Can a failure to supply necessary spares for ME maintenance result in the carrier losing out on the defense under Art.4(1) of Hague (Visby) rules? and Can the acts and omissions of technical superintendent be understood to be the acts and omissions of the owner/manager? The Thor Commander [2018] provides answer to these questions and much more.
When the vsl was off Great Barrier Reef, Cylinder 5 of ME suffered a seizure. After going through the maintenance records; manufacturer’s instructions; and expert’s opinion, the cause of breakdown was deemed to be inadequate maintenance of fuel injector v/v and nozzle. Expected life of fuel injector nozzle was 4000 hrs but they had not been cleaned or replaced for 7000 hrs and vsl was therefore held to be ‘unseaworthy’ by the court.
Owners theoretically had a defense under Art.4(1), i.e. due diligence had been exercised & vessel was properly manned, equipped and supplied; BUT not providing necessary spares was a failure to equip and supply, and non-maintenance of fuel injection nozzles was a failure to exercise due diligence. Technical Supdt. was after all a delegate of the shipowner/manager for technical management, and therefore his acts and omissions were the acts and omissions of the ship owner.
Link to judgement - https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/1326.html
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