Under a complex arrangement typical in the murky and convoluted world of modern shipping, the Sanko Harvest was:
bareboat chartered (i.e. crew not included) to a company called Grandslam Enterprise Corporation,
managed on behalf of Grandslam by Eastern Shipping Company Limited of Japan,
crewed by Eastern through a crewing agent, Hanjoo Maritime Company of Korea,
thence time-chartered to Sanko Steamship Company Limited,
who in turn issued a voyage charter to the owner of the phosphate cargo, Sumitomo Australia Limited.
Following the incident, court proceedings were commenced by both Grandslam and Sanko seeking to limit their liability. In response Sumitomo brought a cross-claim against Grandslam and Sanko for the value of the lost cargo, which was agreed at $8 900 000.
The case was heard by the Admiralty Division of the Federal Court of Australia. On 29 November 1995 the judgement was handed down by Justice Sheppard. In doing so Justice Sheppard made a number of what one might describe as colourful statements about the incident, which could potentially apply equally to shipping through the Great Barrier Reef.
A summary of Justice Sheppard's findings provides a sobering reminder of the potential for similar incidents in Reef waters. The need for Reef management agencies to continually review and upgrade shipping management measures, and the need for the research community to continue to seek to develop new and improved incident prevention and response capabilities, are highlighted by this tragic case.
Without going into the convoluted details of the specifics of the case under maritime law, the central issues regarding who was liable were whether Sumitomo could prove that the ship was unseaworthy or not properly crewed or equipped, and whether Sanko and Grandslam could then establish that any such unseaworthiness was not caused by want of due diligence on their part.
Justice Sheppard held that the ship was unseaworthy because it was sailing on uncorrected charts. The ship did not have the current edition of the local Pilot, which contained warnings that 'the Archipelago of the Recherche is inadequately surveyed, vessels without local knowledge should not traverse the area, and passage should not be attempted at night.'!
Justice Sheppard also found that the charts used for laying off a course to Esperance had large unsounded areas. The Second Officer on the Sanko Harvest' gave evidence that he thought that the absence of soundings indicated deep water. The course that he had laid took the vessel straight through the 'o' of the second 'not' in the instruction 'Portions not sounded should NOT be traversed.'!
The charts had 'Dangerous to Navigation' markings and stickers in the area of the Archipelago of the Recherche.
Justice Sheppard described the conduct of the Master and the Second Officer as 'grossly negligent' and said that it was 'necessary to emphasise the heinousness of the shocking piece of navigation which led the vessel to the rock on which it eventually foundered'. Justice Sheppard referred to a 'frontal assault' on the Archipelago, and said that the course chosen was `perilous enough in the daytime. At night it was folly bordering on madness!'.
A safe, clearly marked channel was available, albeit involving an additional 60 nautical miles sailing.
Justice Sheppard found that no effective system was in place on board the vessel for correcting charts. A British Admiralty Notice to Mariners was on board the vessel at the time of the incident. This required corrections to the three charts relating to the approach to Esperance, including insertion of the symbol for underwater rocks exactly in the position where the vessel grounded!
Justice Sheppard also found that the vessel was unseaworthy because it was crewed by incompetent officers:
The Captain was on his first voyage as a Master and his first voyage on the Sanko Harvest. Two years previously he had been reported as 'somehow having a bit of rashness, needs guidance to cultivate serious and calm judgement ability'.
The Chief Officer was also on his first cruise on the Sanko Harvest and had a history of 'low grade to average rating'.
The Second Officer had spent the previous three years shorebound running a private business.
The Third Officer was on his first voyage after completing conscript service in the Korean Navy.
Justice Sheppard noted that in 1985 Sanko and its Japanese subsidiaries encountered financial difficulty. He said that 'it would appear that ... after 1985 ... steps must have been taken to cut expenditure and return the group to more profitable trading. This is probably the root cause of the problems which existed ... the findings I have made demonstrate the shoddiness and slackness pervading the whole organisation'.
In the result, Sumitomo succeeded in defeating the application by Sanko and Grandslam to limit their liability, and recovered the whole of its agreed $8 900 000 together with interest. The spilt oil however, has long since done its damage on Western Australia's coast. This damage included 200 oiled fur seals, 13 of which died, many dead oiled birds being recovered and over 100 kilometres of coastline, much of it pristine National Park, becoming oiled.
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Case details courtesy of Peter Murrell of Murrell Stephenson, Solicitors and Attorneys. (Steve Raaymakers is currently Environment and Communication Manager with the Ports Corporation of Queensland. The views expressed through his continued authorship of 'Slick Talk' are not necessarily those of the Ports Corporation nor GBRMPA.) |
Great Barrier Reef Marine Park Authority
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E-mail: registry@gbrmpa.gov.au