Shipowner liable for injury to stevedore who was aware of the danger and failed to exercise his power under safety legislation to halt operations

CSL Australia Pty Limited v Formosa [2009] NSWCA 363

New South Wales Court of Appeal1

In Brief A shipowner was found liable for injury to a stevedore working aboard, even though the latter was the "person in charge" under safety legislation, knew of the danger, and had power to halt operations but failed to do so.

The judgment surveys the ambit of maritime law obligations laid upon a shipowner/operator in regard to the safety of stevedores working aboard. The court followed a number of international decisions, in particular two leading judgments of the Supreme Court of the United States The content of maritime law concerning safety aboard ships may be different to that of the "terrene" common law. In particular, maritime law recognizes that safety aboard is the responsibility of every person concerned.

Background The ship "Iron Chieftain" was a self-unloading bulk carrier engaged on the so-called "black and tan" run, carrying iron ore fines from Whyalla to Port Kembla and loading coal for the return voyage. The ship was equipped with a water spraying system to suppress iron ore dust when unloading. Some iron ore dust would escape, settle on the deck and form a slurry, making the deck slippery.

On 8 February 2005 a stevedore, Mr Formosa, slipped and fell during the loading of coal and injured his knee. He brought a claim in negligence in the District Court of NSW against the owner and operator of the ship (shipowners).

The shipowners defended the proceedings on the basis that:

Mr Formosa was an experienced stevedore in the employ of a stevedoring company contracted by the shipowner; Mr Formosa was aware of the precise danger from slurry making the deck slippery. He had worked on this particular ship for over 10 years; Mr Formosa was the "person in charge" pursuant to the Marine Orders made under the Navigation Act,2 and had power to halt loading operations if he considered them to be dangerous, but did not do so; and

The shipowner as occupier had no liability to warn an independent contractor of defects3.

The primary judge noted that a previous operator had used two ships on this run, which allowed the Iron Chieftain to be loaded less full, so that loading could be supervised from the bridge and access to the deck was prohibited because of its slippery nature. Thus the occasion to use the slippery deck was brought about partly by the commercial choice of the appellants in using one ship on the run.

The primary judge concluded that the...