HT-2023-000321 - [2025] EWHC 1764 (TCC)

KML contends that a reasonable time for mobilisation of the UTV-670 and associated equipment was by 9 June 2022. It relies on the fact that this was the date scheduled and agreed (if not in a binding contractual sense) by the parties, and on the fact that the cause of the delay beyond that date was sufficiently within Pharos’ control. KML refers to its action tracker dated 31 May 2022 (item 109) which Pharos accepts (in contrast to other trackers produced during the project) that it received. I accept that this was the scheduled date agreed between the parties (albeit not in a binding sense). It is consistent with, for example, Mr Walker’s letter ‘To Whom It May Concern’ in respect of the temporary export of the UTV-670 on 1 June 2022, which stated that, ‘The project is scheduled to commence mobilisation onto the salvage vessel Susanne A…on the 9^th June 2022’. It is also supported by the fact that KML arranged to mobilise the SUSANNE A at Esbjerg on 10 June 2022 and Pharos dispatched the UTV-670 and equipment from Blyth on 6 June 2022 with an anticipated delivery date (at least in accordance with the transit time of 3 days, excluding any delays in customs) of 9 June 2022. Pharos also mobilised Mr Gamble and Mr Thirlwell to Esbjerg on 8 June 2022.

Another aspect of what a reasonable time is, seen in hindsight and taking into account all the circumstances as they transpired, is when the UTV-670 was actually needed. Put another way, even if delayed beyond its scheduled delivery date, delivery would still be within ‘a reasonable time’ providing that it did not cause actual delay or disruption to KML’s other activities. Although the parties have addressed this question in the context of causation, it is equally relevant to the question of what a reasonable time is for delivery.

Mr Scullion asserted in his witness evidence that as a result of the delays to the UTV-670 in customs, KML missed the good weather windows which were available from 9 June 2022. He contends that if the UTV-670had arrived on 9 June 2022, and operated as it should have done, the cable burial works would have been completed with almost no weather downtime by 26 June 2022. The witness evidence from Mr Gamble, for Pharos, echoed by Mr Frazer, was that, when the UTV-670arrived on site on 23 June 2022, the trenching works could not commence immediately anyway because the method statement required KML to first complete the MBES survey works before the Embedment Works could commence, and these had not been completed by 23 June 2022 because of bad weather. Specifically, although the MBES survey had already been completed in respect of the offshore and nearshore sections of the cable route, it had yet to be completed in the very nearshore section as the weather conditions had not permitted this. The MBES was completed the day after the date the UTV-670arrived. In response to Mr Gamble’s statement, Mr Scullion’s written evidence was that the reason the MBES Survey was carried out as close to the commencement of the trenching works as possible was because of the potential mobility of the seabed, and not because it could not be done sooner because of weather conditions. The ‘late’ MBES Survey was, therefore, directly linked to the delayed delivery of the UTV-670.

These competing contentions were explored in evidence. Having considered that evidence together with the relevant documents (and, in particular, the notes from the Daily Calls which were circulated each day from 10 June 2022 onwards by Matteo Borselli of Prysmian, copying in numerous relevant personnel including Mr Scullion, Mr Gamble and Mr Frazer, whose respective evidence I have referred to above) I reach the following findings of fact:

It follows from this analysis that the completion of the MBES survey was not delayed because of the late arrival of the UTV-670. The survey was stopped on 9 June 2022 due to weather, and not restarted notwithstanding daily reviews of whether the conditions were suitable, until 23 June 2022 by which time the UTV-670 had arrived and been mobilised onto the Suzanne A.

This conclusion accords with the evidence of Mr Gamble and Mr Frazer, and it demonstrates that Mr Scullion’s assertions to the contrary are wrong. Mr Frazer’s recollection was that ‘during the time when the Tool was held up by UK Customs, KML was not yet in a position to carry out the MBES survey, because the weather conditions had not permitted it’. Mr Frazer was taken in cross-examination to the weather data from the DPRs (which is the data the experts considered and agreed did not exceed the limits). He fairly accepted what that DPRs showed as against the weather limits, but when it was put to him on the basis of that data that his recollection could not be right, he reiterated that his understanding remained that it was the weather conditions that were keeping the RHIB out of the water. He was not shown the Daily Call notes, which clearly validate his recollection.

Therefore, notwithstanding the delays in customs, the UTV-670 arrived ‘in time’. In all the circumstances, it therefore arrived within a reasonable time, that being a time which did not cause any delay or disruption to the following programme of works which were dependent upon its arrival.

In these circumstances, a determination of whether Pharos should bear responsibility for the customs delays is academic. That is because even if Pharos were in breach of its obligations relating to the export of the UTV-670, it did not in fact cause any delay and/or any loss to KML.

Notwithstanding this, assuming I am wrong as to the question of a reasonable time and/or causation, and that the absence of the UTV-670 did cause some actual delay, I consider briefly the submissions made by KML in respect of the customs delays.

It is not suggested that Pharos or its agents did anything to cause the customs delay, or did not do as much as they could to expedite the delivery once it was clear that there was going to be a delay. The central argument is that Pharos should have anticipated that either there was going to be or at least could be customs delays, and if they had shipped the UTV-670 10 days earlier, any anticipated customs delays could be accommodated.

The evidence relied upon by KML is (a) a difficulty encountered by Mr Gamble with customs pulling a shipment of Pharos’ equipment in March 2022 in respect of a different project; (b) Mr Walker’s reference to other equipment (quite possibly that referred to in (a), given the timing) having been delayed by up to three months in his letter to the Department of International Trade in June 2022; (c) Mr Walker’s awareness of potential issues surrounding the export of subsea equipment given his letter ‘To whom it may concern’ requesting assistance on 1 June 2022; (d) Pharos’ complete, or near complete, lack of previous experience of temporarily exporting the UTV-670; (e) the fact that a standard time for necessary checks by a specialist team in HRMC was stated in communications (whilst the UTV-670 was undergoing those checks) as being 10 days. It is said that had Pharos made appropriate enquiries in advance, it should have anticipated a potential delay of 10 days, which is in fact what the delay was. Had it done so, it should, in order to deliver the UTV-670 within a reasonable time, have shipped the UTV-670 10 days earlier.

This argument depends upon a conclusion that it was possible for Pharos to have commenced the shipment process 10 days in advance of 9 June (i.e. 31 May). However, on KML’s own case, the date for delivery of 9 June 2022 was only provided to Pharos by a tracker dated 31 May 2022. It is plainly not reasonable to have expected Pharos to arrange for shipment of UTV-670 on the very day it is told the scheduled date for mobilisation. There is no evidence to suggest that Pharos did not, following the agreement of the date ‘at around the end of May’ (per the evidence of Mr Scullion, pleaded as 31 May 2022 at paragraph 11(2) of the Amended Defence), act reasonably in arranging shipment. Putting this in context, at the date of the provision of the revised Purchase Order on 25 May 2022, the delivery address was still ‘TBC’. On the evening of 30 May 2022, Mr Gamble informed KML that ‘we will be confirming our order for subsea rental equipment first thing tomorrow, with the intention of taking receipt on 3^rd June to allow integration to the vehicle prior to the full system shipment on the 6^th June to Esberg’.

Even if, therefore, Pharos should have anticipated the possibility of up to a 10 day delay due to customs issues which it could not control, there is no evidence that Pharos could reasonably have commenced shipment earlier than 6June 2022 in any event. Given that the events that then followed were out of Pharos’ control, and that it did as much as it reasonably could to expedite delivery (indeed – it went beyond what it should have done in its communications), the claims that a reasonable time for delivery was 9 June 2022 and/or that a failure to have delivered by this was caused by a lack of reasonable skill and care on Pharos’s part fail.