Marine Enquiry The Sinking of the MV OVALAU II [2005] FJHC 369 (5 January 2005)

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NAMELY THE SINKING OF
“M V OVALAU II”
AT THE INNER WESTERN EDGE OFF
NANANU-I-RA PASSAGE
ON 23 AUGUST 2003

Interim Survey Certificate (16917) Annexure 3
Survey Certificate (439 of 2003) Annexure 4

Map – Location Nananu-i-Ra Annexure 7
Drawing Ovalau ii – Arrangement of Life
Saving & Firefighting Equipments and
Escape Exit in case of Emergency Annexure 8

The Marine Inquiry (the “Inquiry”) was convened under section 89 of the Marine Act (No. 35/86)(the “Act”) and was held in the Supreme Court Room, Government Buildings, Suva commencing 29 January 2004 to inquire into the circumstances leading to the loss/sinking of ‘MV Ovalau II’ at the inner Western edge off Nananu-i-Ra Passage on 23 August 2003.

The Inquiry was held on the following dates: 29.1.04, 30.1.04, 2.2.04 to 6.2.04, 9.2.04 to 11.2.04, 23.2.04, 27.2.04 and 2.3.04.

The Inquiry was conducted by Hon. Mr. Justice Devendra Pathik OF CSM JP BA LL.B assisted by two Assessors, namely, Mr. Delai Vakasilimi B. Eng (Naval Architecture)(Hon.), B. App. Science (Marine Engineering), Head of School, Maritime Studies, Fiji Institute of Technology and Captain Penitiko Cabenagauna Yauvoli, Deputy Port Master, Maritime & Ports Authority of Fiji.

The Counsel assisting the Inquiry was Mr. Kiniviliame Keteca, Principal Legal Officer of the Attorney-General’s Chambers.

The owners of the “M V Ovalau II” (the ‘vessel’) Patterson Brothers Shipping appeared through their Managing Director Mr. Trevor Patterson and Mr. William Henry Patterson who both testified and were also represented by counsel Mr. Graham Leung with Mr. Leweniqila.

As required, under s89(8) of the Act the Court of Inquiry’s decision and recommendations are set out in this Report.

This is a Marine Inquiry into a casualty, namely, the sinking/loss of the Vessel ‘MV Ovalau II’ on or about 23 August 2003 at the Inner Western Edge off Nananu-I-Ra Passage.

On 30 December 2003 the Honourable Chief Justice Daniel Fatiaki, at the request of the Minister for Transport and Civil Aviation acting under the powers vested in him under section 89 of the Marine Act 1986 (Act No. 35 of 1986) (the ‘Act’) appointed me a Puisne Judge of the High Court of Fiji to hold a Marine Inquiry (the “Inquiry”).

Consequent to my appointment which was duly gazetted (Fiji Government Gazette) on 9 January 2004 at page 13, I commenced the Inquiry on 29 January 2004 at the Supreme Court Room, Government Buildings, Suva into the aforesaid casualty and concluded on 2 March 2004. The sittings were for 13 days.

In accordance with s89(2) of the Act, which requires me to conduct the Inquiry with the assistance of at least two assessors, I had conjointly with the Director of Marine, Captain Waisale Salu appointed two assessors who possess the required qualifications.

The appointment of these assessors were gazetted in the Fiji Republic Gazette. The Assessors are Mr. Delai Vakasalimi and Capatin Penitiko Cabenagauna Yauvoli.

Mr. Delai Vakasalimi has professional qualification and has obtained the degrees of Bachelor of Engineering (Naval Architecture) with Honours and Bachelor of Applied Science (Marine Engineering). He has teaching experience as Head of School, Maritime Studies at the Fiji Institute of Technology. He was also an examiner of Marine Engineers and Surveyor of Ships with Fiji Island Maritime Safety Administration.

Captain Penitiko Cabenagauna Yauvoli is Deputy Port Master with Marine and Ports Authority of Fiji. He is Master Class 1 Master Foreign-Going. He has advanced Diploma in Nautical Studies from Australian Maritime College, 1998. He is a Gazetted Life-saving Appliances Surveyor, also Wooden and Steel Surveyor and Compass Adjuster. He is also a qualified Port State Control Inspector. Captain Penitiko has experience as Master of vessels locally and abroad.

The counsel assisting the Inquiry was Mr. Kiniviliame Keteca, a Principal Legal Officer in the Hon. the Attorney-General’s Chambers.

The names of witnesses who testified are contained in the List of Witnesses in the Appendix to this Report.

In accordance with section 89(a) of the Act after having considered the evidence adduced and the submission made by Mr. Graham Leung, counsel for the owners and the documentary evidence produced, I, as the person appointed to conduct the Inquiry hereby give my decision.

I shall now deal under various heads the circumstances under which the casualty occurred and its possible causes on the evidence before me and the assessors.

The vessel ‘MV OVALAU II’ was built in 1969 in Japan. This 941.87 gross ton (Roll On-Roll Off) Ro-ro passenger vessel is 55.9 meters long, 11.4 meters wide. The vessel’s hull and superstructure are made from mild steel and is twin-propelled by two Daihatsu main engines.

The vessel had operated in Japan until it was bought by Patterson Brothers Shipping in 1983. The vessel was brought to Fiji and registered with the Fiji Marine Board under its name on 25 March 1983.

In Fiji, the MV Ovalau II operated in most of the routes serviced by Patterson Brothers Shipping, and visited many ports including Ellington, Nabouwalu, Suva, Natovi, Levuka, Buresala and Savusavu.

Her cargoes are mainly vehicles, general cargo and people that require transportation between the above named ports.

Name of Vessel	:	Motor Vessel (MV) Ovalau II
Official Number	:	385160
Gross Tonnage	:	941.87
Net Tonnage	:	468.93
Type of Vessel	:	Roll On/Roll Off Passenger Ferry
Fiji Marine Board Class	:	3B
Ship’s Signal Letters	:	3DRQ
Port of Registry	:	Suva
Length Overall	:	55.90m
Breadth	:	11.40m
Main Propulsion	:	23 896.2kW (4-Stroke Daihatsu Turbo Charged)
Year Built	:	1969
Owner	:	Patterson Brothers Shipping P O Box 1041, Suva

The Preliminary Investigations Report into the sinking by Captain S.Waqa, Captain J. Takepe and Mr. I. Naqasima states as follows:

“The “MV Ovalau II” left Levuka at 0550 hours on Thursday 21/08/03 on what was to be her last completed route of voyage via Nabouwalu before arriving back at Ellington jetty at 1700 hours the same day. The vessel was moored (bow ramp) at Ellington jetty throughout the following day Friday 22/09/003 until the early hours of Saturday the 23^rd of August without a hitch. Except for the daily maintenance and routine checks by the engineers and also during changing of shifts, inspection of the bilge, the shaft tunnel as well as the steering compartment was as the Chief Engineer termed it, part of the daily routine checks he and his staff carry out daily. At 0630 hours on the morning of the 23^rd of August, 2003 the “Ovalau II” was ready for loading.”

The voyage commenced on 23 August 2003. The said Report states: that the vessel:

“.....left Ellington Jetty for Nabouwalu. At 0950 hours the 3^rd engineer advised the bridge through their intercom line that they are slowing down the main engines due to the 2 main engine flywheels throwing water up in the engine room and was a risk to the nearby motors. 10 minutes later (1000 hours) the two main engines had to be stopped as the engineers had located the source of water ingress as well as more water was kicked up by the flywheels in the engine room.

This particular breach (hole) in the engine room that had opened up may have occurred after the vessel had departed Ellington Jetty as the engineers on duty had noted immediately before departure no changes in the engine room bilge water level. While most of the crew were engaged in attempting to restrict the inflow of water into the engine room, no one among the crew ever knew that another hole to the dimensions of 110 mm x 35 mm had existed for quite sometime in the No. 6 void space compartment between the steering flat and the shaft tunnel compartment.”

According to the Report and the evidence a major breach (hole) which was a ‘half moon shaped’ hole approximately 125 mm x 20 mm on the starboard side of the engine room, half a metre from the centreline occurred. This was a crucial breach of the hull and that was the main source for the inflow of water into the vessel’s engine room. The evidence reveals that this hole was enlarged when the crew tried ceaselessly without success to plug it with tapered pieces of timber.

It was the Chief Engineer who first located the breach in the engineroom when he went down after the main engines had stopped at 1000 hours. By then the water levels had reached the floor level about 3 feet to 4 feet in depth.

The inflow of water could not be contained due to the awkward shape of the breach as well as the “access restriction over the hole due to 3’ longitudinal ballast pipes layed 8’ above the hole.”

It was when the wooden plug used by the crew failed to restrict water inflow into the engine room they used 2 mop heads stamped by their feet over the hole. This did not succeed and the water levels in the engine room continued to rise.

As I see it, the use of mops, which could not in these circumstances have plugged the hole and prevent the inflow of water, was like a drowning man clutching at a straw. The owners should have made provision for precautionary measures when contingencies of this nature arise. This was not an Act of God.

Assistance had to be sought from the sister ship “Princess Ashika” which was already on its way to assist the stranded vessel. Ashika arrived at 1600 hours at the stricken vessel’s location.

It came out in evidence that the towing of the vessel was done. The vessel was abandoned when it eventually sank. The Report of the said Investigating Officers on ‘towing’, ‘abandonment of ship’ and the ‘sinking’ states as follows which I accept:

At approximately 1637 hours the “Princess Ashika” took up tow of the “Ovalau II” in an attempt to tow her back to the refuge of Ellington Jetty. While manoeuvring the vessel as she was facing the opposite direction for the return journey to Ellington, the “Ovalau II” developed a substantive list to port as well as snapping her starboard bridle tow line. However, towing continued until they entered Nananu-i-ra passage at 1810 hours when the towline was severed by the “Princess Ashika” crew members due to the heavy load being exerted by the sinking “Ovalau”.

Immediately after entering the passage, the Master of the “Ovalau II” ordered port anchor dropped with 4 shackles out, holding the vessel on an easterly heading.

At approximately 1515 hours on the 23^rd of August, Mr. Emosi Waqa of Safari Lodge, Nananu-i-ra arrived on board with 2 pumps to assist the stricken vessel. On his return to mainland the first eleven of the passengers were evacuated on his boat.

After the “Ovalau II” was safely anchored, the Master ordered the evacuation of the remaining 23 passengers onto the 4 outboard motor vessels that came to assist. At 1835 hours the Master and his crew abandoned the sinking vessel.

At 1850 hours, the “Ovalau II” being heavily listing to port by now, tipped over her port side and sank at the position latidue 17° 15.1' south longitude 178˚ 12.0' east or relatively 1.5 nautical miles almost due North of Nananu-i-ra Island western point.

C. REQUIREMENTS OF VESSEL UNDER THE MARINE ACT No. 35 OF 1986 & MARINE (FIJI MARITIME CODE) REGULATIONS 1990; LEGAL NOTICE No. 83
REQUIREMENTS UNDER THE MARINE ACT No. 35 of 1986 and MARINE REGULATIONS.

In the Inquiry certain sections of the Maritime Act and Regulations thereunder were referred to; they are relevant and are therefore set out hereafter.

allow the vessel, subject to any conditions he thinks fit, to go to sea without carrying the prescribed complement of qualified seamen of that grade.

Marine (Fiji Maritime Code) Regulations, 1990, Section 3, applied in conjunction with Marine (Manning of Vessels) Regulation, 1989, which are as follows:

4. Safety Manning regulation apply to registered vessels including fishing vessels, government vessels and trading vessels any of which are 10 metres or more in length.

6. The vessel must display a “Manning Certificate” issued by the Marine Board, stating the minimum number of qualified and other persons to be carried.

7. The Owner of a vessel must apply to the Marine Board for the issue of a Manning Certificate in respect of the vessel. The Marine Board must refer the application to the Manning Committee.

14. In deciding the minimum safety manning requirements of the vessel the committee is guided by IMO Resolution A 481(XII) Principles of Safe Manning, and the manning tables Parts 1 to 4 set out in the Schedule to this Section.

18. Dispensations from the manning scale may be issued only in cases of exceptional necessity, and only after careful consideration by the Marine Board.

62. A vessel must undergo the surveys and inspections prescribed by virtue of this Act.

66. (1) Where an owner or master of a vessel, (not being a Load-line convention ship, or a Safety Convention ship) seeks the issue of a survey certificate he may apply in the prescribed manner to the Director for the vessel to be surveyed.

(3) On receipt of an application under subsequent (1) the Director shall nominate a surveyor and shall cause the vessel to be surveyed.

(b) that is not a registered vessel but is a vessel in respect of which a safety certificate has been granted under subsection 67(4).

(2). Where the operation or safety of a vessel to which this section applies is impaired because of-

the owner or master of the vessel shall, within 7 days of that impairment (unless prevented from doing so for reasonable cause) notify the Director of the fact or those circumstances.

Survey Requirements under the Marine (Fiji Maritime Code) Regulations, 1990 Section 14-Part 2.

8. – Subsequent to completion of the Initial Survey, the Marine Board shall require all vessels under its survey to undergo periodic surveys and inspections to satisfy itself that such vessels continue to comply with its laws and regulations.

However, the Marine Board may accept such part of the survey as performed by an authorised society.

9.1 a vessel’s equipment shall be surveyed at intervals not exceeding 6 months,

9.2 a vessel’s hull, structure, machinery and fittings shall be surveyed at intervals as specified:

(b) in Appendix I, except that the Marine Board may require such other lesser intervals if it considered desirable because of:

The following items shall be inspected while the vessel is afloat to ensure that the standards required of the Annual Survey are being satisfactorily maintained.

(Steel vessel of less than 24 years age may extend items 19 to 22 to Two years surveys subject the results of a Diver’s Survey Report.)

In respect of pressure vessels, boilers and cargo handling gear, the Surveyor may accept valid Certificates issued by an Inspector authorized by and in compliance with The Factories Act 1971.

(1) A surveyor nominated by the Director under subsection 66 (3) shall, on completion of a survey under that subsection delivers a written report of the survey to the Director.

(2) Where the surveyor nominated under subsection 66(3) is satisfied that the vessel on completion of a survey under that subsection, deliver a written report of the survey to the Director.

(3) When, in respect of a vessel, the Director has received a report referred to in subsection (1) and a declaration referred to in subsection (2) he shall deliver those documents to the Marine Board and if the Board is satisfied that the vessel complies with the requirements of this Part, if shall, subject to any conditions it thinks fit, grant a survey certificate in respect of the vessel.

(4) Where, in respect of a vessel, a surveyor acting on behalf of a classification society appointed in accordance with subsection 66(2) is satisfied that he may do so, he shall issue a safety certificate in respect of the vessel.

23. Upon the receipt of a satisfactory report and declaration of each surveyor performing the Initial survey of a vessel, the Marine Board shall prepare a Survey Certificate as prescribed by the Marine Board and Record of Survey describing the hull, machinery and equipment of the vessel.

Statement that vessel complies with the survey requirements of the Marine Board.

25. The original of the Survey Certificate shall be issued to the owner or his agent.

26. A vessel under survey to the Marine Board shall be required to carry evidence onboard that the vessel complies with the appropriate survey requirements of the Marine Board.

26.1 this evidence shall consist of the display of the original or copy of the Survey Certificate;

26.2 this evidence shall be displayed near the steering position, except on passenger vessels, where the evidence shall be displayed in such a position that it is readily visible to passengers;

26.3 if the Marine Board so requires, the evidence carried onboard the vessel shall be placed in such a position onboard that it shall be visible from outside the vessel.

27. The owner of a vessel shall not operate that vessel without the approval of the Marine Board unless:

27.2 evidence of compliance with the appropriate survey requirements of the Marine Board is displayed onboard.

28. If the Marine Board so requires upon the satisfactory completion of a cycle of approved survey programme for a vessel and the receipt of the report and declaration of each Surveyor, the Marine Board may then issue for display on the vessel either:

28.1 a new copy of evidence required to be carried on board under clause 26; or

28.2 a statement of revalidation, in a suitable form, that the evidence carried on the vessel under clause 26 shall remain valid until the new expiry date indicated,(which date shall usually be the due date of the completion of the following cycle of the approved survey programme).

29. On satisfactory completion of a cycle of a survey programme, the Marine Board may then issue to the owner the document referred to in sub-clause 28.1 or 28.2 as appropriate.

30.1 the owner(s) of a vessel under survey by the Marine Board may apply in writing to the Marine Board for an extension of the Survey Certificate carried by the vessel in accordance with clause 25;

30.2 this application shall be accompanied by the appropriate fee, as determined by the Marine Board.

31.1 in any case in which the Marine Board is satisfied that the immediate survey of a vessel is impracticable or would occasion unreasonable or unnecessary expense or inconvenience, the Marine Board may extend the time for re-survey for any period not exceeding one month. An extension may be granted not withstanding that the Survey Certificate has expired;

31.2 the Marine Board may require an inspection and report on the condition of a vessel to be made before granting the extension of a Survey Certificate;

31.3 where the Marine Board grants an extension of the Survey Certificate it shall issue to the owner of the vessel a Notice of Extension.

32. Where the Marine is satisfied, by reason of a report that a vessel under its survey fails to comply, for any reason, with the appropriate survey requirements, that the Marine Board may suspend the Survey Certificate and the owner shall be advised accordingly. The owner when so advised, shall not operate the vessel without the approval of the Marine Board.

33. When the Survey Certificate has been suspended or has expired or been cancelled, the Marine Board may require it and the evidence of survey to be delivered up as directed.

The vessel crew consisted of the following personnel as highlighted in the Preliminary Report:

The Safe Manning Certificate issued by the Fiji Marine Board on 20/05/1999 signed by the President stated that the vessel’s total minimum crew number is 12.

Conditions & limitations (2) of the certificate stated “This certificate remains valid subject to 2 yearly review so long as there is no material change in safety equipment or the construction of the ship, or in its passenger or cargo carrying capacity or its commercial purpose.”

The last annual survey (on the slip) of the MV Ovalau II was carried out on 5^th February 2002. This particular survey was completed satisfactorily by the Surveyors, except, for the ultra-sonic test on the hull. The last ultra-sonic test on the MV Ovalau II was carried out on 8^th February 2000 (Exhibit 9[a] & [b]). Ultra-sonic test should be carried out every 2 years for vessels of 24 years of age and over. The next one should have been conducted by 8^th February 2002.

The next annual survey was due on February 2003. The FIMSA surveyors assigned to conduct the survey are Mr Nimilote Bulimaibau of the Deck section and Mr Setareki Tuilovoni of the Engineering section.

The surveyors instead carried out an Annual-Afloat survey. They requested the ship-owner for an underwater survey report. Mr David Evans, a gazetted underwater surveyor by the Marine Board conducted the survey. According to his report, “All underwater areas of this vessel are in good to excellent condition, and it is recommended that the vessel be given a six (6) months extension to it’s Sea-going certificate from it’s current expiry date, that is, to 5^th August 2003”.

The two surveyors at completion of their surveys and with the recommendation of the underwater surveyor completed the Survey Report and recommended the same.

The Interim Certificate, signed by the Secretary of the Fiji Marine Board was issued to the ship owner of which the Survey Certificate was finally issued.

On 4^th August 2003, a day before the expiry the current Survey Certificate, the two surveyors Mr Numilote Bulimaibau and Mr Setareki Tuilovoni conducted the Semi-Annual survey at Natovi. They completed their survey on the same day. However, the Interim Certificate was not issued awaiting the outcome of the underwater survey to be held on 12^th August 2003, as requested by shipowner.

The MV Ovalau II kept on trading during this period, that is, from the 5^th – 12^th August 2003.

On 12^th August 2003, Mr David Evans conducted the under-water inspection at Natovi. He reported (Exhibit 11):

“Apart from the high bearing wear-down measurements evident and the sandwich patches noted, all underwater areas of this vessel are in very good condition. While the bearing wear-down measurement and the breaches through the shell plate should be addressed during the up-coming dry-docking operations, the underwater areas of the hull and its underwater machinery are in a suitable condition for a further 3 months service. It is recommended that the vessel’s Sea-going Certificate be extended until November 5^th 2003.” (emphasis mine)

The Interim Certificate was not signed by the Secretary of the Fiji Marine Board but signed by Captain Inoke Ratotodro and was then issued on 13/08/03 to be effective from 04/08/03.

The Survey Certificate (exhibit 6.), was prepared for issuance on 15^th August 2003, but was not signed by the President of the Fiji Marine Board as the MV Ovalau II certificate had reached her office after the vessel had capsized.

Certificate Name	Date of Issue	Validity	Exhibit No.
a. Registration Certificate			1
b. Survey Certificate (Annual Afloat survey)	01/05/2003	Until 05/08/2003	3
c. Interim Certificate (Full Afloat Survey) #17481	28/04/2003	Until 28/05/2003	4
d. Interim Certificate (Sight survey) #16917	13/08/2003 w.e.f. -04/08/2003	Until 13/09/2003	5
e. Survey Certificate –UNSIGNED (Semi Annual survey)	15/08/2003	Until 04/11/2003	6
f. Safe Manning Certificate	20/05/1999	Remains valid subject to 2 yearly review as per “Conditions and Limitations” (2)	8

The last ultra-sonic test carried out on the hull of the MV Ovalau II was conducted on 8^th February 2000. The plate thickness wear-down of the underwater hull was approximately 40%.(exhibit 9[a] & 9[b]).

On 3^rd February 2003, underwater surveyor Mr David Evans reported on his underwater survey report at Natovi, (Exhibit 10), as follows:

“All underwater areas of the hull, with exception of a small area amidships on the centreline, and all underwater machinery were covered during the current underwater survey.

Hull & SPC Antifouling Paint System: It should be noted that the underwater survey was carried out at dead low tide, and this excluded the surveying diver from reaching a small area of the hull amidships on the centreline due to the vessel’s proximity to the seabed.

It was seen however, that there were no new setups, damage or even abrasion to the A/F paint system anywhere on the hull. Special attention was paid to the areas most susceptible to this problem, ie, the entry, stem and bow area, the C/L, the skeg and deadwood. No indication of contact with the seabed or coral was observed.

It was seen that the SPC system on this vessel is performing very well indeed. All areas of the the SPC system are still remarkably active after the current 12-month service period, and the only marine fouling noted below the waterline was some small areas of slime and smaller areas of incipient tubeworm fouling-all of which could easily be wiped away with a gloved- hand. It was estimated that the SPC system will provide quite sufficient protection for a further 6-12 months service.

No damage apart from old setups that were over-painted during the last dry-docking operations, or anomalies were observed.

Conclusion: All underwater areas of this vessel are in good to excellent condition, and it is recommended that the vessel be given a six month extension to its Seagoing certificate from its current expiry date, ie. Until August 5, 2003”.

The underwater surveyor, Mr David Evans also stated in his survey report (Exhibit 11) on the inspection of the hull on 05/08/03 at Natovi, that:

“ An underwater survey of all areas of the hull, and all underwater machinery of the above vessel was carried out at Natovi jetty, Tailevu on Monday, 12/08/03. The underwater conditions for the survey and photography were satisfactory, with visibility of 3/4M. The survey was intentionally carried out on a rising tide to enable the surveyor full access to all underwater areas of the hull.

Hull & SPC Antifouling Paint System: It was seen that the SPC system on this hull, which has now been in the water for approximately 18 months, is in excellent condition, with only very light grass and incipient tubeworm fouling currently becoming established on the A/F system. Some small areas of scattered shell fouling were observed on the bow and entry area, where the A/F system has been removed by abrasion. It was noted where the light fouling was removed by hand, the SPC system is still active and effectual, and is “working” well indeed.

Although no abrasion or new set-ups were noted anywhere on the flat bottom, it was seen that there are now four sandwich patches on this hull-obviously sealing small breaches through the shellplate. These patches were noted to be located as follow –

All patches were inspected with underwater lights and seen to be sound and undamaged. However, this damage should be addressed during the upcoming drydocking operations. It was also noted that the forward end of the portside bilge keel is set down in two places. This damage is not current, but the attachment of the bilge keel to its doubling plate was inspected and no cracks or fractures observed.

No other damage or anomalies were noted to the underwater areas of the shellplate.

Conclusion: Apart from the high bearing weardown measurements evident and the sandwich patches noted all underwater areas of this vessel are in very good condition. While the bearing weardown measurements and the breaches through the shellplate should be addressed during the upcoming drydocking operations, the underwater areas of this hull and its underwater machinery are in suitable condition for a further three months service. It is recommended that the vessel’s Seagoing certificate be extended until November 5, 2003”.

On the morning of 23^rd August 2003 at approximately 0630hrs, loading of cargoes mostly vehicles commenced at Ellington Wharf.

The Chief Officer, Mr Kelemete Rayawa was in-charge of the loading. He had a loading plan showing the disposition of vehicles only, (exhibit 23).

In an answer to Mr Leung’s question about his work, he rightly said “...first of all I looked after the stability of the vessel”.

On the loading plan sketched each vehicle location marked with the number of tyres she had. He positioned vehicles athwart-ships with the same vehicle sizes for stability. However, he did not know the weight of each truck. Stability deals with equal weight distribution and not on sizes of the vehicles, as their cargoes can be invariably different.

Captain Jack Riley when questioned on the loading plan said that a sketch was normally used because the vessel always carried the same cargo every voyage.

All vehicles loaded, were not lashed but their rear tyres were wedged only. This indicated that they secured vehicles for pitching movements only and not for rolling movements.

Mr Emosi Ralulu, the Marine Checker based at Ellington Wharf in attending to the MV Ovalau II clearance said that cargoes loaded were properly lashed and secured.

The Marine Checker should ensure that all cargoes are properly lashed before ship is put to sea. He has the power not to clear the ship if the lashings not been done.

Conditions of the above-mentioned tanks were not so clearly established. The engine-room logbook was lost with the ship and hence no proper reading of the above-mentioned tanks could be tendered. The daily entry of deck logbook was vague as day 22 is missing, (Exhibit 40).

Fresh water tank: No 4-port 18000 litres and No 4 starboard-19500 litres.
No record of Fuel Oil capacity ascertained from the Engine-room Logbook but the preliminary investigation report quoted 21420 litres in total.

Facts before the court was of the breach found on No: 6 Void tank. Its condition before departure was not known because the Master and the Chief Officer both agreed that they did not sound No 6 although it falls under their responsibility.

Evidence gathered from the MV Ovalau II Stability booklet on “Full Load Departure” showed the following;

The actual condition of the MV Ovalau II was only 60 tonnes less than the stated above condition.

At the commencement of the tow by the sister ship MV Princess Ashika, the MV Ovalau II was swung back towards Ellington on her port-side. This developed a small port list of about 5 degrees.

Throughout the tow, pumping of water from the engine-room to the vehicle deck continued. This resulted in the accumulation of water at the vehicle deck and the increase in the list of the vessel.

The tow back to Ellington was on a reciprocal course of 060 degrees True, that is, 240 degrees True direction. On approaching Nananu Passage, the tow altered course to 169 degrees True, a big alteration of 71 degrees to port. This alteration assisted the deteriorating condition of list of the MV Ovalau II due to free surface movement of water at the vehicle deck.

Further, the heavily laden MV Ovalau II exerted a lot of strain on the tow rope of the sister ship MV Princess Ashika when altering course at such a big angle, which eventually broke as the vessel entered the passage.

At 1730hrs, when Mr William Patterson boarded the vessel he estimated the list to be around 20 degrees and that she was in a very precarious condition.

He tried to pump out water from the vehicle deck but it was too late. The MV Ovalau II capsized on her port-side soon after that.

The No: 6 Void tank with a capacity of 1660 litres may have been left unattended for quite a while as can be seen with rust stains on the video clip. That would have given a bodily sinkage of 3 cm reducing the freeboard to 81 cm. This would result in a small angle of deck edge immersion when listed in the bilged condition.

This means that the vehicle deck will be underwater at a small angle, which will worsen the stability condition.

Evidence has it that there was no provision of full afloat survey in the Marine Act yet that has been the practice of Fiji Islands Maritime and Safety Administration.

This full afloat survey according to the Marine Act should have been an extension survey, that is, extending the current survey certificate on a monthly basis given the sole reason as the non-availability of the slipway.

At the end of each month an extension survey has to be carried out again encompassing the deck, machinery and under-water survey to ensure that the vessel is seaworthy at all time until going up the slipway. The month- by- month extension of Survey Certificate can only go up to six (6) months and no more. After that if the slipway is still engaged, the Survey Certificate has to be suspended and vessel tied up and to be stopped from operation. This system ensures close scrutiny of the vessel’s seaworthiness condition.

The Chief Officer, Mr Kelemete Rayawa was in-charge of the loading. He had a loading plan showing the disposition of vehicles only (exhibit 23).

In an answer to Mr Leung’s question about his work, he rightly said”...first of all I looked after the stability of the vessel”.

On the loading plan sketched each vehicle location marked with the number of tires she had. He positioned vehicles athwart-ships with the same vehicle sizes for stability. However, he did not know the weight of each truck. Stability deals with equal weight distribution and not on sizes of the vehicles, as their cargoes can be invariably different.

Captain Jack Riley when questioned on the loading plan said that a sketch was normally used because the vessel always carries the same cargo every voyage.

All vehicles loaded, were not lashed but their rear wheels were only secured by wooden wedges. This indicated that they secured the vehicles for pitching movements only and not for rolling movements. Rolling movements is most dangerous in the stability of a vessel. Ro-ro passenger vessels, such as the MV Ovalau II carry moveable cargoes, that is, vehicles and passengers. The proper lashing of cargoes is a vital component of maintaining the stability of a vessel. The lashing requirement should always be adhered to on every voyage; it is a must irrespective of the duration or condition of the weather.

The Chief Officer believed the weather was good and the voyage short, which did not warrant the lashing down of the cargoes. Further he said that, “ it was the common practice onboard.”

The above practice showed that they have been setting a dangerous precedent. This is gross negligence of basic seamanship practice. Stability can be mostly dangerous on the sideways movement than the pitching effect.

The Ship’s Operation Procedures (SOP) manual onboard was just merely an unused piece of paper. It explains clearly that all vehicles shall be properly lashed.
They have been operating on this route for so long that complacency crept into their daily best seamanship practice.

Further, it was clearly spelled out on the back of the stability booklet provided to the Master the following instructions:

Before a voyage commences, care should be taken to ensure that all vehicles and any sizeable piece of equipment have been properly stowed and lashed so as to minimize the possibility of both longitudinal and lateral shifting while at sea, under the effect of acceleration caused by rolling and pitching”.

The shifting of cargoes may also have contributed to the capsizing of the MV Ovalau II, because of what sufficed from their normal loading practice.

Mr Emosi Ralulu, the Marine Checker based at Ellington wharf on attending to the MV Ovalau II clearance said that cargoes loaded were properly lashed and secured.

He termed wedging of vehicle tyres as “properly lashed”. This showed either lack of knowledge of his duty or a total disregard of safety or both.

Conditions of the above- mentioned tanks were not so clearly established as the engine-room logbook was lost with the ship. The daily entry of deck logbook was unclear, as entries for 22/08/03 were not entered, (Exhibit 40).

Fresh water: No 4 port-18000 litres and No 4 starboard-19500 litres.
No record of Fuel Oil capacity ascertained from the Engine-room Logbook but the preliminary investigation report quoted 21420 litres in total.

Facts before the court were that there was a breach found on No: 6 Void tank. Its condition before departure was not known because the Master and the Chief Officer both agreed that they did not sound No 6 although it falls under their responsibility.

(2). The MV Ovalau II is boxed-shaped as deduced from the “Bowlines & Lines Plan.

The Chief Engineer and the crew could not block the breach in the engineroom because of the piping layout.

The water pressure was so great that the Chief Engineer got the impression that they were fighting a losing battle. “There was no hope of plugging the hole”, he said.

From around 1100hrs, three pumps were running and discharging water, one pump was discharging into the vehicle deck, supposedly into the starboard scuppers of the vehicle deck.

At around 1330hrs, the Chief Engineer ordered closure of all engine- room watertight doors and kept the pumps operational.

At 1740hrs, Mr. William Patterson boarded the ship and instantly saw the precarious situation, he had seen water had accumulated in the vehicle deck, that he immediately ordered the pumps to be stopped.

The three pumps had been running for approximately 4hrs and Mr Patterson estimated approximately 90tonnes of slack water accumulating on the vehicle deck.

Mr Patterson made the following observation when boarding the vessel at around 1740hrs;

(The inquiry noted an in-complete provision of stability booklet. Those on hand were in Japanese and cannot be interpreted. Therefore we can only dwell on approximate calculation from the guidelines and compare with the observed stability for a clear presentation of the actual MV Ovalau II stability situation.)

When the MV Ovalau II developed flooding in the engine-room, her stability condition also changed. She was in “bilged condition”.

Therefore the draft of the vessel had increased due to ingress of water which has displaced it’s own weight at the new waterline.

The MV Ovalau II would have remained afloat at this condition had all engine-room openings closed and were watertight.

The worst scenario of pre-calculated conditions, which can be compared with is the “Arrival Full Load condition” which has a maximum GM of 0.89m.

This proved that the MV Ovalau II still had adequate stability (positive metacentric-height, GM) to withstand and remained afloat if the engine room were kept watertight in the damaged/bilged condition.

Free surface is the free movement of water within a slack tank or compartment.
Free surface can occur and be dangerous where water collects in a space because of inadequate drainage.

It can also occur where water enters a stern door or through other means and collects on a vehicle deck.

The former happened in the MV Ovalau II where water was not intentionally pumped into the vehicle deck.

Free surface causes an off centre shift of centre of gravity (Gi), thus causes a virtual rise of G hence corresponding a reduction in GM.
Therefore, free surface causes a reduction of stability.

What happened on the MV Ovalau II was a case of shifting and adding weights (sea water) from the engine-room upwards towards the vehicle deck.
This action caused an actual rise in the centre of gravity (CG) and the free surface created caused a virtual loss of metacentric height (GM).

The port list was developed at the initiation of the tow by the sister ship MV Princess Ashika, which swung her to port when heading back to Ellington.
From there onwards, water started accumulating at the portside of the vehicle deck and the list increase gradually during the tow.

There are therefore 2 shifts in the centre of gravity to consider.
When a weight was shifted within the ship, the centre of gravity moves towards and parallel to the shift. So in the MV Ovalau II, the centre of gravity moved upwards and towards the portside.

G represents Centre of Gravity of the Ship
GG1 " actual rise of G due to water on vehicle deck
G1GV " virtual loss of GM
GVG2 " Horizontal shift of G
M " Angle of List
WL " waterline

The mass of water on the vehicle deck was approximately 90 tonnes as claimed by Mr William Patterson.

This proved that the effect of 90 tonnes of slack water accumulating on the port side of the vehicle deck would have listed the MV Ovalau II to 43.5 degrees.

However, other factors that come into play at the damaged condition must be considered, such as the low freeboard, loose cargoes not secured athwart-ships and the ever increase in weights on the vehicle deck that would reduced the angle of down-flooding as well as the angle of vanishing/capsizing dramatically.

As mentioned earlier, the crew abandoned ship at approximately 25 degrees of list. However, within ten minutes, she listed further to the low side never to return to the upright. This vanishing/capsizing stability angle happened undoubtedly between 25 to 30 degrees.

The GZ Curve pre-calculated by the builder had approximately a minimum of 36 degrees as the angle of down-flooding. At this angle the ship’s ability to return to the upright reduces gradually towards capsizing moment. At this angle also, water would have flooded other openings at the deck level, and in the MV Ovalau II condition water would have entered the vehicle deck from sea level.

At this angle of list also, loose cargoes are bound to shift, which would make the situation worse. This was the critical stage of no return.

Therefore, in the damaged stability situation of the MV Ovalau II, this angle of down-flooding would have happened earlier at a smaller angle of list. So in actual fact, Mr William Patterson’s estimation of 25 degrees was good enough. The vehicle deck would have flooded by the water from the ship’s sides between 25 and 30 degrees of list.

This confirmed that the MV Ovalau II indeed capsized due to free surface effect of water accumulated on the vehicle deck rather than sinking.

In summarizing the evidence adduced before me, it became apparent that the MV Ovalau II capsized and sank by the accumulation of water on the vehicle deck.

One of the main contributing factors is the failure of the authority - the Fiji Islands Maritime Safety Administration to properly adhere and enforce the Marine Act and Marine Regulations.

Unfortunately the proper surveying procedures of the Marine Act and Regulations, were not followed by the Surveyors. They made a short-cut of the system in favour of the ship-owner.

The Surveyors overlooked safety; it can be seen that practice is one thing and Law is another.

On 12^th August 2003, the under-water surveyor Mr David Evans carried out a special underwater survey at the request of the ship-owner.(Exhibit 10). The report stated, inter alia

“......apart from the high bearing wear-down measurements evident and the sandwich patches noted, all underwater areas of this vessel are in very good condition. While the bearing wear-down measurement and the breaches through the shell plates should be addressed during the upcoming dry-docking operations, the underwater area of the hull and its underwater machinery are in a suitable condition for a further 3 months service. It is recommended that the vessel’s seagoing certificate be extended until November 5^th 2003.”

It is Interesting to note his comment in his report that: “All underwater areas of the hull, with the exception of a small area amidships on the centreline, and all underwater machinery were covered during the current underwater survey.”

In fact the breach that caused the engine-room flooding on 23^rd August 2003 leading to the sinking of the MV Ovalau II was within the area not covered in the inspection stated above.

The first breach appeared and sealed in late March 2003 by the Chief Engineer, Mr Timoci Naivalu.

The other 3 breaches occurred and sealed between April and July 2003, by the relieving Chief Engineer, Mr Bennie Obrien. According to them, the sandwich plates were easily sealed as locations were accessible.

Then again on the fateful 23^rd August 2003, at approximately 0950hours while the MV Ovalau II was on passage from Ellington to Nabouwalu, a breach opened up in the engineroom approximately 125mm by 20mm on the starboard-side and half meter from the centreline.

Under the No:6 Void Tank, another breach appeared measuring approximately 110mm by 35mm as was evident on the video clip recorded by Mr Charles St Julian on 27^th August 2003.

Mr St Julian confirmed that the 4 sandwich patches played no part in the sinking of the MV Ovalau II.

Mr Waqa, the Principal Surveyor Supervisor answering Mr Leung’s question as to the cause of this particular breach said that it was not through grounding or grazing of sea-bed as abrasions and setups would be seen immediately around the breach. Indeed rust stains were found around the breach vertically downwards.

Further, Mr Waqa said that he would have second thought as to the integrity of the hull from the 4 breaches.

Mr Nimilote, the deck surveyor stated that, he had been assured as to the integrity of the 4 sandwich plates by the Underwater surveyor.

My findings and those of the assessors therefore are that the MV Ovalau II had very severe structural weaknesses for so long and that three assigned Surveyors failed miserably in the course of their duty to ensure a proper and efficient survey in accordance with the Marine Act of the MV Ovalau II for the ultimate safety.

In view of our findings, it is abundantly clear that the vessel was not in a seaworthy condition .

This indeed was a ‘casualty’ which is defined as follows under section 5 of the Act.

The contributing factors leading to the casualty have already been stated hereabove.

The question that sticks out like a sore thumb upon the whole of the evidence, and it is the central issue around which this casualty evolves, is that of the seaworthiness or otherwise of the vessel in question.

Mr. Leung made a most persuading submission to the effect that as the leading maritime transport-owners they left no stone unturned to see that the vessel was seaworthy.

He vehemently denies any suggestion that the owners knowingly allowed the vessel to set sail on that fateful day knowing that she was unseaworthy. The owners invite the Inquiry to reject that submission as unfounded.

Mr. Leung submitted, inter alia, that the vessel was (a) duly surveyed and certified, (b) her master and crew were qualified and approved by the relevant authority and (c) the vessel was duly cleared for the voyage by authorized personnel.

It is the counsel’s submission that the vessel was seaworthy on the morning of 23 August 2003. He admits that it is an old vessel and had been subjected to regular checks and inspections which examination included the hull, machinery and equipment. He said that the vessel complied with all directions and requirements for survey when required of her by FIMSA and its surveyors and duly approved for the journey that morning.

After analysing the evidence Mr. Leung invites the Court to make findings of fact and/or law on the following matters that: (a) the vessel was seaworthy; (b) the vessel had met all the relevant certification and seaworthiness requirements at the material time; (c) the owners exercised due diligence and did what was asked of them by FIMSA; (d) the records show that the owners and management had exercised all due diligence; (e) that the crew possessed all the necessary competencies and qualifications; (f) the crew tried their best; (g) the crew were not negligent; (h) the management acted responsibly and finally (i) ‘at all material times the vessel had adequate buoyancy to continue sailing but the most probable cause of her capsizing (as opposed to sinking) was the accumulation of a large quantity of water on the vehicle dock which caused her to gradually list to port and eventually capsize.’

The assessors and I have given a very careful consideration to all the evidence that has been adduced and also to the very helpful written and oral submissions of Mr. Leung. We have come to certain findings as to the cause of the casualty. The casualty that actually occurred was not an act of God.

Somewhere in the whole scheme of things the vessel’s illness was not clinically or otherwise diagnosed. This was due to a number of factors, inter alia, laxity, carelessness, inattention to defects knowing the history of the vessel. With expert surveyors the danger that was lurking in the hull of the vessel could have been easily detected and remedial actions taken rather than passing the buck and saying one is an underwater surveyor and it is not one’s responsibility to see to the condition of the vessel in the interior of the vessel.

Mr. Leung says that the vessel was seaworthy, but in the light of the evidence and law it was not.

For a clear understanding of the law applicable to a vessel like “M V Ovalau II” I wish to refer at the outset to an Article under the caption “Seaworthiness” – An Implied Warranty Or a Prime Obligation by Hyacinth Fernando of UK (Specialist in Maritime Law).

The ship must be fit in design, structure, condition, equipment and all other respects to encounter the ordinary perils of the voyage. She must also have a competent master, and a competent and sufficient crew.

The Quebec Civil Code written in 1866 gives the following definition of seaworthiness, which is just as valid today: “The carrier is obliged to provide a vessel of the stipulated burthen, tight and staunch, furnished with all tackle and apparel necessary for the voyage, and with a competent master and a sufficient number of persons of skill and ability to navigate her, and so to keep her to the end of the voyage. (Marine Cargo Claims v William Tetley Q.C. at p157)

The author says that inefficiency of the master or crew may constitute unseaworthiness and this inefficiency may consist of “disabling want of skill or disabling want of knowledge”.

There is no fixed and positive standard of seaworthiness and, it must vary with the varying exigencies of mercantile enterprise. “The ship” said Lord Cairns, “should be in a condition to encounter whatever perils of the sea, a ship of that kind, and laden in that way, may be fairly expected to encounter, on the voyage. The duty to supply a seaworthy vessel is not equivalent to a duty to provide one that is perfect, and such cannot breakdown except under ordinary perils.

What is meant is that she must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of voyage, having regard to all the circumstances of it.

In the book Shipping Law by Robert Grime on “unseaworthiness” the author states at p43:

Unseaworthiness must involve “serious danger to human life” – a phrase which has been used for a century without apparently requiring interpretation. The ambit of unseaworthiness is defined in specific detail in such a way as to cover the major sources of dangerous unfitness to meet the perils of the sea: the condition or unsuitability of the ship or its equipment, or any part thereof, undermanning, overloading or unsafe or improper loading and “any other matter relevant to the safety of the ship” (s.30(3)). This last “sweeping up” clause, newly introduced in 1988 is likely to be extremely important.

Both owner and master are liable to prosecution, independent of each other. This reflects the differences in their responsibilities: the one for planning and maintenance, the other for operation.

Liability is strict: it does not depend on the state of the master’s or owner’s knowledge, or even upon negligence. (emphasis mine).

Under section 107 of the Marine Act of 1986 a vessel is required to be seaworthy. It provides:

“An agreement shall be deemed to contain a condition that the owner of the vessel in which the person is or is to be employed or a seaman shall use all reasonable means to ensure that the vessel is seaworthy for and during the voyage on which the person is so employed.

(2) A purported waiver of the conditions referred to in subsection (1) is void.” (underlining mine)

The Marine Act also defines what an “unsafe vessel” is in section 84:

84(1) For the purpose of this section and section 85 a vessel is an unsafe vessel if because of –

it is unfit to go to sea without danger to human life having regard to the voyage which is proposed.” (underlining mine)

“It is not disputed, I think, that a ship may be rendered unseaworthy by the inefficiency of the master who commands her. Does not that principle apply where the master’s inefficiency consists, whatever his general efficiency may be, in his ignorance as to how his ship may, owing to the peculiarities of her structure, behave in circumstances likely to be met with on an ordinary ocean voyage? There cannot be any difference in principle, I think, between disabling want of skill and disabling want of knowledge. Each equally renders the master unfit and unqualified to command, and therefore makes the ship he commands unseaworthy. And the owner who withholds from the master the necessary information should, in all reason, be as responsible for the result of the master’s ignorance as if he deprived the latter of the general skill and efficiency he presumably possessed”. (underlining mine)

It was stated by Lord Merriman P in City Steam Fishing Company Ltd (owners of the Motor Trawler “HILDINA”) v Robertson and others (The “HILDINA”) 1952 2 LL. List L.R. p.247 at p257, and it is pertinent here, that:

“Nobody disputes the proposition that, if owing to the fault of the owners, they provide a ship which is unseaworthy in these respects, the mere fact that the unhappy train of circumstances was brought into existence by the careless, or even negligent, operation of the boatswain in bringing this vessel broadside on to wind or sea will not enable the owners to escape their responsibility for providing proper equipment.”

I attribute the responsibility of the casualty to the owners of the vessel. It was their responsibility to see that the vessel was correctly managed in all respects. This management responsibility includes all technical and operational matters of vessel under their management and the assurance that they are carried out in a safe and competent manner. It is also the owners’ responsibility to ensure that crew on the vessel under their management are given adequate guidance on the operation of the vessel and to monitor their performance thereafter.

Lord Merriman goes on to say at p.258, and it is relevant to the facts and circumstances of this case:

“... the fault of the owner may take two forms. It may take the direct form of supplying a faulty system of working, to put it shortly, or deficient equipment, such as boilers known to be inadequate – as in the case which I have just mentioned – or may take what has been called the indirect form, where, although the equipment, if properly used, is perfectly good and could not give rise to blameworthiness in itself, there is failure to instruct those who have to use it, or to see that they are instructed in the proper method of using it: see the speech of Viscount Haldane in the House of Lords in the case of Standard Oil Company of New York v Clan Line Steamers Ltd., [1924] A.C. 100; (1923) 17 LI.L Rep. 120, in which he gave the leading opinion.”

The situation in this case can be well summed-up in the following words of Viscount Haldane in Standard Oil Company of New York v The Clan Line Steamers, Ltd (1923 12 LL. List L.R. p120 at p.125):

“The evidence I think, establishes that the master’s handling of his ship amounted to gross and flagrant mismanagement for which there was no excuse. Though this be so, the main question still remains. Did the default of the master in this respect result from want of due, i.e. reasonable, diligence on the part of the owners of this ship, or any of them, or of the ship’s husband or manager, in not having the advice and instruction contained in document No. 141 brought home to the mind and knowledge of Captain McLean before they entrusted him with the navigation of this ship on her voyage from New York to the Eastern ports named in the charter-party and with the cargo mentioned.” (underlining mine)

Because of the hole that appeared in the hull after the vessel was out at sea for some hours, and the water filling in fast, the vessel went down in deep water and was totally lost, with all her cargo on board.

The case of Cohn v Davidson & Anor (`877 [1877] UKLawRpKQB 25; 2 QBD 455) is directly in point on the issue of warranty of seaworthiness. The facts there are very similar to the case before me. There at: ‘the time when she commenced taking in cargo she was seaworthy; but by the time of setting sail on her voyage she had for some unknown cause become unseaworthy .... She began to leak... the vessel foundered at sea, and the plaintiff’s cargo of cement was totally lost.’

There was warranty of seaworthiness implied by law and liability attached to the shipowners.

For the benefit of the maritime public and for the safety of passengers and safe carriage of cargo, we need to seriously take heed and learn from the MV Ovalau II tragedy and to immediately make amendments to the Maritime Act and Regulations made thereunder and for their enforcement by the officers responsible. The most important matter thereafter shall be strict compliance by all concerned in the application and enforcement of Maritime laws.

The history of the MV Ovalau II in terms of her age and built is such that prudent inspections strictly guided by the Regulations is a must. What has come out in the inquiry is the opposite.

(a) The Extension Surveys requirements in terms of its duration and nature of surveys, at the expiry of the current Semi-Annual Survey Certificate must be clearly spelled out.

The Marine Regulations is vague on this hence the common practice at FIMSA is a monthly survey inclusive of an underwater report for up to six months only.

(b) The ultra-sonic tests to vessels of above 24 years every 2 years shall have a regulated percentage of steel wastage. Evidence before the Inquiry showed that surveyors use rule of thumb only, which is not so strict.

(c) All underwater surveys conducted are to be accompanied by the report and the underwater photographs as well, for better assessment by the Principal Surveyor.

(d) The line of authority of surveyors to be clearly defined, namely the deck, machinery and underwater surveyors engaged at any one time on a vessel. In the MV Ovalau II case, the three surveyors pointed fingers at each other on their recommendations evading who shall make the final decision.

(e) The procedures of the Underwater Survey Application shall be changed in that ship-owners apply and pay directly for the underwater survey to FIMSA. FIMSA will then at the end of the survey, pay the underwater surveyor. In this case the underwater surveyor will have no prior negotiation nor seen to perform surveys in the ship-owner’s interest as is the case now. FIMSA may then rotate work with other gazetted underwater surveyors. This system will ensure fair play amongst underwater gazetted surveyors as well as work engagement.

The two surveyors namely, Mr Nimilote Bulimaibau (deck) and Mr Setareki Tuilovoni (engineer), made a flaw of the survey system by allowing the MV Ovalau II to undergo a Full Afloat Survey instead of the Extension Survey. This act is lenient and more inclined to the ship-owner both in terms of safety and revenue. Instead of an extensive monthly surveys for six months, she only had one survey for six months.

The surveys would have been extensive and deterioration signs of the under-water hull clearly identified had it undergone month-by-month survey.

To make matters worse, there is no provisions of an Annual Afloat survey in the Marine Act 1986 neither in the Fiji Marine Regulations 1990. It was simply a creation of FIMSA.

The MV Ovalau II at 34 years old with hull plates thickness recorded at 40 percent wastage in the last ultra sonic test conducted in 2000, breaches appeared signalling hull weaknesses yet the vessel was allowed to remain in the water in full operation for 18 months before she finally perished.

It is a pity that the MV Ovalau II had to go through this unfortunate saga, that is, a total disregard to the law and the lack of best survey practice.

Therefore the deck and engineer surveyors are proportionately blamed for the sinking of the MV Ovalau II. They failed on ship-owner reliance on their professional expertise for effective surveys hence the operational life of the MV Ovalau II.

I order the Marine Board to discipline the two surveyors, namely, Mr. Nimilote Bulimaibau and Mr. Setareki Tuilovoni.

On his underwater inspection of 12 August 2003 at Natovi, Mr David Evans found 4 breaches secured with 4 sandwich plates and yet recommended extension of the ship’s Survey Certificate for another 3 months.

He knows the history of the MV Ovalau II well. He understands fully the delays in her slipping. The MV Ovalau II by now had been in the water and fully operational for 18 months. From experience he knows that breaches without any foreign contact indicated hull weaknesses. Above all he knows that there is no provision of sandwich plates whatsoever in the Marine Act.

All these factors should have given him enough proof and with no hesitation to recommend that the MV Ovalau II urgently needed an emergency slipping and he should have acted responsibly.

He has seen so many ships with sandwich plates. He has successfully patched so many breaches on ships over the years. But it does not mean that it is right and legal. It is no answer to say that MV Ovalau II and other vessels with ‘patches’ had previously made successful voyages.

He has been performing an unethical practice for so long. It must be stopped and stopped now.

On these grounds I find David Evans guilty of substandard underwater survey practice and Order the Marine Board that gazetting him as an underwater surveyor be withdrawn for at least 12 months.

The Marine Checker, Mr Emosi Ralulu joined FIMSA in 2001. He was informally trained for a month.

Evidence gathered on him through the inquiry showed his lack of knowledge of his work. He failed to enforce and effectively carry out checks before the vessel was put to sea. He did not ensure that all vehicles were securely lashed. He termed “tomming of vehicle tyres as properly lashed”. He allowed the MV Ovalau II to sail without proper lashings of cargoes.

He did not ensure proper entry of Passengers manifest nor familiar with all the safety certificates to be sighted onboard.

He did not know nautical terms so important for ships stability such as ‘drafts’ and ‘trim’.

Mr Ralulu needed further intensive training in the field before being allowed to hold a fort at an outer jetty.

It is recommended that the minimum entry point of Marine Checker be a holder and experienced Class 4 Master or its equivalent in the Engineers structure.

The Master had dual role onboard, firstly as representative of the shipowner he represented the owner on the operational aspects of the vessel. He has authority within the ship and is the superior officer.

Liability attaches to both the owner and master if the vessel is unseaworthy. As I said before, this reflects the differences in their responsibilities; the one for planning and maintenance, the other for operation. Liability is strict, it does not depend on the state of the master’s or owner’s knowledge, or even upon negligence. (Shipping Law, 2^nd Ed by Robert Grime at p.43).

Secondly, he represented the Administration (Fiji Maritime Safety Administration) to see that all safety regulations regarding the vessel are adhered to, and should report within 24hours of arrival at port of any defects or mishap that may have endangered the vessel, its crew, passengers and cargoes.

(a). The Master failed to follow professional standards of lashings and securing of cargoes before the MV Ovalau II was put to sea. It had been a practice onboard not to lash vehicles as testified by both the Master and Chief Officer.

It is imperative to lash cargoes at all times irrespective of the short voyage and the good weather that prevailed.

The Company’s Standing Orders and Safety Operation Procedures clearly stated that cargoes and vehicles to be properly lashed prior to departure.

The ultimate responsibility for the safety of the vessel and her seaworthiness rests with the Master. It is his responsibility to ensure, inter alia, that the vessel proceeds to sea with adequate stability.

(b). The Master failed in his professional conduct to execute proper emergency procedures when the vessel experienced breach in the engine-room.

He believed that flooding in the engine-room would not sink the ship yet did not carry out procedures to ascertain it. No tank soundings was ever undertaken or recorded. Soundings at equal intervals should have been done.

(c). The Master failed to appreciate that the crew were fighting a losing battle which needed his prompt action to call for immediate help on the international distress frequencies of 2182khz and 6215khz.

He did not fully utilize the powers and requirements within his province pertaining to the imminent dangers he was faced with. The series of events would have entailed the Master’s constant contact with Suva Radio (3DP) and the Maritime Surveillance of the Fiji Navy from the start. This would ensure a national network of communication, which is prudent and would have brought a more extensive and effective assistance.

Although, evidence in the inquiry proved that there was no vessel in close proximity, however, emergency messages through other radio stations to villages in the Ra province and assistance would have been forthwith.

Further, he could have also called for immediate diversion of the sister ship MV Princess Ashika at their first contact at 1000 hrs. That would have ensured arrival of help two hours earlier and the MV Ovalau II would have been towed to safety at Ellington wharf when the damage situation was not so precarious.

(d). Experience in good seamanship is very important. Here is a case of the Master with poor seamanship, which finally led to the demise of the MV Ovalau II.

No Master has ever experienced all situations that the sea has to offer, therefore a prudent Master will monitor and act at the slightest of an emergency sign. It is good to be safe than be sorry.

The Master may have done whatever he could in his capacity, all in all from the evidence gathered, he failed miserably to appreciate, assess and execute his duties in the most and effective and professional manner.

I order the Marine Board to cancel Captain Jack Riley’s Class 4 Master’s Certificate of Competency.

Mr Kelemete Rayawa since obtaining his Grade 3 Mate Certificate of Competency had been serving as Chief Officer on the MV Ovalau II for seven months only.

In 1996, he started his deck apprentice career in the Patterson Brothers Shipping rotating amongst the fleet, that is, the MV Ovalau II, Princess Ashika and the Island Navigator.

In 2001, he obtained his Grade 3 Mate and was Chief Officer for seven months only before the demise of the MV Ovalau II.

Evidence before me had shown his lack of experience in the capacity coupled with the laxity in basic seamanship skills. This laxity is indicative of the training he was brought up with, through the Company’s representative onboard and that is the Master. He is still young and has so many years of service ahead of him suspension of his Certificate of Competency will teach him to be very careful and carry out his duties according to the Marine Act and professional training so that he does not go through the same experience again.

I order the Marine Board that his Grade 3 Certificate of Competency be suspended for one year.

Mr. Naivalu was the Chief Engineer of the MV Ovalau II during its capise and sinking. He was the most qualified and experienced in the Engine room where the breach occurred.

From the evidence gathered, Mr. Naivalu had not requested the owners for the installation of Bilge alarms in srategic points around the engine room bilges. His experience and knowledge should support his request for these alarms had he attempted to or tried to.

Mr. Naivalu had failed to order his crew to inspect the discharge of the portable pump when pumping using the portable pump began. On his answer to Mr. Keteca’s question on the inspection of the portable pump discharge, Mr. Naivalu stated “Sir at this moment we were worried about the safety of the ship..”. From this it can be said that he had totally focused his attention and effort on plugging the breach and even though he was fighting a loosing battle in this area, he had neglected the important factor of the vessel stability.

The water that accumulated from the pumping operation was the contributing factor to the capsizing of the vessel.

Mr. Naivalu as a Grade 3 Engineer and with his vast experience should have considered not only plugging the breach but the after effects of water accumulation if not allowed to drain overboard.

He knew that the portable pump discharge hose had insufficient length to go over the ship’s side, yet there was no effort from him to indicate that he had ensured that the water was being discharged overboard.

He had failed in his capacity as Chief Engineer of the vessel to look beyond the current problem and analyse the situation for other possible threats.

I therefore order the Marine Board that Mr. Naivalu’s Calss 3 Certificate of Competency be suspended for 12 months and thereafter demoted to Act as second Engineer only in any vessel.

The continual use of the wrong regulations during certification of survey work has been a norm. As the head of this regulatory arm of government which ensures safer ships for the public, Captain Salu should have been more vigilant in his role in seeing that his officers adhere to the Marine Act. Any shortfalls found should be corrected/recommended for amendment to Government through the FMB.

I RECOMMEND that Captain Salu be censured for his failure to ensure that proper forms are used and procedures strictly adhered to by his officers as lives of the travelling public are dependent on the mode of transportation his department is regulating.

In May 2003, the relieving Chief Engineer Mr Benny O’brien testified that while relieving during this time, he encountered two breaches of the hull. He temporarily inserted two remedial sandwich patches and advised the Operation Manager, Mr Trevor Patterson accordingly.

When Chief Engineer, Mr Timoci Naivalu resumed duty, he experienced two more breaches of the hull and also inserted them with sandwich patches. He also advised Mr Trevor Patterson accordingly.

All 3 Officers, the 2 Chief Engineers and Mr Patterson agreed that sandwich insertions were only temporary but effective measures in controlling breaches in the hull and that was why Mr Patterson did not see the need to report to FIMSA.

These 4 breaches were highlighted in the underwater report of Mr David Evans conducted on 12^th August 2003, a few days away only to the unfortunate demise of the MV Ovalau II.

According to Mr Evan’s report, these breaches were not caused by any external contact with any foreign object.
Therefore, the only professional conclusion that can be deducted here as to the cause of these breaches was the weakness of the hull’s integrity due to corrosion of the internal parts of the hull because of the age and overdue service of the MV Ovalau II.

The Owner, who is Operation Manager and a qualified Class 1 Master, Mr Trevor Patterson is trained to understand and know the physics of ship’s metallic structures. He knows the processes and procedures required under the Marine Act. He is the right person at the right position to make the right decision when the MV Ovalau II was experiencing safety of ship, lives and cargoes for that matter.

As a qualified and experienced Master, Mr Patterson had ignored the warning and danger signs of hull weaknesses, that is, series of breaches. The safety question here is not what, when and how effective the remedial insertions are, but why breaches kept appearing on the hull and the legal requirements to follow as a ship-owner. He has every right and power to stop the MV Ovalau II from trading even though he has a valid Certificate of seaworthiness onboard. He does not have to rely on the surveyors recommendations and their certificate of seaworthiness. The adage “Prevention is better than cure” is always right.

Perhaps, Mr Patterson may have believed that sandwich insertions are always effective as commonly experienced but it does not make it legal through the Marine Act.

Under section 84 of the Marine Act 1986 reference is made to unsafe vessels.

84. – (1) For the purpose of this section and section 85 a vessel is an unsafe vessel if because of –

it is unfit to go to sea without danger to human life having regard to the voyage which is proposed.

Mr Patterson and the Master Mr Jack Riley defied these legal requirements by failing to report the unsafe hull condition of the MV Ovalau II (4 hull breaches) to the relevant Authority (FIMSA) back in May 2003 when breaches were first experienced.

The defective condition of the hull of the MV Ovalau II experienced back in May 2003 was the beginning of a series of events of hull breaches leading up to another breach on 23^rd August 2003. This time the crew could not control which finally led to the vessel’s demise. It was unfortunate on the Owner’s part not take an affirmative action in the proper maintenance of the MV Ovalau II when most needed.

The Owner of a vessel is responsible to maintain and keep his vessel in a seaworthiness condition in between surveys.

The MV Ovalau II with all certainty should have been stopped from all operations and to be laid up, awaiting dry-docking when the first hull breaches were experienced. That would be the most appropriate and affirmative action an owner with Mr Patterson’s calibre and training would have called for and nothing less in the upkeep of safety.

I therefore find that the owners of the vessel were negligent in the course of their duty to ensure that the MV Ovalau II maintained a seaworthiness condition which they failed to do thus contributing to her unfortunate demise.

In law this was a contract which the owners entered into to carry goods and passengers. On the question of liability and responsibility of owners the following passage from the judgment of the Lord Chancellor in Steel et al. v The State Line Steamship Company [(1877) AC 72 Vol 3 H.L) is apt in the facts and circumstances of this case.

“I think there cannot be any reasonable doubt entertained that this is a contract which not merely engages the shipowner to deliver the goods in the condition mentioned, but that it also contains in it a representation and an engagement – a contract – by the shipowner that the ship on which the wheat is placed is at the time of its departure reasonably fit for accomplishing the service which the shipowner engages to perform. Reasonably fit to accomplish that service the ship cannot be unless it is seaworthy. By “seaworthy”, my Lords, I do not desire to point any technical meaning of the term, but to express that the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in crossing the Atlantic. My Lords, if there were no authority upon the question, it appears to me that it would be scarcely possible to arrive at any other conclusion than that this is the meaning of the contract.”

In view of my findings hereabove the vessel was not at the time of the casualty in fact in a condition reasonably to perform the service of conveying goods and carrying passengers without danger.

“...a shipowner who accepts goods which he is to deliver in good order and condition, impliedly contracts to perform the voyage in a ship which is seaworthy.”

“...where there is a contract to carry goods in a ship, whether that contract is in the shape of a bill of lading, or any other form, there is a duty on the part of the person who furnishes or supplies that ship, or that ship’s room, unless something be stipulated which should prevent it, that the ship shall be fit for its purpose. That is generally expressed by saying that it shall be seaworthy; and I think also in marine contracts, contracts for sea carriage, that is what is properly called a “warranty”, not merely that they should do their best to make the ship fit, but that the ship should really be fit.”

“In the case of Kopetoff v. Wilson (1), where I had directed the jury that there was an obligation, I did certainly conceive the law to be, that the shipowner in such a case warranted the fitness of his ship when she sailed, and not merely that he had loyally, honestly, and bona fide endeavoured to make her fit.” (emphasis mine)

Lord Blackburn hits the nail on the head when at p.88 he said and it is apt to the facts of this case:

“My Lords, I think that exactly the same considerations would arise here as to the implied duty – the duty which, though not expressly mentioned, arises by implication of law – on the part of the shipowner to furnish a ship really fit for the purpose. If that duty is neglected, as in the case of Kopetoff v. Wilson (1), or as in the case here, as it is alleged – I do not say that it is so, because that is a point not yet determined – the shipowner is liable. If, as is alleged here, a port gives way and the seas come in and wet the wheat, and if it is a consequence of the ship having started unfit that that mischief is produced, it seems to me to be exactly like the case of Phillips v. Clark (2), where negligence, not provided for by the contract, occasioned the breakage or the leakage, which it was said was an exception, but which the Court determined was not an exception of which the shipowners could avail themselves, seeing that it was brought about by their negligence. So here I think that if this failure to make the ship fit for the voyage, if she really was unfit, did exist, then the loss produced immediately by that, though itself a peril of the seas, which would have been excepted, is nevertheless a thing for which the shipowner is liable, unless by the terms of his contract he has provided against it.” (emphasis added)

In view of my findings on the liability of the owners of the vessel the Patterson Brothers Shipping they are fined $2000.00 under the provisions of section 84 of the Marine Act.

(9) A person conducting a marine inquiry may make such order as he thinks just to regain the costs of the inquiry or any part of those costs, and any such costs which a person may be ordered to pay may be recovered from that person by the Government as a debt due to the Government.

I reserve the question of costs of the inquiry after I have heard both counsel on this aspect on a date to be fixed.

To conclude, the Inquiry revealed that some public servants and crew of the Ovalau II deviated from the proper performance of their duties in the discharge of their functions under the Marine Act and Regulations made there under.

Not only that, the shipowners also failed in their duty to see to the proper application and enforcement of the Act and Regulations with full knowledge that their vessel was far from seaworthy in the eyes of the law and allowed it to proceed to sea on this voyage with passengers and cargo and which eventually proved fatal.

The way the Captain and everyone down the line tried to stop the water flooding the deck by using mops does not speak highly or efficiency of the Captain and the owners in such a situation. One would have thought that one uses a mop in an ordinary household to sweep the floor, kitchen and bathroom. What they did was a serious error of judgment. The whole of the sequence of events starting from the use of the mops and what followed after this was unprecedented.

The owners and Captain should have been better prepared for contingencies of this nature.

The general picture that I get of the situation is that prevailed at the time was that the vessel did take a big sea and the disastrous effect at once became apparent, for water poured over the deck and did not get away and the vessel was in real danger of capsizing when some crew members were singing away. What they sang a witness could not say and he did not reply to my question if whether they were singing ‘Isa Lei’. The Captain appeared to be sleeping on the job when he was for a long time oblivious to what danger the vessel was in and whether the crews’ effort to contain the situation was successful or not.

The 23 August 2003 was indeed a sad day for Fiji with this kind of casualty happening out at sea. The capsizing of the vessel being completely upside down could easily have been avoided if everyone concerned were awake on their job. It appears that the Captain’s mind did not work; he painted a dismal picture of himself in the witness box. The number of vehicles that have gone down the sea and have not surfaced is unthinkable. It appears that there has not been any salvage operations with cargo rotting away.

The owners of vessels have a heavy responsibility to see that their vessels are seaworthy in every respect. It is incumbent on underwater surveyors and other surveyors to see to the thorough inspections of ‘hulls’ as owners rely heavily on their expertise so that this kind of incident is not repeated.

If the owners have provided a vessel which is unseaworthy the mere fact that the unhappy train of circumstances was brought into existence by the careless, or even negligent, operation of the captain and crew in being unsuccessful in preventing the vessel from capsizing will not enable the owners to escape their responsibility for providing proper equipment in the situation that existed when the breach occurred in the hull.

Let everyone concerned learn from the experience of M V Ovalau II. The FIMSA should tighten up their operations and see that everyone is doing his job properly including more particularly the surveyors in accordance with the law.

This was a lengthy Marine Inquiry. The question which I am called upon to decide has not been found to be an easy one but with the assistance of the assessors Mr. Delai Vakasalimi and Captain Penitiko Cabenagauna Yauvoli, the learned counsel Mr. Graham Leung and Mr. Keteca the difficulties have been ameliorated when they were good enough to go through matters to pilot me.

I acknowledge with grateful thanks the invaluable assistance received from all parties concerned.

I would like to thank Mr. Kiniviliame Keteca, the Principal Legal Officer in the Attorney-General’s Chambers for facilitating the smooth conduct of the Inquiry by appearing as counsel assisting. He prepared himself thoroughly and presented the evidence in a clear and systematic manner.

I thank Mr. Graham Leung and his junior Mr. Leweniqila, who as counsel represented the owners of the vessel, for the excellent manner in which they presented the case for the owners thereby assisting the Inquiry.

The witnesses who appeared to testify conducted themselves very well while testifying and I thank them for their assistance.

Others who deserve to be thanked for the smooth running of the Inquiry are the recording team headed by the Chief Recorder, Mr. Tevita with Ms Ana and her team, the Court Officer Ms Launi the Court Interpreter. Because the Inquiry was a matter of great public importance, the media the TV are thanked for giving a comprehensive coverage of the proceedings.

Justice Devendra Pathik, OF CSM JP BA LL.B
Person Conducting the Inquiry