A Tug too Far - The Koumala [2007] QCA 429

• Author: Justice James Sholto Douglas
• Position: Justice of the Supreme Court of Queensland. This paper was presented at the Maritime Law Association of Australia and New Zealand Conference in Perth, Western Australia, 12-14 November 2008. 1 [2008] QCA 429 at [47]-[49]
• Pages: 12-18

A TUG TOO FAR: THE KOUMALA [2007] QCA 429

Hon Justice James Douglas*

The decision in The Koumala (PNSL Berhad v Dalrymple Marine Services Pty Ltd [2007] QCA 429)

deals with two legal issues significant for those who own and operate tugs and those who use their

services. The first was whether the collision that led to the litigation occurred “whilst” the tug was

towing the ship. The second was whether s 74(3) of the Trade Practices Act 1974 (Cth) (Trade

Practices Act) applied to the facts and that depended on whether the contract of towage was one for or

in relation to the transport of goods.

The facts

The facts were relatively straightforward. While the tug, the Koumala, was about one nautical mile

from the ship, the Pernas Arang, off the Dalrymple Bay Coal Terminal in North Queensland, it

received an order by radio to approach the ship. The ship was then under the control of a pilot and was

being brought into the coal terminal. When the Koumala had approached to within about 150 metres

of the Pernas Arang it lost steering and then collided with and damaged the ship. The trial judge was

satisfied that there had been negligence in the management of the tug and assessed damages in favour

of the plaintiff at $583,965.09.

The trial judge’s narrative of the event relied principally on the evidence of Captain Roscoe, the pilot

on the Pernas Arang:1

[47] …

[5] The account I have given of the movements of the Pernas Arang and the tugs is drawn

from the account given in an incident report compiled for the Regional Harbourmaster of the

Queensland Department of Transport – Marine Operations within twenty-four hours of the

incident by Captain Roscoe, a pilot of great experience who had piloted ships since 1978. …

In a statement by Captain Roscoe, dated 10 November 2006 … he was, however, able to give

an account of the berthing procedure adopted for a ship like the Pernas Arang. The invariable

practice was, he said, to use the ship’s main engine and rudder when required while the ship

was moving to a berth at the Dalrymple Bay Coal Terminal. The ship’s engine was used

turning both forward and astern with the rudder to control the ship’s speed and direction

during the berthing operation from a time before the tugs’ making fast to the ship through to

the ship’s being brought alongside the berth. The ship’s main engine may at times have been

stopped for short periods, as when the tugs were being made fast to the ship. Captain Roscoe

said that he had never piloted a ‘dead’ ship to berth at the Dalrymple Bay Coal Terminal and

he had never heard of its being done. The tugs assist in the berthing of a ship by easing her

into the berth, pushing her into the berth when required, or holding her off when required.

[6] Referring to the question of control of a berthing, Captain Roscoe said this in paragraph 9

of exhibit 24:

9. The operation to move a ship such as the ‘Pernas Arang’ to berth at Dalrymple Bay

Coal Terminal is under the control of the ship’s master on the pilot’s advice. By ‘control’

I mean that the pilot has the conduct of the ship in all respects including all orders

concerning the ship’s main engine and rudder, and the placement and manoeuvres of the

tugs, to effect the berthing operation. In all berthing operation [sic] I have been involved

in at Dalrymple Bay Coal Terminal, the tug masters and crew have controlled only their

own tug, in response to the orders they receive from the pilot in conjunction with the

master. The operation has never been under the control of the tug masters.

* Justice of the Supreme Court of Queensland. This paper was presented at the Maritime Law Association of Australia and New

Zealand Conference in Perth, Western Australia, 12-14 November 2008.

1 [2008] QCA 429 at [47]-[49].

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