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Trinidad and Tobago High Court |
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IN THE HIGH COURT OF JUSTICE
ANSEL LUTCHMANSINGH
(Legal Personal Representatives of The Estate
of Joseph Lutchmansingh) PLAINTIFFS
PORT AUTHORITY
OF TRINIDAD AND TOBAGO
DEFENDANT
Appearances :
Ms. L. Lucky-Samaroo for the Plaintiffs
Mr. E. Prescott for the Defendant
These proceedings arise out of an incident on 30 th April, 1982 when the “M.V. Inagua Island” (“the Ship”) was berthed alongside Berth No. 2 at the Port of Point Lisas. While a particular item of cargo was being discharged from the Ship by way of being lifted off of its deck for transfer to the dock alongside which it was berthed, the item fell partly onto the ship and partly onto the dock.
The Plaintiff’s claim is in negligence. They plead that the Defendant was the sole supplier of labour for the purpose of discharging the cargo from vessels berthed at this port and that one of its employees, having placed himself in charge of the operation of discharging this particular item of cargo from the ship, was giving signals to the operators of the cranes being used for this purpose. Particulars of negligence are said to be: failing to give such instructions as to properly co-ordinate the operations of the two-cranes; giving directions and/or instructions to the crane operators that resulted in the item of cargo being raised to an abnormal, unusual and unsafe height; failing to give proper directions and/or instructions having regard to the use of the two truck-mounted cranes and also the weight of the item of cargo; and failing to give proper instructions and/or directions so as to keep the item of cargo in a position of balance during its discharge.
In essence, the Plaintiffs say that the Defendant controlled port services at harbours in Trinidad and Tobago and the discharge at the cargo in question had to be under the supervision and/or the instructions of its employee, John Morales.
The Defendant denies that its function extended to the Port of Point Lisas, as well as the allegation that the discharge of the cargo had to be made under the supervision and instructions of its employee. It also denies that John Morales was its servant or agent for the alleged purpose, and further denies that there was any negligence on his part. It pleads that John Morales was not authorised to perfom these functions nor to supervise the discharge of the cargo or give any directions or instructions as to the manner in which it was to be lifted off the ship and placed on the dock.
The Defendant further pleads volenti non fit injuria on the part of the Plaintiffs, on the basis that they voluntarily consented to accept any risks involved in the operation and to waive any claim in respect of any injury or damage that might be occasioned, including damage to its cranes or equipment, as a consequence of lifting operation with full knowledge of the risk of injury or damage, or the conduct of John Morales.
The Defendant also pleads contributory negligence on the part of the Plaintiffs, this particularised as being that: they failed to have cranes in proper working condition for the performing of the said operation of discharging the cargo; they were in breach of their duty to provide cranes in proper working condition for carrying out the operation; they were in breach of the Statutes, Regulations and Orders in force for the purpose of ensuring that the cranes were in proper working condition and/or adequately maintained; the cranes were not of good mechanical construction, sufficient soundness of material and/or adequate strength and were not in proper condition or adequately maintained for the purpose of performing the said operation or at all; the operators of the cranes lacked the skill and/or competence and/or failed to perform the said operation with due skill and competence or in a proper manner or at all; they used or permitted one of the cranes to be used while it had a defective and/or unsafe braking system; they failed to service, inspect or test this crane properly or at all to ensure its braking system was not defective; failed to apply the braking system of this crane properly or at all, or failed to prevent its purchase wire from functioning improperly or in such a manner so as to prevent the accident; failed to exercise or maintain any proper or effective control of this crane.
The Defendant also relies on the fall of the item of cargo and the failure of the discharge operation as evidence of the negligence of the Plaintiffs its servants and/or agents i.e. res ipsa loquiter
Evidence at the trial was given on behalf of the Plaintiffs by Keith Lutchmansingh who was the Plaintiffs’ operations manager at that time; Rawle Baddaloo, who was then Port Manager at the Port of Point Lisas; Robert Campbell, who was then the Wharf Superintendent of Geo. F. Huggins & Co. Ltd; and Zaid Khan, an Inspection Engineer familiar with the mechanical operations and cranes. Evidence was given on behalf of the Defendant by Erva Bruno, its corporate secretary since 1977/1978; Osten Abbott, a foreman rigger employed by the Defendant; and John Morales. It had been indicated that an expert, Omar Seetahal, would also give evidence on behalf of the Defendant and he was present in Court for at least part of the trial. Ultimately however, he did not give evidence.
Mr. Morales was an employee of the Defendant at the time and played a pivotal role in the events of 30 th April, 1982. He therefore left the employment of the Defendant and that was, or is, itself the subject matter of litigation. An application was made during the course of the trial to have his evidence given in the form of a copy of an undated statement under the provisions of Order 38 of the Rules of the Supreme Court. This application was itself a matter of contention since Mr. Morales lives in Trinidad and there was no evidence of his inability to give evidence because of physical or mental incapacity. Indeed, viva voce evidence was taken from him at his home during which he was at great pains to emphasise his recurrent bouts with his surgeons but the application to have his evidence taken here was based upon his physical inability to come to Court. There was no indication at any time that he suffered any mental incapacity. He claimed that there were events he could recall and others which he could not. He recognised with great alacrity the copy of the report when it was shown to him and recognised his signature without any difficulty. He then claimed, having given the appearance of reading the statement with great intentness but in reality “playing to the gallery” in the living room of his house, that he could not recall any of the events of that day. My impression from this performance was that he was not in the least bit enthusiastic about giving evidence which might assist his former employer, and was not being truthful.
Given his response, cross-examination was not pursued. I nevertheless received the copy of the statement de bene esse and subsequently admitted it into evidence on the basis that I would attribute to it such weight as I thought it should merit. That statement is in part pure hearsay. I have not been told when the statement was given, but this was certainly sometime after 30 th April, 1982. Given the lack of contemporaneity, the element of hearsay, my conclusion that Mr. Morales was in fact capable of giving the evidence but preferred not to do so, and his lack of truthfulness, I have given or no consideration to the contents of this statement.
The Background
The Plaintiffs are two of the sons and two of the legal personal representatives of the estate of the late Joseph Lutchmansingh who was on 30 th April, 1982 the owner of a business called “Paramount Transport & Trading Co.”. Joseph Lutchmansingh died on 23 rd October, 1985 after these proceedings were instituted, and an Order was made substituting them as plaintiffs in these proceedings. For the sake of simplicity, I refer to the Plaintiffs in this judgment as “PTT”.
The business of PTT was in the inland transportation of cargo, including containers, steel, construction equipment and materials, as well as the rental of items of equipment such as cranes and fork lifts used for the discharge of cargo, amongst other things. It owned several cranes including a truck-mounted FMC Linkbelt with a 90' fixed lattice-boom and a capacity of 100 tons (“the FMC”), and a truck-mounted Lorain crane with a 110' fixed lattice-boom and a capacity of 150 tons (“the Lorain”).
The FMC was stationed at the Port of Point Lisas (“Point Lisas”) where it was used on a daily basis, and the Lorain was brought there on 30 th April, 1982 from another part of the Point Lisas Industrial Estate, of which the port is physically a part, where it had been carring out day to day lifting operations for the then Iron & Steel Company of Trinidad and Tobago Ltd.
The Lorain was brought to Point Lisas because PTT had agreed with Geo. F. Huggins & Co. Ltd., agents for the Ship, to discharge and to transport the cargo it was carrying and, in particular, an item of cargo weighing 84 tons which exceeded the manufacturer’s rated capacity of the FMC. Discharge of other cargo from the ship had began earlier that day, at around 7:00 a.m., using the FMC.
Keith Lutchmansingh was then the Operations and Maintenance Manager of PTT and had occupied that position for some ten years at least. He was in charge of PTT crane operations and he was familiar with crane operations, although he had no formal training or professional qualification in this area. He had read text books, operation and maintenance manuals; as well as other literature on cranes, their operations and maintenance.
PTT had been retained prior to 30 th April, 1992, probably on 29 th April, to discharge and transport this cargo. It became apparent that this particular item of cargo could not be discharged using only the FMC. Mr. Lutchmansingh had decided that it would be necessary to use two cranes to lift this item of cargo off of the ship and arranged for the Lorain to be brought to the dock.
He had come to the conclusion that two cranes were necessary having determined that, first, the FMC load lifting capacity as rated by the manufacturer was insufficient to lift this item of equipment which, as I have said, weighed 84 tons, was cylindrical in shape and some 80' long. Based on his experience, he was of the view that these two cranes with a total capacity of 250 tons were required to lift it. In essence, a safety factor of 50% of a crane’s lifting capacity is the norm so that the FMC, with a lifting capacity of 100 tons, should not be used to lift a load of more than 50 tons. The combined lifting capacity of the FMC and the Lorain was 250 tons, thus allowing more than an adequate safety margin.
This heavy item of cargo has been referred to variously in the pleadings and evidence as a “vessel”, “reactor”, and a “boiler”: I will refer to it as “the Reactor”. I will also refer to the procedure for its removal from the ship to the dock as “the lift”, that being the expression used for the most part in the evidence.
During the course of the morning or very early afternoon of 30 th April, both of the cranes were inspected at Point Lisas by Keith Lutchmansingh, PTT’s Chief Mechanic, Deo Sookoo, and the respective operators. This inspection was in addition to previous, routine, inspections carried out at weekly, monthly and yearly intervals.
Mohan Mahabir, the operator of the FMC, had been a crane operator at PTT for some five years and had been assigned to the FMC for the previous four years. The FMC was therefore obviously owned by PTT for least that period of time. Steven Nagee had been a crane operator at PTT for some three years and was assigned to the Lorain on a more or less permanent basis, according to Mr. Lutchmansingh.
Mr Lutchmansingh’s evidence was that the Lorain had been owned by PTT for two years but this was disputed by Mr. Abbott who said that he had seen it about two months prior to 30 th April, 1982 when he went with a Mr. Sonny Orie to the Caroni Racing Complex to inspect a crane. The Caroni Racing Complex project had been shut down for some time prior to this. They inspected the crane merely by looking at the brakes and the derrick. They did not operate it. In giving his evidence, Mr. Abbott was unable to say whether the crane he and Mr. Orie inspected had a three-way braking system, did not know the serial number of that crane, could not remember the name of the crane, and said that it had a shorter “derrick” i.e. boom, than the FMC . No evidence was given by Mr. Abbott which would satisfy me that the crane he saw at Caroni Racing Complex was the Lorain which was used on 30 th April, 1982, and which he says he went up to and inspected the brake drum after the lift had failed. I have therefore come to the conclusion that the two cranes referred to in his evidence were not in fact the same.
As to the inspection of the FMC, they checked the wire ropes of the main hoist; the wire ropes of the boom hoist; the pendant wire ropes of the boom. This was a visual examination for any indentations, or unusual wear patterns, or abrasions.
They next inspected the load bearing points of the FMC: the pin connections to the boom; the sheaves on the hook block. They then checked the crane’s clutches, examining them with a gauge and finding that no adjustment was needed.
They then checked the braking system: first, the break bands were checked using a gauge placed between the band and the brake drum. This was found to be perfect; second, the foot brake mechanism was checked and also found to be perfect.
They next checked the slew motion, “slew” being the movement of the crane is boom from side to side which is controlled by a lever. This was found to be perfect.
They then checked the boom hoist operation, which controls the movement of the crane’s boom up and down by means of a lever and a clutch. The clutch was checked by using a gauge, and the boom by engaging the levers for its up and down movements.
The engine of the crane was “firing off perfectly”. Visual checks were made throughout the draw works, this being the main part of the crane which transmits power from the engine to other parts of the crane requiring it. This was accomplished in the case of the FMC by a chain system.
The inspection of the Lorain was similar, the same procedure being used. No adjustments were made to the Lorain and the result of the inspection was that it was found to be fully operational and functional, and ready for the lift.
In particular, the braking system was inspected. This system is a mechanical one, with a foot pedal which is connected to a very large brake band over a brake drum connected to the main hoist by various rods and arms. Movement of the cable or hoist drum is controlled by pressing or releasing the pressure on the foot pedal. In addition to this mechanical braking system, there is a torque converter as well as a brake retarder fitted to the engine. These three braking systems work either individually or together and all are required so as to control the braking of the crane, depending on the load which has to be controlled. All three systems were checked. The foot pedal system was checked via the clutches and the brake band. The torque converter was checked using a gauge to measure the hydraulic pressure and the pressure was found to be normal. The brake retarder was checked by pressing the pedal and doing so showed it to be functional. The results of all of these tests were found to be normal and functional.
No notes were taken of this inspection, unlike those instances when routine inspections are carried out at weekly, monthly and annual intervals. The inspection of 30 th April was carried out because of the weight of the item of cargo to be lifted and the procedure to be used, the procedure being the use of two cranes.
By some time in the early afternoon of 30 th April, the cranes were positioned on the dock and it is perhaps helpful to attempt a description of that area, and the relative positions of the Ship and the cranes.
The entrance to the port of Point Lisas is from the west and Berth No. 2 is on the north side of the port. The Ship was alongside with its bow to the east and stern to the west. The Reactor was on the deck of the Ship to which it was presumably secured during the voyage.
The FMC was positioned on the dock closer to the bow of the Ship, with its rear facing the side of the Ship at an angle of about 45°. The Lorain was closer to the stern of the Ship, also at an angle of 45°. The FMC was about 4-6' away from the side of the Ship and the Lorain was about 15' from the side of the Ship.
At Mr. Lutchmansingh’s request, there was a meeting between himself, Mr. Campbell, the crane operators and John Morales.
The Defendant is a statutory corporation incorporated under the provisions of the Port Authority Act Chap. 51:01 and among its functions had the responsibility for the discharge of cargo from vessels from Point Lisas. The Defendant employed various categories of workers including stevedores, longshoreman and coopers, but there was not a separate category of “signalman”. It supplied stevedoring services on request, usually from ships' agents, at Point Lisas. Stevedoring services are utilised for discharging cargo from ships.
Mr. Morales was an employee of the Defendant and has been variously described in evidence as “Port Superintendent”, “Co-ordinator Out Ports” and “Superintendent Out Ports”. By whatever designation he may have been known, he had been assigned by the Defendant to Point Lisas where he was the most senior person on duty that day.
A part of Mr. Morales’ function was the responsibility for supervising/organising the discharge of cargo from vessels by the Defendant’s employees. In that capacity he was in a position to direct stevedoring operations. Ms. Bruno in cross-examination said that she understood a signalman’s function was to give signals to the persons engaged in the discharge of cargo i.e. stevedores, and said that she would accept that in his capacity as Co-ordinator of Out Ports in April 1982 Mr. Morales gave signals to crane operators to discharge cargo from vessels. She also said that she accepted that that type of function was a part of Mr. Morales’s function at Point Lisas.
John Morales had been an employee of the Defendant since 1979, having previously worked with Port Contractors Ltd. for some years prior to that. Keith Lutchmansingh knew him for some 15 to 20 years and during that time had dealings with him on the delivery of cargo and ship discharge operations as it affected PTT, although not on a regular basis. Mr. Lutchmansingh was personally aware of Mr. Morales’s experience. Mr. Morales had acted in the capacity of signalman for single-crane lifts on numerous occasions over that period of time and Mr. Lutchmansingh had seen him act as a signalman for two lifts, at Port of Spain and Point Lisas respectively, involving cargo weighing over 80 tons, both of which were two-crane lifts.
Rawle Baddaloo had known Mr. Morales for three years prior to 30 th April, 1982 and saw him at Point Lisas, involved in loading and unloading of cargo on an almost daily basis, on occasion controlling the operations of cranes, either one or two, lifting heavy items of cargo from ships to the dock. He saw him do so by means of signals on at least ten occasions. His evidence, contrary of that of Ms. Bruno, was that no one else but the Defendant supplied stevedoring, longshoring and supervisory labour at Point Lisas. It was the responsibility of the ship’s agent to ensure that labour was available for the discharge of a ship, and he was not prepared to accept that the Defendant had no position of signalman in its labour gangs because he had seen Mr. Morales signalling.
Robert Campbell made contact with the Defendant to arrange labour for the discharge of the cargo from the Ship and, in particular, for the discharge of the Reactor. Mr. Campbell’s evidence was that, as his employer’s representative, he could not give instructions to any of the stevedores, and that if there was anything in particular which needed to be done he would have to request this through Mr. Morales, who had the option of accepting or refusing the request.
Mr. Campbell’s evidence as to the events of 30 th April, 1982 is that he identified Mr. Morales as the man to give the signals on that day, but that he had no discussions “to speak of” with Mr. Morales as to how the lift was to be carried out. He does not recall the discussion involving Mr. Lutchmansingh, Mr. Mahabir, Mr. Nagee and Mr. Morales of which he was supposely a part, but readily admitted to being present. He does not recall hearing Mr. Lutchmansingh asking Mr. Morales any questions about his ability to do the signalling. He said that he took no part of the making of the decision to use Mr. Morales as the signalman, but that this was Morales’s decision. At no time was he told by PTT, or anyone on its behalf, of the need to provide a signalman, nor was he asked to do so by them. PTT did not provide a signalman, nor was PTT asked to do so. He does, however, say that on the day in question PTT provided its cranes and trucks. The trucks were obviously provided by PTT to transport the items of cargo to the consignee or consignees.
His experience of operations at Point Lisas was that a discharge of cargo was usually carried out by stevedores but when a “…specialty item…” was involved Mr. Morales normally took over the whole operation. “He did not allow his deckhand to signal to discharge a heavy piece like that”. As far as he was aware there was no one senior to Mr. Morales at Point Lisas on that day and he was in charge of the lift. He considered Mr. Morales to be competent, and left the lift up to him. He had known him for about forty years and had seen him signalling to a single crane on hundreds of occasions, and signalling to two cranes operating simultaneously on two or three occasions. It was not Mr. Campbell’s function to say how the cargo was to be discharged, and as far as he was concerned and aware Mr. Morales was the only person to make that decision. Mr. Campbell did not have the authority, he could not tell Mr. Morales how to go about discharging the cargo. He could only make suggestions.
Mr. Lutchmansingh had called this meeting to discuss the lift because it was a matter of some concern to him. A two-crane lift was not a procedure which PTT had employed on more than an occasional basis in the past and, wherever possible, it is preferable to use a single crane to lift an item of cargo rather than use two simultaneously. That apart, the two cranes which Mr. Lutchmansingh had decided would be used were of different capacities, had different boom lengths, and different numbers of “falls” of cable reeved over the hook blocks, as he put it. A hook block is made up of a grooved wheel, also called a sheave or pulley, in a frame or shell. A hook block may contain one or more sheaves. A hook may be attached to the block, hence the expression “hook block”.
"Reeving" is the act of passing a cable through the hook block and placing it on the sheave. I do not think it necessary for the purposes of deciding any of the issues before me to go into detail as to what constitutes reeving and re-reeving. Suffice it to say, increasing or decreasing the number of times the cable passes through a hook block will have the effect of affecting the lifting capacity of the crane. The greater the number of times the cable goes through the block, the greater the ability of the crane to lift a heavy object – much in the same way as using a lower gear in a motor car will allow it to go up a steep hill more easily. Prior to beginning the lift on 30 th April, 1982 the Lorain had six lengths of cable running through its hook block and the FMC had eight lengths. This meant that the “line speed” i.e. the speed at which the cable would move, would be different as between the two cranes. These were all matters which were important for the signalman to know but Mr. Lutchmansingh did not bring them to the attention of Mr. Morales because, he said, Mr. Morales was experienced in matters of this nature making it unnecessary for him to do so. “…it was not prudent for me to make that particular signalman aware of this. I knew the man. I interviewed him. He should have known these things” .
In the event, this meeting took place and the proposed lift was discussed. In his evidence in chief, Mr. Lutchmansingh said merely that Mr. Morales “purported to be the person in charge…determined what approach would be taken for lifting the reactor”. He also gave evidence of Mr. Morales indicating to Messrs. Mahabir and Nagee that signals should be given to them only by Mr. Morales, and taken by them only from Mr. Morales. In cross-examination, however, further details of this meeting emerge.
I should say here first, however, that Mr. Lutchmansingh in cross-examination eventually agreed that the use of a signalman was necessary for safety purposes. PTT did not have anyone to act in this capacity. Having said initially that it was not a necessary part the operation of a crane to have a signalman, Mr. Lutchmansingh then went on to say that he would recommend it depending on the “terms of the agreement and the client’s requirements” and then, further, that is “a safe practice to ensure someone provides signals to the crane operator”. This safe practice, he went on to say is because “the crane lifting industry requires a signal person at all times” and that he “…saw the need for a signalman to carry out the lift”. He did not, however, tell Mr. Campbell of either his perception of the need for a signalman or of the requirement of the crane industry because, or so it appears, he would have me accept from his evidence, Mr. Campbell provided a signalman.
Returning to the question of the need of a signalman, Mr. Lutchmansingh also said in cross-examination that the need for a signalman had become apparent before 30 th April, 1982, and that when Mr. Campbell brought Mr. Morales to him it was not open to him to refuse to use Mr. Morales as a signalman. He denied that it was possible for him to refuse. He also said in cross-examination that he thought it was Mr. Campbell’s duty to instruct Morales.
In the event, I am satisfied that Mr. Lutchmansingh knew full well of both the need and importance to have a signalman direct the operators of both the FMC and the Lorain.
The proposed lift was discussed amongst these people. During the course of this discussion, Mr. Lutchmansingh satisfied himself that Mr. Morales was competent to perform this function. Mr. Lutchmansingh asked him how he was going to perform the lift and to outline the method he was going to use, as well as the details of that method. Mr. Lutchmansingh was satisfied that these enquiries were sufficiently detailed so as to ascertain Mr. Morales skill, but was not satisfied, initially, with the answers which he received. Mr. Lutchmansingh then told Mr. Campbell that he was not satisfied “with the man he had brought”, and Campbell then asked Morales how he was going to perform the lift. Mr. Morales’ response to that enquiry was not in its entirety the same answer that he had previously given to Mr. Lutchmansingh, but it made clearer to Mr. Lutchmansingh what Mr. Morales proposed to do and, having heard that answer Mr. Lutchmansingh “…was then satisfied the man had the skill to carry out the operation”. Mr Lutchmansingh, however, seeks to qualify that by then going on to say “it was not for me to decide to use the man”.
Mr. Lutchmansingh clearly knew that the PTT cranes would be at risk if Morales did not do his job properly, but “ I was prepared to take that risk having heard the man ”. Mr. Lutchmansingh also appreciated that his crane operators would be at risk, but he decided to take that risk as well. He also appreciated that the cargo would be at risk. He said that he did not at that time, but had since come to recognise, the possibility that the ship could also be damaged. He took these factors into account and decided to go ahead with the lift with Mr. Morales as the signalman. He says that he brought these matters to the attention of Mr. Morales, and also the need to keep the load level at all times. He says that he then told Mr. Morales of the three abnormal features of the lift conceding, however that he did not bring to Mr. Morales’ attention that the line speeds through the hook blocks of the two cranes would be different. In the event, Mr. Lutchmansingh was satisfied that Mr. Morales was competent to perform the functions of signalman, and told Messrs. Mahabir and Nagee that they were to take instructions from Mr. Morales.
The Lift
The group, with the exception of Mr. Campbell, went to the cranes which were in the positions I have described previously. Messrs. Mahabir and Nagee got on board the FMC and the Lorain respectively and Mr. Morales’ signalled them to lower the hook blocks for attachment of the lifting cable. Mr. Lutchmansingh was standing between the two cranes making certain that the cables were installed properly. “I was there to oversee what was happening”. Mr. Lutchmansingh understands crane signals but gave none. “That was not my authority”. From his position he could see at all times what was happening.
The slings were provided by the Ship and were attached to the hook blocks of the cranes. Morales then signalled the operators to raise the hook blocks. He then signalled the operators to slew the booms over the Reactor so that the slings could be attached to the hooks “so that the labour on the ship could attach the slings over, under and back onto the hook”.
There were markers on the Reactor to indicate where the slings were to be placed and this was done. The Reactor’s centre of gravity was not halfway along its length, one end being heavier than the other, so that it had an off-centre centre of gravity. After the slings were attached, Mr. Morales signalled the operators individually to place their booms in a “particular centre line of the reactor” using his fingers and hands. At that time Mr. Morales was standing equi-distant between the two cranes and Mr. Lutchmansingh was approximately 10 feet behind him.
Morales then signalled both operators to start lifting, using his left hand to signal Mahabir and his right hand to signal Nagee. They started to do so and Mr. Lutchmansingh noticed that the end of the Reactor slung to the Lorain was being raised but that the other end slung to the FMC was not. He saw Mahabir make eye contact with Morales and the latter halted the Lorain with a hand signal. Both operators lowered their respective ends of the Reactor back onto the ship.
Mr. Lutchmansingh went to Mahabir and asked him what had happened. He then told Morales that the hook block on the FMC would have to be re-reeved so as to increase the number of parts or falls. Morales signalled the labour on board the ship to remove the cables from the hook and the FMC then slewed its boom back over the dock where Lutchmansingh signalled Mahabir to lower the boom to the ground. The FMC hook block was re-reeved from six parts of cable to eight thus allowing its “line pull” to be increased, and raise the Reactor. Mahabir was then signalled by a PTT employee to reposition the boom so that the slings could be reattached to both the FMC’s hook and the Reactor. These signals were given by Morales.
Mr. Lutchmansingh’s evidence is that Mr. Morales then recentralised the hook block over the centre line of the Reactor and made the cables taut. He then repositioned himself so that the two crane operators had a full view of him on the dock, slightly closer to the FMC than he was to the Lorain. Mr. Morales’ attention was focused on the FMC and he signalled the operator to tighten the slings. He then stepped back to a position where he could see both operators, and they could both see him. Mr. Lutchmansingh was again some 10 to 15 feet behind Mr. Morales. Mr. Morales then signalled the operators to begin raising the load. They did so, but when the Reactor got to a height of about 4' above the deck of the Ship Mr. Lutchmansingh went to him and said that it was not necessary to raise it that high. Morales’s response was that he wanted to clear a part of the ship called “the arm”, to which Mr. Lutchmansingh responded that the arm could be removed. This arm was some 10' higher “from ground level” and was one of the davits holding one of the Ship’s lifeboats. Mr. Morales signalled the operators to stop the lift and they did so. Mr. Lutchmansingh called Mr. Campbell’s attention to the need to have the Reactor lowered so that the arm could be removed. The reason for Mr. Lutchmansingh suggesting the removal of the arm was because the Reactor was almost at the same height as the dock and if the arm were removed it would only be necessary to raise the Reactor 1' off the blocks on the Ship’s deck where it was secured. If the arm was not removed, then the Reactor would have to be raised some 10' or 15' to clear it. Mr. Morales did not agree to the arm being removed and signalled for the lift to continue.
Mr. Lutchmansingh’s view was that he was not in a position to instruct Mr. Morales to remove the arm. Mr. Lutchmansingh said he pointed out to Mr. Campbell that raising the Reactor to that height was unnecessary and unsafe.
The lift continued under Mr. Morales’s direction until the reactor got to a height of some 12' - 14' above the level of the dock. At that point Mr. Lutchmansingh heard a shout which he said was coming from someone on the ship: “Stop, stop, stop, stop”. Mr. Lutchmansingh did nothing, but Mr. Morales signalled the two operators to stop the lift which they did immediately. At this point the Reactor was at about the height of the arm and was “swaying”. There is no evidence as to what caused this swaying of the Reactor. Mr. Lutchmansingh expressed the view that it was the result of it coming into contact with other cargo on the deck of the Ship and bases his evidence on a signal which Mr. Morales gave to Messrs Mahabir and Nagee. There is no evidence, however, of there being any other cargo on the Ship’s deck; no mention is made of it by Mr. Campbell who was on the deck of the Ship; nor did Mr. Lutchmansingh make mention of seeing any such cargo.
Mr. Morales walked closer to the Ship and spoke to someone. Mr. Lutchmansingh followed him. Mr. Morales stepped back to a position where he could see the operators and they could see him. Mr. Lutchmansingh did nothing: “I was not in a position to do anything”. At this point the Reactor was over the Ship in a horizontal position.
Mr. Lutchmansingh says that when the swaying stopped, perhaps after as long as five minutes, Mr. Morales signalled the Lorain to hold at that point and then signalled the FMC to “boom up”. Booming up is the raising of the crane’s boom.
Mr. Lutchmansingh noticed that the level of the Reactor was changing. He says “dramatically”. The Lorain was holding its end level but the other end was being raised by the FMC and this would cause the load, while being raised, to come closer to the boom of the FMC.
The slings attached to the hook block on the Lorain started to slip towards the marking on the Reactor indicating its centre of gravity. The Reactor then fell suddenly, partly onto the Ship and partly onto the dock, hitting both Ship and dock almost simultaneously, with the end slung to the Lorain hitting the dock first.
Mr. Lutchmansingh inspected the sling and found that it had sheared completely. He also inspected the Reactor.
The fall of the Reactor resulted in the FMC’s boom collapsing and the boom of the Lorain also being damaged.
Mr. Lutchmansingh is adamant that he did not give any signal to Mr. Mahabir when the lift was first initiated, and that he did not give any instructions to anyone at all during the course of the lift, nor was he actively involved in giving signals. He conceded that he gave advice to Mr. Morales at some point.
Further, Mr. Lutchmansingh said he was not in a position to call off the lift. He said this initially, although he subsequently conceded that “perhaps. Maybe ” he could have done so. He denies that he could have called off the lift in the interest of the safety of the crane operators or of protecting the cranes. He denies that at the time when he advised Mr. Morales to re-reeve the hook-block on the FMC he could have called off the lift: “that was too early”. He concedes, however, that at the point where the Reactor was at a height which would enable it to clear the arm: “at that stage I could have demanded that the operation be brought to an end. I was fearful then that it had become an unsafe operation”. He gave no instructions to stop the lift at that stage, however, and says he made no request of Mr. Campbell to stop the lift. He only requested Mr. Morales to stop the lift which Morales refused to do. Later in his cross-examination, however, he said “I could not call off the lift at that stage”, although he had not given up at that time his responsibility to the crane operators or to ensure the safety of PTT’s equipment. He said that “it was not my duty to say this is an unsafe operation, stop the lift. It was somebody else’s duty. John Morales. That is why I stepped back. It was because Mr. Morales was in charge of the safety of the operations….it was my position that Mr. Morales had responsibility for the safety of my equipment at that point. I did not communicate that to Morales that these were his responsibilities”.
It is clear that Mr. Lutchmansingh adopted a position that howsoever the accident might have been caused he (PTT) was not responsible for it. He said that Mr. Campbell was responsible for providing a signalman and that PTT had no say in the matter. He said that the Defendant supplied the labour to discharge the cargo from the Ship and that Mr. Campbell had arranged for this labour. If this was so, then surely PTT would have sought recourse against Geo. F. Huggins & Co. Ltd., but it did not.
Mr. Lutchmansingh then said that he had no authority to give any instructions whatsoever to Mr. Morales, and that he could not give any instructions to the operators of the two cranes. He also said, however, that it was possible for him to call off the lift at some time. He is careful to draw a distinction, in my view, between his authority, or lack of it, to give instructions to Mr. Morales and signals to the crane operators on the one hand, while retaining responsibility for overseeing the lift and retaining the right to call it off should it become apparent that it was unsafe to continue. He would have me accept that in all this he ultimately had no responsibility for any damage or loss that might occur, but this does not accord with him saying that he had responsibility for the safety of PTT’s crane operators and the protection of his PTT’s equipment.
In all the circumstances, I cannot accept that PTT was, so to speak, at the beck and call of Mr. Morales, stripped of all authority and discretion.
Mr. Campbell’s evidence as to the lift itself is, that he was standing on the deck of the Ship about 20' away from the Reactor. From there he could see Mr. Morales who, he said, was about 6' away also on the deck of the Ship. He saw Mr. Morales signalling and in charge of the lift. He said that Mr. Morales slung the Reactor and signalled Messrs. Mahabir and Nagee to lift. “After that signalling, the lift began to come off the vessel”. Suddenly, when the Reactor was about 10 to 15 feet above the ground, one of the straps on the Reactor slipped causing the strap to cut on a flange. That end of the Reactor then came down. When the strap slipped, he says, the Reactor “…was in a tilt…” as a consequence of the fall, the FMC could not take the load and its boom collapsed.
The other witness to the lift was Osten Abbott, a foreman rigger employed by the Defendant and whose functions included making slings, supervising the making of the slings and seeing about heavy lifts off of ships. He made slings for the lift of the Reactor but when he arrived at Point Lisas at somewhere around 4:30 to 5:00 o’clock that afternoon slings for the lift had already been made available by the Ship. There is no evidence of him arriving in time so as to make the slings he had made available for the lift.
He was standing about 50' behind Mr. Morales, who was himself some 30' – 40' from the Ship, and saw when the two cranes “tightened” the slings, Mr. Morales having called out to the operators “heave purchase” and having signalled with his hands. His evidence is that when the Reactor got to a height of about 6' – 8' above the deck of the Ship Mr. Morales shouted out “stop purchase” and signalled with his two hands. The cranes stopped raising the Reactor but the Lorain “…did not get brakes” and the Reactor came back down falling across the Ship. The “back lash on the crane block” caused the boom of the crane to collapse.
Mr. Abbott went up to the Lorain after the accident and touched the “brake wheel”. He saw “... a rusty powder”. From experience in handling cranes over some 24 years, both on the docks and on ships while he was a seaman, he came to the conclusion that this rusty powder was the result of lack of use. This part of his evidence was linked directly to that in which he said he had seen a crane two months before at the Caroni Racing Complex, and the inference to be drawn from his evidence is that the lack of use and the consequent rusty powder meant that the crane was not in a safe, proper or efficient working condition. I have already come to the conclusion, however, that this was not the crane which he saw at the Caroni Racing Complex.
Mr. Abbott also said in evidence in chief that he did not see the re-reeving operation on the cranes which Mr. Lutchmansingh said took place very shortly after the lift was first attempted, nor did he see any inspection of the cranes. Given his estimate as to the time at which he arrived at Point Lisas, and the fact that the slings he had made were not used, leads me to the conclusion that he had not in fact arrived there prior to the lift beginning, but that he had arrived some time, after. In addition to these two factors I have mentioned, his evidence was that he was standing some 80' from the Ship and there is no evidence from him whatsoever that he had ever been any closer to the cranes, or the Ship, or the Reactor prior to the lift being attempted. Additionally, his evidence was that during the lift he looked at no one else but Mr. Morales. He did not look at the Reactor, nor at the crane operators, until Mr. Morales stopped the lift. Further, although his evidence is that he went up to the Lorain after the accident, there is no evidence from him that he actually went up to the Ship. He says that where he was standing some 80' away he could see where the centre of gravity was marked on the Reactor and that it was in the centre of the Reactor, but at the end of his cross-examination he admitted “ I didn’t see if the centre of gravity was marked on the boiler because I didn’t go close”. He further says that he could see from that point that the Reactor had four independent lifting blocks and that there were four slings in use: two at each end of the reactor using four 25-ton shackles. I find it difficult to accept that he could have seen all of this from a distance of some 80. In the circumstances I have preferred Mr. Lutchmansingh’s account of the lift where there is a conflict.
Mr. Abbott’s evidence, while it may be inconsistent or contradictory in some respects, is helpful in others. For example, he is the only witness to explain the presence of the “arms” on the Ship being the davits from which a lifeboat is suspended and which were the apparent cause of the Reactor having to be lifted as high as it was; he also explains the apparent disparity in the evidence as to the height of the Reactor above the Ship and the “ground” or dock, which was the simple consequence of the Ship rising out of the water as the load of the Reactor was taken off of it by the cranes during the lift. Initially, and when taking the full weight of the Reactor, the Ship’s dock was on almost the same level as the dock.
There is however, one other aspect of his evidence which is significant. In cross-examination he said that he was familiar with PTT’s cranes and that “ I would consider them to be the best maintained cranes ”. This would n ot support his evidence of rusty powder on “the brake wheel” of the Lorain and would, on the other hand, support the evidence of regular, routine, maintenance of the FMC and the Lorain, as well as the results of the inspection carried out on 30 th April 1982.
Zaid Khan’s expert evidence concerned the carrying out of two-crane lifts, the braking systems on cranes and his view of certain aspects of what occurred on 30 th April, 1982.
Mr. Khan holds a BSc. in Mechanical Engineering from the University of the West Indies and qualified as an engineer in 1974. He has been a member of the Association of Professional Engineers of Trinidad and Tobago for some 15 years and is a registered professional engineer with the Engineering Board of Trinidad and Tobago. He has wide experience having worked with Texaco, Trintoc and Petrotrin for over 17 years in design, inspection and maintenance, and construction. He has been involved with the operation, maintenance and inspection of cranes from 1980, and their safe working, safe operational practices, and safe load handling methods. He is familiar with the mechanical operation of cranes, particularly relating to safe handling of loads, and safe and correct rigging practices. He has carried out failure analyses on crane accidents, has written a manual on safe crane practices, and the rigging, lifting of loads and operations of such equipment. He has also carried out training courses for personnel at Amoco, Texaco, Trintoc, the Defendant, Arawak Cement Co. Ltd. and Trinidad Cement Ltd.
His evidence was that in performing a two-crane lift there is a need for a person to give signals, whether by radio, hand, or otherwise. This is the key individual involved because he is in charge of the entire lift, and particularly with respect to safe movement of the load. The function of the crane operators is primarily to ensure adherence to a lifting plan and the instructions given by the rigging supervisor or the person in charge of the lifting exercise.
His evidence, in the context of the events and the fall of the Reactor on 30 th April, 1982, was that the rate of fall will depend on first, the number of pulleys and falls in the cable; and second, the frictional forces in the drum.
The greater the number of pulleys and falls, the slower the rate of fall because the frictional forces are greater. Additionally, for a load to fall quickly, there must be either sufficient cable on the drum, or the end of the cable will be pulled away because there is not enough wire on the drum to permit the free fall.
There is a further factor which can affect the rate of fall. This is the state of lubrication of the pulleys and cables. If there has been good lubrication then the rate of fall will be faster because the frictional forces are reduced.
In his view, if all of the brakes on the Lorain were released, he would not expect the load to suddenly come crashing down because a sudden crashing down connotes a free fall. If the load brake is released, the frictional forces of all of the pulleys, plus the frictional forces associated with the drum on which the wire is wound, will have a retarding effect on the rate of fall and in those circumstances he would certainly not expect to see the load come crashing down. In the further view of Mr. Khan, if the Lorain had both a foot pedal and a lever system by which the brakes were operated, then the two systems can be used independently to provide braking. He was not sufficiently familiar, however, with the Lorain to say whether the braking systems on it would work together or independently.
He did opine, however, that if a crane had “three-way safeguard braking system” then it would be very unlikely that all three systems would fail at the same time. The likelihood of that happening on a scale of 1 to 10, where 1 is probable and 10 is impossible, he would rate at somewhere between 8 and 10. Additionally, if that crane had a brake retarder, and a torque converter, and a brake pedal, each of which operated as a backup to the other, the likelihood of the entire braking system failing would be “more towards the 10 range”.
In his view, maintaining a level, horizontal, load is of paramount importance in a two-crane lift of the nature of that which took place on 30 th April, 1982. If one end of a cyclindrical load with an off-centre centre of gravity is lifted higher than the other, then the load will slide in the direction of the lower sling, giving the appearance of that sling moving towards the centre of gravity towards the load. That appearance, however, is an illusion because the slings tend to stay vertical.
He further opined that in the circumstances of what took place on 30 th April, 1982, if a cable at the lower end or level of a load is cut, then the load will fall to the ground, crashing to the ground, and there will be a great tendency for the boom of that crane to collapse because of a phenomenon known as “shock loading”. Shock loading is more likely in the context of a cut cable rather than in the context of a braking system because shock loading depends on the speed of travel of the load. Whether the load strikes the ground or not, a braking system failure results in a slower rate of fall. It is not likely to produce shock loading.
If the load is 10' above the ground and one end is raised up quickly, then it is possible for the boom on that crane to collapse, but there are many factors involved and Mr. Khan was not able to say whether it would have occurred in this particular instance.
His further evidence, in cross-examination, was that good operational practices demand that you test the braking system of a crane by first hoisting the load a few inches above the ground and holding it there to check all the mechanisms. By doing this you establish in a safe fashion that the load is properly slung and that the cranes are structurally sound. Additionally, by holding the load in that position, the brakes are automatically checked, and the cables can also be checked at that point. It is inherent in this “lift and hold” that the cables are checked and that all systems of the cranes are checked, except for the boom hoist. To check the boom hoist you have to actually boom up i.e. raise the boom of the crane. This check is better done before the actual lift since it can be done without a load, but in response to a question from the Court, Mr. Khan said that it is better to test the crane when under load and actually performing a lift. There is a distinction to be drawn between operational checks and structural checks. The booming up without a load is a check on operational capacity. If performed with a load, then it is a structural check indicating the capability of the crane to boom up the load desired to be lifted.
The ability of a braking system to hold the load depends upon the weight being lifted and if the braking system is operating at maximum efficiency, then it will hold the maximum rated load of the crane. To determine whether a braking system is operating at maximum efficiency, a load test must be carried out but a check can also be made by looking at the brake drum, its linings, and testing the pressure in the hydraulic system, if there is one.
In Mr. Khan’s opinion, a braking system could fail even after passing a load system check. This might be as a consequence of normal wear and tear on the system, operator problem, or operator fault.
In the context of a two-crane lift, it would be unusual to instruct one operator to hold while the other is instructed to boom up. Booming up may be a means of correcting the level at which the load should be. This, of course, should be horizontal at all times.
Before initiating a lift of an item of the weight of the Reactor, there are certain checks which should be carried out. The first is to check the lubrication of the pulleys and the cables to make certain that it is to the manufacturers’ specifications. Second, a check should be made of the cables to see if there is any freezing or wearing. That is a standard practice. Third, Mr. Khan recommends that the cables be checked to see that they meet the manufacturers’ specification because a failure to do so could make the lift unsafe. This check is a visual one and is made by looking at the cable and deciding whether it meets the manufacturers specification with respect to size and construction. He would not consider it an unsafe practice to check the cable visually without a gauge, although the use of a gauge is recommended.
In the context of the functions to be performed by the signalman and the operators respectively, his opinion is that the reaction time of the operator is essential to determine whether he follows the instructions given to him to the letter. Reaction times between operators may vary. Mr. Khan referred to this as the reactive time of the operator. There is also a possibility of the reactions time varying as between the cranes, and this will depend on their operating type and operating characteristics.
In the case of a lift from a ship to the shore, the most important aspect is to have the signalman in full visual contact with both crane operators as well as the load. He can, however, be positioned either on board of the ship or on the dock depending on the circumstances of the lift.
The following of my conclusions are of perhaps particular importance:
1. The Defendant supplied stevedoring services at Point Lisas and that it was the sole supplier of these services.
2. Mr. Morales was employed by the Defendant at the time, that he was its senior employee at Point Lisas on the day in question, that acting as a signalman was within the scope of duties, and that he acted in that capacity on that day for the discharge of the Reactor from the Ship and onto the dock.
3. Both Mr. Lutchmansingh and Mr. Campbell, had dealings with both Point Lisas and the stevedores, as well as Mr. Morales, on a regular basis over a considerable period of time; they knew and accepted that these stevedoring services were to be provided exclusively by the Defendant; they knew and accepted that if the need for a signalman arose during the discharge of an item of cargo from a ship that Mr. Morales would take charge of the operation and give the required signals. Not only were they well aware of this, but they also accepted it.
4. Mr. Lutchmansingh made the decision that Mr. Morales had the experience and expertise to perform this function in relation to the discharge of the Reactor from the Ship.
5. I have come to the conclusion that, on a balance of probabilities, the fall of the Reactor was the consequence of Mr. Morales signalling the FMC crane to “boom up” thereby resulting in the Reactor coming off of a horizontal plane and the end slung to the FMC being higher than the end slung to the Lorain. This tilt, as it has been called, had the effect of making the reactor slide downwards through the slings attached to the Lorain; the slings being cut by the ½" flange on the Reactor, and the Reactor then suddenly falling and striking the dock, ultimately coming to rest partly on the dock and partly on the Ship.
It has been submitted that Mr. Lutchmansingh's evidence that the signal to boom up being given only to the FMC is not to be accepted because the unevitable result would be the Reactor coming off of a horizontal level, and there is no explanation as to why Mr. Morales should give such a signal. This was not, however explored in cross-examination, and a possible explanation is that the Reactor having been already lifted to the height of the davits, it needed only to clear the davit(s) at the end of the Reactor slung to the FMC prior to being lifted off the Ship and being lowered to the dock. In those circumstances Mr. Morales adopted a "short cut". Further, I have evidence of him signalling on only two occasions two-crane lifts prior to the day in question, and no evidence of him having signalled a lift of an 84 ton item 80' in length. Despite his many years of experience, it is not impossible that the necessity of maintaining an absolutely horizontal level at all times was insufficiently impressed upon him.
There are several other possibilities for the cause of the tilting of the Reactor: first, that the Lorain’s boom was not raised in response to a signal given by Mr. Morales, but there is no evidence to satisfy me that such a signal was given; second, that the Lorain’s brakes were not applied as Mr. Morales had instructed, but Mr. Lutchmansingh’s evidence is to the contrary, and the fall of the Reactor was too sudden for there to have been any retarding effect from the frictional forces; third that the Lorain’s braking system failed, but, again, this is contrary to Mr. Lutchmansingh’s evidence, the fall was too sudden, and the likelihood of such a failure was placed at being no better than remote.
I have come to my conclusion based principally on the evidence of Mr. Lutchmansingh which I have preferred to that of Mr. Abbott. His evidence is supported in some measure by Mr. Campbell who makes no mention of any instruction or signal being given to boom up but says that when the Reactor began to come off the vessel a strap slipped causing it to be cut by the flange. Mr. Campbell's evidence is not entirely consistent, I accept, because he also said in his evidence that the “…load started to tilt because the sling started to slip”, but the tilting and the slipping were almost simultaneous. I should say that I do not place great weight on Mr. Campbell’s evidence: first, because it was minimal in relation to the lift itself; second, because he was the only witness at the trial to say that Mr. Morales was on board the Ship and remained there during the entire lift, contrary to both what Mr. Lutchmansingh and Mr. Abbott said. I do not, however, discount entirely his evidence.
I have come to the further conclusion that the damage suffered to the boom of the FMC was a consequence of it collapsing under the additional load. The Reactor was some 10', perhaps 15', above the dock at that time and given its weight there is no question of it being held aloft solely by the FMC. As to the damage to the Lorain, I accept the evidence that the fall of the Reactor was sudden, that it “slammed”, or as Mr. Abbott also described it “The load fell suddenly. Bram”. This was not so much the result of the fall being the consequence of either the braking system on the Lorain giving way, or Mr. Nagee failing to apply Lorain’s brakes, or failing to hold the Reactor in its position some 10' to 15' above the dock: it was more probably the consequence of the sling being cut and the Lorain end of the Reactor falling freely, without any retarding effect of frictional forces onto the dock. The consequence of this was “shock loading” and damage to boom of the Lorain.
6. Mr. Lutchmansingh knew that the proposed lift was abnormal and that it entailed a measure of risk. He considered the risks and accepted them. He decided that he would provide the cranes and the operators as he had been requested, and that the lift would proceed. He had the discretion, or authority, to call off the lift by refusing to allow PTT’s cranes to be used. He did not call it off prior to it beginning.
7. Mr. Lutchmansingh had both the discretion and the authority to call off, abort, the lift at any time. He may not have had the authority to give signals to the crane operators and, indeed, to do so was potentially dangerous since it could result in possibly conflicting or contradictory instructions being given, but he could have called off the lift on the basis of it being or becoming unsafe at any time.
8. It was Mr. Lutchmansingh who drew to Mr. Morales’ attention the necessity to re-reeve the FMC. He termed this as being advice, or a suggestion, but I do not accept that had Mr. Morales refused to have the FMC re-reeved, Mr. Lutchmansingh would not have had the authority to refuse the use of PTT’s cranes to continue carrying out the lift. Similarly, when the lift was stopped with the Reactor about 4' above the deck of the Ship, and Mr. Lutchmansingh pointed out to Mr. Morales said there was no need for the lift to proceed higher because the arm of the Ship could be removed so as to allow the Reactor to be swung over the side of the Ship, he did so because he was apprehensive that to raise the Reactor to any greater height was unsafe. He knew that the operation was, had become, or was becoming unsafe, or had become unsafe, and said so.
9. Mr. Lutchmansingh accepted that he owed a responsibility to the crane operators for their safety and had a responsibility for the protection of his cranes. In those circumstances, I do not accept that he had no authority to call off the lift if he thought it was, or was becoming, unsafe.
10. Further, Mr. Lutchmansingh came to admit in cross-examination that he considered “…it was a duty of a my company to carry out a safe operation ” even though he sought to restrict this duty to “…this particular case”. It ill behoves PTT to say, however, that it owed no duty to anyone, and to attempt to pass off all responsibility for the lift onto the Defendant, or Geo. F. Huggins & Co. Ltd. for that matter.
11. Mr. Lutchmansingh decided not to tell Geo. F. Huggins & Co. Ltd. that he did not have a crane capable of performing the lift. He decided to use two cranes without telling Geo. F. Huggin’s Co. Ltd. this. Mr. Lutchmansingh knew of the need for a signalman in this case, but did not tell this to Geo. F. Huggins & Co. Ltd. nor did he tell Geo. F. Huggins & Co. Ltd. that PTT did not have a signalman to perform this function.
12. Mr. Lutchmansingh was perfectly at liberty to refuse to allow Mr. Morales to act as the signalman. He did not do so.
13. Mr. Lutchmansingh was perfectly at liberty to call off the lift while it was being carried out. He did not. If, for example, he saw one or both of his cranes failing, and that Mr. Morales did not realise this, would Mr. Lutchmansingh have me accept that he could not call off the lift? I think not.
14. PTT had a duty to supply cranes which were in proper working order and fit for the purpose of carrying out the lift, as well as crane operators possessing the necessary skill or competence to operate cranes in performance of this operation.
15. The Defendant has failed to satisfy me that either of the cranes failed to meet these requirements, or that either of them was structurally or mechanically unsound, or otherwise not in proper condition to perform the lift. Further, the Defendant has failed to satisfy me that the cranes were not properly maintained nor inspected on 30 th April, 1982 prior to the lift.
There were just two checks amongst those listed by Mr. Khan which were not carried out entirely or at all. First, there is no evidence of any check being made of the lubrication of the pulleys and cables on the cranes to ensure that the lubrication was to the manufacturer’s specifications. It has not been demonstrated to me, however, that this had or would have had, any material effect, or any effect at all, on the cranes or contributed to the cause of the accident. Second, there was no check of the structural integrity of cranes prior to the lift by the use of a “lift and hold”. There is, however, no evidence before me as to how long the “hold” should be maintained and it would seem to me that in the absence of that evidence, the initial raising of the Reactor, after which the necessity for re-reeving became evident, as well as the “hold” of the Reactor a short distance above the deck of the Ship at a height of about 4', would have effectively accomplished this check. Similarly, the lifting of the Reactor on these two occasions would have been an equally effective check of the boom hoist. It should also be kept in mind that the Reactor was held in position for quite some time, possibly as long as five minutes, suspended some 10' above the deck of the Ship during the time it was swaying.
There is, above all, the evidence of Mr. Abbott who said that he was familiar with PTT’s cranes and “…would consider them to be the best maintained cranes”.
16. The Defendant has failed to satisfy me that it has proven, even on a balance of probabilities, the other particulars of PTT’s contributory negligence which it pleads. There is no evidence of failure to comply with any statutory or regulatory requirements; nor that the crane operators lacked the required skills or failed to perform their part of the lift with required skill or competence. The evidence does not support the pleas of either crane having a defective or unsafe braking system, or that the braking system of either crane was not applied properly or at all, nor that any of the cables on the cranes functioned improperly.
The Law
Turning to the law, it is well accepted that for a plaintiff to succeed in an action for negligence he must satisfy three requisites: first, that he was owed a duty of care by the defendant; second, that the defendant is in breach of that duty; and third that he suffered damage as a consequence of that breach.
I am satisfied that the Defendant in this case owed a duty of care to the PTT. The Defendant agreed to discharge the cargo (including the Reactor) from the Ship; it agreed that PTT's cranes and operators would be used for their purpose. It assumed responsibility for lifting off the Reactor in a safe, proper and competent manner; it held out Mr. Morales as having the knowledge, skill and judgment necessary in the circumstances (see e.g. White v. Jones [1994] 2 WLR 187; Henderson v. Merret Syndicates Ltd. [1994] UKHL 5; [1994] 3 AER 506).
Second, I am satisfied that the Defendant was in breach of that duty. It is clear that a factor of paramount importance where an item of cargo such as the Reactor is being lifted simultaneously by two cranes, is that it be kept on a horizontal plane at all times. To do otherwise is courting disaster. Mr. Morales giving instructions to the FMC to “boom up” was an act of negligence and in breach of the duty of care owed to PTT by the Defendant. While the evidence may not support PTT’s contention that lifting the Reactor to a height of 10'-15' was in itself an act of negligence, the evidence clearly supports PTT’s pleas of the Defendant failing to properly co-ordinate the operations of the two cranes and maintaining the Reactor in a properly balanced position during the lift.
Turning to the defence, there are two matters to be considered: first, whether the defence of volenti non fit injuria succeeds; and if not, whether there was contributory neligence on the part of PTT. Given my conclusions as set out above, it is clear that the other defences must fail.
The essence of contributory negligence is that there has been some act or omission on a plaintiff’s part which has materially contributed to the damage caused, the nature of which act or omission is such that it can properly be described as negligence but only in the sense of careless conduct and not given its usual meaning. “… it does not mean breach of any duty at all. It means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an “author of his own wrong”” see Charlesworth & Percy on Negligence 9 th Ed. Para. 3-04.
"Although contributory negligence does not depend on a duty of care, it does depend on forseeability. Just as actionable negligence requires the forseeability of harm to others, so contributory negligence requires the forseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have forseen that, if he did not act as reasonably prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless” per Lord Denning in Jones v Livox Quarries Ltd . [1952] 2QB 608 at 615. Further, “ A person’s duty to take care of himself is enhanced by the knowledge of the risks involved” (see Hicks v. British Transport Commission [1958] 1WLR 493) and the amount of care which a plaintiff may reasonably be expected to take necessarily varies with the circumstances and the conditions actually prevailing at the material time.
The burden of proving contributory negligence falls on a defendant. It can be inferred from the evidence adduced on the plaintiff’s behalf or from the primary facts, so found by the court, on a balance of probabilities.
In considering what caused loss or damage to a plaintiff, there can be fault on the part of a party, or more than one party, and
what caused the accident, when determining the cause of the accident. “
Sometimes it is proper to discard all but one
[of those faults]
and to regard it as the sole cause
[in which case there will be no contribution to the cause of the accident],
but in other cases it is proper to regard two or more as having jointly caused the accident”
(see
Stapley v. Gypsum Mines Ltd.
[
1953] UKHL 4; [1953] AC 663 at 681).
What may have to be ascertained on occasion, however, is the fault causing the damage (see Gibbons v. Priestley [1979] RTR 9). This may not necessarily be the same as the fault causing the accident, which in turn caused the damage. In Jones v. Livox the plaintiff was found guilty of contributory negligence on the ground that he had unreasonably and improperly exposed himself to risk, even though his conduct was not a cause operating to produce the particular accident.
A finding of contributory negligence on the part of a plaintiff is sometimes regarded as a partial defence to his claim, but is perhaps more properly regarded as being the basis upon which fault is attributed to him and upon which his award in damages will be reduced.
A plea of v olenti non fit injuria, on the other hand, is a complete defence to a claim. It arises where a person agrees with another, expressly or impliedly, to run the risk of harm which has been created by the other person. The consequence is that the plaintiff cannot recover in respect of damage suffered by him as a consequence of any of the risks he had agreed to run.
A defence of v olenti non fit injuria requires affirmative answers to two enquiries:
1. Whether the plaintiff agreed to the breach of the duty of care;
2. Whether the plaintiff agreed to waive his right of action against the defendant in respect of that breach.
The agreement to run the risk and waive the right of action need not be a legally binding agreement enforceable in law, or one which is supported by consideration. If the agreement is express, then the party relying on it must expect such a provision to be construed strictly against him.
The important question to be asked is this: if a person who knows of a risk proceeds deliberately to incur it, can he be said to have made an implied agreement to take the risk of harm upon himself and thereby prevent himself from recovering damages.
In arriving at an answer to that question, a Court will not find the existence of an implied agreement unless the person who is alleged to have made it had full knowledge of the nature and extent of the risk to be run (see Wooldridge v. Sumner [1963] 2QB 43), and implied consent is rare in negligence because it is difficult to establish that a plaintiff consented to the risk of the defendant's negligence (see Clerk v. Lindsell or Torts 16 th Ed. page 123). Even if a Court finds that a plaintiff had full knowledge of both the nature and extent of the risk, and that the plaintiff incurred the risk with that knowledge, the plaintiff will not be prevented from recovering damages unless the circumstances are such as to show that in incurring the risk he did it on the terms that the loss should fall on him and not on some other person.
“ Evidence of knowledge may sometimes be evidence of assumption of risk, but in the nature of things this need not always be so. Each case must be judged on its own facts ” (per Lord MacDermott in Kelly v Farrans Ltd. [1954] NI 41 at 47). Any relevant act or statement from which a deduction can be made that consent was freely given will suffice. See Wilson v. Darling Island Stevedoring & Lighterage Co . [1956] HCA 8; (1955) 95 CLR 43 at 82; Morrison v Union Steamship Co. Ltd. [1964] NZLR 468. On the other hand, where a plaintiff has given an unambiguous indication that he has not consented to the risk of injury falling on him without recourse to remedy, then the defence cannot succeed (see Nettleship v. Weston [1971] 2QB 691).
In Vorster v. Santam Insurance Co. Ltd. 1973 (2) SA 186, a passenger in one of two cars which were racing against each other was held to be volens so far as the mechanical hazards were concerned, and over which the drivers would have had no reasonable or immediate control. The plaintiff was not, however, volens as regards their respective acts of negligent driving, and his action for damages succeeded.
In Slater v Clay Cross Co. Ltd . [1956] 2QB 264 Denning L.J. said: “ although it may be said that [the plaintiff] voluntarily took the risk of danger from the running of the railway in the ordinary and accustomed way, nevertheless she did not take the risk of negligence by the driver. Her knowledge of the danger is a factor in contributory negligence, but it is not a bar to the action”. In this case the Plaintiff had been injured by the negligence of a train driver while she was walking along a narrow tunnel on a railway track, knowing the danger involved.
Lord MacDermott summarised the position in Kelly v Farrans Ltd. as follows: “the question raised by a plea of volenti non fit injuria is not whether the injured party consented to run the risk of being hurt, but whether he consented to run that risk at his own expense so that he and not the party alleged to be negligent should bear the loss in the event of injury. In other words, the consent that is relevant is not consent to the risk of injury, but consent to the lack of reasonable care that might produce the risk” (emphasis mine).
The differences between these two defences can be summarised as follows:
1. Volenti is a complete defence, while contributory negligence operates only to reduce the damages in proportion to the degree of fault;
2. A plaintiff may be truly volens even where he may be taking very great care for his own safety, but to be found guilty of contributory negligence he must have been careless for his own safety;
3. A plaintiff may be guilty of contributory negligence where he should have known of the danger which confronted him, even if he did not actually know of it, but he cannot be volens unless it is proved that he had full knowledge of both the nature as well as the extent of the risk involved.
The defence of volenti non fit injuria therefore falls to be considered in three circumstances:
1. Where a plaintiff does not see the danger;
2. Where a plaintiff sees the danger and decides to run the risk;
3. Where a plaintiff sees the danger and exempts the defendant from liability.
It is only this last circumstance in which the defence applies. The plaintiff must expressly or impliedly agree to exempt the defendant from liability for damage caused to the plaintiff by that danger.
Mr. Lutchmansingh clearly knew and appreciated the risk and danger involved in the lift. Equally, he decided to run the risk. There is no express agreement, however, that PTT exempted the Defendant from liability and it is therefore a matter for the Defendant to demonstrate that PTT did so impliedly.
While it may well be that consent was freely given to run the risk, Mr. Lutchmansingh, having made the decision prior to 30 th April that the lift would be effected by two cranes which PTT would supply, together with operators, I am not persuaded that he agreed to Mr. Morales acting as signalman with equal alacrity. That would, to some extent, weigh against his having freely given his consent to accepting the risk.
There is another aspect to this. It has been held that knowledge of the risk does not include or extend to knowledge of a defendant’s negligence. This is on the very simple basis that the negligence cannot be forseen. Although he may have come to the conclusion that Mr. Morales was possessed of the necessary experience and expertise to supervise the lift, it can hardly be said that Mr. Lutchmansingh could forsee negligence on his part. There is certainly no evidence of this, nor that Mr. Lutchmansingh agreed to run the risk of Mr. Morales being negligent.
There is, however, another matter which is of importance: it is clear to me that Mr. Lutchmansingh did not consent to the “…risk of injury falling on him without recourse to remedy…” or that he exempted the Defendant from liability. His evidence is very clearly that he regarded Mr. Morales, and by extension, the Defendant, as being in charge of the lift. It is also clear that the Defendant was the only provider of stevedoring services at Point Lisas and, by extension, a signalman. Mr. Lutchmansingh may have come after enquiry to accept Mr. Morales as being sufficiently experienced and with sufficient expertise so as to perform the function as signalman for this lift, but that does not of itself mean that he agreed to accept the risk of damage and have no recourse against the Defendant.
Similarly, there is no evidence before me that by custom or course of dealing with the Defendant that PTT had previously accepted this risk of damage without recourse to the Defendant, and did so well again on 30 th April 1982.
Finally, it is clear to me that PTT did not except the Defendant from liability. Throughout all of this, Mr. Lutchmansingh maintained the position that PTT was not responsible if anything went wrong with the lift, and clearly did not accept liability for any loss or damage it might suffer as a consequence of the lift failing.
In the circumstances, therefore, the defence of volenti non fit injuria must fail.
I turn now to the issue of contributory negligence. In the instant case, this requires a determination of whether PTT contributed materially to the damage which it suffered, and not whether it contributed materially to the cause of the accident. It also depends on the forseeability by PTT of harm to itself and that “if he did not act as a reasonably prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless”. See Jones v Livox.
It is clear that Mr. Lutchmansingh knew of the danger in performing the lift. He knew there was danger of damage of the cranes and the cargo, and risk of injury to his crane operators. He could have called off the lift. But he did not and in the end his cranes were damaged. He placed them in danger and contributed to the damage they suffered. And in my view that contribution was material to the damage suffered.
Mr. Lutchmansingh clearly appreciated the risks involved in carrying out the lift. He knew a two-crane lift to be abnormal and entailed a measure of risk. He knew that using two cranes of different makes, capacities and boom lengths would add to that element of risk. He must have known that the time taken to respond to a signal from Mr. Morales could vary as between both the operators as well as the cranes. The Reactor was extremely heavy and, given its length and off-centre centre of gravity, would be unwieldy or difficult to manoeuvre.
His reservations or apprehensions as to the safety of the lift were heightened as the Reactor rose above the deck of the Ship. He was uneasy when it was 4' above the deck. He knew that to lift it higher would increase the risk. He wanted it to go higher than perhaps 1' above the deck and then remove the davits so it could be swung outboard without being raised any higher. It was a delicate operation, leaving little room for error; and error was not out of the question. Three individuals were directly involved in the lift and the evidence is that he did not have, initially at least, the fullest confidence in Mr. Morales who was to direct the crane operators as to the manner in which they were to lift the Reactor off the Ship and place it on the dock.
Mr. Lutchmansingh foresaw the possibility of harm to PTT. He did not call off the lift as he could have done. PTT contributed to the damage which it suffered. It is guilty of contributory negligence.
The share of the blame for causing the damage is to be apportioned on the basis of blameworthiness (see e.g. Stapley v. Gypsum Mines Ltd.) and a "court must deal broadly" with this problem. It should consider what is just and equitable and the relative importance of the acts of a plaintiff, as well as his blameworthiness, in causing the damage.
It is difficult on the evidence before me to conclude decisively the precise apportionment of the blame or fault on the part of PTT.
It would seem, however, that there would have been no lift at all if Mr. Lutchmansingh had not agreed to supply his cranes and operators, and that he did so after he had full knowledge of what was involved. He knew the risk and danger inherent in the lift and that an extremely competent signalman was needed to give the instructions for carrying out the lift. He knew Mr. Morales and agreed to him acting in that capacity. As the Reactor gained height, so too did the element of risk increase and more important, the danger, and risk of danger, increase. Mr. Lutchmansingh knew the importance of maintaining the Reactor on a horizontal level. He could have called off the lift at any time but he did not.
In my view, PTT is equally to blame for the damage which occurred. I place the degree of blame at 50%.
There will therefore be judgment for the Plaintiffs. The Plaintiffs' contributory negligence is assessed at 50%. Damages are to be assessed by a Master and are to be reduced by 50% by reason of the Plaintiffs' contributory negligence.
As to the question of costs, it is clear that the Plaintiffs are entitled to their costs of the trial. Costs are not usually awarded on the basis of any apportioned responsibility for the cause of damage but in my view it is appropriate to do so in this case. I do so on the basis that the Plaintiffs were fully aware of the risks involved but allowed the lift to proceed despite this, and despite knowing full well that the risks increased as the Reactor rose higher and higher above the deck of the Ship. Knowing all this, they did not call off the lift as they could have done. If there is an award of damages on assessment, the Defendant is to pay 50% of the Plaintiffs' costs of the action, including those of the assessment.
25 th June, 2001.
C.V.H. Stollmeyer
Judge
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