The defendants claim that since they did what was necessary to adapt the ship and its tanks to transport the cargo, they are exempt from liability.
- The evidence indicates that prior to the shipment, the ship's tanks were inspected by Caleb Brett. In a preliminary examination dated April 20, 2021, it was found that the tanks were unfit for transporting the oils, and therefore an instruction was given for further cleaning (see the report at pp. 305, 314, 315 of the plaintiff's affidavit, at 11:41). According to the defendants, they carried out the instructions and completed the cleaning until they received confirmation of the loading (Appendices 7-8 to the captain's affidavit).
- However, there is no dispute that the cleaning of the containers was not done in accordance with the accepted procedures in the industry (paragraph 3.11 of Patel's opinion). Despite this, the expert Patel is of the opinion that the cleaning work that was actually carried out was sufficient.
- The defendants emphasize that the cargo shipper (the supplier of oils) was informed that the ship had previously transported wax in its tanks. If the launcher thought that there was a concern that there might be wax particles left, he would have refrained from making the claim. The supplier did not express any reservations about the transportation of the oils on the ship, even though he knew about the past cargo, and thus, it was claimed, expressed his opinion that there was no defect in the transportation of the oils in these tanks. Hence, it is claimed, the ship and its owners were obligated to do everything necessary to prepare the ship and its tankers for the journey and transport of cargo.
- As we saw above, in the Dixie laboratory test, wax particles were found that allegedly originated from cargo that had been transported in the past. This leads to the conclusion that the tanks were not cleaned as required for the transportation of the oils. The expert opinion of Patel indicates that the tanks were not washed with detergents as required, and instead of using detergent, the defendants made do with rinsing with water. Caleb Barrett's confirmation of the condition of the tanks (Appendix 8 to the captain's affidavit) is a confirmation of a visual inspection only and not a confirmation that the cleaning operations were carried out as required by the cleaning procedures.
- In any event, since at the end of the day wax particles were found that were probably left over from the previous cargo, and in the absence of any other evidence, the conclusion is that the ship's tanks were not cleaned as required. Moreover, rust particles were also found in the oil. Since such particles were not found prior to loading, it is necessary to conclude that they originated in the ship's tanks. The presence of rust particles in an oil shipment necessitates the conclusion, as required by the balance of probabilities, that the tanks were not properly adapted to transport the oil.
Indeed, the fear that remnants of the previous cargo would be found was a well-known concern and was also emphasized in Caleb Brett's initial inspection. The vessel owner, who knows that it is necessary to ensure that the remains of a previous cargo do not contaminate a new cargo, must ensure that the containers have been cleaned in accordance with all requirements and not settle for less than necessary cleaning operations.