TCSV v. SMT (m.v "Somerset")
DMC Category Rating: Confirmed
This case note has been contributed by Patrick V. Martin, a retired New York attorney and active arbitrator, who specializes in charter party and commodity disputes.
Movement of the coal from the terminal to the ship’s holds was done as follows. The coal was loaded to the barges at the dock. There were no load lines or draft makings on the barges and the amount of coal loaded to each barge was estimated by the number of trucks used to load any particular barge. The loaded barge was then moved by TCSV’s pusher tug, the "Bahia Honda", to the "Somerset’s" side and tied up by the ship’s crew. Once this was done, the tug would depart on other duties. This included moving barges from the ship to the terminal, the terminal to the ship, repositioning barges at the ship’s side and related tasks. When not working, the tug would "stand by" awaiting orders. The barges had no crew on board. The "Somerset’s" cranes and buckets were then used to unload the barge. A representative of CDG was on board to observe the cargo operations and relay orders from the ship to the tug and barges. Because the cranes could not reach all the way to the outboard side of the barge, each barge had to be turned. This was done using the "Bahia Honda", together with the ship’s crew as necessary. While alongside, the barge’s lines were tended by the ship’s crew. The crew had no responsibility to inspect the barges and no crew member went on board any barge as part of their duties.
On February 25, 2001, the TCSV-2 was loaded for her fourth trip
to the "Somerset". She arrived at the vessel at 1640 and made fast to
her starboard side. At the time, there were two other barges at the vessel, the
TCSV-3 and TCSV-4, also engaged in cargo operations. The tug spent the time
shifting the barges about the vessel as ordered by the shipper’s onboard
representative. At about 2130, the second mate of the "Somerset"
noticed that the TCSV-2 was down by the stern and taking in water. The tug was
notified and attempted to tow the barge from the vessel’s side. While
attempting to do this, the barge sank.
The barge was eventually raised and inspected. There were no
hull or deck openings that would explain the sinking. There was some wastage
around the coamings. There was no clear reason for her sinking. Each side blamed
Since these issues presented mixed questions of law and fact, the outcome depended on how the Panel viewed the evidence. Despite the number of hearings, no one from the crew testified. Instead, SMT relied on crew statements some of which were not signed. Each side presented surveyors and other expert testimony as to how the barge might have sunk. None of the evidence was conclusive.
The majority found that there was no bailment because the evidence established that both TCSV and the shipper had representatives present, who observed and had some control over the barges, how they should be placed alongside the vessel and the order of their offloading. Therefore, there was no handing over of exclusive control of the barge to the "Somerset" for the off loading operation. Of equal importance was the panel’s finding that the various wasted areas and minor holes in the deck coamings of the TCSV-2 made her unfit for the service. These conditions allowed sea water, which was coming on deck, to enter into the cargo hopper and from there some of the water flowed into the below deck compartments through wasted areas. These conditions eventually led to the TCSV-2’s overloading (combination of the amount of coal and water on board) and resultant sinking. Therefore the fault was with TCSV and not SMT. The panel therefore denied TCSV’s claim and awarded SMT US$617,258 in attorney’s fees and disbursements, plus interest and arbitrator’s fees.
There was a dissent by Mr. Arnold. He did not take issue with the legal points. He took a practical rather than a legal approach to the evidence. Based on his view of the same evidence introduced in the hearings, he came to a different factual conclusion. Since the barge had made three prior trips without incident, it was obviously fit for the service. He discounted the crew statements and relied on the testimony of TCSV’s marine superintendent. If the condition of the barge was as bad as set forth in the unsigned statements, then SMT personnel had a duty to make a formal protest or reject the barge. He determined that as a practical matter the entire offloading operation was in the effective control of the "Somerset". Since SMT did not produce any of the crew to testify about the events, which it could have done, it was proper to draw adverse inferences against SMT. He concluded that TCSV had made out a prima facie case which SMT had failed to rebut. Therefore, TCSV was entitled to an award in its favor.
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