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2010 MarsdenLR 1005
HIGH COURT KUALA LUMPUR
SARAWAK SHELL BERHAD – Appellant
Versus
THE OWNERS OR OTHER PERSONS INTERESTED IN THE SHIP OR VESSEL THE RED GOLD .... – Respondent
[Admiralty Action In Rem No: D2-27-28-2005 Consolidated With Admiralty In Personam No: 02-27-24-2005]
Owners of a vessel have a duty of care to ensure proper maintenance and functioning of navigational equipment, and failure to do so resulting in an accident constitutes negligence.
Headnote:(A) Merchant Shipping Ordinance 1952 - Negligence in navigation and management of vessel - Collision between supply vessel 'Red Gold' and an offshore platform owned by Sarawak Shell Berhad leading to significant damages claimed. The vessel's malfunctioning bow thruster attributed to defective electrical components, specifically a dislodged power card resulting in loss of control. (Paras 1-3, 23-25, 120-122, 136-138)
(B) Duty of Care - Owners of the vessel owe a duty to ensure proper functioning of navigational equipment, including the bow thruster. Owners failed to conduct regular maintenance checks, leading to the collision. (Paras 112-116, 140-142)
(C) Burden of Proof - Plaintiff's duty to establish negligence and the cause of action through direct evidence, while countering the defense of inevitable accident. The nature of the repairs and the system of checking and maintenance were deemed insufficient to prevent the incident. (Paras 150-152, 166-168)
Facts of the case:
On 4th February 2002, 'Red Gold', after a recent dry docking and repairs, collided with the D35 Offshore Complex platform due to a malfunctioning bow thruster caused by a dislodged power card. The incident led to a damage claim of RM 1.5 million for repairs, with Sarawak Shell asserting negligence on the part of the vessel's Owners and seeking damages under the Merchant Shipping Ordinance. (Paras 1-5, 80)
Findings of Court:
The Owners were negligent in maintaining the vessel as the bow thruster's electrical component was left unchecked. Sarawak Shell's damages were substantiated by proper documentation and approval processes, justifying the claim amount. The defense claiming the collision was an inevitable accident was unproven. (Paras 172-174, 179)
Issues: The main issues included whether negligence by the vessel's Owners caused the collision, the applicability of the inevitable accident defense, and the validity of Shell's damage claims against the Owners. (Paras 99-107, 127-129)
Ratio Decidendi: The court emphasized that the Owners must maintain their vessel's equipment in a functioning state and that failure to do so, especially with regards to the crucial bow thruster mechanism, constituted negligence. The principle of res ipsa loquitur was relevant here, establishing a presumption of negligence. (Paras 142-145)
Result: Claims by Sarawak Shell for RM 1.5 million damages were upheld, and the Owners of the Red Gold were found liable for the collision. Additionally, Petrokapal was entitled to USD 186,990.26 for hire due, while claims of wrongful interference against Shell were dismissed. (Paras 204-205, 215-216, 223)
Once Sarawak Shell has identified an offshore oil well, several platforms, namely a drilling platform, a production platform and a living quarter platform for the crew's accommodation are built. These platforms are all linked by bridges. It is this entire set of platforms which comprise an exploration and production platform complex.In the instant case, the platform complex in question is known as the D35 Offshore Complex. It comprises four platforms which are located at 47 metres water depth and arranged in an 'L' shaped complex. The only platform in this complex involved in the collision with the Red Gold is Platform D-35 PG-A, which is located at the mid length of the north-south or vertical line of the 'L' shape. The other platforms, namely the Riser Platform at the northern end of the 'L' shape, the Drilling Platform at the southern tip of the 'L' shape and the Accommodation platform at the eastern tip or right side of the 'L' shape were not involved. The platforms are spaced approximately 200 feet apart and are interconnected with bridges.
To facilitate its exploration and production function, Sarawak Shell required supplies to be delivered to the platforms. Such supplies included the provision of fuel, provision for workers, spare parts, equipment etc. It received such supplies from vessels which would proceed to the platforms and unload the supplies there. Sarawak Shell chartered vessels to provide these supplies. One of the vessels so chartered, after a stringent tender exercise, was the vessel 'Red Gold' ('Red Gold') which was chartered for a term of seven and a half months from 15 July 2001. This is called a spot charter or a short term charter as compared to long term contracts which can last from three to ten years.
Red Gold is a supply vessel used to load and carry supplies to various locations. For the purposes of Shell's operations, Red Gold was required to transport supplies to the exploration and production platform complex. It is owned by South Sumatra Richfield Marine Pte. Ltd. ('the Owners') as evidenced from the extract from the Certificate of Registry. It is managed and operated by Pacific Richfield Marine (S) Pte. Ltd. ('PRM'). For the period in question it was on charter to Petrokapal Sdn. Bhd. who had entered into the aforesaid sport charter with Sarawak Shell
Red Gold was under charter to Shell under three consecutive charterparties beginning on 13 November 2000 vide contracts entered into between Shell and Petrokapal. The third and latest charterparty was for a period of seven and a half months, commencing from 15 July 2001 to February 2002. Petrokapal had, in turn, back to back charterparties for the hire of the vessel from the Owners through Pacific Richfield marine (S) Pte. Ltd. ('PRM') as Managers of the Red Gold.
On 17 January 2002 Red Gold was sent off hire for repairs to the main engine shaft and bow thruster unit which was to be undertaken at Sabah Shipyard in Labuan. The bow thruster unit was overhauled and repaired by specialists in this field, namely Rolls-Royce. The repairs to the vessel were completed on 2 February 2002 and the vessel then resumed the charter at 11.00 a.m. on the same day. It carried out a supply run to a number of offshore installations and a number of other locations. Red Gold then attended at the West Pelaut Platform and departed from there bound for the D-35 Platform Complex at 9.10 a.m. on the morning of 4 February 2002. It arri
