NNPC Correspondents have been contacted in the past to assist in recovering of damages to ship’s hull that were a result of cargo handling operations performed by stevedores. Such damages may vary from minor damage only to serious damages with substantial repair costs.
Loss prevention
First of all from a loss prevention perspective, it should also be kept in mind that certain types of cargoes – such as steel scrap or other bulk cargoes which need to be loaded or discharged by means of a grab – may result in a higher risk of stevedores damages and therefore may require more preventive action. In respect of these cargoes it may for example be prudent to implement loss prevention measures already in advance, such as heightened supervision by crew during cargo operations and/or more intense coordination of loading/discharging activities between the ship’s crew and the stevedores.
Collecting evidence
When stevedore damages occur it will be of utmost importance to be able to evidence the extent and causation of the damage. As a first step, Owners and Charterers are recommended to request the crew to obtain a statement from stevedores and/or issue a letter of protest that is to be countersigned by stevedores as a confirmation of their acceptance of responsibility.
In cases where stevedores are refusing to accept liability (or in cases where stevedores simply go silent) the local P&I Correspondent may assist in obtaining headway. Furthermore, awaiting the appointment of a local surveyor and his arrival on the scene, photographic evidence of the damages must be taken and preserved by the crew.
The legal position
in order to determine the legal position of the Shipowner in terms of recoverability of damages, it will first and foremost be important to understand the contractual framework in place with stevedores. In a number of cases the liability of the stevedore can be based on provisions of the Terminal Service Agreement in place with the stevedore.
In this respect it will be important to understand whether stevedores/the terminal have been formally appointed by the Owners or the Charterers. In cases where the claim is based on tort, the recovery of the claim may be more challenging. Dutch law provides that “careless or otherwise unlawful acts cannot be deduced automatically from the mere fact of damage to property.”
Where it is established that the stevedore has caused damages to the vessel, the damage itself does not automatically prove that the stevedore has (also) committed a tortious act and this may therefore not automatically trigger the stevedore’s liability. A claimant will therefore need to state and prove that the stevedore committed a tortious act for the tort claim to be able to succeed.
Not least importantly, it will be necessary to understand what contractual terms have been agreed between Owners and Charterers as per the relevant charterparty. This will require a case by case evaluation in order to understand which party is ultimately liable towards the other for stevedore damages incurred, both in terms of performing physical repairs as well as in terms of recovery of costs and damages with the stevedores. In this assessment it will be important to consider whether and which notifications should be given to charterers (for example, NYPE 1993 requires a formal notification to be given by the Master to the Charterer within 48 hours upon the incident).
The terms of the insurance policy
Shipowners will also need to consider the terms of their Hull policy as in certain cases Hull underwriters will need to be involved. Where damages sustained concern, a condition of class attendance of a class surveyor may be required
In case where stevedores are refusing to carry out repairs and where these repairs are carried out by Owners and/or Charterers, it is our strict recommendation that all repair items are properly and individually surveyed, listed and documented, either by the ship’s crew or by a local surveyor. This, together with proper documenting of the actual performance of the repairs will allow for a greater chance of successful recourse action against stevedores.
Contact us
Through our network of local experts and advisors NNPC Correspondents is assisting Owners and Charterers in all Dutch ports and may assist in documenting and resolving stevedore damages so to minimize time loss and expenses. NNPC Correspondents BV may also assist on case by case basis in appointing a repair workshop or yard and can be contacted at correspondents@nnpc-correspondents.nl