COSCO BULK CARRIER CO LTD V TIANJIN GENERAL NICE COKE

[2017] EWHC 2509 (Comm), Queen's Bench Division, Commercial Court, Justice Robin Knowles CBE, 27 July 2017

General average - Seaworthiness - Allegation of unseaworthiness - Evidence - Burden of proof

The claimant was the owner of the ship NV Jia Li Hai which had been in a collision off China. The second defendant was the cargo insurer under a general average guarantee. The claimants' claim under the guarantee had met with a defence of unseaworthiness. The second defendant had tendered the fact of the collision along with references to negligence and failure in the incident report of the relevant Maritime Safety Authority in China. The judge awarded summary judgment on this part of the case to the claimant. The burden of proving unseaworthiness lay on the proponent. The defendant could in the present case perhaps show that systems were breached on this occasion, but it could not show inadequate systems or inadequate arrangements for implementation of those systems, and therefore had no real prospect of success in this respect. Waiting for disclosure was not a proper or sufficient reason for allowing the matter to proceed to trial on these aspects of the case.