|Could a hole like the one photographed have snagged a pontoon guide where Tangent was moored and started a train of events leading to its sinking? Were the holes in the piles generally a cause for concern? These were some of the questions before the court. The Harbour Company said no to both, the claimants said yes, and there are hundreds of thousands of pounds riding on the answer. A ruling is expected late February.
Report on the Tangent court case 18 to 20 January
Update for BHT members
21 January 2020
Anyone with a keen interest in Bembridge Harbour may not be surprised at the claims of negligence levelled at the Harbour Authority as part of a recent High Court case concerning the sinking of a moored vessel in 2018.
Proper maintenance of the harbour is a key aim for BHT. If available funds had been used for necessary maintenance this claim would never have reached the court. However, if found against the harbour, huge costs to the Statutory Harbour Authority could result.
The case was brought against the harbour for breach of contract.
The mooring agreement requires the harbour take “all reasonable steps” to maintain the facility, however the claim was that the harbour did not maintain the infrastructure safely.
And that as a result, on the night to the 7th of October 2017, part of a pontoon pile guide snagged in a hole in a pile, pinning down one end of a pontoon on the rising tide, and forcing the £165,000 boat moored to it to take on water and sink. The claim was for recovery of the loss.
To be successful, the claimant needed to show – that this event was “reasonably foreseeable” and came as a result of “all reasonable steps” not being taken to maintain this as a safe mooring. And that, “on the balance of probability” – the accident was caused by the hole which had not been repaired.
Findings based on failures
The court will judge the merits of the arguments, but as an observer on behalf of BHT I was struck by the fact the Harbour relied on two maintenance failures to underpin its defence.
1) Both Mr Thorpe and Mr Wight state that they were fully aware of multiple holes in the piles. They said that the harbour was “keeping a close eye” but had concluded that the holes were not growing, and “not a problem,” despite acknowledging advice from a Marina Developments Ltd report in 2012 to take action against an “aggressive form of corrosion.” The evidence showed that even after this report, there was no recorded monitoring of the holes.
2) Mr Thorpe described Bembridge Marina as a “drying marina.” Though it is true that much of the marina was drying in extreme tides, this is was a result of the Harbour Authority’s failure to adhere to the Harbour’s own declared target depth of 1.8m at low tide.
The harbour’s claim
The harbour’s defence relies on a theory that lines and/or fenders snagged on fenders poorly secured to the pontoon that was not floating at low tide, forcing Tangent to list sufficiently to cause initial flooding, setting in train the sinking. Their expert claimed a four-degree list was sufficient to set that train of events in motion. On that basis, if the boat ever dried out on a beach and sat on one chine it would not re-float. There were suggestions by the harbour’s side that the boat’s minder, Mr Hewitt, actively altered fenders and mooring lines in the morning in order to hide the evidence of this occurrence. This is contrary to Mr Hewitt’s sworn evidence that this was simply in order to minimise further damage to the boat.
The claimants’ counsel noted that there was no evidence before the court that this particular pontoon dried on the night of the event, but that there was some measured evidence of a 1.05m minimum depth at extreme low tide at the pontoon. If the pontoon was afloat the harbour’s theory fails.
The testimony of the harbour’s expert included some very muddled maths, with Mr Stone variously adding or subtracting 110mm from crucial depth measurements, a fact which did not go unnoticed by the court.
A key piece of evidence pointing to the physical possibility of the events as described by the claimants was the “Jet Black” incident.
This incident, occurred in daylight, on the 18th May 2018 so after the case at hand. All parties agreed the pile guide became snagged on the lower edge of a repair patch covering the hole in the pile. It demonstrated that the hole that the patch now covered, and the pile guide were at heights that could align.
The claimants set out that if the Tangent event involved snagging, not the bottom of plate, but the hole higher on the pile, the event timeline need not conflict with Mr Wight’s statement that the situation at around 8.30pm appeared normal on the night of the Tangent incident.
As touched on in the introduction, proper maintenance of the harbour is a key aim for BHT. If available funds had been used for necessary maintenance this claim would never have reached the court. However, if found against the harbour, huge costs could result.
BHT are professionally advised that “there is good reason to believe” over £1,500,000 of Harbour funds should have been available for such maintenance over the period of the current ownership.
BHT believe there are many “reasonable steps” a competent harbour authority would have taken well before the events that led to this case.
As in many other issues around the harbour: the philosophy of “a stitch in time saves nine” is not applied, and the reasonable steps are not being taken.
We have to assume the harbour’s insurers (rather than the harbour itself) would have accepted liability if they had concluded those “reasonable steps” had been taken.
We will update when the Court Judgement is issued.