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[2010] ZAWCHC 123
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OJ Fishing (Pty) Ltd v Brink Diesel Cape (10092/2005) [2010] ZAWCHC 123 (10 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
In
the matter between:
Case
No: 10092/2005
OJ FISHING (PTY)
LTD
PLAINTIFF
Versus
BRINK
DIESEL CAPE
*
RESPONDENT
JUDGMENT DELIVERED ON 10
JUNE 2008
MOTALA
J
[1]
At around midnight on 14-15 October 2004, while a fishing vessel
belonging to plaintiff, the MFV Oosterdam
("the
vessel")
was
steaming towards Cape Point, a fire broke out in its engine room.
Shortly thereafter, and before the fire was extinguished,
the engine
of the vessel seized. The vessel was towed back to Cape Town.
Subsequently, the damage caused by the fire was repaired
and the
engine was replaced, the cost of which is claimed by plaintiff in
this action.
[2]
During April to June 2004, pursuant to an agreement between the
parties, defendant had effected a partial overhaul of the
engine.
Plaintiff
avers that, in breach of the agreement, the overhaul was not carried
out in a proper and workmanlike manner and with the
requisite care
and skill in that, during the re-assembly of the engine, defendant
failed to tighten one of the two bottom-end bearing
bolts of the
number 2 connecting rod of the engine to its correct torque. An
alternative averment - that the bolt was overtightened
or
overstressed - was abandoned during the trial.
Plaintiff
avers further that as a result of defendant's failure to tighten the
one bolt sufficiently:-
(i)
the bolt loosened during the operation of the engine and, as the bolt
slackened, the other bottom-end bearing bolt on the number
2
connecting rod was overstressed cyclically, eventually bent and
failed, causing the seizure of the engine.
(ii)
The engine vibrated excessively which caused the insulation of
certain electrical cables to be damaged resulting in an electrical
short-circuit which caused the fire in the engine room.
[3]
Defendant denies that it breached the agreement. Alternatively, it
pleads, (in paragraph 17 of its amended plea) that-
“
(a)
If the bottom end bearing bolt was undertorqued orovertorqued or
stressed causing it to loosen this would have manifested shortly
after repairs were completed by variations in the oil pressure and/or
overheating and/or hammering and chattering sounds and/or
excessive
vibration;
(b)
Plaintiff failed to take timeous, adequate or any steps to
investigate the cause of the variation in oil pressure and/or
overheating
and/or hammering and chattering sounds and/or excessive
vibrations which occurred over an extended period of time prior to
the
alleged seizure and/or catastrophic failure of the engine;
(c)
Plaintiff failed to effect repairs to the engine timeously,
adequately or at all and, in particular, failed to effect repairs
whilst the vessel was in port;
(d)
Plaintiff continued to operate the engine up to the moment of the
alleged seizure and/or catastrophic failure of the engine;
(e)
Plaintiff failed to stop operating the engine prior to the alleged
seizure and/or catastrophic failure of the engine."
[4]
Evidence on behalf of plaintiff was given by the vessel's skipper, Mr
Jaoa Horacio Fernandes
r
the second engineer, Mr Dawid Aubrey De Wet and two experts, Mr Paul
Coxon and Dr Janet Basson.
[5]
Mr Fernandes testified that he was asleep in the wheelhouse of the
vessel. He was awakened around midnight by his mate, whose
name he
could not recall, who reported to him that a fire had broken out in
the engine room. He slowed down the engine and went
down to the
engine room. The lights had failed. While the other crew members were
busy extinguishing the fire with fire extinguishers,
not water hoses,
he returned to the wheelhouse, slowed down the engine completely and
put it into neutrah He then heard a bang.
He went down to the engine
room again and discovered that the engine had failed.
Mr
Fernandes testified further that he checked the oil pressure each
time he started the engine. At no time on that trip or on earlier
trips did the oil pressure gauge or the temperature gauge indicate
any problems. The vibration of the engine was normal.
Mr
Fernandes testified that the engine failed less than 5 minutes after
he had been awakened. He was'not sure whether he told Mr
Coxon that
20 minutes had elapsed.
[6]
Mr De Wet testified that he is normally on duty in the engine room
between 11h00pm and 06h00am. His duties included checking
the
temperature and oil gauges. He also assisted the first engineer to
change the engine oil and the gear box oil and to replace
the oil
filters every 250 hours. He said that the engine of the vessel as on
ail such vessels is extremely noisy, so much so that
it was
impossible to have a conversation in the engine room.
He
said that the oil pressure and temperature gauges on that day as on
all their earlier trips did not indicate any problems. The
vibration
of the engine was normal. He confirmed that on 4 October 2004, a
crack had developed in the exhaust system of the engine.
It was duly
repaired by defendant.
Mr
De Wet testified that on assuming duty at about 11h00 pm that night,
he checked the gauges as was his routine. They did not indicate
any
abnormality. He heard no abnormal noises. Theengine was running
normally.
He
then left the engine room for a while. He returned to the engine room
at about 11h50 pm in order to pump out water from the hold,
a normal
task He left the engine room again in order to have a drink of water.
He was about 2 metres away from the engine room
when he saw the fire
in the engine room.
He
raised the alarm and he and other members of the crew began to
extinguish the fire using dry powder and C02 fire extinguishers.
They
did not use the water hoses. Before the fire was completely
extinguished, he heard a loud bang and saw that the engine had
failed. He estimated that between 5 and 15 minutes elapsed between
the start of the fire and the failure of the engine. He confirmed
that he had estimated a lapse of 20 minutes in a report he had made
to Mr Coxon.
[7]
Mr Coxon, an experienced marine engineer and marine surveyor, acting
on behalf of the insurer of the vessel, inspected the vessel
on 15
October, 2004 at the Cape Town docks. He took 130 photographs, which
were handed in as Exhibit B. Mr Coxon found that the
number 2
connecting rod had come out of the side of the engine block and was
lying on the deck plates, as depicted on photograph
B1. He found the
nut on the starboard side and the bottom end bearing cap in the sump
pan of the engine. The port bolt had snapped.
In
his opinion, the failure of the engine was caused by the progressive
loosening of the starboard bolt over a period of time as
a result of
which the bottom end cap lost its clamping effect and started opening
and closing on the starboard side causing the
port side bolt, which
was still tight, to bend backwards and forwards and eventually
fracture. Mr Coxon testified that the holes
in the bottom end cap
were ovalled or elongated and the surface of the cap was damaged
which proved that there had been movement
between the mating surfaces
and that the cap had rocked backwards and forwards repeatedly.
"Mr
Coxon said that during the final phase of the engine failure
hammering noises and chattering noises
(caused
by the movement of the mating surfaces of the cap)
would
have become evident. Although he had difficulty in accepting that the
crew heard no abnormal noise or excessive vibration,
he indicated
that he could not say that the crew would have become aware of
anything untowards until the final seizure of the engine
which would
have taken a few minutes only.
Mr
Coxon found no evidence of significant fuel dilution or lubrication
failure. He did not agree with suggestions that over-rewing
of the
engine or the ingress of water could have caused the seizure of the
engine. He also disputed that a sudden external event
could have
caused the seizure. In his view, such an event would have caused
damage to both the port and the starboard bofts, and
especially to
their threads, but the mating surfaces of the big-end cap would not
have been damaged.
Mr
Coxon testified that the fire in the engine room was caused by a
short circuit which was due to insulation of certain electric
cables
being damaged by the chafing of the cables against an overhead beam.
The chafing in turn was caused by the vibration of
the engine over a
period of time, and would have been particularly severe during the
final failure of the engine.
Mr
Coxon was of the opinion, based on his expertise and on his
examination of the relevant parts of the engine, that the basic cause
of the fire and the engine failure was that the starboard bolt was
not sufficiently tightened when the engine was overhauled some
months
earlier by defendants.
[8]
Dr Janet Basson is a highly qualified and experienced metallurgist.
Her consulting company specialises, inter alia, in determining
the
cause of engine failures.
Dr
Basson examined the bottom-end cap and the two bofts. She found that
the two faces of the cap showed considerable evidence
of chattering
which she said proved that the two faces had been impacting against
each other for a considerable period of time.
She said that could
occur onty if one or both bolts were loose. If only one bolt was
loose, the other bolt would be subjected
to a cyclic load or a
fatigue failure
(as
is caused by repeatedly bending a piece ofsteei backwards and
forwards)
culminating
eventually in a ductile failure i.e. failure caused by a massive
impact
She
also found that the two holes in the cap had ovalled and the one on
the starboard side was almost torn through and showed
an imprint of
the bolt thread. She stated that because of the nature of the steel,
such ovalling could not be caused by one impact
but would have
occurred progressively over a number of cycles of the engine.
Dr
Basson found also that the last few threads of the starboard bolt
had stripped.
Dr
Basson found that the fractured port bolt had suffered a fatigue
failure followed by a ductile failure i.e. the bolt had been
bent
back and forth for a considerable time until the failure of the
engine when it sustained a massive impact.
The
chattering marks on the face of the big-end cap, the ovalling of the
bolt holes, her finding that the port bolt had sustained
fatigue
failure before the ultimate ductile failure and the fact that nut on
the starboard bolt was found in the engine persuaded
Dr Basson that
the cause of the engine failure was a failure to tighten the
starboard bolt nut sufficiently. She stated that
the engine would
have continued working for a considerable time, perhaps in excess of
100 hours after the nut began to loosen.
[9]
Defendant called two diesel mechanics, Mr Gerrit Visser and Mr
Graham Aldis and two experts, Mr Peter Brinkley and Mr John
Press.
[10]
Mr Visser is a diese! mechanic with 40 years experience. He
testified that he effected the partial overhaul of the engine
with
the assistance of two apprentices. He said that he did the required
work in accordance with the manufacturer's specification.
More
particularly he tightened the bottom end bolts, a four stage
procedure, to the required torque.
[11]
Mr Aldis is aiso a qualified and experienced diesel mechanic. He
testified that if the plaintiff's experts are correct and
the
starboard bolt had progressively loosened the resulting chattering
motion would have been very noisy. In his opinion, the
engine should
have been stopped immediately and would have required comparatively
minor repairs.
[12]
Mr Brinkley is an experienced marine engineer and marine surveyor.
He examined some of the engine's components and was furnished
with
copies of the reports of plaintiffs experts and the photographs
taken by Mr Coxon.
His
initial opinion was that the engine failed because it had been
over-revved or because of water ingress. However, as a result
of
acquiring further information and further research, he conceded that
neither hypothesis was correct. Nevertheless he disagreed
with
plaintiffs experts, in his opinion; if the starboard bolt had not
been sufficiently tightened, it would have unwound completely
in
about two hours, and not after 1400 hours, being the number of hours
the engine had operated since the overhaul. Furthermore,
in his
opinion, hammering and chattering noises would have been heard by
the crew before the engine failed.
In
his report, Mr Brinkley stated also that the oil pressure gauge and
the temperature gauge would have alerted the crew if the
bolt was
loosening. However, during his testimony, he was unable to say when
the oil pressure gauge would have done so and conceded
that the
temperature gauge did not play a significant role.
[13]
Mr Press is a highly qualified and experienced mechanical engineer
whose area of expertise includes the analysis of engine
failures. He
examined the connecting rod, the two bolts and the big-end cap. Mr
Press found no chattering marks on the big-end
cap.
It
is common cause that the starboard bolt had become elongated and
eventually necked i.e. its diameter had decreased. It was
also
flattened. In Mr Press's opinion/the elongation of the bolt is a
vital clue as to why the engine failed and was not consistent
with
the explanation of plaintiff's experts. He testified that the
elongation of the bolt was due to an external event - a load
which
caused the nut to loosen and the engine to fail.
Mr
Press identified four possible such external events. He pointed out,
however, that two of them would occur after the elongation
of the
bolt. The remaining two are:-
(a)
a seizure or partial seizure of the number 2 piston; and
(b)
a seizure of the liners of the bottom-end bearing, which he
referred to as wedging.
During
cross-examination by Adv McClarty SC who appeared for plaintiff, Mr
Press conceded that there had been no seizure of the
piston.
As
submitted correctly by Adv Wragge SC who appeared with Adv White for
defendant, defendant is under no obligation to prove the
cause of
the engine failure. For that reason, 1 do not find it necessary to
set out Mr Press's reasons for his opinion that wedging
may have
caused the engine failure, or to consider the challenges thereto by
Adv McClarty. Suffice it to say that the opinion
is merely a theory,
a hypothesis unsupported by any evidence. Indeed, all indications
are to the contrary. Mr Coxon was present
when the engine was
dismantled. He would surely have noticed immediately if wedging of
the bearing liners had occurred. Mr Press
conceded that Mr Coxon was
in the best position to do so. Furthermore, Mr Brinkley also did not
agree with the wedging theory.
[14]
Mr Press's evidence as to the elongation and necking of the
starboard bolt is of crucial importance. He disputed the evidence
of
Dr Basson as to how that elongation was caused.
Dr
Basson testified that the elongation was caused when the crankshaft
pin struck the lobe in which the bolt was housed - what
she called a
rolling-pin effect.
Mr
Press said that explanation could not be correct, as a measurement
of the lobe showed that it had lengthened by about 2 to
5mm, whereas
the bolt had lengthened by 20 to 24 mm. He could not understand how
the bolt could have lengthened without a similar
lengthening of the
lobe, and used the analogy of attempting to elongate a sausage
inside a hotdog without elongating the bread
roll.
I
think the analogy is inappropriate as Dr Basson's explanation is
that the lobe and the bolt were struck, not that they were
pulled.
Furthermore, the measurement relied on by Mr Press cannot be
accepted as accurate. He admitted that it was very difficult
to
measure the elongation of the lobe. Dr Basson testified that the
bolt could not be elongated by more than 17mm before it breaks.
[15]
That debate and the many other debates between the parties' experts
such as whether or not, on Mr Press's hypothesis, the
engine would
have stopped or other bolts would also have been affected obscure
the central question before me and that is whether
the failure of
the engine was the result of a long process commencing after the
overhaul of the engine or was the result of a
sudden external event
which occurred immediately before the failure of the engine.
In
my view, the former explanation is the correct one. That conclusion
is based on the evidence of Dr Basson. As stated above,
she
testified that because of the nature of the material used, the
ovalling of the bolt holes cannot be caused by a single impact
but
would occur over a number of cycles of the engine. That conclusion
is reinforced by the fact that only the last few threads
of the
starboard bolt had stripped. The upper threads were undamaged, a
clear indication that the nut had unwound freely.
[16]
Adv Wragge SC submitted that there are four factors which indicate
that plaintiffs experts are incorrect.
First,
it is an essential component of their opinion that prior to the
failure of the engine the vibration of the engine would
have
increased and hammering sounds would have been audible. Both Mr
Fernandes and Mr De Wet stated that they noticed no such
abnormality.
The
undisputed evidence as to the cause of the fire - that the
insulation of the electric cables wore away as a result of vibration
-must, in my view, mean that the engine must have vibrated
excessively.
In
addition, Mr De Wet testified that the engine was always so noisy
that it was impossible to have a conversation nearby. As
the
vibration must have increased gradually it is understandable that it
was not noticed. The hammering sounds must have occurred
during the
final phase of the engine failure. At the time, Mr De Wet's
attention was focused on extinguishing the fire. I do
not think that
the evidence of Mr Fernandes arid Mr De Wet is sufficient to cause
doubt as to the validity if plaintiff's experts
expfanation of the
engine failure.
Secondly,
Adv Wragge drew attention to the evidence of Mr Press that there
were no chattering marks on the face of the big-end
cap contrary to
the evidence of Dr Basson.
I
am unable to understand how two highly qualified experts could give
such conflicting evidence.
In
the circumstances I can only regard this aspect of the evidence as a
neutral factor.
Thirdly,
Adv Wragge pointed out that according to Mr Press the port bolt
fractured as a result of a ductile failure and that Dr
Basson
eventually agreed with that evidence, although she had originally
ascribed the fracture to fatigue failure. However, Dr
Basson
emphasised that there was evidence of fatigue failure before the
final ductile failure.
In
my view, the evidence of Mr Press on that aspect does not raise
significant doubt as to plaintiffs case.
Lastly,
Adv Wragge referred to the evidence of Mr Press that the surface of
the big-end cap was covered with an unbroken layer
of pyrolised or
burnt oil which he would have expected to be chipped if the
starboard nut had repeatedly struck it. In my view,
Dr Basson's
evidence that there was burnishing of the surface renders Mr Press's
evidence unacceptable.
[17]
I may be incorrect in not accepting Mr Press's criticism of
plaintiffs case and in not upholding Mr Wragge's submissions.
However, even if those criticisms and submissions are correct, the
question that arises in whether, taken together, they are
of
sufficient weight to justify a finding that plaintiff has not
discharged the onus resting on it.
In
my view, the cumulative effect of the factors relied upon by
defendant is outweighed by two basic factors - the unchallenged
evidence of Dr Basson that the ovalling of the bolt holes occurred
over a long period and that the starboard bolt unwound freely.
Those
two factors are, in my view, decisive. The other factors relied on
by plaintiff's experts - the chattering marks, the damage
to the
face of the big-end cap, the burnishing of the rear of the cap and
evidence that the port bolt showed signs of fatigue
failure - seem
to me to be subordinate factors relied on by plaintiffs experts to
support their theory.
In
my view, plaintiff has discharged the onus of proving that the cause
of the engine failure was a failure by defendant to tighten
the
starboard bolt sufficiently.
[18]
PLAINTIFF'S
DAMAGES
Plaintiff
claims R114 348.79 excluding VATbeingthe agreed cost of repairs to
the damage caused by the fire.
Mr
Brinkley testified that the fire would inevitably have occurred as
the electric cables had not been correctly installed. They
should
have been secured in a cable tray with no sharp edges.
However,
there is no evidence before me as to when that
"inevitable"
fire
would have occurred.
Mr
Coxon's evidence on the cause of the fire is set out in paragraph
2(ii) above.
In
my view, the increased vibration was the proximate or effective
cause of the fire.
[19]
Plaintiff claims R730 611.67 being the agreed cost for the
replacement of the engine which could not be repaired.
Defendant
avers that plaintiff has not taken reasonable steps to mitigate its
damages. In that regard defendant relies on Exhibit
A84, a letter
from Columbine Marine Engineering dated 18the August 2007 which
states that a used engine block was available in
December 2004. The
admissibility of such hearsay evidence and the weight to be given
thereto is in terms of section 6(3) and
(4) of the Admiralty
Jurisdiction Regulation Act, 105 of 1993
("AJRA'%
within
the discretion of the Court.
In
my view, the letter should be admitted in evidence.
Mr
Coxon, whose primary function was to ensure that the damaged engine
was dealt with as economically as possible testified that
neither
the engine's agents nor firms to whom the agents referred him were
able to furnish a used engine block.
In
the absence of direct evidence that the availability of the used
engine block was known in the industry, or ought to have been
known,
I cannot find that Mr Coxon's efforts to find such a block fall
short of what is required of a reasonable man. It is accordingly,
unnecessary to determine whether or not a used engine block was
available in December 2004.
Accordingly,
i am of the view that defendant has failed to discharge the onus of
proving that plaintiff has failed to mitigate
its damages.
[20]
Plaintiff also claims payment of the fees of Mr Hiles and of Mr
Coxon. Mr Hiles is a loss adjustor acting on behalf of the
insurer
of the vessel. I cannot see on what basis defendant can be held
liable for his fees.
Part
of Mr Coxon's fees fall in the same category. The remainder appear
to me to be part of his qualifying expenses. It is more
appropriate
for the Taxing Master to determine what part, if any, of those fees
should be allowed on taxation.
[21]
PLAINTIFF'S
CLAIM FOR INTEREST
Section
5(2)(f) of AJRA provides that a court, in the exercise of its
admiralty jurisdiction, may
"make
such order as to interest, the rate of interest in respect of any
sum awarded by it and the date from which interest
is to accrue,
whether before or after the commencement of the action, as to it
appears just;"
The
section confers a wide and unfettered discretion on the Court.
See
Mt
Argun v Master and Crew of the MT Argun and others
2004(1)
SA 1 (SCA) at p12 G-H.
No
evidence has been placed before me as to the basis on which I should
exercise my discretion. Accordingly, I think the rate
of interest
prescribed in terms of the
Prescribed Rate of Interest Act, 55 of
1975
, which at present is 15.5% per annum should apply.
In
my view, it is just that the interest be calculated from the date of
service of the summons.
[22]
Costs
of Suit
At
the commencement of the hearing, plaintiff opposed an application by
defendant for an amendment to its plea. I granted the
amendment.
Plaintiff is not entitled to the costs of its opposition.
[23]
Defendant is ordered to pay plaintiff
(a)
The sum of R844 960.46 excluding
VAT\
(b)
Interest on the said sum at the rate of 15.5% per annum calculated
from the date of the service of the summons to date of
payment;
(c)
Costs of suit, including the qualifying expenses of Mr Paul Coxon
and Dr Janet Basson, but excluding the costs occasioned
by
plaintiff's opposition to defendant's application for an amendment
to its plea.
JUDGE
A. M. MOTALA