Tidewater Marine v. GOPEOC
DMC Category Rating: Confirmed
Prior to the casualty, the barge had been bareboat
chartered to GOPEOC under a Barecon 89 standard form of charter for an initial
period of sixty days, with an extension option of a further thirty days.
Delivery took place at Guiria on or about 23 March 2001. GOPEOC deployed the
barge in support of its services in off-shore oil & gas exploration in the
Gulf of Paria in Venezuela. It permitted its subcontractor, Schlumberger
Venezuela S.A., to put certain special purpose oil production analysis and test
equipment on board the barge. On delivery, a joint survey was conducted, which
found the barge’s tanks “dry and clean”.
At the beginning of June 2001, GOPEOC
informed Tidewater of its intention to close its exploratory well and to
terminate the charter. About 8 June, GOPEOC returned the barge to Tidewater in
Guiria, the place designated for redelivery. As its tanks still contained 70
barrels of unpumpable heavy crude oil and the charter required the ship to be
redelivered “in the same or as good… state, condition… as on delivery, the
parties agreed that GOPEOC would arrange for cleaning contractors – WINS
Service Company – to attend the vessel at Tidewater’s Maracaibo facility
later in the month to remove the crude oil and gas free the tanks. Tidewater had
recommended WINS and approved their hiring, specifically noting that WINS had
cleaned the tanks of the “Pelican” on several prior occasions.
Concurrently with the cleaning operations, the Schlumberger equipment that
remained on board was to be removed. The barge duly left Guiria in the tow of
another Tidewater vessel, the tug “Gulf Pacer”, on
8 June 2001, and reached Maracaibo on 14 June. The cleaning operation began
later that day and the explosion occurred shortly afterwards.
In support of its claim, Tidewater maintained that firstly,
that the charterparty was still in force at the time of the explosion and that,
accordingly, the charterers were in breach of their contractual duty to
redeliver the vessel in the same good condition as on delivery. Secondly and
alternatively, if the Tribunal found that the barge had already been delivered
by the time of the casualty, then Tidewater maintained it was entitled to
recover in tort on the basis that WINS’ cleaning operation had been negligent,
for which GOPEOC was vicariously responsible.
As for the counterclaim, GOPEOC maintained that Tidewater was responsible for the loss of the Schlumberger equipment as it was the party with full control of the “Pelican” at the time of the accident. Tidewater had, GOPEOC argued, an affirmative duty to prevent WINS from boarding the barge without proper supervision and without the proper equipment – specifically non-explosion-proof tools and blowers.
As for the claim in tort, the panel held that Tidewater had
failed to carry the burden of proving that the explosion was caused by the
negligence of the cleaning contractors, WINS. There was no definitive evidence
on causation, the panel found. Nor was it a case where Tidewater could take
advantage of the “res ipsa loquitur” principle, that the “matter speaks
for itself”. That principle depended on a number of factors, one of which, -
that the event must
be caused by an agency or instrumentality that was in the party’s
exclusive control – did not exist in this case. In no sense did WINS have
“exclusive control” of the “Pelican” as it lay moored in
The finding that Tidewater failed in its burden of
establishing the cause of the explosion effectively disposed of the argument
that GOPEOC has a vicarious liability for that negligence. But the panel dealt
with this issue in passing, agreeing with the GOPEOC contention that the
relationship of principal-agent does not apply to the work of an independent
contractor – which WINS was acknowledged to be. The panel accepted that a
party can be liable for the negligence of an independent contractor where the
contractual duty (of GOPEOC in this case) is non-delegable. But that was not the
position here. Tidewater was fully aware that GOPEOC had no tank cleaning
experience or capability and intended to engage a tank cleaning contractor. In
fact, GOPEOC had asked Tidewater to recommend suitable contractors to it.
Moreover, Tidewater conceded in oral argument before the panel that the tank
cleaning operation was a delegable, and not a non-delegable, operation.
Given that, as the panel said, the cause of the explosion remained “speculative, at best”, there was no basis on which Tidewater could be held responsible for the loss of the Schlumberger equipment on board the barge. If the explosion was not proven to be caused by the negligence of WINS, there was no finding of negligence on the part of Tidewater in allowing WINS access to the barge without, as GOPEOC alleged, the proper supervision and without the proper equipment.
As a result, the panel held that both the claim and the counter-claim failed, but it did award GOPEOC a substantial sum in costs, given that it had been successful in defeating the Tidewater claim.
Back to Top
These Case Notes have been prepared with care, but neither the Editor nor the International and other Contributors can guarantee that they are free from error, nor that they contain every pertinent point. Reliance should not therefore be placed upon them without independent verification. The Editor and the International and other Contributors disclaim all liability for any loss of whatsoever nature and howsoever arising as a result of others acting or refraining from acting in reliance on the contents of this website and the information to which it gives access. The Editor claims copyright in the content of the website.