Tasman Orient Line CV v NZ China Clays Ltd & Ors (The 'Tasman Pioneer') [2009] NZCA 135

• Author: Grace Kowhai Rippingale
• Position: Solicitor, Chapman Tripp New Zealand
• Pages: 36-42

(2010) 24 A&NZ Mar LJ 36

TASMAN ORIENT LINE CV v NZ CHINA CLAYS LTD & ORS (THE TASMAN

PIONEER) [2009] NZCA 135

Grac e Ripp inga le ∗

The Tasman Pioneer concerned the interpretation of article 4 rule 2(a) of the Hague Visby Rules (the Rules),

which provides the carrier with an exemption for damage arising from ‘act, neglect, or default of the master,

mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship’. In particular,

the issue was whether the carrier’s exemption from liability in that Rule applies where damage is caused by a

master’s deliberate attempt to cover up an earlier mistake. In the course of this debate, the two principal

judgments focus on the approach to be taken in interpreting international conventions.

1 Facts

In May 2001, Tasman Pioneer was sailing from New Zealand via Yokohama, Japan to Busan, Korea. From

Yokohama, the planned route was to sail west along Japan’s southern coast and then through Bungo Suido,

the Japan inland sea, and Kanmon Strait before crossing Korea Strait to her destination. There was evidence

that the master, Captain Hernandez, was under a certain amount of pressure from Tasman Orient and its

manager, Tec hnomar, to maintain his schedule. The master was also concerned to arrive at Kanmon Strait at

a favourable point of the tide because of the significant current in that area.

After leaving Yokohama, the ship dropped behind schedule and the master decided that rather than passing

west of Okino Shima, the usual route for vessels entering Bungo Suido from the south, he would shorten

steaming time by 30-40 minutes by taking the ship through a deep but narrow channel between the island of

Biro Shima and the south-western extremity of the island of Shikoku. The master had taken this route before,

though generally in much smaller vessels.

As they approached the channel, the master had charge of the navigation of the ship. The Tasman Pioneer

was making 15 knots into a nor’wester of about 36 knots and a one metre swell. The sky was dark with a

visibility down to about two miles and with Biro Shima slightly on the port bow about 1.2 miles distant.

About two minutes after the course change to enter the channel, the starboard radar lost all images. The

master decided to pull out of the channel and ordered ‘hard port’. When the radar came back on line shortly

thereafter it showed Biro Shima at a distance of only 800 yards on the ship’s port side. The master ordered to

starboard but after about five seconds the ship impacted. From a speed of 15 knots the 22,000 tonne vessel

was immediately slowed to six or seven knots and developed a list to port of about 8-10 degrees after 5-10

minutes.

Compartments were flooded to correct the list and pumping operations commenced. Although neither the

master nor crew knew this at the time, the outer hull had suffered significant damage with breaches of the

hull resulting in flooding of a number of compartments. Also, cargo hold bilge wells were damaged allowing

sea water into the holds.

After the grounding, t he master did not notify the Japanese coast guard or seek other assistance. He continued

to steam at full speed for over two hours and covered some 22 nautical miles before anchoring. A passing

vessel noticed the ship listing and advised the coast guard. The coast guard sent a patrol boat which came

upon the Tasman Pioneer at anchor about six hours after the grounding. Salvors were eventually notified and

arrived at the vessel later that day but by then the on deck cargo was already damaged.

The master did not advise the vessel managers o f an incident until after anchoring. When he did so, he simply

advised that the vessel had a list and that water had been found in the holds. He later added that he believed

‘the vessel had hit an unidentified object’. The master instructed the crew to lie to the coast guard

investigators with a view to persuading them that the sh ip had taken the main channel and that the impact had

been with an unidentified floating object. On the master’s instructions, the course sailed was erased from the

ship’s charts and a false course was substituted. The true course of events emerged during the investigation

and the master was later prosecuted in Japan in relation to the incident.

∗ Solicitor, Chapman Tripp New Zealand.