Krysia Maritime v Intership Ltd

On a renewed application for permission to appeal, permission may be granted where the proposed grounds are properly arguable and could affect the result. This remains so where one ground is principally factual and proportionality concerns arise from the amount in dispute or the likely length of the appeal. A specific negligence finding may be arguable where the allegation was not put to the relevant witness and was said to be inconsistent with that witness’s evidence, particularly if proper cross-examination might have explored whether different conduct could have avoided the loss.

Krysia Maritime appealed from findings made by Mr Justice Aikens in the High Court’s Queen’s Bench Division, Administrative Court. The defendants were held 70 per cent liable after the propeller of the vessel Krysia became fouled by a rope during cargo operations at Rotterdam. The remaining responsibility was attributed to the vessel’s master for insufficient attention or a delayed reaction while manoeuvring.

Lord Justice Longmore had initially refused permission on a procedural ground but granted permission on a second, largely factual ground. The renewed application concerned whether the procedural ground was arguable and whether the factual challenge should proceed.

Application granted. Lord Justice Longmore delivered the judgment, with Lord Justice Hooper agreeing.

1. Permission was granted on the procedural ground. Although negligence had been raised generally and the trial judge had addressed the issue after hearing closing submissions, it was arguable that the specific allegation ultimately relied on had not been put to Captain Diouf.
2. It was also arguable that the allegation was inconsistent with Captain Diouf’s evidence. If the allegation had been properly put, cross-examination might have examined what he could have done during the alleged period of inattention and whether that would have made a material difference.
3. Permission had already been granted on the second aspect, which concerned whether the trial judge was entitled to find that the master had been negligent or guilty of poor seamanship. That issue was described as largely factual.
4. The court considered whether pursuing the appeal would be proportionate. Krysia Maritime had succeeded on 70 per cent of the damages, leaving approximately 30 per cent in dispute, and the appeal might require a day and a half. Those concerns did not outweigh the conclusion that the proposed grounds were respectable and arguable.

The order was that the application be granted. The court did not determine the merits of the appeal or alter the underlying apportionment of liability.

• Court of Appeal (Civil Division): Granted the renewed application for permission to appeal.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Mr Justice Aikens found the defendants 70 per cent liable and attributed the remaining responsibility to the master’s negligence or poor seamanship. The citation of that decision was not stated in the judgment.