2.10.De rechtbank wijst allereerst op de volgende passage in het door Multi-Link overgelegde rapport van de havenautoriteiten (Report of Inspection in accordance with the Paris Memorandum of Understanding on Port State Control) dat deel uitmaakt van het verslag van aanhouding (Notice of Detention) van de Nederlandse havenautoriteiten van 24 mei 2011 betreffende de “Najad” (prod. 11 van Multi-Link) - aangehaald voor zover relevant:
“
Nr.
Defective item
Ground for detention
Additional Comments
8
Cargo operation
[x]
Found the crew not able to calculate the correct stability during and after loading. Class has tob e informed and has to investigate the stability before departure. The correct stability calculation has to be reported to PSC Netherlands before departure (ISM).”
Vervolgens zij gewezen op de volgende passages uit de door Multi-Link bij dagvaarding in het geding gebrachte Preliminary Report of [bedrijf 4] (hierna: [bedrijf 4]) van 8 juni 2011 - aangehaald voor zover relevant:
“
FINDINGS
[…]
We were advised that following the information received (original manufacturing plan) the weight of the carriers was calculated at 63 m/ton each.
During loading procedures on board the barge it was however noted by the crane driver involved that the carriers weighted some 76 m/ton each.
As a consequence the loading was amended and loading took place in good order.
Following the loading plan all straddle carriers were first loaded on board the river barge before lashing and securing took place. Loading and securing was carried out without any irregularities whereupon the shipment proceeded to the Port of Rotterdam were arrived early morning 23 May 2011. When arrived at Rotterdam barge "Signum" moored alongside M.V. "NAJAD" for transfer of the carriers on board M.V. "NAJAD"
In the Morning of 23 May 2011 the load surveyors acting on behalf of the insured ([bedrijf 5]) the vessels P&I club ([bedrijf 3]) boarded the vessel "NAJAD".
The load plan en further procedures regarding the transfer and loading operations were discussed with the parties involved, master of the vessel, stevedores, insured and loading surveyors.
In this plan the weight of 72 m/ton each was calculated. Since the weight of the carriers appeared to be higher additional dunnage, lashing and securing material was ordered by the insured and it was delivered on time.
The Master of the vessel as well as the Charterers were duly advised and confirmed that loading of the more heavy cargo could be carried without any problem unless additional lashing material was provided.
The Master of the vessel upon request confirmed to have ballasted the vessel to maximum all ballast tanks were reported to be full. Upon agreement of the proposed procedures loading commenced.
[…]
Carrier number 2, 3 and 4 were placed on deck without any problems so far, it was however noted that at time crane number 3 was loaded, the "MV NAJAD" started to list to starboard side.
The situation was discussed between parties, and it was decided to load crane number 1 on-board the vessel. Since load surveyors considered the situation to be stable!
Once Crane number 4 was loaded it was observed that the vessel even more listed to starboard. Despite the situation the crane driver of the shore crane was ordered to off hook straddle carrier number 1.
The Master of the vessel was ordered to bring the vessel in horizontal position by means of ballasting the vessel. Water was purnped out of the starboard tanks.
Whilst ballasting was in process and whilst the shore crane moved away.
"MV NAJAD" suddenly lost stability and straddle carrier No. 1 fell from deck, sideward's, onto the quay.
In the morning of 24 May 2011 all surveyors involved boarded the ship and surveys were carried out.
During inspections on board all ballast tanks were manually sounded, during this operations it became obvious that the ballast tanks could not be sounded in proper way, sounding pipes were found to be clogged or blocked. The nautical investigation lasted a whole day to find out the possible cause of the damage.
The final conclusion was that part of the ballast tanks were empty and could not be filled, for technical reasons all in all it was concluded that the vessel was not "seaworthy" at all. Currently discussion between surveyors is on going, we will report the exact cause of the damage, in our final report of survey in due course.
CAUSE OF THE DAMAGE
The cause of the damage is to be attributed to the unseaworthiness of M.V. “NAJAD”.
We will report regarding this aspect into detail in our final report of survey.
[…]”.
Zie verder de bij dagvaarding overgelegde brief van [bedrijf 4] van 14 juni 2011 - aangehaald voor zover relevant:
“ Reference is made to our preliminary advise in this matter sent to you at an earlier stage. With respect to the cause of the damage we can report the following.
On 24 may 2011 we carried out a Nautical survey on board the mv. "Najad" whilst moored alongside the quay of Messrs. RHB at Rotterdam. This to ascertain the cause of the apparent instability of the vessel during the loading, which resulted in the incident as reported in our preliminary report.
In order to check the ballast condition of the vessel all ballast tanks, fresh water tanks and gas oil tanks were manually sounded with a sounding lead or measured from gauge glasses. The chief officer carried out the sounding with all surveyors present.
During the survey it emerged that the chief officer had difficulties finding the correct sounding pipes. Actual soundings had not been taken prior to the incident; apparently the master and/or chief officer solely relied on pumping periods of the ballast pump(s) and other assumptions.
Further it emerged that various sounding pipes were (partly) blocked, the plumb at the end of the sounding lead was unable to reach the bottom of various tanks. Only after taking into account the height above the keel and the height of the sounding pipes one was able to calculate the liquid levels in the tanks. It goes without saying that this is not a common practice and therefore extremely unusual.
Further it became clear that the sounding pipe of tank 2 starboard forward could not be found at all, the content tables of tanks double bottom 2 center, 3 center and gas oil 1 and 2 were not available.
In short to retrieve the actual ballast condition of the vessel took hours with numerous calculations and certain (calculated) assumptions.
The P & I surveyor was presented a stability calculation, as made out by the master of the vessel. We requested a copy of this calculation, however, until now this has not been received.
From this calculation it was noted that the "constant" (which is the weight difference between the actual displacement, derived from the draft marks, and the calculated displacement (in this case 160 metric tons, which is extremely high for this size of vessel) was placed by the master at a center of gravity of just 10 cms above the keel of the vessel. This is very unusual since this constant represents stores, spares and other equipment, which is spread all over the vessel. It is common practice to place the center of gravity at the height of the main deck or just below it. In our calculations it was placed at a height of 960 cms (instead of 10 cms!).
It further emerged that the center of gravity of the cargo (4 straddle carriers on deck) had been calculated too low by the master, in our calculation we calculated a height of 1756 cms above the keel.
Another factor that affected the stability considerably was the fact that the aft peak had not been completely filled. The master had calculated the aft peak filled to full capacity, which was not the case. This comparatively large tank also contributed to a large degree to the instability of the vessel.
The stability calculations of the master were based on various assumptions, which were either not realistic or indeed not correct. His calculations had not been checked by soundings or other means.
By doing so the actual stability condition of the vessel, after the 4th straddle carrier was placed on the hold covers, was in fact instable. According to our calculations —0.087 cms! This means that the vessel was unseaworthy and was not fit to load the intended cargo.
Zie ten slotte de door Multi-Link bij haar akte van 8 januari 2013 in het geding gebrachte verslagen van [persoon 2] van [bedrijf 5] - aangehaald voor zover relevant:
“STATEMENT OF FACTS FOR LOADING STRADDLE CARRIERS 0/B NAJAD AT ROTTERDAM.
Monday May 23.
[…]
08.00- 09.10. Meeting with shipsstaff,shippers,surveyor Ameyde ,stev. and lashing co. Informed by ships staff that corr.GM after loading would be 0,68 mtr.and found out
that deckstrength no problem after discussing spreading out of weight with 20 x 20 timbers of 6 mtrs., 10 pc.thwartships and as much as possible on frames.
Draft Nadja 32/37 m. Captain confirmed that DB tanks full,and UTanks empty.
Same question from Henk to captain in a later stage were confirmed by him.