The Owners of the Ship or Vessel “Tintomara” (Imo 9234599) of the Port of Monrovia, Liberia v. The Owners of the Ship or Vessel “Phuong Dong Star” (Imo Number 9404572) of the Port of Saigon, Vietnam

HCAJ 34/2020

[2021] HKCFI 3849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 34 OF 2020

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Admiralty action in rem against the ship or vessel:

“PHUONG DONG STAR” (IMO number 9404572) of the port of Saigon, Vietnam

BETWEEN

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JUDGMENT

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1.This is the assessment of the Plaintiffs’ damages arising out of a collision between their vessel Tintomara and the Defendants’ vessel Phuong Dong Star at the Port of Belawan, Indonesia on 21 December 2019 (“Collision”), the parties having settled the issue of liability. By an order dated 15 July 2020, Mr. Justice Anthony Chan referred the Plaintiffs’ claim to the Registrar, assisted, if necessary, by an assessor, for assessment. The claim in reference eventually came before me for assessment on my own.

2.The Plaintiffs’ claim as particularized in their Claim in Reference filed herein was subsequently narrowed down by way of a List of Not Disputed Claims jointly filed by the parties on 9 November 2021 pursuant to Order 75, rule 41(6)(a) of the Rules of the High Court, which reveals the fact that out of the 13 items of claim, the parties have settled items (3) Victualing costs at Belawan and Varna; (4) Class DNV fees; and (6) Superintendent travelling costs (air ticket). The Defendants further accept that Claim (13) Agency fees at 1% of the total of Claims (1) to (12) allowed is also recoverable. At the beginning of the hearing, Mr. Luxton, Counsel for the Defendants confirmed the Defendants’ agreement with Claim (1) Disbursement in and out of Varna. This assessment therefore concerns only the remaining items of claim.

Background

3.Tintomara, a vessel of 26,914 tons gross, was at the material time in berthing position at the Port of Belawan having completed loading of 17,000 MT of palm oil cargo and awaiting for sailing to the next port of Dumai, when it was struck on the aft side by Phuong Dong Star, thereby sustaining damage. Tintomara was at the time under a time charter to Team Tankers Deep Sea Ltd (“Team Tankers”).

4.As agreed between the Plaintiffs and Team Tankers, Tintomara was placed off-hire between 21 and 23 December 2019 when temporary repairs and surveys were carried out at Belawan, Indonesia immediately after the Collision. For the present purpose, it is noted that Team Tankers did not claim this period as off-hire from the Plaintiffs who have therefore excluded this short period from its claim for off-hire against the Defendants herein.

5.Meanwhile, Tintomara’s Classification Society DNV GL had imposed a Condition of Class (“CoC”) for repair of the vessel to be completed by 22 March 2020, failing which the Class of the vessel would be suspended.

6.As the Plaintiffs’ unchallenged evidence shows, Tintomara had a rather packed itinerary from 6 January 2020 to 5 February 2020 and discharged all cargo at the last stop at Odessa, Ukraine only on 11 February 2020 before it could be made available for full repair of the damage occasioned by the Collision. Indisputably, between the discharge at Odessa and Tintomara’s scheduled voyage from Tuapse to Constantza (as Team Tankers advised the Plaintiffs on 18 February 2020) or the due date under the CoC (22 March 2020), whichever was earlier, was the only window of time at which full repair could be effected with the least interruption to the vessel’s trade.

7.On 1 January 2020, Mr. Naveen Kumar (“NK”) of the Plaintiffs sought a quotation from a shipyard in Tuzia, Turkey. He also asked a shipping agent in Hong Kong Sygnus Marine (HK) Ltd (“Sygnus”) to obtain quotations from ship repair yards in Varna, Bulgaria. On the same date, Sygnus replied that they would obtain a quotation from Odessos Shiprepair Yard (“Odessos”). NK was advised by Sygnus that they did not obtain quotation from Bulyard and MTG Dolphin, the other two ship repair yards in Varna as Odessos had a reputation of providing repair services of a high quality and of being efficient and punctual. Pausing here, the Defendants in argument highlighted the fact that Sygnus was a Hong Kong rather than Bulgarian agent but stopped short of substantiating any suggestion that a Bulgarian agent would necessarily be better placed than a local agent here in obtaining quotations from shipyards whether in Varna specifically or in Bulgaria generally.

8.On 8 January 2020, NK received from Sygnus Odessos’ quotation together with Odessos’ General Terms and Conditions. As it turned out, Odessos had in place certain “standard tariff rates” at the time but NK did not receive the same either from Odessos or Sygnus. Odessos quoted EUR145,830 which was way above charges based on their “standard tariff rates” but was substantially lower than the estimation of repair costs at US$291,839 provided by Tintomara’s P&I surveyor, Citra Surveyor Indonesia (“CSI’s estimation”) via its preliminary report dated 21 December 2019 apparently prepared during the temporary repair as aforesaid.

9.On 27 January 2020, NK confirmed the booking with Odessos. Odessos was preferred to the Tuzia shipyard as the Plaintiffs intended to repair the vessel immediately after her last discharge operation at Odessa and Odessos was considerably closer to Odessa than Tuzia. Furthermore, Tintomara’s next load port was Tuapse, Russia which was in turn closer to Odessos than Tuzia. The Defendants take no issue with the Plaintiffs’ decision to have the necessary repair effected in Varna, Bulgaria.

10.Between 11 and 13 February 2020, the Plaintiffs arranged its own crew to clean the cargo tanks of Tintomara before the vessel was allowed to enter Odessos’ repair yard. Beginning on 14 February 2020, Tintomara underwent repair at the Odessos’ repair yard which went on for a week or so.

11.On 18 February 2020, NK asked Odessos for a discount but the latter flatly rejected the request, saying “you are welcome to dock some of your vessels and then we can agree on more attractive prices”. This indicates a lack of commercial leverage on the Plaintiffs’ part to extract a discount or better rates from this shipyard.

The Plaintiffs’ claim

Claim (2) Repair costs

12.The Plaintiffs claim a sum of EUR145,830. The main objections of the Defendants are that the Plaintiffs did not put out tenders for the repair of the vessel; that the rates charged by Odessos were way above Odessos’ standard tariff rates; that the Plaintiffs failed to obtain a discount on repair costs and that some of the services charged by Odessos were not provided. In relation to the last two objections, I accept the Plaintiffs’ evidence that discount had been sought from Odessos but to no avail due to a lack of commercial leverage on the Plaintiffs’ part. As to the Defendants’ contention that some of the services charged were not in fact provided, I prefer the Plaintiffs’ evidence as to the provision of services as set out in Odessos’ costs breakdown and find no sufficient evidence from the Defendants to contradict the same.

13.In his skeleton submission, Mr. Luxton also raised doubt as to the Plaintiffs’ documentary proof of payment of repair costs to Odessos in light of what the Defendants perceived as highly suspicious features of the Plaintiffs’ evidence. Shortly before the hearing, however, the Plaintiffs managed to obtain from Odessos a written confirmation of receipt of payment. No further issue was taken by the Defendants in this regard.

14.Nor did the Defendants take issue with the Plaintiffs’ contention on the need for repairing its vessel as soon as possible given the imposition of the CoC or their argument on the reluctance of major oil companies in putting their cargo into any ship in the condition Tintomara was in after the Collision and other adverse effects of a vessel having visible damage such as being more prone to inspection by port authorities.

15.However, the Defendants maintain that the Plaintiffs should have put the vessel repair out to tender and that the failure so to do resulted in the Plaintiffs accepting an excessive quotation from Odessos which they would have discovered if they had obtained quotations from other shipyards in Bulgaria.

16.Before me, Mr. Luxton highlighted the fact that NK received Odessos’ quotation on 8 January 2020 but did not accept Odessos’ quotation until 27 January 2020 so that NK could have obtained quotations from the other two shipyards in Varna for comparison or even arranged a Bulgarian shipping agent to arrange such quotation during the interval. He also questioned whether the repair could be said to have been conducted urgently when the work did not commence until mid-February.

17.In arguing that the Plaintiffs should have put the vessel repair out to tender, the Defendants rely on The He Da 98 (No. 2) [2013] 1 HKLRD 1154 citing Marsden and Gault on Collisions at Sea at §12-058:

“39. The Plaintiff concedes that albeit not strictly a requirement, there is an expectation that tenders will be sought so as to minimize loss. That duty has been described thus:

“ No doubt a duty to put out work to tender will be readily inferred where there are a sufficient number of efficient firms able to do it, the work is of a straightforward character, and there is no pressure of time which necessitates its immediate commencement. By contrast, where there is only one yard which can practically do the work, or where there is a situation of urgency, there would be little point in asking for tenders. We therefore come back to the elementary question, whether the shipowner has, under the circumstances, and on the facts, acted reasonably.” (Marsden (supra) paragraph 15-35), and

the “duty may be expressed as being to make such arrangement for the repair of the damage as a prudent uninsured owner would make for himself.” (per Lord Merriman, The Pacific Concord [1960] 2 Lloyd’s Rep. 270, at col. 1 page 283)”

18.In light of the situation the Plaintiffs were in as explained in paragraphs 5 and 6 above, I accept the Plaintiffs’ contention that there existed a situation of urgency, or rather, exigency (not purely pertaining to time pressure in terms of temporal requirement for completion of repair immediately or soon after collision) in that the necessary repair of the damage to Tintomara occasioned by the Collision had to be completed within a narrow window of time between Tintomara’s last stop at Odessa, Ukraine on 11 February 2020 and the deadline for repair of 22 March 2020 imposed by the CoC (it being unlikely for Tintomara’s scheduled voyage from Tuapse to Constantza to take place before compliance with the CoC). In the circumstances, securing repair service by a reputable shipyard to be carried out within that relatively narrow window of time was therefore of utmost importance to the Plaintiffs.

19.It is unclear as to how long a tendering exercise would have taken in Varna or Bulgaria. But even if it was feasible to put out the repair work to tender during the 6 to 7 weeks between late December 2019 and mid-February 2020 (as to which there is no evidence), I take the view that the Plaintiffs’ failure so to do can be condoned in the circumstances of this case.

20.The Defendants further argue that the Plaintiffs should have obtained quotations from the other two shipyards in Varna, relying on the general comments in the affirmation and a subsequent statement of Mr. Roumen Andonov (“RV”), an independent marine surveyor at the Varna office of an international maritime consultancy, filed on the Defendants’ behalf herein that the rates charged by those shipyards were similar to Odessos’ standard tariffs (without disclosing those two other shipyards’ standard tariffs at the material time for confidentiality reasons) and that there was no real difference in the standard of service provided by the shipyards in Varna. However, the Defendants have adduced no concrete evidence as to whether those other shipyards were equally competent provider of ship repair service, whether it was likely for them to be able to undertake the necessary repair service within the narrow window of time, and more pertinently, whether they would not charge higher than their standard rates as Odessos had done to the Plaintiffs here.

21.In this connection, the Plaintiffs produced an email from Odessos dated 16 November 2021 (on which Counsel for the Defendants had made no comment) whereby Odessos commented on RA’s criticism of its charges for the repair in question as follows:

“The repair of m/v TINTOMARA was urgent. In order to be completed in time, and even earlier than quoted/agreed, a lot of manpower was mobilized. Working during the weekends is normal to increase the expenses.

The prices we offer to our customers are confidential. Nevertheless, that fact, it is not correct to compare prices for emergency repair with prices applicable for the long term customers.”

22.This serves to highlight both the situation of urgency or exigency as aforesaid and the Plaintiffs’ lack of commercial leverage with shipyards in Varna. In the circumstances, one cannot say with any degree of certainty that the Plaintiffs would necessarily be able to secure a better offer from the other two shipyards in Varna and, more importantly, the Plaintiffs had not acted reasonably in following Sygnus’ advice to obtain a quotation from Odessos but not the other two shipyards.

23.As to the fact that NK or the Plaintiffs took over two weeks between 8 and 27 January 2020 to accept Odessos’ quotation, I do not find the same to be unreasonably long or otherwise deflecting from the situation of urgency or exigency discussed above. While a sooner acceptance might have instilled a greater sense of urgency on the Plaintiffs’ part, the time taken by the Plaintiffs here did not undermine the importance of securing repair service to be carried out during the narrow window of time immediately following Tintomara’s completion of her scheduled voyages in mid-February.

24.As said, the Defendants further challenge the reasonableness of the repair costs actually charged by Odessos. For this purpose, the Defendants rely heavily on the comments of RA who described Odessos’ charges as “extravagant and manifestly excessive” and his conclusion that the necessary repair should have cost no more than EUR28,500 as the damage was minor and the repair work required was straightforward.

25.RA’s breakdown of what he saw as reasonable repair costs[1] was said to have been done by reference to his “experience of the rates ordinarily charged by the Odessos Shipyard, its standard terms and tariffs[2], the market price of steel at the time, and my observations and measurements of the damaged areas”.

26.An examination of the breakdown would reveal RA’s wholesale adoption of Odessos’ standard tariffs as the unit price for each work item in his calculation of repair costs for the Collision. In this connection, RA took the trouble to set out in a table his detailed comparison of the Odessos’ actual charges here and its standard tariffs to show the percentage inflated, ranging from 98% to over 500% for individual items of work.

27.However, RA did not address or cast doubt on the Plaintiffs’ inability to secure any discount from Odessos due to a lack of commercial leverage. Nor did he share his experience on the circumstances when the standard rates would not apply. That being so, his comments on the reasonableness of Odessos’ charges here based on the latter’s professed standard rates offer little help to this Court.

28.To support his views, RA gave examples of Odessos’ quotations (without identifying the vessels in question or producing a copy of the quotations) in relation to the repair of three other vessels between 2018 and 2020 (notably with discounts having been given for various items) and compared the same with the corresponding items of the Plaintiffs’ claim herein in concluding that the latter is unreasonable.

29.As it turned out, of the three examples cited by RA, the Plaintiffs managed to identify one as being related to a vessel owned by Fednav Limited, Canada’s largest oceangoing bulk shipping company and that the rates charged to Fednav in this instance were for dry docking and painting rather than urgent repair. The Plaintiffs therefore rightly submitted that RA was not comparing like with like, to which the Defendants had no answer.

30.As to the other two examples showing steel prices and repair costs quoted by Odessos in 2018 and 2019, as there is simply not a hint as to the identities of the vessels involved and how the rates came to be charged, little weight can be attached to the same either.

31.In his subsequent statement filed just days before today’s hearing, RA belatedly produced a surveyor’s report prepared by IMOS Indonesia dated 31 December 2019 showing the repair costs estimate provided on behalf of Phuong Dong Star in which the surveyor estimated the costs of repair to Tintomara to be in the region of US$18,000 and US$20,000, which RA described as more realistic. This report was not previously disclosed to the Plaintiffs. In any event, other than the money figure, RA has not attempted to explain how this report supports his estimation. This Court can hardly attach any weight to the same.

32.While there can be no dispute that the rates charged by Odessos in the instant case were way above its professed standard tariffs, the unchallenged evidence of the Plaintiffs is that NK was not informed of the Odessos’ standard tariffs at the material time. Instead, what NK had was the CSI’s estimation which was substantially higher than Odessos’ quotation (even after excluding certain items which Mr. Luxton said were not attributable to the Collision) and one can see no reason for NK not to rely on the CSI’s estimation in judging the reasonableness of Odessos’ quotation.

33.In the circumstances, I am unable to say the Plaintiffs had not acted reasonably in accepting Odessos’ quotation. I therefore allow the Plaintiffs’ claim for repair costs in full.

Claim (5) Crewing costs

34.The Plaintiffs claim a sum of US$8,424.64 (originally US$41,213) as overtime allowance paid to their crew to effect temporary repair at Belawan in December 2019 and to clean the cargo tanks of Tintomara before she was allowed to enter Odessos’ shipyard. NK set out in his statement the identities of the crew members involved and how the allowance paid to each of them was arrived at, that is, at a certain percentage of the workers’ wages. NK further produced a remittance advice (“Remittance advice”) showing remittance of a sum of US$51,485.31 (for payment of, inter alia, the said overtime allowance) by the Plaintiffs’ local ship management agent to its counterpart in India. Mr. Coogans for the Plaintiffs fairly admitted that these were all the Plaintiffs managed to produce as evidence of payment.

35.The Defendants argue that the Plaintiffs would have to pay their crew on the vessel in any event so that crew wages are not collision-related. The Defendants also criticise the Plaintiffs for not having adduced sufficient evidence to prove both payment of additional wages to the crew and such expenses to be occasioned by the Collision.

36.The Defendants have not challenged the Plaintiffs’ case that they procured temporary repair of Tintomara in late December 2019 to allow the vessel to continue with her scheduled voyages until early February 2020. Nor have the Defendants challenged the Plaintiffs’ case that they had to arrange for Tintomara’s cargo tanks to be cleaned by their own crew in compliance with Odessos’ requirement before the vessel entered the latter’s shipyard (other than liability for fresh water costs under Claim 10). There is therefore no dispute that the Plaintiffs had incurred staff costs in relation to such repair and cleansing work. The only dispute is whether the Plaintiffs’ crew had worked overtime for which the Plaintiffs had incurred extra crewing costs by way of overtime allowance.

37.While sympathetic with the Defendants’ criticism of the quality of the Plaintiffs’ evidence in this regard, I accept on balance that the Plaintiffs did incur such additional expenses and that the same were occasioned by the Collision. In this connection, I observe that NK provided a detailed breakdown in his statement[3] showing the name and rank of each of these crew members, their wage, work hours and amount of overtime allowance received. The figure US$41,213 appears in there as the total amount of wages paid and US$8,242.64 as the total overtime allowance and the Plaintiffs now only claim the latter amount as collision-related loss. One can readily expect the said information to have been obtained from the Plaintiffs’ various internal records. It is unlikely for there to be one single piece of documentary proof of such individual payments to crewing staff for the present purposes and the Plaintiffs may have to produce all internal records as strict proof of how such expenses came about, which could be a very cumbersome exercise. In the instant case, while accepting there could be better evidence, I am prepared to accept the detailed breakdown given in NK’s statement as evidence as to how this item of claim came about.

38.The Plaintiffs rely on the Remittance advice[4] as evidence of payment. I accept that the Remittance advice is not self-explanatory in that it is not immediately clear to a reader as to the nature of the remittance between the Plaintiffs’ local ship management agent and its Indian counterpart, still less that it covered the said overtime allowance.

39.However, the document clearly shows the remittance to have been effected on 12 March 2020, that is, shortly after completion of the full repair to Tintomara. There must be a reason for the internal remittance and I accept the Plaintiffs’ case that this was for the purpose of paying the crewing staff for the overtime work as aforesaid and that such overtime work would not have been required if not for the ad hoc requirement for temporary repair work and the subsequent cleansing work occasioned by the Collision. I therefore allow this claim in full.

Claim (7) Superintendent charges

40.The Plaintiffs claim a sum of US$21,000 under this head for 14 days’ attendance by NK in Bulgaria (at the rate of US$1,500 per day) from 10 to 23 February 2020 when Tintomara had her cargo tanks cleansed, the damage occasioned by the Collision repaired and then left Odessos’ shipyard. NK arrived in Bulgaria 3 days before 10 February 2020 and flew back on 24 February 2020. The Plaintiffs rely on an invoice[5] issued by its ship manager for payment of such charges (“Ship Manager’s Invoice”).

41.The Defendants accept the Plaintiffs’ entitlement to claim a reasonable sum for superintendent charges but are only prepared to and did pay a sum of US$5,600 for 7 days of such attendance at the rate of US$800 per day. The Defendants made the point that NK was not an independent contractor as in The He Da 98 (supra) and his attendance formed part of his employment and their allowance of a daily rate of US$800 (compared with US$851 for an independent contractor in The He Da 98) was generous. The Defendants further criticised the Ship Manager’s Invoice as appearing to be an internal document created solely for the purpose of this litigation without any evidence of the same having been paid.

42.On the reasonable daily rate of a superintendent, it is unclear why the fact that NK was an employee of the ship manager (rather than the Plaintiffs) instead of an independent contractor would oblige the ship manager to charge the Plaintiffs at a lesser rate for sending NK to Bulgaria to attend to the repair of Tintomara when the ship manager was deprived of the service of NK during the same period. In any event, at paragraph 23 of The He Da 98, the learned Master observed that “depending on the level of experience and expertise, the daily rate cost of engaging a supervising superintendent to attend collision damage repairs to a vessel in Shanghai…in 2007 ranged between USD1,700 and USD2,650”.

43.In light of the above, I do not find the rate of US$1,500 with which the Plaintiffs were charged by its ship manager to be unreasonable. Nor do I find it strictly necessary for the Plaintiffs to prove payment of the Ship Manager’s Invoice when liability for payment of such charges had indisputably arisen.

44.As to the number of days to be allowed for such attendance, I am prepared to allow the Plaintiffs’ claim to run from 10 February 2020 when Tintomara was to have her cargo tanks cleansed in preparation for full repair. The parties disagree on whether the repair completed some time on 19 February 2020 (the Defendants’ case) or the following day when Tintomara actually left the shipyard (the Plaintiffs’ case).

45.Irrespective of this disagreement which is more relevant to the claim for off-hire (see below), I am prepared to allow the Plaintiffs’ claim hereunder up to 20 February 2020 totalling 11 days as Collision-related expenses but not any further when the Plaintiffs have not explained how and why NK’s attendance after Tintomara’s departure from the shipyard was related to or otherwise occasioned by the Collision.

46.I therefore allow a sum of US$16,500 (US$1,500 x 11) under this head.

Claim (9) Paint supplied for painting hull after repairs

47.The Plaintiffs claim a sum of US$21,400 as evidenced by an invoice from a paint supplier[6] (“Paint Supplier’s Invoice) showing charges for 3 products, namely, US$2,520 and US$2,160 for primer and sealer paints (yellow green and black respectively) and US$16,720 for anti-fouling paint. The Defendants rely on the assessment of RA and suggest it would only cost US$252 to paint the vessel’s hull after repair which was all carried out above the waterline so that there should be no need for putting on fresh anti-fouling paint.

48.Before me, Mr. Coogans accepted on the Plaintiffs’ behalf that all repair was effected above the waterline and withdrew the claim for anti-fouling paint. He nonetheless pursued the claim for the primer and sealer paints and argued to the effect that the Plaintiffs could not have painted only the damaged area (with the original paint surrounding the replaced plates having been burnt by the welding) but a larger area for achieving a consistent colour and aesthetic appearance and that there should be no deduction for any betterment as a result. Furthermore, he also highlighted the fact that both the internal and external structures of the hull had to be painted and that allowance should be made for wastage in the painting process.

49.As can be seen from the photographs produced by the parties, there are at least two damaged parts of different sizes at the aft position of Tintomara’ hull requiring replacement of steel plates (and the corresponding internal structure) to which painting was required after repair. I readily agree with the Plaintiffs that painting could not be confined to the repaired parts and that there should be no deduction for betterment.

50.The Paint Supplier’s Invoice is dated 29 February 2020 and clearly shows that the paints ordered on the Plaintiffs’ behalf were delivered to the Port of Varna, Bulgaria on 14 February 2020 when the repair began. It is therefore more likely than not that the paints were ordered solely for the purpose of the repair. The amount of each type of paint ordered must have been based on the estimated requirement for paint brought about by the Collision and it is reasonable to allow some margin of error as there could be no precision in that regard. That anti-fouling paint was also ordered was in all probability to cater for the possible need therefor, especially when one of the damaged part of the hull was very close to the waterline.

51.Before me, Counsel for the Defendants argued that the damaged parts would not have required black paint so that only the first item of the Paint Supplier’s Invoice (for yellow green paint) should be related to the repair. It should be noted that RA never questioned the ordering of black paint for Tintomara. In any event, as the photographs of the aft position of Tintomara show, the relevant part of the hull was apparently in dark blue colour, that is, neither black nor yellow green. Given the age of the original paint which was constantly exposed to the atmosphere and sea moisture, it is reasonable to expect a need for mixing different colours to bring the new paint close to the old one. This should explain the need for both yellow green and black colour paints. I therefore accept the ordering of both yellow green and black colour paints as being Collision-related.

52.As to the total amount of paint required for the repair, it is instructive to compare the Odessos’ charge for painting work at US$6,000 and RA’s estimation at US$233.50 (based on the area calculated as per RA’s measurements and the number of coats of paint to be applied requiring only 20 litres of paint). It is immediately clear that Odessos’ painting work covered an area much larger than RA’s measurements. As said, I accept the Plaintiffs’ reasons for painting not just the repaired parts of the hull but also the areas surrounding the same.

53.On balance, I find the Plaintiffs’ expenses on the primer and sealer paints to be Collision-related and justified in the circumstances and allow in full the two sums of US$2,520 and US$2,160, totalling US$4,680 under this head.

Claim (10) Fresh water costs

54.This claim of the Plaintiffs at US$1,460 as charged by Odessos arose from the need for the Plaintiffs to arrange for cleansing the cargo tanks of Tintomara before the vessel was allowed to enter Odessos’ shipyard. The Defendants deny liability therefor on the ground that the vessel could have produced her own fresh water with her evaporator and would have to obtain fresh water to clean the tanks for the scheduled voyage from Tuapse to Constantza in any event.

55.The Plaintiffs’ answer is that the vessel was unable to generate fresh water herself because (a) the tank top place of the fresh water tank starboard side was damaged in the Collision and the class report recommended that the tank be kept empty; (b) the vessel only had 38 MT drinking water and 38 MT wash water upon arrival at Odessos’ shipyard on 14 February 2020; and (c) vessels do not use their evaporator when in port unless during sailing and usually only in pristine waters. I find the same to be unassailable.

56.If not for the Collision, the charterer would have to pay for the costs of fresh water for cleansing the cargo tanks in excess of the vessel’s own production in accordance with the time charter before embarking on the next trip. However, the Collision had put the vessel off hire during which an incidental requirement for cleansing the cargo tanks for the purpose of repair arose so that the Plaintiffs had to make their own arrangement as well as to pay for the fresh water.

57.Mr. Luxton for the Defendants argued that the Plaintiffs should have asked the charterer to pay such costs and that such costs would not be Collision-related if only because the charterer refused to pay what they would have to pay in the usual course of event.

58.I disagree. If time during which repair is carried out on a vessel is charged to the owner’s account, there is no reason to hold the charterer liable for expenses incidental to the repair. Here, the fresh water costs were incurred by the Plaintiffs for the sole purpose of enabling Tintomara to undergo repair. There is no reason to hold the charterer liable for such costs, especially when there is no evidence as to whether the charterer would not have to clean the cargo tanks again for whatever reasons when the vessel was made available for the next voyage after repair. I therefore allow this item of claim in full.

Claim (11) Chemicals used for cargo tank cleaning

59.This claim is for US$7,430.26 to replenish the charterer’s chemicals on board Tintomara which were used to clean the cargo tanks before the repair at Odessos’ yard.

60.The Defendants deny liability therefor, relying on RA’s assertion that vegetable oil (which was the last cargo discharged by Tintomara prior to her arrival in Varna) is not a volatile cargo so that cargo tank cleaning was not needed to meet any gas-free requirements and that tank cleaning would be required in any event before the vessel could load her next cargo (petrochemical) at Tuapse, Russia.

61.The Plaintiffs insist that palm oil is flammable and that Odessos was entitled to require the Plaintiffs to clean Tintomara’s cargo tanks before allowing her to enter their shipyard under their general terms and conditions which provide that no flammable cargo and gas should be left on board.

62.Apart from RA’s assertion, there is no clear evidence as to whether palm oil is inflammable. I am therefore not satisfied that the flammability of palm oil is such that no cleansing of the cargo tank for the compliance with Odessos’ requirement was needed. In any event, from Odessos’ perspective, it would have been reasonable for them to require the Plaintiffs to clean the cargo tanks if only out of abundance of caution before allowing the vessel to enter their yard. I therefore find the replenishment of the stock of chemicals by the Plaintiffs to be Collision-related and claimable. For the same reason as that for fresh water costs, I also see no reason to hold the charterer liable for such costs. I therefore allow this item of claim in full.

Claim (12) Off-hire

63.The Plaintiffs claim two off-hire periods, namely, the additional distance Tintomara had to travel to effect repair (“Deviation”) and the period of repair from 14 to 20 February 2020. Before me, the parties agreed that the first off-hire period should be 1.095 days so that the claimable amount would be US$14,235 (1.095 days x US$13,000). The Defendants have by RA’s statement effectively conceded this period. I would therefore allow the claim for the Deviation at US$14,235.

64.The Defendants dispute the length of the off-hire period during repair, and relying on RA’s observation en site, argue that the repair completed at 1100 hours on 19 February 2020 (4.89583 days or US$63,645) when the external and internal coating of the hull had been completed, the coating of the FW Tank was dry and the shore crane had off-loaded the pipes used for staging and fittings, and the blower heater for drying paint was switched off.

65.Incidentally, in his initial report dated 21 February 2020[7], RA also claimed to have seen the Plaintiffs’ crew carried out repairs unrelated to the Collision including annual Class survey, servicing of the lifting appliances for lifeboats and routine deck and engine room maintenance. RA did not indicate exactly when he witnessed or became aware of such activities but it must have been either during or before his last attendance in the morning of 19 February 2020. Irrespective of the nature of any such activities and since the Defendants accept that the repair of the collision-related damage continued up to at least the morning of 19 February 2020, RA’s observation in this regard has no bearing on the present assessment of damages.

66.The Plaintiffs maintain that the off-hire period ran from 14 February 2020 up to 16:42 hours on 20 February 2020 when Tintomara left Odessos’ yard (6.1333 days or US$79,732). In reply to the Defendants’ submission that the paint would only take a few hours to dry with a blower heater which RA found to have been switched off in the morning of 19 February 2020, the Plaintiffs submitted that the paint would take additional time to cure after it became touch dry. This Court’s attention was also drawn to the fact that the blower heater was used only for drying the paint put onto the internal structure but not the external one which would have to be allowed to naturally dry by itself. And one should not forget the fact that it was not only the replaced steel plates but also the surrounding area that had to be painted. Mr. Coogans further argued that even if not for the need to await the paint to dry, it would be unrealistic to expect the vessel to be ready to set sail immediately.

67.I agree with the Plaintiffs’ submission. In particular, even if the paint became touch dry when the blower heater was turned off in the morning of 19 February 2020, I do not find it unreasonable to allow at least one day for all paint to dry completely before the vessel could confidently leave the shipyard. If all painting work had completed by the morning of 19 February 2020, one should allow at least up to the next morning before the vessel is deemed to be fit for leaving the shipyard. I also agree with Mr. Coogans that it is unrealistic to expect the vessel to be able to set sail immediately after completion of repair and some lead time must be allowed to the crew to prepare for departure. Either way, Tintomara would not cease to be off-hire until 20 February 2020 irrespective of the actual timing of her departure from Odessos’ yard during that day.

68.I therefore allow the Plaintiffs’ claim for the off-hire period from 14 to 20 February 2020 (6.1333 days) at US$79,732 on top of the claim for Deviation at US$14,235, totalling US$93,967.

Claim (8) Lubricant oil, VLSFO and LSMGO

69.This claim relates to the consumption of VLSFO (very low sulfur fuel oil) consumed during the Deviation and the lubricant oil and LSMGO (low sulphur marine gas oil) consumed during repair. At the hearing, the parties came to agreement as follows: (i) 22.886 MT of VLSFO fuel were consumed during the Deviation so that the allowable claim should be US$15,333 (22.886 MT x US$670/MT); (ii) 889 litres of lubricant oil were consumed during repair so that the allowable claim should be US$2,667 (889L x US$3/L); and (iii) 31.3 MT of LSMGO fuel were consumed during repair if calculated up to 20 February so that the allowable claim should be US$21,440.50 (31.3MT x US$685).

70.In light of my ruling on off-hire above, I therefore allow the Plaintiffs’ claim under this head as per the parties’ agreement set out in the preceding paragraph.

Summary

71.In summary, I allow the Plaintiffs’ outstanding claims as follows:-

Item	Description	Amounts awarded
(1)	Disbursements for in and out of ship in Varna	EUR26,234
(2)	Repair costs at Varna shipyard	EUR145,830
(5)	Crewing costs	USD8,242.64
(7)	Superintendent attendance charges	USD16,500
(8)	Lubricant oil consumed during off-hire period VLSFO consumed during the Deviation LSMGO consumed during off-hire period	USD2,667 USD15,333 USD21,440.50
(9)	Paint supplied for painting hull after repair	USD4,680
(10)	Fresh water costs	USD1,460
(11)	Chemicals used for cargo tank cleaning	USD7,430.26
(12)	Off-hire	USD93,967
Total:		EUR172,064 plus USD171,720.40

72.The Defendants agree that 1% of the total amount adjudged to be due to the Plaintiffs is allowable as agency fees.

Conclusion

73.The Plaintiffs are therefore entitled to damages in the respective sums of EUR172,064 and USD171,720.40 with interest thereon at judgment rate from the date of judgment until full payment. I see no reason why costs should not follow the event. The parties having agreed that all reserved costs should be covered by the costs order to be made hereunder, there should therefore be an order nisi that the Defendants do pay the Plaintiffs’ costs of assessment, including any costs reserved, to be taxed if not agreed.

Mr. Coogans of Howse Williams, for the Plaintiffs

Mr. Nick Luxton instructed by Holman Fenwick Willan, for the Defendants