Lloyd's Maritime and Commercial Law Quarterly
SAMPLING BUNKERS IN OIL TANKERS
The Othoni; The Erikoussa
Oil cargo shortage claims have been causing concern in commercial circles for some time. One frequent allegation by cargo owners is that their oil has “found its way” into the bunker tanks, from where it may be used to run the vessel. However, short of discovering unorthodox piping arrangements in an oil tanker, or of being able to sample the bunkers forthwith on discharge of their oil cargo, this allegation has proved difficult to sustain in practice.
In response to this problem, the courts in two as yet unreported decisions, The Othoni (judgment delivered 16th May 1984) and The Erikoussa (judgment delivered 25th October 1984) have decided that there is a discretion to allow cargo owners to take and analyse samples from the bunker tanks some months after the discharge of their cargo, and after the vessel has in fact carried other cargoes.
The Erikoussa, which was brought as a test case, concerned a shortage claim by cargo owners in respect of some 142,000 metric tons of gas oil, valued at approximately $42,000, which had been discharged nine months before the vessel arrived in English waters. Cargo owners wanted to put surveyors on board the vessel in order that, inter alia, samples of the bunker fuel could be taken and analysed. This analysis could show that cargo had, on that voyage, been mixed in with the bunkers.
By RSC Order 75, rule 28, the court has power to order:
“the inspection … by any party … of any … property … which may be necessary or desirable for the purpose of obtaining full information or evidence in connection with any issue in the action”.
This clearly only covers inspection. However, by RSC Order 29, rule 3:
“where it considers it necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter the court may, on the application of a party to the cause or matter, and on such terms, if any, as it thinks just, by order authorise or require any sample to be taken of any property which is the subject-matter of the cause or matter or as to which any question may arise therein, any observation to be made on such property or any experiment to be tried on or with such property”.
The notes in the Supreme Court Practice to these powers are unfortunately contradictory. Paragraph 29/2-3/4 states that the powers were: “of long standing in Admiralty, such provisions have been frequently acted upon” whereas para. 75/28/1 states: “The power conferred by this rule and its predecessors has not been frequently exercised”. Indeed, the old case-law was scant and unhelpful, showing only that some experimentation had been allowed, for example on a ship’s lantern in Sieve Gallion v. Cumberland Queen
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Counsel for the shipowners argued that there was no power to analyse his clients’ property since it was not the subject matter of the dispute. Counsel for the cargo owners replied that it was property “as to which a question may arise”. Sheen, J.,
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