leading up to trial, Marine & Civil filed a number of affidavits and an expert report made by Captain Hughes. The affidavits were sworn on 10 June 2009, 24 September 2009, 21 July 2010 and the expert report was dated 7 October 2011. There were also expert reports attached to the affidavits of 10 June 2009 and 21 July 2010.
Captain Hughes’ affidavits and expert reports dealt with issues which had been raised in Marine & Civil’s claims against IMC and Svitzer, as well as Marine & Civil’s claim made against SGS. When Captain Hughes gave oral evidence, he adopted the affidavits he made on 10 June 2009, 21 July 2010 and the expert report of 7 October 2011, and an abbreviated version of the affidavit he originally made on 24 September 2009 and an abbreviated version of the expert report attached to his affidavit of 21 July 2010. There were deletions made in the abbreviated documents.
In para 10 of his original affidavit of 24 September 2009, Captain Hughes responded to opinions which had been expressed in an affidavit sworn by another expert marine surveyor, Captain Peter Douglas, and filed by SGS in the proceeding. After the deletions to para 10(d) of Captain Hughes affidavit, it read:
[I]t was quite reasonable for [Marine & Civil] to rely on the SGS report.
In the part of para 10(d) which had been deleted, Captain Hughes had stated that he agreed generally with the view expressed by Captain Douglas that a reasonable person with experience in the maritime industry could not rely on the SGS survey report, as the basis for being satisfied that the crane was appropriately secured for transport from Dampier to Koolan Island; and then went on to say that Marine & Civil did not fit into the category of persons with experience in the maritime industry.
During the course of the cross-examination of Captain Hughes, senior counsel for SGS asked Captain Hughes whether he stood by the opinion previously expressed in the original version of his affidavit, that a reasonable person with experience in the maritime industry could not rely on the SGS survey report as the basis for being satisfied that the crane was appropriately secured for transport from Dampier to Koolan Island.
Counsel for Marine & Civil, as part of a standing objection, objected to the question, on the basis that the question sought information which was not properly the subject of expert opinion. I disallowed the standing objection.
In my view, the question of how a participant in a particular industry might understand a document written by another participant in that industry, can properly be the subject of expert evidence by a person with specialist knowledge of that industry. Counsel for Marine & Civil did not impugn the specialist knowledge of Captain Hughes. To the contrary, Captain Hughes was proffered as an expert witness on the very basis that he possessed specialist knowledge as a marine surveyor, and was, as such, a participant in the maritime industry. Presumably, it was on that basis, that Captain Hughes expressed his opinion in para 10(d) of his abbreviated affidavit.
Further, the fact that senior counsel’s question sought evidence which went to an ultimate issue was, also, not a basis for rendering the evidence inadmissible. The final decision in respect of the ultimate issue, rests, of course, with the Court. The weight to be attached to any expert evidence which goes to the ultimate issue, is a matter for the Court.
In the case of Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 (Miller), a man with lengthy experience in the insurance field gave evidence in support of BMW’s case as to how an insurance certificate would be construed in the industry. (See [68] of the High Court judgment.) There was no suggestion in the High Court judgment, nor in the judgments of the courts below, that the evidence was inadmissible.
Captain Hughes answered the senior counsel’s question by saying that he stood by the opinion he previously expressed in his original unamended affidavit. The cross-examination of Captain Hughes on this issue continued as follows:
Yes. And you agree with the statement for the reason that’s expressed following that, because a reasonably qualified person would conclude from reading the SGS report, that Captain Sharma had looked at the various securing devices and towing bridle and accepted that International Maritime Consultants had made all the necessary calculations?---Yes.
Also, in his cross-examination, Captain Hughes said:
And returning, then, to your statement, you agree – the context, then, and the way to understand your statement is that the reason you have proffered the opinion in your evidence-in-chief that it was quite reasonable for MC to rely, is because you have stated that MC do not fit into the category that’s described in the statement you agree with, that is, that they are not a person with experience in the maritime industry?‑‑‑Yes. Yes.
Captain Hughes then agreed that the basis upon which he came to the view that Marine & Civil had no marine experience, was what appeared from the affidavits of Mr Sweet and Mr van der Meer.
Captain Hughes also accepted that he did not know what experience those two persons may actually have had in relation to organising towage and engaging charter vessels or seeking certificates from marine surveyors.
I deal later in these reasons with this evidence.
SGS’s witnesses
SGS relied upon the evidence of Mr Steven Yannick Seclier, Mr Julian James van der Meer, Mr Patrick Quinlan, Mr Christopher James Tickner, Ms Hilary Frances Shanks, Mr Peter Alexey Clay and Mr Jeffrey Thomas Dundas. Affidavits made by each of the witnesses were admitted into evidence.
I observe that Captain Sharma, the author of the SGS survey report, did not give evidence. The affidavits of Ms Shanks, Mr Clay and Mr Dundas, dealt with the unsuccessful attempts to locate Captain Sharma.
Only Mr van der Meer, Mr Seclier and Mr Quinlan were cross-examined by counsel for Marine & Civil. Mr Patrick Quinlan gave evidence by videolink from Melbourne. I accept the evidence of each of these witnesses.
MARINE & CIVIL’S MISLEADING OR DECEPTIVE CONDUCT CLAIM
In its statement of claim Marine & Civil alleged that in providing the survey report, SGS had engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth).
Marine & Civil pleaded at para 4 of the statement of claim, that on 20 April 2006, it retained SGS to provide a survey report on sea fastenings for the barge with the crane “which report was expressed to be required prior to a proposed sea voyage of the Miclyn 131 under tow from Dampier to Koolan Island and to be required for insurance before cover was accepted for tow” (Original emphasis).
Marine & Civil then pleaded that the written report was sent by SGS to Mr Sweet by an email on 28 April 2006 and that by the report SGS represented to Marine & Civil that:
(a)A marine surveyor…had attended aboard the loaded barge to inspect the arrangements for towing bridle and sea fastenings;
(b)The crane and boom were secured on deck with straps and pads and plates welded onto the deck;
(c)The sea fastenings were checked and appeared to be satisfactory.
Marine & Civil then pleaded in para 7 of the statement of claim, that the sea fastenings did not appear to be satisfactory, and the arrangements for securing the boom of the crane and the proposed method of transporting the crane by barge with its boom assembled and erected were not safe, satisfactory or suitable arrangements for transporting the crane and its boom from Dampier to Koolan Island, because:
(a)The boom was secured to the barge on each of the port and starboard sides by a single part 11 mm wire and eyelet, a tensioner and metal hook, all with a safe working load of no greater than 1.6 tonnes, which the sea fastenings were grossly inadequate for and would not have survived the proposed tow of a 250 tonne Crane with its boom extended;
(b)The boom required, but did not have, on each of the port and starboard sides high tensile chains and high tensile securing components that secured the boom to the barge;
(c)And/or alternatively:
(i)The crane with its boom fully assembled and extended could not be transported from Dampier to Koolan Island on a barge towed by a tug without significant risk of damage from the forces that may result from the wind and wave conditions that occurred in that area; and
(ii)The safe method of transporting the Crane and boom by ocean going vessel entailed dismantling the boom and transporting it in pieces.
Marine & Civil went on to plead, in para 8 of the statement of claim, that SGS did not tell it of the matters pleaded in para 7 of the statement of claim.
It was then pleaded in para 9 of the statement of claim, that by reason of its conduct as pleaded in paras 4, 6 and 8, SGS, in trade or commerce:
(a)Expressly represented that the sea fastenings appeared satisfactory and were satisfactory;
(b)Impliedly represented that there were no matters the subject of the survey that required further investigation before the proposed sea voyage from Dampier to Koolan Island;
(c)Impliedly represented that in relation to the sea fastenings of the boom there was no significant risk of damage occurring on the sea voyage.
Marine & Civil went on to plead that it sent a copy of the SGS survey report to Mr Harris of Svitzer, and that by reason of, and in reliance on, the contents of the SGS report Mr Sweet did not instruct Mr Harris not to proceed with the tow, and did not make any further inquiries regarding the adequacy of the sea fastenings for the proposed tow.
Further, Marine & Civil pleaded that by reason of, and in reliance on, the contents of the SGS report, Mr Harris told the master of the tug MV “Stirling Skate”, that the sea fastenings had been approved and did not instruct the master not to proceed with the tow, and authorised the commencement of the tow.
In para 15 of the statement of claim, it is pleaded that the misleading or deceptive conduct of SGS resulted in Marine & Civil and Svitzer transporting the crane and boom with sea fastenings for a voyage from Dampier to Koolan Island, and caused the resulting damage to the crane components and other damaged equipment.
SGS did not dispute the evidence of Captain Hughes that the safe working load of each wire and tensioner which secured the boom to the barge was 1.6 tonnes and that this safe working load was grossly inadequate to secure the boom. Rather, SGS said that the sea fastenings had failed because of the inadequacy of the safety hooks, not because of the failure of the wires or tensioners.
However, at the centre of SGS’s case was the contention that Marine & Civil had failed to demonstrate that SGS had made either the express or implied representations pleaded by Marine & Civil. A primary contention of SGS was that before it was retained SGS advised Marine & Civil that it would only issue a survey report on the loaded barge in a “static” as opposed to a “dynamic” state, and this is what it did. I now consider this question.
Did SGS make the express representation?
As mentioned, Marine & Civil pleaded at para 9 of its third further amended statement of claim that SGS, in trade or commerce, expressly represented that “the sea fastenings appeared satisfactory and were satisfactory”.
In my view, Marine & Civil has failed to establish that SGS made an express representation in the terms that were pleaded, namely, that “the sea fastenings appeared satisfactory and were satisfactory”.
The actual words used by Captain Sharma, the author of the SGS survey report, were as follows:
Sea fastening were checked by us, with barge in static condition. In that condition they appear to be satisfactory (Please note we were not provided with test certificates of the lashing material).
In my view, it is apparent that the author of the report did not make an unqualified statement that the sea fastenings appeared to be satisfactory and were satisfactory. Rather, the author qualified the statement as to the sea fastenings by stating that they were inspected with the barge in a static condition and, in that condition, the sea fastenings appeared to be satisfactory. Also, the statement was further qualified by the reference to the fact that SGS had not been provided with test certificates of the lashing material.
It is apparent from the matters pleaded in para 7 of the statement of claim in falsification of the representation, that Marine & Civil contended that the SGS representation was false because the sea fastenings were not satisfactory for transporting the crane and its boom from Dampier to Koolan Island. However, the language used by SGS did not make an express representation that stated that the sea fastenings were satisfactory for transporting the crane and its boom from Dampier to Koolan Island.
It follows that the SGS survey report did not contain an express representation in the unqualified terms pleaded by Marine & Civil, nor did it make an express representation in terms which is falsified by the matters pleaded in para 7 of the statement of claim.
Accordingly, Marine & Civil’s claim based on the express representation pleaded in para 9(a) of the statement of claim, is dismissed.
Did SGS make the implied representations?
Marine & Civil, also, alleged that SGS had made two implied representations.
Marine & Civil pleaded that SGS had impliedly represented that there were no matters the subject of the SGS survey that required further investigation before the proposed sea voyage from Dampier to Koolan Island
Marine & Civil, also, pleaded that SGS had impliedly represented that in relation to the sea fastenings of the boom, there was no significant risk of damage occurring on the sea voyage.
Marine & Civil, also, pleaded that insofar as the representations concern future matters, there were no reasonable grounds for the representations.
At [5] in Miller, French CJ and Kiefel J observed:
The cause of action for contravention of statutory prohibitions against conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive has become a staple of civil litigation in Australian courts at all levels. Its frequent invocation, in cases to which it is applicable, reflects its simplicity relative to the torts of negligence, deceit and passing off. Its pleading, however, requires consideration of the words of the relevant statute and their judicial exposition since the cause of action first entered Australian law in 1974. It requires a clear identification of the conduct said to be misleading or deceptive. Where silence or non-disclosure is relied upon, the pleading should identify whether it is alleged of itself to be, in the circumstances of the case, misleading or deceptive conduct or whether it is an element of conduct, including other acts or omissions, said to be misleading or deceptive. (Footnote omitted.)
In this case, it is apparent from para 9 of Marine & Civil’s statement of claim, that the failure of SGS to disclose the matters pleaded in para 7 of the statement of claim, is relied on as an element of conduct, along with the conduct pleaded in para 4 and para 6, as giving rise to the implied misrepresentations said to comprise the impugned conduct.
Whether the conduct of SGS relied upon by Marine & Civil gave rise to the implied representations pleaded must be assessed objectively by reference to the conduct as a whole in light of the relevant surrounding circumstances.
In Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 (Butcher), Gleeson CJ, Hayne and Heydon JJ observed as follows at [37]:
The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone. So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.
Further, McHugh J in Butcher, observed at [109]:
The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s 52 has occurred, the task of the court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. (Footnote omitted.)
Marine & Civil contended that by providing the SGS survey report in the context of the pleaded retainer, and by the failure to disclose the matters referred to at [88] above, SGS made the implied representations pleaded. In support of its contention, Marine & Civil referred to the two last dot points of the email sent by Mr Sweet to Captain Bhalla on 20 April 2006 (set out at [26] above), and placed particular emphasis on the fact that the email had stated that insurance required an independent report before accepting cover for the coastal tow. Marine & Civil contended that the reference to insurance for a coastal tow implied that an opinion was sought in respect of a “dynamic” event, namely, the tow from Dampier to Koolan Island.
SGS denied that it made the implied representations pleaded by Marine & Civil. SGS relied particularly on the terms of the SGS report itself, and, also, as part of the surrounding circumstances, on the email exchange between Mr Sweet and Mr Tickner on 20 March 2006.
The effect of the implied representations alleged is that SGS made a representation as to the fitness of the barge as loaded, to undertake the proposed voyage, and in particular, as to the fitness of the sea fastenings to secure the boom of the crane during the proposed voyage of the barge from Dampier to Koolan Island.
In my view, Marine & Civil has failed to establish that SGS made the implied representations pleaded for the following reasons.
First, it is apparent from the terms of the SGS survey report itself that the author of the report does not purport to express an opinion upon the fitness of the loaded barge and the sea fastenings for the purpose of undertaking the tow from Dampier to Koolan Island. This is because the report contains the following qualifications.
The first qualification is that the SGS report specifically states that the surveyor attended onboard the barge to inspect the “Arrangement of Towing bridle and Seafastenings (design and certification by International Maritime Consultants)”. In the penultimate paragraph of the report, the writer refers to the report as expressing “our opinion of the Arrangement of Towing bridle and Seafastenings (design and certification by International Maritime Consultants)”. The reference in two separate places to the fact of the sea fastenings having been designed and certified by IMC is significant. This is because it is an indication that the surveyor was not taking responsibility for the suitability of the independent consultant’s design and certification of the sea fastenings for the conduct of the tow. Further, Marine & Civil did not provide Captain Sharma with any drawings of the sea fastenings.
The second qualification is that the SGS report states specifically that the sea fastenings were checked in “static condition” and, in that condition, the fastenings appeared to be satisfactory. The report emphasises this limitation on its opinion by stating expressly: “Please note that we were not provided with test certificates in respect of the lashing material”.
Further, Captain Hughes gave expert evidence to the effect that a reasonable person with experience in the maritime industry would not have relied upon the SGS report as the basis for being satisfied that the crane was appropriately secured for the transport from Dampier to Koolan Island. I accept that evidence.
However, in his evidence, Captain Hughes went on to say that this expression of opinion had no application to Marine & Civil, because Marine & Civil was not experienced in the maritime industry.
In his evidence, as a means of distancing Marine & Civil from the effect of the opinion expressed by Captain Hughes in [119] above, Mr Sweet sought to draw a distinction between being a participant in the maritime industry and the marine construction industry. Mr Sweet said that Marine & Civil was a company experienced in the marine construction industry. The cross-examination of Mr Sweet proceeded as follows:
So having read the paragraph that a reasonable person with experience in the maritime industry could not rely on the SGS report, as a basis for being satisfied that the crane was appropriately secured for transport from Dampier to Koolan Island, your response to that was, “Well, I don’t have experience in the maritime industry”?‑‑‑That’s correct.
Now, that certainly was never something suggested by you in any communications on behalf of Marine & Civil, that Marine & Civil didn’t have experience in the maritime industry?---The maritime industry is the tugs and ships and seafaring aspects. Marine & Civil have experience in marine construction, so I think Marine & Civil would be a company experienced in marine construction, as opposed to maritime.
Certainly, as part of marine construction you are involved in organising charters and tows and surveys and certificates?---That’s correct, yes.
In that respect in terms of receiving documents from those and reading documents from those in the maritime industry, that’s something which is commonplace for Marine & Civil?---That’s correct.
I do not accept that the distinction between the two industries sought to be drawn by Mr Sweet in his evidence as being a relevant distinction. In my view, the opinion expressed by Captain Douglas and adopted by Captain Hughes, addressed the question of how a reasonable client who has commissioned a marine surveyor to provide a report in respect of a proposed tow of a loaded barge, would have understood the report provided by SGS. This is because it is in this context that the report on which the experts expressed their opinions, was provided. In other words, the relevant participants are marine surveyors and their clients who are organising sea going voyages and tows, and require a survey report. Mr Sweet accepted in cross-examination that Marine & Civil was experienced in organising charters, tows and surveys, and it was commonplace for Marine & Civil to receive and read documents related to these activities.
I find, on that basis, that Marine & Civil was not inexperienced in dealing with marine surveyors in relation to the procuring of survey reports for proposed charters or tows. Further, Mr Sweet deposed during cross-examination, that he had dealt with and obtained survey warranties from at least two other marine surveyors. It follows that I do not accept Captain Hughes’ evidence that his opinion expressed in [119] above, did not apply to Marine & Civil because it was not experienced in the maritime industry.
However, as I have said, it is Marine & Civil’s case that SGS made the implied representations relied upon, by not mentioning in its report the risks of permitting the loaded barge to undertake the voyage to Koolan Island in the context of the relevant surrounding circumstances. I now consider this question.
As to the relevant surrounding circumstances, SGS relied particularly on the email from Mr Tickner to Mr Sweet of 20 March 2006, in response to Mr Sweet’s email headed “Warranty Survey for Koolan Island Project”. Mr Tickner’s email stated:
Warranty Surveys are only conducted by the Classification Society however we are able to provide you with a survey report. This is a report of our findings at time and place of intervention but I must stipulate is not a Certificate of Seaworthiness for towing.
As to the meaning of a “warranty survey”, Captain Hughes agreed with a statement, which had been made in an expert report by Captain Douglas, that a warranty survey was a survey of guaranteed quality that was frequently used by marine insurers. Captain Hughes also accepted in cross-examination, that a warranty survey would not refer to the state of the vessel in a “static” condition.
Marine & Civil contended that in assessing what Mr Sweet, on behalf of Marine & Civil, knew, or may be taken to have known, from his previous dealings with SGS, the inquiry should be confined to their communications in April 2006, and should leave out of account the email communication between Mr Sweet and SGS on 20 March 2006.
For the following reasons, this contention is not accepted.
First, it is apparent from the terms of Mr Sweet’s email of 20 April 2006 to SGS, that he was conscious of his dealings with Mr Tickner of SGS in the preceding month. Thus, in his email of 20 April 2006, Mr Sweet referred specifically to the fact that he had been provided with SGS’s terms and conditions. These terms and conditions were provided to Mr Sweet by Mr Tickner in his email of 20 March 2006.
Secondly, during cross-examination, Mr Sweet accepted that at the time of sending the email of 20 April 2006, he was conscious of the limitations on the nature of the report which SGS was prepared to provide, referred to by Mr Tickner in his email of 20 March 2006. During cross-examination, Mr Sweet said:
So what you understood from that email that they were equipped to provide was on hire off hire reports; correct?---Yes.
And a report of findings at the time and place of intervention?---I read it that they could provide a survey report but they wouldn’t be providing a warranty – warranty survey.
Yes, and they could provide a survey report which was a report of findings at the time and place of intervention?---Yes.
And would not be a certificate for seaworthiness for towing?---Yes.
Further, Mr Sweet was cross-examined about the language he used in his email to SGS on 20 April 2006 as follows:
Now, the fact that you didn’t refer to “warranty survey” or “certificate” in that email was quite deliberate, wasn’t it?---That’s correct.
Because you knew that all that you had been told by SGS in the email of 20 March 2006 was that they could provide “a report of our findings at the time and place of intervention, but I must stipulate it’s not a certificate of seaworthiness for towing”?---That’s correct. I knew SGS were not giving a warranty survey, that they were doing a survey before towing.
No. You knew that what they had told you they could do was “a report of our findings at time and place of intervention which would not be a certificate of seaworthiness for towing”?---Correct. I acknowledge that.
I find, therefore, that there was an influential relationship between the email correspondence of 20 March 2006 and the later email correspondence between SGS and Marine & Civil on 20 April 2006. I find that the earlier correspondence should be taken into account in assessing Mr Sweet’s knowledge in relation to the question of whether SGS made the implied representations alleged.
Next, counsel for Marine & Civil, in his closing submissions, drew attention to the fact that Mr Tickner’s email of 20 March 2006 had referred to a “Certificate of Seaworthiness” with a capitalised “C” and “S”. Counsel contended that this implied that the term was being used as a term of art. Counsel for Marine & Civil then went on to observe that there was no evidence as to what a “Certificate of Seaworthiness” meant as a term of art in the maritime industry and contended that no significance could, therefore, be attributed to use of that term in the email of 20 March 2006, as being notice that SGS would not be prepared to provide a report which pronounced upon the seaworthiness of the loaded barge to undertake the voyage to Koolan Island.
For the following reasons, I do not accept this submission from Marine & Civil.
First, in considering the meaning to be attributed to the words “but I must stipulate this is not a Certificate of Seaworthiness for towing” in Mr Tickner’s email, it is necessary to have regard to the juxtaposition of the words in the relevant sentence. In my view, the juxtaposition of the words, in the first part of the sentence, that the survey report would be a report as to the findings “at time and place of intervention” in relation to the words which followed, “but I must stipulate is not a Certificate of Seaworthiness for towing”, was intended to contrast the difference between two types of reports; and to emphasise that SGS would not report on the sea-worthiness of the loaded barge for the proposed tow. In my view, therefore, the words “Certificate of Seaworthiness for towing” did not have the unexplained meaning contended for by counsel for Marine & Civil.
Secondly, the point which was taken by counsel for Marine & Civil that the reference to the term “Certificate of Seaworthiness” was a reference to an unexplained term of art, was not reflected in the evidence of Mr Sweet. On a number of occasions during his cross‑examination, Mr Sweet acknowledged that he understood from Mr Tickner’s email that SGS would not be providing a certificate as to the seaworthiness of the barge for the purposes of the tow.
Thus at [T78], Mr Sweet gave the following evidence:
And the communications that you had back from the insurer, referred to “Please forward certificate” report/certificate?---Yes, that’s correct. I read that as the SGS report.
But you agree with me that obtaining a towage tow worthiness certificate from SGS, was something that as form 20 March 2006, you knew you couldn’t get from SGS?‑‑‑Correct, yes, not a warranty. As I said before, I thought that the certificate was part of the warranty survey.
Yes. The point is whether it’s a warranty survey or a separate certificate or whether the certificate is part of it, neither of those you knew you could get from SGS?‑‑‑That’s correct.
Further, at [T83], the following exchange occurred:
Well, it says “In that condition.” It does not say, “We checked within static condition and they appeared satisfactory for the tow,” did it?---It doesn’t say that, no, but - - -
And you knew from what you had been told before that they wouldn’t provide a certificate as to the satisfactory nature for the purposes of a tow?---That’s correct. They weren’t doing a towage certificate.
You were the only one, I want to suggest, that knew that that was the limitation that they had already indicated to you, because you were the only recipient of that email of 20 March 2006?---You have established that before, but as I said, I believe I discussed it with the insurer but I can’t explain it more than I already have.
I find, therefore, that from 20 March 2006, Mr Sweet, on behalf of Marine & Civil, knew from Mr Tickner’s email that any survey report which would be provided by SGS would be confined to expressing an opinion as to the surveyor’s “findings at time and place of intervention” and would not provide a report which certified suitability of the loaded barge and the sea fastenings to undertake the proposed tow from Dampier to Koolan Island.
However, as I have said, in support of its contention that SGS had made the implied representations, Marine & Civil placed considerable emphasis on the fact that Mr Sweet’s email of 20 April 2006, stated that insurance required an independent report before accepting cover for the coastal tow. The question is what each party knew, or is to be taken to have known, about each other, in relation to this matter. I do not accept Captain Hughes’ evidence on this matter because his opinion did not take account of the impact of Mr Tickner’s email.
From the perspective of SGS, SGS would, after 20 March 2006, have known, or at least must be taken to have known, that Mr Tickner had advised Mr Sweet that SGS would only be prepared to provide a survey report that reported on their findings at the time and place of intervention, and would not provide a report certifying the sea‑worthiness of the loaded barge for the tow. It follows that when Mr Sweet, nevertheless, retained SGS to provide the report, SGS would be taken to have regarded the retainer as being subject to the conditions previously stated by Mr Tickner. SGS would be taken, therefore, to have regarded Mr Sweet’s reference to the need for the report for insurance purposes, as being consistent with the previously stated limitations on the nature of the survey report which it was prepared to provide. SGS would be taken to have concluded that Mr Sweet had made the limitations known to Marine & Civil’s insurance brokers and the insurance brokers were content for a survey report of limited scope to be provided.
I interpose to observe that during cross-examination, Mr Sweet said that he thought that he had advised the insurance brokers as to the limitations on the nature of the survey report which SGS would be prepared to provide, which had been referred to in Mr Tickner’s email. However, Mr Sweet could not point to any such specific communication. I find that Mr Sweet did not advise the insurance brokers of the limitations identified by Mr Tickner in his email of 20 March 2006. I base this finding on the fact that it appears from the email of Mr Clarke of GAK of 27 April 2006, referred to at [37] above, that, even at that late stage – one day before the intended departure of the loaded barge – Mr Clarke was expecting that SGS would issue a towage and stowage certificate.
From the perspective of Mr Sweet, he was aware of the terms of the email from Mr Tickner and knew or must be taken to have known, that SGS was only be prepared to report on the state of the loaded barge at the time of its intervention, and was not prepared to provide a report which certified the suitability of the loaded barge to undertake the voyage from Dampier to Koolan Island.
In my view, Mr Sweet’s email of 20 April 2006, is not decisive in establishing that SGS made the implied representations pleaded.
Mr Sweet deposed in cross-examination, that, notwithstanding, Mr Tickner’s email, he believed that SGS would report on the suitability of the loaded barge and the sea fastenings to undertake the voyage to Koolan Island. To the extent that Mr Sweet may have believed, when he sent the email of 20 April 2006, that SGS would provide a report which opined upon the suitability of the loaded barge to undertake the proposed voyage, that belief was not objectively warranted, for the reasons referred to in the preceding paragraphs. Likewise, a belief or understanding that because, following the receipt of Mr Sweet’s email of 20 April 2006, SGS did not refer in its report to the matters pleaded in para 7 of the statement of claim, SGS, thereby, made the implied representations, was objectively not warranted by a person possessed of the knowledge which Mr Sweet then held or is to be taken to have held. This is because the absence of any express reference in the report to the suitability of the loaded barge to undertake the voyage to Koolan Island, was explicable on a basis other than that SGS had agreed to opine upon the sea-worthiness of the loaded barge and was of the opinion that the loaded barge was suitable for the undertaking of the voyage. The other explanation was that in issuing a report which did not address the sea-worthiness of the loaded barge, SGS was doing what it said it would do in Mr Tickner’s email of 20 March 2006. It is this explanation which is objectively warranted having regard to what each of the parties knew, or is to be taken to have known, about the other party.
It follows that the failure of SGS to refer to the matters in para 7 of the statement of claim is not to be taken as an element of conduct giving rise to the implied representations pleaded. It also follows that having regard to the qualified nature of the language used in the SGS survey report, the expert evidence as to the manner in which the SGS survey report would be understood by a reasonably experienced person in the maritime industry, and, having regard to what each of the parties knew, or is to be taken to have known about the other party, I find that, applying an objective test, SGS did not make the implied representations pleaded by Marine and Civil.
A wider case of misleading or deceptive conduct
During closing submissions, counsel for Marine & Civil contended that the statutory prohibition in respect of misleading or deceptive conduct, was not confined to cases where a party had made a representation which was misleading or deceptive, and that it was open to consider Marine & Civil’s claim on a wider basis than the one founded only on misrepresentation.
Whilst it is the case that the statutory prohibition in s 52 of the Trade Practices Act is not confined to cases of misrepresentation, the fact is that Marine & Civil pleaded that the impugned conduct was comprised of an express and two implied representations. In my view, the following observations by the High Court in Butcher at [32], have application in this case:
In this Court, the purchasers emphasised the proposition that the expression “conduct” in s 52 extends beyond “representations”. That proposition is sound. But the purchasers cannot claim any advantage out of an extension of “conduct” beyond “representation” in this case, since their case as pleaded was one based on representations to them by the agent. (Footnoted omitted.)
It follows that Marine & Civil’s claim that SGS engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act, is dismissed.
However, notwithstanding, that I have dismissed Marine & Civil’s claim, I will, so far as it is appropriate, state briefly the findings that I would have made on the other main matters that were the subject of contention.
Reliance
Marine & Civil pleaded that Mr Sweet relied on the contents of the SGS survey report and, consequently, did not instruct Mr Harris not to proceed with the tow and did not make any further inquiries regarding the adequacy of the sea fastenings for the proposed tow.
In his evidence-in-chief, Mr Sweet said that he read the SGS report and there was nothing in the report that caused him concern. He said that he did not read the report as being limited to the barge in a static condition and that there was nothing in the report that indicated a problem to be addressed before the tow commenced. Mr Sweet also deposed in his evidence-in-chief, that in reliance on the contents of the report, he did not instruct Mr Harris not to proceed with the tow.
I have already found that objectively the SGS survey report did not impliedly represent that there were no problems which needed to be addressed before the tow commenced.
I would, however, have found that Mr Sweet did not rely upon the contents of the report. By the time Mr Sweet received the email containing the SGS report on his home computer on the evening of 28 April 2006, insurance cover for the tow had already been received, subject only to the receipt of the SGS report. Further, Mr Sweet deposed in cross-examination, that the insurance brokers had some time earlier advised him that SGS was a suitable marine surveyor to provide the report. Further, the tow was intended to commence on the following day. I would have found that in those circumstances, Mr Sweet’s concern was only with the fact of obtaining of the report and that he did not rely upon the contents of the report, in relation to making a decision as to whether the voyage should proceed or not. There was no comment by Mr Sweet in his covering email to Mr Harris sending him the report, on the contents of the report, nor was there any instruction that Mr Harris should proceed with the voyage. All that Mr Sweet’s email does is to attach the report.
Marine & Civil, also, pleaded that Mr Harris relied on the contents of the SGS survey report in authorising the master of the MV “Stirling Skate” to proceed with the tow and in not instructing the master not to proceed with the tow.
Mr Harris in his evidence-in-chief, said that he had briefly considered the SGS survey report before advising the master of the MV “Stirling Skate” that the barge had passed survey.
I would also have found that Mr Harris did not rely on the contents of the SGS report. I would have found that Mr Harris relied only on the fact of receiving the SGS report and that he did not comprehend the contents of the report.
I would have based this finding on the answers that Mr Harris gave during cross‑examination.
During his cross-examination, Mr Harris said he only learned that IMC had been engaged by Marine & Civil to design the towing arrangements and sea fastenings, after the incident which caused the damage to the crane. However, Mr Harris later accepted during cross-examination, that the SGS report referred specifically to the design and certification of the sea fastenings by IMC. Also, during cross-examination, Mr Harris said that when he looked at the SGS survey report on the evening of 28 April 2006, he did not notice that the surveyor had said that he had not been provided with test certificates of the lashing material. Mr Harris accepted in cross-examination that he had not looked at the report in “that kind of detail”.
CONTRIBUTORY NEGLIGENCE
In further answer to Marine & Civil’s claim, SGS pleaded that Marine & Civil’s negligent conduct contributed to the loss and damage that it suffered. SGS pleaded that the “barge master”, an employee of Marine & Civil, on 29 April 2006, after he was informed that one of the wire ropes securing the boom had become loose, gave advice to carry on to Koolan Island and to go into Port Hedland if necessary. SGS pleaded that this advice was not provided with reasonable care and skill and was provided negligently, and that this negligent conduct was the cause of its loss and damage.
However, SGS led no evidence in support of this claim, nor did it make any submissions to advance the pleaded claim. Therefore, I would have dismissed this defence by SGS.
PROPORTIONATE LIABILITY
As a further alternative, SGS pleaded that if it was liable to Marine & Civil, IMC, Svitzer, and the master of the MV “Stirling Skate” were concurrent wrongdoers within the meaning of s 87CB of the Trade Practices Act; and sought relief under s 87CD reducing any amount for which it would otherwise be liable to Marine & Civil.
Section 87CB and s 87CC of the Trade Practices Act relevantly provide as follows:
87CBApplication of Part
(1)This Part applies to a claim (an “apportionable claim”) if the claim is a claim for damages made under section 82 for:
(a)economic loss; or
(b)damage to property;
caused by conduct that was done in a contravention of section 52.
(2)For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).
(3)In this Part, a “concurrent wrongdoer”, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
(4)For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).
(5)For the purposes of this Part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.
87CC Certain concurrent wrongdoers not to have benefit of apportionment
(1)Nothing in this Part operates to exclude the liability of a concurrent wrongdoer (an “excluded concurrent wrongdoer”) in proceedings involving an apportionable claim if:
(a)the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim; or
(b)the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is the subject of the claim.
(2)The liability of an excluded concurrent wrongdoer is to be determined in accordance with the legal rules (if any) that (apart from this Part) are relevant.
(3)The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the provisions of this Part.
It was not controversial that the claim made by Marine & Civil in this proceeding was an apportionable claim within the meaning of s 87CB of the Trade Practices Act.
The question of the proper construction of the term “concurrent wrongdoer” in s 87CB(3), was considered by Besanko J in the case of Shrimp v Landmark Operations Ltd (2007) 163 FCR 510. The question was whether a person could be a concurrent wrongdoer, solely on the basis that that person had, as a matter of fact, caused the claimant’s loss and damage. Besanko J answered that question in the negative. Besanko J at [62], observed as follows:
The definition of concurrent wrongdoer seems to be the critical subsection and, in my opinion, the word “caused” in s 87CB(3) should be read as meaning such as to give rise to a liability in the concurrent wrongdoer to the plaintiff or applicant.
There were two preliminary issues which were raised by Marine & Civil in relation to SGS’s reliance upon the proportionate liability provisions to reduce its liability to Marine & Civil.
The first preliminary issue was whether a concurrent wrongdoer for the purposes of s 87CB(3), is confined only to those wrongdoers whose liability arises under an apportionable claim.
The second preliminary issue, was whether, in light of the fact that Marine & Civil reached a settlement with each of IMC and Svitzer and a consent judgment was entered dismissing Marine & Civil’s claim against each of them, it was open to the Court to take into account any contribution to Marine & Civil’s loss or damage by IMC and Svitzer, in considering whether to make an order under s 87CD(1), in respect of SGS.
As to the first preliminary question, in my view, the scope of the term “concurrent wrongdoer” is not confined in the manner suggested by Marine & Civil. The language in the definition of “concurrent wrongdoer” refers to a person or persons “whose acts or omissions...caused…the damage or loss that is the subject of the claim”. The language is in the broadest of terms and does not import the limitation suggested by Marine & Civil.
As to the second preliminary issue, Marine & Civil contended that by reason of the consent judgment dismissing its claim against each of IMC and Svitzer, the Court was precluded from having regard to the conduct of each company, as a means of reducing the liability of SGS. Marine & Civil relied upon the decision of the High Court in James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53 (Seltsam) as authority for the proposition that if a claim had been dismissed by judgment against the defendant, the defendant the subject of the judgment, could not be liable on a contribution notice. Marine & Civil referred in particular to the passage at [16] in the joint judgment of Gaudron and Gummow JJ, where their Honours referred with approval to the following observations of Brennan J (as his Honour then was) in Oceanic Crest Shipping Company v Pilbara Harbour Services Proprietary Limited (1986) 160 CLR 626 at 670:
So long as the judgment holding Pilbara not liable stands on the record, the shipping company is unable to assert that Pilbara is a tortfeasor who “is or would if sued have been liable” to Hamersley…
In my view, the observations in Seltsam have no application to the position under Pt VIA of the Trade Practices Act. As Mr Quinlan, senior counsel for SGS observed, the decision in Seltsam, was founded on the specific wording of the statute in question. That wording is not to be found in Pt VIA of the Trade Practices Act.
Further, in my view, the fact that Marine & Civil has entered into a settlement agreement with each of IMC and Svitzer, also, does not preclude the Court from having regard to the acts or omissions in assessing the extent of the defendant’s responsibility for the loss or damage (Gunston v Lawley (2008) 20 VR 33; McAskell v Cavendish Properties Limited [2008] VSC 328 at [23]–[25]).
In relation to the claims made by SGS that Svitzer and the master of the MV “Stirling Skate” were also concurrent wrongdoers, SGS accepted at the trial that each of Svitzer and the master of the MV “Stirling Skate” was protected by the terms of an exclusion clause, known as a “Himalaya” clause, in relation to SGS’s claims that Svitzer and the master would be liable to Marine & Civil on the basis that each had breached a duty of care to Marine & Civil. SGS did not, therefore, advance a contention that each of Svitzer and the master was a concurrent wrongdoer on the basis of a breach of a duty of care to Marine & Civil.
I now deal, in brief, with each of the remaining pleaded claims made by SGS in respect of the contribution to the loss or damage suffered by Marine & Civil.
The claim that IMC was a concurrent wrongdoer
SGS pleaded that IMC acted in breach of its duty of care to Marine & Civil. SGS pleaded that IMC entered into a contract with Marine & Civil whereby IMC undertook to design sea fastenings which would be suitable to secure the transport of the crane from Dampier to Koolan Island. SGS went on to plead that it was an implied term of the contract that IMC would exercise reasonable care and skill in providing those services.
SGS, also, submitted that IMC was a concurrent wrongdoer that should bear the “lion’s share” of responsibility of any proportionate liability.
Marine & Civil contended that the scope of the retainer with IMC did not include IMC advising in relation to the securing of the boom.
I would have found that there was in January 2006, a contract entered into between Mr van der Meer, on behalf of Marine & Civil, and Mr Williams, on behalf of IMC. I, also, would have found that the contract included within its scope an undertaking to design sea fastenings both for the securing of the crane including securing the crane’s boom in its extended position.
I would have found that the contract between IMC and Marine & Civil was concluded by conversations which occurred between Mr van der Meer and Mr Williams referred to at [8] above. Mr van der Meer’s evidence was that he had discussions with Mr Williams whereby Mr van der Meer asked if IMC would undertake the design of the sea fastenings for the onboard equipment and the crane, and prepare a towing plan and undertake barge stability analysis. Mr Williams responded by saying, “We can meet your requirements.”
I would, also, have found that there was an implied term of the contract that the services which IMC rendered under the contract, would be rendered with reasonable care and skill.
In support of a contention that IMC did not breach the implied term of the contract, Marine & Civil contended that its officers did not keep IMC fully informed about its discussions with Tutt Bryant about the means of securing the boom to the deck. In particular, Marine & Civil referred to the fact that Mr van der Meer had not relayed the contents of his telephone conversation with Mr Russell Parker of Tutt Bryant which occurred around 10 April 2006, to IMC (see [19] above). Further, Marine & Civil drew attention to the fact that the tie-down methodology statement which was sent by Mr Quinlan to IMC, did not contain any photographs of the sea fastenings for the boom of the crane.
I would have found that IMC breached the implied term of the contract referred to in [180] above, by the failure of Mr Williams to inquire further as to the means whereby the boom was secured, after he received the tie-down methodology statement from Mr Quinlan on 20 April 2010.
It is, indeed, the case that the tie-down methodology statement did not contain any photographs of the means whereby the boom was secured to the barge. However, Mr Williams did not ask for photographs of the means whereby the boom had been fastened to the deck of the barge. Nor did Mr Williams comment adversely upon the methodology for the fastening of the boom to the barge which was described by Mr Quinlan in the tie-down methodology statement.
Mr Williams’ response to the tie-down methodology statement was to ask Mr Seclier for some adjustments to be made to the securing of the hydraulic power pack for the hammer. After Mr Williams had received the tie-down methodology statement from Mr Quinlan, Mr Williams said to Mr Seclier during the course of a telephone conversation:
I’ve seen the method statement sent to me by Patrick Quinlan. Everything looks OK. The crane looks OK. The tie downs look OK. However, I would like some extra fastenings or lugs on the hydraulic power pack for the hammer.
I would, therefore, have found that Mr Williams on behalf of IMC, approved the tie‑down methodology in relation to the securing of the boom, described in the tie-down methodology statement sent by Mr Quinlan.
I would also have found that in approving the tie-down methodology described in the statement, Mr Williams on behalf of IMC, acted negligently in that he approved the tie-down methodology for the boom, without taking reasonable steps to ensure that the tie-down methodology described by Mr Quinlan, was suitable for the purposes of undertaking the voyage from Dampier to Koolan Island. More specifically, Mr Williams failed to ask for photographs of the sea fastenings used and, thereby, deprived himself of the opportunity of assessing whether the methodology used for the boom was suitable. Also, Mr Williams took no steps to inquire of the crane manufacturer whether the methodology described by Mr Quinlan, was a suitable means of securing the boom.
In my view, nothing turns on the fact that Mr van der Meer did not pass on the information from Tutt Bryant to IMC. IMC was aware that Tutt Bryant was a source of advice as to the means of securing the boom. This is evidenced from Mr Augustine’s dealings with Mr van der Meer in early March 2006, described at [11]-[13] above.
However, notwithstanding this knowledge, Mr Williams made no attempt to inquire of Tutt Bryant about the suitability of the sea fastenings for the boom described in the tie‑down methodology statement sent to him.
I would, therefore, have found that IMC was a concurrent wrongdoer for the purposes of s 87CD of the Trade Practices Act.
SGS’s claim that Svitzer was a concurrent wrongdoer
SGS pleaded that Svitzer engaged in misleading or deceptive conduct in trade or commerce in contravention of s 52 of the Trade Practices Act. SGS alleged that Svitzer failed to inform Marine & Civil that the crane with its boom fully assembled and extended, could not, in the prevailing conditions, be towed from Dampier to Koolan Island without a significant risk of damage.
SGS submitted in final submissions, that Svitzer had engaged in misleading or deceptive conduct by requesting a copy of the survey report, and then not saying anything in response to the contents of the report, or identifying the potential defects prior to setting out on the voyage.
Had it been necessary to adjudicate on this claim, I would have found that Marine & Civil did not ask Svitzer for advice in relation to the suitability of the sea fastenings for the undertaking of the voyage nor to comment upon the SGS report, and that Marine & Civil, therefore, did not have a reasonable expectation that Svitzer would disclose any deficiencies in the sea fastenings in respect of the loaded barge. I would, therefore, have found that Svitzer did not contravene s 52 of the Trade Practices Act; and was, accordingly, not a concurrent wrongdoer for the purposes of s 87CD of the Trade Practices Act.
OBJECTIONS TO EVIDENCE
The parties made the following objections to evidence. They said they were content that the objections should be ruled on in the judgment.
SGS objected to paras 6, 8 and 9 of the affidavit of Mr Alan David Sweet dated 4 May 2009, on the grounds that each paragraph comprised uncommunicated expectation and statements of belief.
In relation to para 6, the objection is upheld.
In relation to para 8, the objection is upheld in respect of the third and the fourth sentences on the grounds that they comprise a statement of subjective belief.
In relation to para 9, the objection is dismissed on the grounds that the statement is relevant to the question of causation.
Marine & Civil also objected to the entire contents of the affidavits of Mr Patrick Quinlan dated 4 May 2009, Mr Steve Seclier dated 1 May 2009, and Mr Julian van der Meer dated 12 May 2009, on the basis that all of the affidavits were irrelevant because neither IMC nor Svitzer was a concurrent wrongdoer because judgment had been entered in favour of each of them. The objection is dismissed because the objection depends upon a point of law which I would have decided against Marine & Civil, had it been necessary to do so.
Marine & Civil also objected to the first sentence of para 3 of the affidavit of Ms Hilary Shanks of 5 August 2010, on the grounds of hearsay. The objection is upheld.
As I have mentioned, the application is dismissed.
I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 24 August 2012
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