South Africa: Western Cape High Court, Cape Town

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OJ Fishing (Pty) Ltd v Brink Diesel Cape (10092/2005) [2010] ZAWCHC 123 (10 June 2010)

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[8] Dr Janet Basson is a highly qualified and experienced metallurgist. Her consulting company specialises, inter alia, in determining the cause of engine failures.

Dr Basson examined the bottom-end cap and the two bofts. She found that the two faces of the cap showed considerable evidence of chattering which she said proved that the two faces had been impacting against each other for a considerable period of time. She said that could occur onty if one or both bolts were loose. If only one bolt was loose, the other bolt would be subjected to a cyclic load or a fatigue failure (as is caused by repeatedly bending a piece ofsteei backwards and forwards) culminating eventually in a ductile failure i.e. failure caused by a massive impact

She also found that the two holes in the cap had ovalled and the one on the starboard side was almost torn through and showed an imprint of the bolt thread. She stated that because of the nature of the steel, such ovalling could not be caused by one impact but would have occurred progressively over a number of cycles of the engine.

Dr Basson found also that the last few threads of the starboard bolt had stripped.

Dr Basson found that the fractured port bolt had suffered a fatigue failure followed by a ductile failure i.e. the bolt had been bent back and forth for a considerable time until the failure of the engine when it sustained a massive impact.

The chattering marks on the face of the big-end cap, the ovalling of the bolt holes, her finding that the port bolt had sustained fatigue failure before the ultimate ductile failure and the fact that nut on the starboard bolt was found in the engine persuaded Dr Basson that the cause of the engine failure was a failure to tighten the starboard bolt nut sufficiently. She stated that the engine would have continued working for a considerable time, perhaps in excess of 100 hours after the nut began to loosen.

[9] Defendant called two diesel mechanics, Mr Gerrit Visser and Mr Graham Aldis and two experts, Mr Peter Brinkley and Mr John Press.

[10] Mr Visser is a diese! mechanic with 40 years experience. He testified that he effected the partial overhaul of the engine with the assistance of two apprentices. He said that he did the required work in accordance with the manufacturer's specification. More particularly he tightened the bottom end bolts, a four stage procedure, to the required torque.

[11] Mr Aldis is aiso a qualified and experienced diesel mechanic. He testified that if the plaintiff's experts are correct and the starboard bolt had progressively loosened the resulting chattering motion would have been very noisy. In his opinion, the engine should have been stopped immediately and would have required comparatively minor repairs.

[12] Mr Brinkley is an experienced marine engineer and marine surveyor. He examined some of the engine's components and was furnished with copies of the reports of plaintiffs experts and the photographs taken by Mr Coxon.

His initial opinion was that the engine failed because it had been over-revved or because of water ingress. However, as a result of acquiring further information and further research, he conceded that neither hypothesis was correct. Nevertheless he disagreed with plaintiffs experts, in his opinion; if the starboard bolt had not been sufficiently tightened, it would have unwound completely in about two hours, and not after 1400 hours, being the number of hours the engine had operated since the overhaul. Furthermore, in his opinion, hammering and chattering noises would have been heard by the crew before the engine failed.

In his report, Mr Brinkley stated also that the oil pressure gauge and the temperature gauge would have alerted the crew if the bolt was loosening. However, during his testimony, he was unable to say when the oil pressure gauge would have done so and conceded that the temperature gauge did not play a significant role.

[13] Mr Press is a highly qualified and experienced mechanical engineer whose area of expertise includes the analysis of engine failures. He examined the connecting rod, the two bolts and the big-end cap. Mr Press found no chattering marks on the big-end cap.

It is common cause that the starboard bolt had become elongated and eventually necked i.e. its diameter had decreased. It was also flattened. In Mr Press's opinion/the elongation of the bolt is a vital clue as to why the engine failed and was not consistent with the explanation of plaintiff's experts. He testified that the elongation of the bolt was due to an external event - a load which caused the nut to loosen and the engine to fail.

Mr Press identified four possible such external events. He pointed out, however, that two of them would occur after the elongation of the bolt. The remaining two are:-

(a) a seizure or partial seizure of the number 2 piston; and

(b) a seizure of the liners of the bottom-end bearing, which he referred to as wedging.

During cross-examination by Adv McClarty SC who appeared for plaintiff, Mr Press conceded that there had been no seizure of the piston.

As submitted correctly by Adv Wragge SC who appeared with Adv White for defendant, defendant is under no obligation to prove the cause of the engine failure. For that reason, 1 do not find it necessary to set out Mr Press's reasons for his opinion that wedging may have caused the engine failure, or to consider the challenges thereto by Adv McClarty. Suffice it to say that the opinion is merely a theory, a hypothesis unsupported by any evidence. Indeed, all indications are to the contrary. Mr Coxon was present when the engine was dismantled. He would surely have noticed immediately if wedging of the bearing liners had occurred. Mr Press conceded that Mr Coxon was in the best position to do so. Furthermore, Mr Brinkley also did not agree with the wedging theory.

[14] Mr Press's evidence as to the elongation and necking of the starboard bolt is of crucial importance. He disputed the evidence of Dr Basson as to how that elongation was caused.

Dr Basson testified that the elongation was caused when the crankshaft pin struck the lobe in which the bolt was housed - what she called a rolling-pin effect.

Mr Press said that explanation could not be correct, as a measurement of the lobe showed that it had lengthened by about 2 to 5mm, whereas the bolt had lengthened by 20 to 24 mm. He could not understand how the bolt could have lengthened without a similar lengthening of the lobe, and used the analogy of attempting to elongate a sausage inside a hotdog without elongating the bread roll.

I think the analogy is inappropriate as Dr Basson's explanation is that the lobe and the bolt were struck, not that they were pulled. Furthermore, the measurement relied on by Mr Press cannot be accepted as accurate. He admitted that it was very difficult to measure the elongation of the lobe. Dr Basson testified that the bolt could not be elongated by more than 17mm before it breaks.

[15] That debate and the many other debates between the parties' experts such as whether or not, on Mr Press's hypothesis, the engine would have stopped or other bolts would also have been affected obscure the central question before me and that is whether the failure of the engine was the result of a long process commencing after the overhaul of the engine or was the result of a sudden external event which occurred immediately before the failure of the engine.

In my view, the former explanation is the correct one. That conclusion is based on the evidence of Dr Basson. As stated above, she testified that because of the nature of the material used, the ovalling of the bolt holes cannot be caused by a single impact but would occur over a number of cycles of the engine. That conclusion is reinforced by the fact that only the last few threads of the starboard bolt had stripped. The upper threads were undamaged, a clear indication that the nut had unwound freely.

[16] Adv Wragge SC submitted that there are four factors which indicate that plaintiffs experts are incorrect.

First, it is an essential component of their opinion that prior to the failure of the engine the vibration of the engine would have increased and hammering sounds would have been audible. Both Mr Fernandes and Mr De Wet stated that they noticed no such abnormality.

The undisputed evidence as to the cause of the fire - that the insulation of the electric cables wore away as a result of vibration -must, in my view, mean that the engine must have vibrated excessively.

In addition, Mr De Wet testified that the engine was always so noisy that it was impossible to have a conversation nearby. As the vibration must have increased gradually it is understandable that it was not noticed. The hammering sounds must have occurred during the final phase of the engine failure. At the time, Mr De Wet's attention was focused on extinguishing the fire. I do not think that the evidence of Mr Fernandes arid Mr De Wet is sufficient to cause doubt as to the validity if plaintiff's experts expfanation of the engine failure.

Secondly, Adv Wragge drew attention to the evidence of Mr Press that there were no chattering marks on the face of the big-end cap contrary to the evidence of Dr Basson.

I am unable to understand how two highly qualified experts could give such conflicting evidence.

In the circumstances I can only regard this aspect of the evidence as a neutral factor.

Thirdly, Adv Wragge pointed out that according to Mr Press the port bolt fractured as a result of a ductile failure and that Dr Basson eventually agreed with that evidence, although she had originally ascribed the fracture to fatigue failure. However, Dr Basson emphasised that there was evidence of fatigue failure before the final ductile failure.

In my view, the evidence of Mr Press on that aspect does not raise significant doubt as to plaintiffs case.

Lastly, Adv Wragge referred to the evidence of Mr Press that the surface of the big-end cap was covered with an unbroken layer of pyrolised or burnt oil which he would have expected to be chipped if the starboard nut had repeatedly struck it. In my view, Dr Basson's evidence that there was burnishing of the surface renders Mr Press's evidence unacceptable.

[17] I may be incorrect in not accepting Mr Press's criticism of plaintiffs case and in not upholding Mr Wragge's submissions. However, even if those criticisms and submissions are correct, the question that arises in whether, taken together, they are of sufficient weight to justify a finding that plaintiff has not discharged the onus resting on it.

In my view, the cumulative effect of the factors relied upon by defendant is outweighed by two basic factors - the unchallenged evidence of Dr Basson that the ovalling of the bolt holes occurred over a long period and that the starboard bolt unwound freely. Those two factors are, in my view, decisive. The other factors relied on by plaintiff's experts - the chattering marks, the damage to the face of the big-end cap, the burnishing of the rear of the cap and evidence that the port bolt showed signs of fatigue failure - seem to me to be subordinate factors relied on by plaintiffs experts to support their theory.

In my view, plaintiff has discharged the onus of proving that the cause of the engine failure was a failure by defendant to tighten the starboard bolt sufficiently.

[18] PLAINTIFF'S DAMAGES

Plaintiff claims R114 348.79 excluding VATbeingthe agreed cost of repairs to the damage caused by the fire.

Mr Brinkley testified that the fire would inevitably have occurred as the electric cables had not been correctly installed. They should have been secured in a cable tray with no sharp edges.

However, there is no evidence before me as to when that "inevitable" fire would have occurred.

Mr Coxon's evidence on the cause of the fire is set out in paragraph 2(ii) above.

In my view, the increased vibration was the proximate or effective cause of the fire.

[19] Plaintiff claims R730 611.67 being the agreed cost for the replacement of the engine which could not be repaired.

Defendant avers that plaintiff has not taken reasonable steps to mitigate its damages. In that regard defendant relies on Exhibit A84, a letter from Columbine Marine Engineering dated 18the August 2007 which states that a used engine block was available in December 2004. The admissibility of such hearsay evidence and the weight to be given thereto is in terms of section 6(3) and (4) of the Admiralty Jurisdiction Regulation Act, 105 of 1993 ("AJRA'% within the discretion of the Court.

In my view, the letter should be admitted in evidence.

Mr Coxon, whose primary function was to ensure that the damaged engine was dealt with as economically as possible testified that neither the engine's agents nor firms to whom the agents referred him were able to furnish a used engine block.

In the absence of direct evidence that the availability of the used engine block was known in the industry, or ought to have been known, I cannot find that Mr Coxon's efforts to find such a block fall short of what is required of a reasonable man. It is accordingly, unnecessary to determine whether or not a used engine block was available in December 2004.

Accordingly, i am of the view that defendant has failed to discharge the onus of proving that plaintiff has failed to mitigate its damages.

[20] Plaintiff also claims payment of the fees of Mr Hiles and of Mr Coxon. Mr Hiles is a loss adjustor acting on behalf of the insurer of the vessel. I cannot see on what basis defendant can be held liable for his fees.

Part of Mr Coxon's fees fall in the same category. The remainder appear to me to be part of his qualifying expenses. It is more appropriate for the Taxing Master to determine what part, if any, of those fees should be allowed on taxation.

[21] PLAINTIFF'S CLAIM FOR INTEREST

Section 5(2)(f) of AJRA provides that a court, in the exercise of its admiralty jurisdiction, may

"make such order as to interest, the rate of interest in respect of any sum awarded by it and the date from which interest is to accrue, whether before or after the commencement of the action, as to it appears just;"

The section confers a wide and unfettered discretion on the Court.

See Mt Argun v Master and Crew of the MT Argun and others 2004(1) SA 1 (SCA) at p12 G-H.

No evidence has been placed before me as to the basis on which I should exercise my discretion. Accordingly, I think the rate of interest prescribed in terms of the Prescribed Rate of Interest Act, 55 of 1975, which at present is 15.5% per annum should apply.

In my view, it is just that the interest be calculated from the date of service of the summons.

[22] Costs of Suit

At the commencement of the hearing, plaintiff opposed an application by defendant for an amendment to its plea. I granted the amendment. Plaintiff is not entitled to the costs of its opposition.

[23] Defendant is ordered to pay plaintiff

(a) The sum of R844 960.46 excluding VAT\

(b) Interest on the said sum at the rate of 15.5% per annum calculated from the date of the service of the summons to date of payment;

(c) Costs of suit, including the qualifying expenses of Mr Paul Coxon and Dr Janet Basson, but excluding the costs occasioned by plaintiff's opposition to defendant's application for an amendment to its plea.

JUDGE A. M. MOTALA