#6594 - Maesrk Colombo - Commercial Remedies BCL

Maesrk Colombo

Facts

On the evening of Feb. 18, 1995 the defendants' container vessel Maersk Colombo, entered the port of Southampton with a view to making fast alongside the claimants' container terminal. Shortly after about 00 10 on Feb. 19, as she was manuvering alongside with the assistance of tugs, Maersk Colombo struck No. 1 crane of the berth causing it to fall over and collapse.

Before the trial the defendants admitted that Maersk Colombo was handled negligently. It followed that the defendants were liable in respect of the damage to No. 1 crane, subject to an allegation of contributory negligence.

Issue

Whether the claimants were entitled to recover damages based on the cost of reinstatement of No. 1 crane or based on its resale value.

Holding

Findings of fact by the trial judge

(1) But for the demolition of the crane by Maersk Colombo, the claimants would have continued to use the cranes as they were on the night of the collision.

(2) The crane was not, however, replaced because in June, 1994 the claimants had signed a contract for the delivery of two post-Panamax cranes for delivery in May/June, 1995. Those cranes were delivered in the summer of 1995.

(4) The memorandum made it clear that the managing director, Mr. Dawes, regarded it as practicable to operate the berth satisfactorily with one less Panamax following the installation of the two new cranes, even if such an arrangement would not be particularly welcome to the operations' director.

(6) One less crane may have caused some inconvenience, but it was not suggested that any material expense, such as overtime, was incurred or any other consequential losses were sustained. Accordingly, there was no loss of flexibility measurable in financial terms, nor was there any loss in capacity given the imminent arrival of the two new cranes.

(7) It would have been unreasonable to replace the crane because the expenditure would have been out of all proportion to the benefit obtained

Finding on reasonableness

We reach the conclusion that the cost, time scale and disruption involved in bringing in a second hand crane (even if one could be found) onto the site was not in the business interest of the member, would in any event not be an efficient mitigation of the loss.

Reasonableness

The essence of his conclusions was that, put at its highest, the effect of the loss of the crane might have caused some inconvenience to the claimants but that neither that inconvenience, nor any loss of flexibility, caused any identifiable loss in money terms. The terminal operated satisfactorily in the period before the arrival of the two larger cranes and there was no loss of capacity either before or after their arrival.

Moreover, this was not a case in which the decision to buy the two new post-Panamax cranes was affected by the collision because they had already been ordered and they arrived during the summer of 1995. Thus, this is not a case in which the claimants bought a new or larger crane because of the defendants' tort. If the position with and without the destruction of the crane is compared, it may be summarized in this way. If the crane had not been destroyed, the claimants would have continued to operate it until there came a time at which they would have sold it.

The claimants at no stage intended to replace the No. 1 crane by buying a second-hand crane in America, then modifying it and transporting it to Southampton at an extra cost of about 1.7 m. over the resale value of the crane in Southampton. This is...