China Light & Power Co, Ltd. v. Leung For-wa and Others

HCAJ000055/1991

1991 No. AJ55

Consolidated with 1991 Folio AJ92

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADMIRALTY JURISDICTION

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Coram: The Hon. Mr. Justice Mayo in Court

Dates of hearing: 1-4, 7 June, 1993

Date of handing down of judgment: 16 June, 1993

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C O R R I G E N D U M

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1. Page 3, line 10, delete the words "Re-Amended Statement of Claim" and substitute "Re- Re-Amended Statement of Claim";

2. Page 21, line 2, delete the words "payment of the amount due" and substitute "date of judgment";

3. Page 21, line 3, after the word "rate" add "and at judgment rate until payment".

1991 No. AJ55

Consolidated with 1991 Folio AJ 92

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADMIRALTY JURISDICTION

____________

____________

Coram: The Hon. Mr. Justice Mayo in Court

Dates of hearing: 1 - 4, 7 June, 1993

Date of handing down of judgment: 16 June, 1993

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J U D G M E N T

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1. The Plaintiffs' claim is for damage occasioned to a submarine cable laid in the Ma Wan Channel.

2. The damage occurred on the morning of the 27th July 1988. A dumb barge owned by the 1st Defendant and operated by the 2nd Defendants was being towed by a tug belonging to the 3rd Defendants. The vessels were proceeding in a northerly direction up the Channel on the Tsing Yi Island side when the tow rope severed. It would appear that the crew of the barge lowered its anchor or anchors while the tug came back to attach another line to resume the tow.

3. After about half an hour the tow was resumed. It was then found that the tow was going forward much slower than usual and it would appear that the reason for this was that one of the anchors of the barge either hadn't been raised or had been lowered again after the tow had been resumed and this was the cause for the slow progress. It then became apparent that the Plaintiffs' submarine cable had come into contact with one of the anchors of the barge.

4. This is a very brief outline of the evidence which was before the court stated in an uncontroversial manner. The action was prior to trial discontinued against the 2nd Defendants. Although the 1st Defendant had been given notice of the trial no one appeared before me to represent their interests.

5. The 3rd Defendants were represented at the trial which lasted 5 days by Mr. Jat.

6. Notwithstanding an order that witness statements of the principal witnesses of the parties should be exchanged prior to the trial no such statements were exchanged by the 3rd Defendants. On the final day of the trial Mr. Jat informed me that he would not be tendering any evidence on behalf of his clients.

7. He did not even propose calling his expert witness Captain Moore to give evidence. This was partly on account of the fact that Captain Moore had been able to agree some parts of the Plaintiffs' expert witness Captain Wood's evidence.

8. The consequence of all of this was that the Plaintiffs were essentially being put to formal proof of the claims they were making.

9. I should perhaps add that this was by no means merely a matter of formality. The Plaintiffs' two main witnesses were cross examined at some length by Mr. Jat and he rigorously contested the issue of his clients liability.

10. At this stage it may be helpful for me to indicate the nature of the claims for negligence being made out against the 1st Defendant and the 3rd Defendants.

11. Paragraphs 3 and 4 of the Re-amended Statement of Claim read as follows :-

"3. The damage to the said cable was caused by the negligent navigation of the said barge by the 1st Defendant, his servants or agents.

PARTICULARS OF NEGLIGENCE OF

THE 1ST DEFENDANT,

HIS SERVANTS OR AGENTS

(1) Causing or allowing the said barge to be towed in the Ma Wan Channel in the vicinity of the said cable (as clearly set out in British Admiralty Chart 3280) when they knew or ought to have know that the prevailing weather and tide conditions were such as to pose a substantial risk that the tow rope might break.

(2) Causing or allowing the said barge to be towed in the Ma Wan Channel in the vicinity of the said cable when they knew or ought to have known that the said barge would pose a danger, to inter alia the said cable, if the tow rope broke in the prevailing weather and tide conditions leaving the said barge adrift.

(3) Failing to provide a suitable or adequate tow rope for the tow.

(4) Failing to provide or maintain any or any proper and effective means of communication between the said barge and the said tug.

(5) Failing to keep a wakeful watch and to listen out for any communications from the said tug.

(6) Causing or permitting the recommencement of the tow, after the original tow rope of ropes had broken, without ensuring that all of the anchors of the said barge had been weighed.

(7) Failing to warn the Master of the said tug that not all of the anchors of the said barge had been weighed before the recommencement of the tow.

(8) Causing or permitting the bow anchor (alternatively the stern anchor) or the said barge to drag along the seabed in the vicinity of the said cable and to foul the same.

(9) In all the circumstances, failing to operate the said barge in a safe, proper and seamanlike manner.

4. Further or alternatively, the damage to the said cable was caused by the negligent navigation of or towage by the said tug by the Master, servants or agents of the 3rd Defendant.

PARTICULARS OF NEGLIGENCE OF

THE 3RD DEFENDANT,

THEIR SERVANTS OR AGENTS

(1) Undertaking the towage of the said barge in the Ma Wan Channel in the vicinity of the said cable when they knew or ought to have know that the prevailing weather and tide conditions were such as to pose a substantial risk that the two rope might break.

(2) Undertaking the towage of the said barge in the Ma Wan Channel in the vicinity of the said cable when they knew or ought to have know that the said barge would pose a danger, to inter alia the said cable, if the tow rope broke in the prevailing weather and tide conditions leaving the said barge adrift.

(3) Failing to ensure that the tow rope used was suitable or adequate for the tow.

(4) Failing to check the tow rope or tow ropes provided by the said barge properly or at all prior to the commencement of the tow.

(5) Proceeding too close to shore while towing the said barge in the vicinity of the said cable.

(6) Failing to ensure that a wakeful watch was maintained on the said barge at all times whilst the tow was underway.

(7) Failing to provide or maintain any or any proper and effective means or communication between the said barge and the said tug.

(8) Failing to advise the crew of the said barge not to drop anchor without having received a direct order from the said tug to do so.

(9) Failing to attach another tow rope to the said barge sufficiently promptly after the original tow rope or tow ropes had broken to avoid the need for the said barge to drop her anchor or anchors.

(10) Failing to ascertain that all the anchors of the said barge had been weighed prior to recommencing the tow and at all times during the tow.

(11) In all circumstances, failing to operate the said tug and to conduct the tow in a safe, proper and seamanlike manner."

12. One of the main witnesses for the Plaintiffs was Mr. Mak.

13. Mr. Mak is a General Foreman employed by Hong Kong Underwater Services who have a long term contract with the Plaintiffs for rendering services to them in relation to their submarine cables.

14. Mr. Mak's evidence was contained in the written statement tendered to the court. He was also as I have stated extensively cross examined by Mr. Jat and shortly re examined by Mr. Fok who represented the Plaintiffs.

15. His evidence was that on the day in question he was in the Ma Wan Channel undertaking repairs to the submarine cable which is the subject of this claim.

16. At about 11 a.m. he completed temporary work on the cable in anticipation of having to leave the site as a consequence of directions from the Marine Department. He had to do so as some large vessels were going to pass through the Channel. Mr. Mak went to a position near the shore on the Ma Wan side of the Channel.

17. He saw on the opposite side of the Channel the 3rd Defendants' tug towing the 1st Defendant's barge. He saw that the tow rope had broken. As he feared that the barge may be in some peril due to the strong current and the proximity of the barge to the shore and possibly other vessels, he sent two of the members of his team to go across to the barge to ascertain whether they could render any assistance.

He later decided himself to go across the channel in a sampan. He was concerned that the barge may have fouled the submarine cable and he took with him a camera to take photos at the scene. When he arrived there his fears were confirmed. He could see that an anchor which was raised had the cable attached to it. He took photos of this and it is evident from one of the photographs that it was an anchor at the bow of the barge which had come into contact with the cable.

18. After speaking to members of the crew on board the barge he returned to his own barge on the Ma Wan side of the Channel and telephoned Mr. Chan, a senior employee of the Plaintiffs who was the other main witness for the Plaintiffs. It was agreed that Mr. Chan would personally attend at the scene and arrangements were made for the two men to inspect the site at 2.30 p.m. The inspection took place and Mr. Chan gave directions as to how the matter should be attended to.

19. The remainder of Mr. Mak's evidence related to the work he undertook to ascertain the nature and extent of the damage sustained and to effect remedial measures.

20. Mr. Chan's evidence fitted in very satisfactorily with Mr. Mak's. The thrust by his evidence though was directed more towards the details of the work which was undertaken to repair the cable. This was of particular significance in proving the damages which are claimed.

21. Mr. Chan referred to the fairly copious documentary evidence in support of the claim and was able to substantiate all of the Plaintiffs' claim. He was also able to demonstrate that the Defendants were given proper credit for work which had been undertaken on the cable prior to the 27th July and apportion the cost of the work in a sensible and fair manner.

22. Mr. Augustus Lau, the Insurance and Claims Manager for the Plaintiffs also gave evidence. He provided details of the way the Plaintiffs calculated an overall percentage cost to reflect time and effort expended by employees of the Plaintiff in pursuing a claim such as the present one. The figure which had been arrived at for this purpose was to add 20% to the amount of the cost being claimed but to exclude from the claim any input other than specific items which could readily be identified. This seemed to me to be a fair way of calculating the Plaintiffs overheads and to meet the objections made by Forbes J. in Tate & Lyle v. GLC 1982 1 WLR 149.

23. I will make short observations on the Plaintiffs' factual witnesses. I found all three witnesses to be truthful and reliable witnesses. None of them were shaken in any important respect on the evidence they had given in their statements. I accept their evidence in all respects which are relevant to the claims being made.

24. The other evidence relied upon by Mr. Fok was the evidence contained in the Replies to Interrogatories and Captain Wood's expert evidence.

25. I am satisfied that Captain Wood is indeed a duly qualified expert and his report was extremely helpful in endeavouring to resolve the issues which arise in the present case. Captain Wood was like the other witness subjected to cross examination and I was satisfied that his evidence was in no important respect shaken.

26. I propose extracting from Captain Wood's evidence in chief the opinions he expresses in respect of what seem to me to be the most importance aspects of this case.

"10. Answers to the Plaintiffs Interrogatories

Our comments upon the responses made by the Third Defendant, Mr. Wu Yong Wu, Master of the tug 'SUI JIU TUO 4' are as follows;

10.1) Answer No. 7 in response to Interrogatory No. 6

In response to the question as to who checked the tow line, when and what check was carried out, the Master of the tug responded as follows;

"Utilizing my past experience on towage, I had visually examined the tow rope before the commencement of the tow".

Our Opinion;

With reference to response No. 4 in answer to Interrogatory No. 3 the Tug Master had stated that nobody from the tug attended on board the barge at the commencement of the tow, or at any time during the course of the tow. It would therefore appear that the Tug Master's visual examination of the tow line was cursory and took place from the tug. From a practical point of view such an examination of the lighter's towline would certainly not reveal any defects. A prudent Tug Master would either attend personally on board the lighter or delegate responsibility to a senior/experienced crew member such as the Chief Officer, in order to inspect the entire length of the tow line prior to commencing the tow. In this respect we are of the opinion that the Tug Master was imprudent in the performance of his duties.

Furthermore, by not taking the time to properly inspect the towline, a prudent Master should have been aware that there was an element of risk involved, in that, if a substandard towline is overlooked, and subsequently parts, both the tug and the tow could be placed in jeopardy. The Master should have also been well aware of the fact that the lighter crews first reaction, upon being cast adrift, especially in an area of strong tidal flow and other shipping, including vessels' lying at anchor, would be to drop an anchor in

order to arrest their rate of drift, and to facilitate reconnecting the towline."

"12. Response 17 to Interrogatory No. 16

The Tug Master stated that communications between tug and lighter were by means of a hand held two-way radio (walkie-talkie) which the parties agreed should be kept turned on at all times so that either party could communicate with the other immediately.

Our Opinion

Response No. 21 to Interrogatory No. 20 confirms that the Tug Master's attempts to communicate with the lighter's crew by the aforesaid two-way (walkie-talkie) radio were unsuccessful. This rather indicates that a wakeful watch was not being kept on the lighter. It would also be good seamanlike practice to arrange for the lighter to contact the tug on a regular/scheduled basis, say once every hour, in order to ensure that communications are functioning and all is well. Furthermore we consider that it would have been prudent for at least one lighter crew member to have been stationed on the deck of the lighter throughout the tow in order to monitor the towline.

13. Response 23 to Interrogatory No. 22

The Tug Master stated that many of the crew on board the tug noticed that the lighter's anchor and been dropped but he was unable to recall whether it was the bow or the stern anchor.

Our Opinion

We find it rather surprising that the Tug Master could not remember which of the lighter's anchor's had been dropped. Furthermore, once he was aware that an anchor had been dropped we believe that the Tug Master should have established beyond reasonable doubt, that none of the lighter's anchors were down, prior to recommencing the tow, and failure to do so is tantamount to imprudent seamanship on his part.

14. Response No. 27 to Interrogatory No. 26

The Tug Master stated that as the weather condition was "fine" the lighter would not be subject to any danger even though the tow line had parted.

Our Opinion

We refer to the Amended Defence of the First Defendant, Paragraph 4 wherein it was stated by the First Defendant that "the tow cable broke because of the very rough sea".

There appears to be a definite conflict here as the First Defendant stated that the towline allegedly parted because of very ro

hter was not subject to any danger as a result of the towline parting. The lighter was only some 300 metres from the shore, in an area noted for its swift flowing tidal streams, and also not far from several anchored vessels. Furthermore the Ma Wan Channel is a busy waterway frequented by coastal shipping, including high-speed ferries, and the occasional large vessel proceeding to/from Tap Shek Kok/Shekou.

15. Response No. 28 to Interrogatory No. 27

The Tug Master stated that the time of parting of the tow line was "at about 12:00 noon".

Our Opinion

The time stated by the Tug Master conflicts with that given by Mr. Mak Hin Kwok, in his proof of evidence, of about 1100 hours. In a well run vessel such information should have been contained in the log book, a document to which the Tug Master presumably had access at the time the Interrogatories were answered. This would rather indicate that there may not have been a log book in use on board the tug at the time of the incident. Whilst we are not aware of any particular Marine Department requirement for river trade vessels to maintain log-books whilst operating in Hong Kong waters, they may be required to do so under Chinese regulations. In any case it is normal, seamanlike practice to keep a log book, and in view of the fact that tug and tow were operating under a Contract of Transportation we would be extremely surprised if a log-book had not been kept. If, indeed, a log-book was not maintained it indicates to us that the tug was operated in a very haphazard, casual and unseamanlike manner.

16. Response No. 29 to Interrogatory No. 28

The Tug Master stated that it took about half an hour to reconnect the tow.

Our Opinion

This would appear to be an inordinate length of time in that the Tug Master had previously stated that the back-up tow line was standing by on the tug and also that the lighter was not subject to any danger due to the "fine" weather conditions. This therefore brings into question the competence of the Tug Master and crew, which was further exacerbated by the fact that the tug recommenced the tow before the lighter's anchor was actually weighed.

17. Response No. 32 to Interrogatory No. 31

In answer to the question "Was anyone on board the tug aware at any time after the commencement or the recommencement of the tow that one or more of the barges anchors was dragging", the Tug Master replied "yes, the bow anchor of the barge was dropped".

Our Opinion

We refer to response No. 23 in answer to Interrogatory No. 22 where the Master stated that he could not recall whether it was a bow or stern anchor of the lighter that had been dropped. The aforementioned responses are contradictory.

18. Response No. 34 to Interrogatory No. 33

The Tug Master stated that, after recommencing the tow, as a result of the relatively slow speed of the tug both he (the Master), and the Chief Officer, suspected that there may be a problem and contacted the lighter. The Tug Master then alleges that he was informed that the stern anchor of the lighter had dropped into the sea and subsequently "fouled something".

Our Opinion

Photographs taken by Mr. Mak Hin Kwok clearly show that it was the bow anchor of the lighter that fouled the cable, and this should have been patently obvious to the Tug Master. The Tug Master did not therefore exercise prudent seamanship in recommencing the tow without first ensuring that the lighter's anchors had not become fouled, and also that the lighter's anchors had been weighed."

27. I accept the validity of all the opinions above expressed.

28. Before leaving the evidence I would observe that none of the Plaintiffs' evidence has really been seriously called in issue. I would also add that the failure of either the 1st Defendant or the 3rd Defendants to give evidence does reinforce the strength of the Plaintiffs' case. In this connection I would refer to a short passage at p.454 from the judgment of Hunter J.A. in Polaroid Far East Ltd. v. Bel Trade Co. Ltd. & Others 1990 2 HKLR 447.

" Finally, Mr. Ma submitted that the third defendant's failure to give any evidence explaining her role made it

easier to draw an adverse inference against her. He relied upon Jones v. Dunkel 191 CLR 298, and on the pointed dictum of Windeyer, J at p 319:

"Silence may amount to much more than an acquiescence in the primary facts. It may be eloquent in support of an inference to be drawn from those facts"."

29. The next matter I will deal with is the law. As a starting point Mr. Jat accepted that there is a duty of care to navigate with sufficient skill to avoid fouling submarine cables. Submarine Telegraph Co. v. Dickson 1864 15CB (NS) 759. It is accepted as a fact that the Master of the tug was aware of the existence of the Submarine Cables in the Ma Wan Channel.

30. It is next necessary to consider the respective duties and responsibilities between the tug and the barge. There is a useful commentary on this at the commencement of Chapter 2 of the Law of Towage. Davision and Snelson Lloyds of London Press 1990.

"CHAPTER 2

DUTIES OF TUG AND TOW

The duties of tug and tow as regards each other are largely determined by the agreement between them. The contract in most common use for port and harbour work in the United Kingdom is the U.K. Standard Conditions For Towage And Other Services (Revised 1986). This is the product of the British Tugowners' Association and therefore, not surprisingly, tends to favour the tug. For ocean towage. BIMCO forms, Towhire (for daily rate) and Towcon (for lump sum), are in increasingly common use. In the absence of express stipulation, the law implies certain terms into a contract of towage and it is those which are examined here.

However, not all the duties arising during towage will arise out of the express or implied terms of the contract between tug and tow. Statute (particularly the duty imposed under the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1989 to observe the Collision Regulations) and local regulations also impose duties on each and the two regimes may overlap. For this reason, it is somewhat artificial to deal with them separately and for an understanding of the full range of duties imposed, this chapter should be read in conjunction with Chapter 4.

The respective duties of tug and tow (and their liabilities) will also depend in part upon which vessel is in control. This is an important and difficult question, for which no definite set of rules can be advanced. Prior to the decision of the House of Lords in SS Devonshire v. Barge Leslie [1912] A.C. 634 the rule was that, under an ordinary contract of towage, it was the tow which had control of the tug (and was, therefore liable for the wrongful acts of the latter). (See, e.g., The Niobe (1888) 13 P.D.55, where the failure of the tug to keep a proper lookout and the blame for the subsequent collision were attributed to the tow. See also The Avon and the Thomas Jolife [1891] P.7; The Cleadon (1860) Lush. 158; H.M.S. Sans Pareil [1900] P.267; The Quickstep (1890)15 P.D. 196; The Englishman and the Australia [1894] P.239; The Stormcock (1885) 5 Asp. M.L.C. 470; The W.H. No. 1 and the Knight Errant [1911] A.C. 30.) Although this rule gave rise to a certain amount of adverse comment from the judiciary (See, e.g., The Stormcock (1885) 53 L.T. 53) it was not until The Devonshire that it was clearly decided that the question which vessel was in control was one of fact in every case. For this reason, cases since 1912 are a more reliable guide to the scope of the duties and liabilities of tug and tow than those which were decided formerly.

Although, as the House of Lords has decided, each case ultimately turns upon its own facts, it is possible to state some relevant considerations and to venture certain

situations in which the question of which vessel is in control is likely to be uncontroversial. The propositions which follow are put forward with supporting authorities, but it should be noted that such authorities are all pre-Devonshire and therefore to be treated more as examples than as decisions that will necessarily bind a court faced with the same or a similar situation in the future. It should also be noted that, at least as regards each other (But not third parties; see The Panther and the Ericbank [1957] P.143) such propositions are subject to contrary provisions in the agreement between tug and tow.

In open waters, as opposed to in ports, harbours and rivers, the tow will normally be in control. (The Niobe (1888)13 P.D. 55; The Mary (1879) 5 P.D. 14.) This is especially the case if there is a pilot on board the tow. (The Duke of Sussex (1841)1 Wm. Rob. 270; The Gipsey King (1847) 2 Wm. Rob. 537; Spaight v. Tedcastle (1881) 6 App. Cas. 217.) This does not mean that the tow is bound to direct every aspect of the handling of the tug. (The Sinquasi (1880) 5.P.D. 241; The Isca (1886)12 P.D. 34; and if the tow does not give any orders, it is for the tug to set the course. See The Altair [1897] P.105 and The Robert Dixon (1879) 5 P.D. 54.) But it does mean that the general direction of the voyage is in the hands of the tow and the tug is bound to obey the tow's commands (unless those commands would endanger tug and tow or other vessels). (The Christina (1848) 3 Wm. Rob. 27.) In narrow rivers and in ports and harbours, it is normally the tug which is in control. Usually, the tug-master will be more familiar with the locality. He is also better placed to judge the manoeuvres required in the narrow waters (See The Isca (1886)12 P.D. 34 at 35.) (which the tow, ipso facto, probably cannot perform alone). A dumb barge will usually (The Adriatic and the Wellington (1914) T.L.R. 699, where the court ignored the terms of the contract which provided that the master and crew of the tug became the servants of the barge owners during the towage.) and an unmanned vessel will always be under the control of the tug. Similarly, a vessel lacking motive

power will usually be under the control of the tug. (The American and the Syria (1874) L.R. 6 P.C. 127.)

In The Quickstep (1890)15 P.D. 196 Butt J. held that where a tug and her tow came into collision with another vessel, the question whether that other vessel could recover against the owners of the tow depended on whether the relationship of master and servant obtained between tug and tow. This statement was approved in The Devonshire (Supra) and, indeed, an inquiry of this nature may often provide a conclusive answer, but it should be emphasised that it cannot determine the result in every case. The issue remains, ultimately, one of fact."

31. I accept the accuracy of this passage. When this is considered in conjunction with the facts of the present case it would appear that the Master of the Tug had the main responsibility for ensuring the safety of the tow. In this connection I bear in mind the evidence to the effect that there was no qualified seaman on board the barge.

32. So far as the 3rd Defendants is concerned the unexplained breakage of the Towline raises a presumption of negligence. Authority for this proposition can be found at p. 567 of the judgment of District Judge Mitchell in The Acadia Forest 1974 2 LLR 563.

" [8] The unexplained snapping of a cable, totally within control of defendant's agents critical to the safe steerage of a flotilla, we think, in the complete absence of evidence to the contrary constitutes unseaworthiness. (Were we to classify the lash barge CG-204, as a "ship", defendant could exonerate itself from liability by showing due diligence to make the ship seaworthy. 46 U.S.LC. S. 1303 (1) provides "The carrier shall be bound, before and at the beginning of the voyage to exercise due diligence to - (a) Make the ship seaworthy;".) In any event, it raises a presumption of negligence (Rose Goldrick v. Connell Steamboat Company, Inc., et all., [1934] AMC

1562.) which defendant has failed to rebut. As the Court noted in the Rose Goldrick case.

Ordinarily lines in proper condition, properly fastened do not slip or part and the fact that they did so without satisfactory evidence as to the manner in which they were made fast and without any evidence as to the condition of the lines, leads the Court to hold that the fact that they slipped and parted is prima facie evidence of the negligence on the part of the barges either in making fast the lines, or in using defective lines. [at 1562.]

The sole evidence as to the condition of the cable which parted, prior to the collision, was a statement that all the cables "... were fairly new items." (Kruse deposition, p. 6.) To the same effect was the statement of Captain Gerhard Schumacher, master of the Cito, (Schumacher deposition, p.9.) who saw the broken cable after the accident, that the "... wire was good. It was a bright wire." (Id. p.15.) This alone is insufficient. We hold that plaintiff's have established a prima facie case of cargo damage, left unrebutted by defendants."

33. In this connection I have borne in mind the expert opinion of Captain Wood on this subject and the failure of the 3rd Defendants to provide any convincing explanation for the breakage of the tow rope.

34. The fact that the crew on board the barge lowered an anchor or anchors subsequent to the braking of the rope provides in my mind sufficient causal connection as to be a proximate cause for the fouling of the cable.

35. However, I am satisfied that this is by no means the only negligence which arises in this case.

36. So far as the 3rd Defendants is concerned I am satisfied that the failure to maintain satisfactory communications between the tug and the barge also constituted negligence.

37. Perhaps even more serious than this was the delay of half an hour before a tow could be re established. In considering this delay it is necessary to bear in mind that the Master of the tug knew that the barge had lowered its anchor or anchors and that the barge was in the vicinity of the submarine cable.

38. I regret that I am also of the opinion that the Master of the tug was undoubtedly negligent in not satisfying himself in an effective manner that the barges anchors had been raised before resuming the tow. In this connection I have no doubt that it was an anchor at the bow of the barge which fouled the cable.

39. As I have stated there can be little doubt that the 3rd Defendants has been guilty of negligence.

40. I believe that there can also be no doubt that the 1st Defendant has been guilty of negligence. I refer to the inability of the tug and barge to maintain effective communications. Some of the responsibility for this lack of communication has to be borne by the crew of the barge.

41. Even more serious than this is the fact that when the tow was resumed at least one of the anchors was allowed to remain in the water. I have no doubt that this constitutes negligence.

42. I have already made brief reference to the damage which has been suffered by the Plaintiffs.

43. Mr. Jat submitted that it was most unlikely that the damage which had occurred had all been caused as a result of the incident in question. He put forward a number of conjectures which were based upon his interpretation of the visual evidence which could be seen from the photographs which were exhibited as evidence. I did not consider that the theories which were advanced had any solid foundation in reality and I believe that the damage which occurred to the cable was explicable in the terms of the case being advanced by the Plaintiffs.

44. The evidence which was produced by the Plaintiffs for the work undertaken to restore the cable was comprehensive and I do not have any reason to disallow any of the detailed items making up the totality of the claim. I am also satisfied that there has been a satisfactory and fair apportionment between the work relating to the damage which occurred before the incident and the amount now being claimed by the Plaintiffs. I would order that the amount of damages to be recoverable will be as stated in the Re amended Statement of Claim.

45. So far as the Plaintiffs are concerned they have established negligence against both the 1st Defendant and the 3rd Defendants and they can recover the full amount of their loss from either Defendant.

46. However, the 3rd Defendant issued a Notice pursuant to order 16 rule 8 for (inter alia) contributions to be ordered against the 1st Defendant and the 2nd Defendants. The action against the 2nd Defendants has been discontinued and I do not propose making any order pursuant to the Notice against them.

47. As against the 1st Defendant the position is different. As I have indicated earlier in this judgment I have found both the 1st Defendant and the 3rd Defendants to be guilty of negligence. I have no doubt that the 3rd Defendants' negligence is much more serious than the 1st Defendant's. In the event that a contribution needs to be made I am satisfied that the apportionment of liability between the 1st Defendant and the 3rd Defendants is that the 1st Defendant was 25% to blame for this accident and the 3rd Defendant is 75% to blame.

48. The Plaintiffs are entitled to interest on the amount claimed from the date of the issue of the writ to payment of the amount due at 1% above prime rate. I also make an order nisi that the Plaintiffs will have their costs.

Representation:

Mr. Joseph Fok (Holman Fenwick & Willan) for Plaintiff

Mr. Jat Sew Tong (Clement Ng & Co.) for 3rd Defendant

1st Defendant absent