Kamal XXVI, The Owners of v Ariela, The Owners of

In a collision claim, the claimant bears the burden of proving, on the balance of probabilities, that the loss was caused by the defendant’s wrongdoing. A court may attach little weight to untested witness statements, particularly where disclosure is inadequate and the evidence is unsupported or contradicted by contemporaneous records. Pre-existing wear, corrosion and poor maintenance make proof of fresh collision damage especially important. The eggshell principle may impose liability for the full extent of damage caused to a vulnerable vessel, but it does not remove the need to prove that fresh damage was caused by the collision. Claims unsupported by reliable evidence of causation fail.

The defendants’ vessel Ariela collided with the claimants’ hopper barge, which then collided with the dredger Kamal XXVI at Mormugao Port, Goa. Liability had previously been determined in favour of the claimants by David Steel J in [2007] EWHC 243 (Comm).

At the quantum hearing, most of the original claim was abandoned. The remaining issues concerned three items of alleged damage to the dredger and damage to the barge. The central questions were whether the surviving damage was caused by the collision and, if so, what loss was recoverable.

1. Disposition. All claims were dismissed except the claim for US$6,245 in respect of item 1(c).
2. The claimants bore the burden of proving causation on the balance of probabilities. The court assessed the technical evidence against the physical evidence, contemporaneous records, the vessel’s condition and the absence of maintenance documentation.
3. Mr Kewalramani’s statements were largely untested because he was not called for cross-examination. In the circumstances, and given the inconsistencies and lack of corroboration, little reliance could be placed on them. The court also gave limited weight to expert opinions which supported propositions later abandoned or which lacked an adequate evidential foundation.
4. Item 1(a), an indentation in the dredger’s port inner hull, was not proved to have resulted from the collision. The force involved was no greater than that capable of arising in ordinary dredging operations, and the location of the damage was inconsistent with impact from the ladder.
5. Item 1(c), a hole in the dredger’s starboard inner hull, was proved on the balance of probabilities to have been caused when, after the collision, the ladder was manually overridden and raised. A bucket displaced by a jack-knifed chain caught the hull and caused the damage.
6. Item 1(d) was not caused by the collision. The evidence established that it was more probably the pre-existing hole caused by an anchor chain encountered before the collision.
7. The barge claim failed. The claimants did not prove that fresh damage was caused to the port aft quarter by the collision, or that the repair costs claimed were attributable to it. The court recognised the eggshell principle, but that principle applied only after collision-caused damage had been established.