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582
PART 9
The DC Merwestone
VERSLOOT DREDGING BV
v
HDI-GERLING INDUSTRIE
VERSICHERUNG AG
(THE DC MERWESTONE)
[2013] EWHC 1666 (Comm)
Before Mr Justice POPPLEWELL
Insurance (marine) Time policy Institute
Time Clauses Hulls 1983 Institute
Additional Perils Clauses Perils of the seas
Inchmaree clause Negligence of crew
and repairers Due diligence Whether
vessel unseaworthy Measure of indemnity
Fraudulent claim Fraudulent means
and devices Marine Insurance Act 1906,
sections 39(5), 55 and 69.
This was a claim by the assured owners of the
vessel DC Merwestone against the defendant hull
and machinery underwriters for damage to the
vessel, in the sum of 3,241,310.60.
The defendants were the hull and machinery
insurers of the vessel DC Merwestone under a
time policy, issued to the claimant owners, for 12
months at 1 April 2009. The policy included the
Institute Time Clauses Hulls 1/10/83 (ITC) and
the Institute Additional Perils Clauses (IAPC).
Clause 6.1 of the ITC provided that:
6.1 This insurance covers loss of or
damage to the subject-matter insured caused
by:
6.1.1 perils of the seas . . .
Clause 6.2 of the ITC (the Inchmaree clause)
provided that:
6.2 This insurance covers loss of or
damage to the subject-matter insured caused
by: . . .
6.2.3 negligence of Masters Officers
Crew or Pilots. . .
provided such loss or damage has not resulted
from want of due diligence by the Assured,
Owners or Managers.
The IAPC provided that:
1. In consideration of an additional
premium this insurance is extended to cover . . .
1.2 loss or damage to the Vessel
caused by any accident or by negligence,
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The DC Merwestone
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The DC Merwestone
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The DC Merwestone
588
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The DC Merwestone
JUDGMENT
Mr Justice POPPLEWELL:
Introduction
1. This is a marine insurance claim for a
partial loss. The claimants (the owners) are the
owners of a gearless general cargo ship named
DC Merwestone (the vessel). The defendants
(the underwriters) are the hull and machinery
underwriters of the vessel under a time policy for
12 months at 1 April 2009. On 28 January 2010
the vessel was off the coast of Poland, shortly
after commencing a laden voyage from Klaipeda,
Lithuania, to Bilbao, Spain, when she suffered an
ingress of water which flooded the engine room,
and incapacitated the vessel. The vessels main
engine was damaged beyond repair. The claim by
the owners under the policy is for the resultant loss
in the sum of 3,241,310.60.
2. The underwriters advance three alternative
defences to the claim. They deny that the loss was
caused by an insured peril. They contend that the
loss was caused by the unseaworthiness of the
vessel to which the assured was privy, with the result
that no liability attaches by virtue of section 39(5)
of the Marine Insurance Act 1906. They contend
that the claim is forfeit because the presentation of
the claim was supported by fraudulent statements.
In addition, they challenge one element of the
quantum of the claim.
589
[POPPLEWELL J
The vessel
3. The vessel is a Dutch-registered gearless
cargo vessel of 2,973 grt, 1,852 nrt and 5,010 dwt.
She was built in 1974. In 2001 major renovation
work was carried out in Romania and then in the
Netherlands (under the supervision of Lloyds
Register and the Dutch Shipping Inspectorate).
A new bow and midship section were attached
to the old aft part of the vessel; the only original
section which remained was aft of the engine room
bulkhead at frame 24. She is 90.74 m long, 15 m in
beam and has one hold divided into three by two
non-watertight (moveable) bulkheads. Outboard of
the cargo hold are five fuel and ballast wing tanks.
There are five port and starboard double-bottom
ballast tanks, which are divided longitudinally by
a duct keel tunnel.
4. The duct keel, which played a critical part
in the casualty, is 62.48 m long, 1.8 m wide and
1.2 m high. It runs most of the length of the vessel,
from the bowthruster room in the foreship to the
engine room at the aft of the vessel. It has what
ought to be watertight bulkhead separation from
the bowthruster room at frame 112 forward, and
from the engine room at frame 24 aft. It runs along
the centre line beneath the hold, separating the five
pairs of port and starboard double-bottom ballast
tanks. Within the duct keel are remotely operated
ballast valves, ballast pipes and electrical cables.
The tunnel can be entered at three points. At the
bowthruster room, which is situated beneath the
chain locker at keel level in the bow, there is access
through a vertical manhole located beneath the floor
plates. The manhole is sealed by a cover which has
screw bolts to maintain the watertight integrity of
the bulkhead. A similar manhole is located at the
aft end of the tunnel beneath the engine room floor
plates. This engine room manhole was rarely used
because of its inaccessibility. There is a further
manhole access in the hold.
5. Once entered, the tunnel can be accessed
along its full length, although it is an uncomfortably
small space: those of a larger build would find it
difficult to enter the tunnel and manoeuvre within
it, and those of a smaller build who could enter it
would have to travel along it by lying on their back
and shifting in that position.
The casualty
6. On 21 January 2010 the vessel arrived at
Klaipeda, Lithuania, to discharge a cargo of soya
meal and thereafter to load a cargo of scrap steel. She
had her usual complement of six crew, comprising
the master (Captain Loosman), a Chief Officer, a
Second Officer, an Engineer, and two ABs. Captain
Loosen was the regular master of the vessel, who
had rejoined her at Rotterdam shortly before the
590
POPPLEWELL J]
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591
[POPPLEWELL J
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POPPLEWELL J]
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[POPPLEWELL J
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POPPLEWELL J]
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[POPPLEWELL J
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POPPLEWELL J]
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[POPPLEWELL J
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POPPLEWELL J]
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599
[POPPLEWELL J
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POPPLEWELL J]
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601
[POPPLEWELL J
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POPPLEWELL J]
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603
[POPPLEWELL J
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POPPLEWELL J]
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605
[POPPLEWELL J
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POPPLEWELL J]
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[POPPLEWELL J
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POPPLEWELL J]
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[POPPLEWELL J
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POPPLEWELL J]
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611
[POPPLEWELL J
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POPPLEWELL J]
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613
[POPPLEWELL J
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POPPLEWELL J]
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[POPPLEWELL J
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POPPLEWELL J]
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POPPLEWELL J]
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POPPLEWELL J]
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[POPPLEWELL J
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POPPLEWELL J]
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627
[POPPLEWELL J
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POPPLEWELL J]
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