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The Torepo Case Solution
The case relates to a case of due negligence and breach of contract between a vessel owner and the vessel leaser. The ship in question is a product tanker named Topo. The ship was a well-maintained and well-run ship. The Master of the ship had served with the company for six years and had sailed previously on Torepo as Chief Officer. This was the Master's first trip in command. A highly important aspect of the case is that the only item of equipment which the claimants drew attention to and alleged was not working was the echo sounder. The ship operator was also able to produce documents to show that the equipment had been overhauled in the dry dock only a week before the incident occurred.
On the night of the accident, the cadet assigned with the duty of lookout saw a become visible but did not report the fact. The light belonged to a tower on an island. By the time the pilot realized that he had overshot the alteration position the vessel was closing quite rapidly on an island dead ahead. The vessel ran aground at a speed of about six knots. There was damage to the ship structure at the forward end but a salvage tug was able to safely pull the vessel off the island with no further loss or damage. After the incident, the cargo owners and their underwriters are claiming for recovery of their contribution towards the salvage expenses incurred in the operation for floating the ship again. The basic legal argument pertained to the fact whether there was a breach of the contract of carriage and if that the ship was unseaworthy at the time of sailing. The underwriters and cargo owners also claimed that the ship operators had failed to exercise due diligence to make the vessel seaworthy.
Following questions are answered in this case study solution
Breach of Contract
Case Analysis for The Torepo
The case relates to Civil Law since the matter relates to two private parties. The Civil Law is characterized by a set of guiding principles that run through the various legal rules. In the case, the key concepts of legal jurisprudence which are applicable are a breach of contract, due negligence, unseaworthiness of the vessel and unsubstantiated claims. It is important to point out that civil law determines the legal status of single individuals or two parties to each other on the basis of strict equality. The cargo owners and the ship operator are, therefore, strictly equal in terms of civil law. In addition, the individual is in relation to others not only equal but also free. Another important fact which applies to the design and implementation of contracts in civil law is the principle of good faith. The corollary of good faith entails that the cargo owners would expect the Master of the ship to try his very best to make sure that everything runs smoothly during the voyage. In turn, the master would expect people; both in the office ashore and onboard ship, to be watching him very closely and he would want to demonstrate that the decision to promote him to Master was a correct decision. The analysis evaluates the facts of the case in terms of legal precepts.
2. Breach of Contract
A breach of contract cannot be termed to have occurred in this case because the shipping vessel discharged its duties to the cargo owners for which it was hired. A breach of contract in the legal sense occurs when a party of its contractual obligations major or minor violation. Principal duties are those that determine the nature of the contract. Even though there was damage to the ship structure at the forward end but a salvage tug was able to safely pull the vessel off the island with no further loss or damage. Most importantly, no damage to cargo occurred. Also, the claimants have failed to establish that the casualty was occasioned by causative unseaworthiness. The witnesses and the documentary evidence were sufficient to satisfy the judge that, although relatively old, this was a well-run ship with a company and crew who were trying hard to implement and follow good practices.
The second aspect of breach of contract to be observed is to address as to whether it was a purchase, lease, or contract work. The contract, in this case, was a lease contract between the shop operators and the cargo owners. As for the breach of contract, there was no evidence to indicate that similar errors or mistakes were a regular feature onboard this ship—rather what happened was a most unfortunate, sequence of mistakes. if a ship operator is able to produce witnesses and documentary evidence that, ordinarily, they have very good pollution prevention procedures in place and these are very carefully followed - such that the present incident really was a one-off then the fine that may be imposed is likely to be at the lower end of the scale. A claim for damages cannot be held under breach of contract because a prerequisite for this is that the contract partners over all the damage through the early termination have emerged. An example of this would be a loss by having to pay for losses due to delay of the shipment, had the cargo owners suffered a loss due to delay of shipment or shipment being rejected by the buyers. None of this has occurred in the case.
3. Due Negligence
The precept of due negligence in Civil law means he is to allow a person who will be discharged without cause of duty, and who will be impoverished is asked to be reimbursed by the person who has been enriched at his expense. Thus, no one can get rich at the expense of others. When the pilot went to mark the ship's position on the chart and to transfer the position onto the next chart. As he realized that the latitude and longitude positions did not coincide with the position of adjacent land and islands. This was sufficient to distract the pilot's attention for a few minutes and by the time the pilot realized that he had overshot the alteration position the vessel was closing quite rapidly on an island dead ahead.
Apart from the above-mentioned distraction of the pilot, the cadet saw a light open (become visible) but did not report this. In fact, this was the light that should have indicated to the pilot when he should turn. However, the cadet didn’t inform the pilot about the approaching light, which is a major form of negligence on his part.
Under civil law, negligence by an employee who is entrusted with the specific task is the responsibility of the employer. Therefore, the oversight can be termed as due negligence. The cadet who was acting as lookout had three years' experience at sea.
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