While the ship captain’s behaviour was described as “outrageous”, insurers of the Tasman Pioneer were held not liable for cargo losses following a grounding in the
Litigation followed the 2001 grounding of the Tasman Pioneer during a heavy rain storm. The captain was taking a shortcut through a narrow subsidiary channel in the
Cargo interests looked to hold the shipping line responsible for losses.
Risk allocation for marine risks is governed by an international convention: the Hague-Visby Rules. Shipping lines are responsible for “commercial fault”: seaworthiness and manning at the commencement of the voyage. Cargo interests take the risk of “nautical fault”: acts and omissions of crew during the voyage. But liability for nautical fault can be sheeted back to the shipping line where actions of the crew were carried out “recklessly and with the knowledge that damage would probably result”.
The Supreme Court accepted it was arguable that continuing to sail on after the grounding could amount to reckless navigation. But that was not what the legal papers before the court set out.
Rather, the legal claim stated that the captain’s actions were intended to cover up the circumstances of the grounding and to absolve himself from blame. There was evidence that the ship’s chart was altered to hide the actual course travelled and a story was concocted that the ship had hit a submerged container.
Motive alone did not impose liability on the shipping company for nautical fault.
Cargo interests had to recover losses from their own separate insurers: a total exceeding NZD twenty million.
Tasman Orient v. NZ China Clays – Supreme Court (16.04.10)
05.10.005