THE OWNERS AND/OR DEMISE CHARTERERS OF THE MINERAL DAMPIER v THE OWNERS AND/OR DEMISE CHARTERERS OF THE HANJIN MADRAS [2001] EWCA Civ 1278

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Admiralty action in rem against the ship HANJIN MADRAS
Mr Justice Aikens
[2001] EWCA Civ 1278Case No Case No: QBADF 2000/0425/A3Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 31st July 2001
Between
THE OWNERS AND/OR DEMISE CHARTERERS OF THE MINERAL DAMPIERClaimants/ RespondentsTHE OWNERS AND/OR DEMISE CHARTERERS OF THE HANJIN MADRASDefendants/ Appellants
Before
The Master of the RollsLord Justice SchiemannLord Justice ClarkeMr Timothy Brenton QC (instructed by Holman Fenwick & Willan) for the RespondentsMr Nigel Teare QC (instructed by Ince & Co) for the AppellantsDate 31 July 2001

LORD PHILLIPS MR:

[1]Introduction This is the judgment of the court which has been prepared by Lord Phillips MR and Clarke LJ and with which Schiemann LJ is in full agreement. The appeal is brought in a collision action. On 22 nd June 1995 two Cape size bulk carriers, the Mineral Dampier and Hanjin Madras , came into collision in the East China Sea about 100 miles south of Cheju Island, which is south of Korea. The action was tried by Aikens J who held that the Mineral Dampier was 20% to blame for the collision and that the Hanjin Madras was 80% to blame. His judgment is reported at [2000] 1 Lloyd's Rep 282. The owners of the Hanjin Madras now appeal against that decision pursuant to permission given by this court. They do not say that the Hanjin Madras was not partly to blame for the collision but they say that her share of responsibility was substantially less than 80%. The Vessels[2]The Mineral Dampier was a 170,698 tonne deadweight bulk carrier built in 1986. She was 87,709 tons gross register, 209 metres in length and 45 metres in beam. She was laden with a cargo of about 166,581 tonnes of iron ore and her mean draft was about 17.4 metres. She was manned by a crew of 27 hands and was on a voyage from Brazil to Pohang in Korea. Her navigational equipment was fully operable and functioning correctly. Her turning characteristics at full speed in laden condition were these. It would take her about 2 minutes 30 seconds to turn 90° to port with an advance of about 810 metres and a transfer of about 330 metres. It would also take her about 2 minutes 30 seconds to turn 90° to starboard, but with an advance of about 820 metres and a transfer of about 355 metres.[3]The Hanjin Madras is a 150,977 tonnes deadweight bulk carrier built in 1990. She is 77,650 tons gross register, 274 metres in length and 45 metres in beam. She was in the course of a ballast voyage from Pohang to Singapore and on sailing her drafts were 5.94 metres forward and 8.75 aft. She had what the judge described as the usual navigational equipment including radar, ARPA and a course recorder. All her equipment was functioning correctly. Her turning characteristics at full speed in ballast condition were these. It would take her 2 minutes and 22 seconds to turn 90° to starboard with an advance of about 740 metres and a transfer for a complete 180° turn of about 768 metres.[4]The officer of the watch during the period leading up to the collision was Mr Kim who is a Korean. He was 25 years of age and had obtained his second officers ticket the previous year. He joined the vessel as second officer at Pohang on 6 th May 1995 just before she sailed on a round trip to Canada, which was the trip immediately before the collision voyage. It was his first appointment as second officer so that he was a comparatively young and inexperienced officer. The Facts[5]This was tragic collision because the Mineral Dampier sank as a result of the collision and all 27 of her crew were lost. So too were all her ship's documents with the result that the court had no evidence from her. There was a good deal of evidence available from the Hanjin Madras but no oral evidence was called on her behalf. In spite of these disadvantages, there was little dispute of fact before the judge and no dispute of fact before us. We therefore take the facts almost entirely from the judgment.[6]The wind was south-westerly about force 5 and there was a current setting north-easterly at about half a knot. There was a swell of about 2 to 3 metres. Both vessels were exhibiting two white masthead lights, red and green side lights and a white stern light. The relative approaches of the two vessels are shown on a plot which is annexed to this judgment. The collision occurred at about 0330 hours between the starboard bow of the Hanjin Madras and the starboard side aft of the Mineral Dampier at an angle of about 50° leading aft on the Mineral Dampier . At collision the heading of the Hanjin Madras was about 226° true and the heading of the Mineral Dampier was about 356° true. The plot begins at 29 minutes before the collision or C-29. During the 30 minute period before the collision the visibility was never less than 3 miles and the vessels came into sight of one another at that distance. It is common ground that until the vessels were 3 miles apart, although the visibility was about 3 miles, they were navigating in restricted visibility within the meaning of rule 19 of the collision regulations.[7]The navigation of the Hanjin Madras was to some extent affected by the existence of a fishing fleet which she first detected by radar at about 0230. She was then on a course of 203° true and was proceeding at about 11.5 knots. Mr Kim concluded that there were about 70 or 80 radar targets in small groups of 4 or 5 distant about 10 miles. He also concluded that they represented a fleet of fishing vessels ahead of his vessel but perhaps slightly more to starboard than to port. They were hardly moving at all. He decided to manoeuvre the Hanjin Madras to the east of the fishing fleet by altering course to port and leaving the fishing vessels to starboard. The Mineral Dampier was on a course of about 029° when she also saw the fishing fleet. She came round to starboard on to a course of 065° at some time before about 0300 hours with the result that she was shaping to pass the fishing vessels to port. As the plot shows, the two vessels were thereafter approaching on crossing courses with the Mineral Dampier on the starboard bow of the Hanjin Madras and the Hanjin Madras on the port bow of the Mineral Dampier . We turn to the navigation of the vessels between C-29 and the collision which is depicted on the plot.[8]At about C-30 the Mineral Dampier was on a course of 065° true at a speed of about 12 knots. She maintained her course and speed until about C-3 to C-2.5 when she put her wheel hard to port. As appears below she took part in two VHF conversations with the Hanjin Madras .[9]The navigation of the Hanjin Madras shown on the plot was largely based on an agreed interpretation of her course record. She altered course to port in order to leave the fishing vessels to starboard at about C-34 and steadied on her new course of 150° true at about C-30. She maintained her speed of about 11.5 knots. Immediately before the alteration to port Mr Kim had detected the radar echo of the Mineral Dampier . The echo was distant about 10 miles and bearing about 3º to port. Mr Kim formed the view from his ARPA that the Mineral Dampier was proceeding on a course of 065º true at a speed of 13.5 knots, but the parties agreed that she was in fact proceeding at 12 knots.[10]At about C-24 the Hanjin Madras altered course to port to 140º true and at about C-20, when the vessels were about 4 to 5 miles apart, the first of two VHF conversations took place between them. Both conversations were in English. The first of them was initiated by the Mineral Dampier , which suggested that the vessels should pass "red to red". Mr Kim agreed saying "OK. Red to red passing; repeat port to port passing". The Mineral Dampier agreed. Mr Kim also said in the course of the first conversation that he would alter course to starboard and advised the Mineral Dampier to keep her present course.[11]The Hanjin Madras did not, however, alter course to starboard at that stage. Mr Kim's evidence was that after the VHF conversation he looked at the ARPA and observed that the Mineral Dampier was distant 5.5 miles and bearing 190º true. In fact at about C-20 the Mineral Dampier was shaping to pass ahead of the Hanjin Madras . Mr Kim said that he did not alter to starboard because of the fishing fleet. He maintained the course and speed of the Hanjin Madras until about C-16, when she altered course to port to 130º true. Having steadied on that course, she almost immediately altered course to starboard again at about C-14. It was about that time, when the vessels were about 3 miles apart that they came into sight of one another.[12]It was at about that time or perhaps a little later that the second VHF conversation took place. The second conversation was initiated by the Hanjin Madras . Mr Kim told the Mineral Dampier to keep her present course and speed. The Mineral Dampier replied:
"understand your message"
. The judge held that that was the full extent of the conversation at that time. No further VHF conversations took place.[13]At C-13 the Hanjin Madras steadied on a course of 137.5º true but at C-12 her heading drifted back to 130º true. Between C-11 and C-5, as shown on the plot, she remained on a heading of between 130º true and 126º true. In his witness statement Mr Kim said that about C-8 "he assessed" that the Mineral Dampier would "cross ahead at a range of not less that 8 cables", although the judge said that he was not satisfied that Mr Kim did in fact make an assessment of the course, speed and closest point of approach of the Mineral Dampier at that stage. He simply assumed that her bearing was still 190° true without making any proper assessment of it.[14]The Hadjin Madras did not make any further alteration of course or heading to starboard until C-5 when she put her helm 15° to starboard and sounded one short blast on her whistle. She put her helm hard to starboard at about C-2.5 which had the effect of increasing her turn to starboard and of reducing her speed. The collision subsequently occurred as described above and as depicted on the plot.[15]The precise position of the fishing fleet was not clear on the evidence. Mr Kim drew two sketches which show its eastern edge as extending differently. The judge held that the Hanjin Madras was clear of the fishing fleet by C-9. The plot shows that, although at C-20 the Hanjin Madras was shaping to pass astern of the Mineral Dampier , by C-9 the Hanjin Madras was shaping to pass ahead of the Mineral Dampier by about 8 cables. That was because Mr Kim did not appreciate the effect of the small alterations of course to port made by his vessel which are shown on the plot. The judge attributed the delay of four minutes between clearing the fishing fleet and the time when Mr Kim ordered 15° of starboard helm to his failure to reassess whether or not the Mineral Dampier was going to pass ahead of the Hanjin Madras and thus to poor lookout on his part. As the judge said at page 288, Mr Kim thought, wrongly, that there was no hurry to make the alteration to starboard which, as the give-way vessel, the Hanjin Madras should have made. The Issues before the Judge[16]Before the judge Mr Nigel Teare QC for the Hanjin Madras submitted that both vessels were in breach of rule 19(d) of the collision regulations, as vessels navigating in conditions of restricted visibility, for failing to take action in ample time to avoid a close quarters situation. He further submitted that the Mineral Dampier was in breach of rule 17 and/or of the principles of good seamanship as the stand on vessel under the crossing rules. Mr Timothy Brenton QC, on the other hand submitted that neither vessel was in breach of rule 19, that if, they were, any such breach was not causative of the collision and that the collision was solely caused by the failure of the Hanjin Madras to keep out of the way of the Mineral Dampier in breach of rule 15. The Collision Regulations[17]The provisions of the collision regulations principally considered by the judge and discussed in this appeal were the crossing rules and the restricted visibility rules. They are contained in rules 15, 16, 17 and 19 which provide as follows:
"Rule 15: Crossing Situation When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel. Rule 16: Action by give-way vessel Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear. Rule 17: Action by stand-on vessel (a)(i) Where one of two vessels is to keep out of the way the other shall keep her course and speed. (ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules. (b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision. (c) A power-driven vessel which takes action in a crossing situation in accordance with sub-paragraph (a) (ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side. (d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way Rule 19: Conduct of vessels in restricted visibility (a) This Rule applies to vessels not in sight of one another when navigating in or near an area of restricted visibility. (b) Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility. A power-driven vessel shall have her engines ready for immediate manoeuvre. (c) Every vessel shall have due regard to the prevailing circumstances and conditions of restricted visibility when complying with the Rules of Section 1 of this Part. (d) A vessel which detects by radar alone the presence of another vessel shall determine if a close-quarters situation is developing and/or risk of collision exists. If so, she shall take avoiding action in ample time, provided that when such action consists of an alternation of course, so far as possible the following shall be avoided: (i) an alteration of course to port for a vessel forward of the beam, other than for a vessel being overtaken; (ii) an alteration of course towards a vessel abeam or abaft the beam. (e) Except where it has been determined that a risk of collision does not exist, every vessel which hears apparently forward of her beam the fog signal of another vessel, or which cannot avoid a close-quarters situation with another vessel forward of her beam, shall reduce her speed to the minimum at which she can be kept on her course. She shall if necessary take all her way off and in any event navigate with extreme caution until danger of collision is over."
[18]In addition to those rules our attention has been drawn to rules 2 and 8(c). Rules 2(a) and 8(a) to (c) provide as follows:
"Rule 2: Responsibility (a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required of the ordinary practice of seamen, or by the special circumstances of the case. Rule 8: Action to avoid collision (a) Any action taken to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship. (b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course or speed should be avoided. (c) If there is sufficient sea-room, alteration of course alone may be the most effective action to avoid a close quarters situation provided that it is made in good time, is substantial and does not result in another close quarters situation."
Nautical Assessors[19]The judge was assisted by two nautical assessors, namely Captain Ian Gibb and Captain Duncan Glass both of whom are Elder Brethren of Trinity House. In order to determine the issues between the parties the judge asked them a number of detailed questions. The questions he put and the answers they gave were as follows: "(1) In the circumstances of this case, given the restricted visibility of 3 miles and the existence of the fishing fleet, what would have been a "close quarters situation"? Answer: 2 miles ie at C-9, bearing in mind the characteristics of the two vessels. (2) What was the latest point at which a prudent seaman would have determined if a close quarters situation was developing and/or a risk of collision existed? Answer: within a moment or so of the Hanjin Madras altering course from 203° true to 150° true as determined by the ARPA: ie C-25. (3) What would the conclusion of prudent seaman have been in this case? Answer: A close quarters situation was developing. (4)(a) What action (including any possible reduction of speed) should prudent seamen have taken if they had concluded (at the latest time that a prudent seaman would have been entitled to determine this question) that a close quarters situation was developing and/or a risk of collision existed? Answer:(i) The Hanjin Madras should have slowed down, not later than C-12;(ii) The Mineral Dampier was not obliged to do anything, but could have altered course to starboard. (b) At what time should this action have been taken? Answer: (i) The Hanjin Madras : not later than C-12; (ii) similar for Mineral Dampier if going to starboard at all. (5) In the circumstances of this case should prudent seamen have reached an agreement by VHF on the manner in which the vessels were to pass ie "port to port", assuming that (i) the first VHF conversation took place when the vessels were distant between 5.5 and 7 miles; and (ii) the second conversation took place when the vessels were between 2 and 3 miles distant (ie between C-14 and C-9). Answer: (i) The first conversation was prudent as an exchange of information of intention; (ii) the second conversation was not prudent because it could curtail possible prudent action by the Mineral Dampier. (6) Assuming the vessels came in sight of one another at 3 miles (ie about C-14) and that (based on her actual course and speed) the Hanjin Madras would have cleared the fishing fleet at about C-9, what steps would a prudent seaman have taken on assessing the situation at C-14: (i) in the case of the "give-way" vessel; and (ii) in the case of the "stand-on" vessel? Answer: Assuming that there had been no agreement as to the mode of passing by VHF: (i) in the case of the "give-way" vessel: alter course to starboard, in stages if necessary, to show intent; or consider entering the extremities of the fishing fleet to show intent; (ii) in the case of the "stand-on" vessel: nothing. (7) At what stage, in the circumstances of this case, should the "stand-on" vessel have appreciated that she found herself so close that collision cannot be avoided by the action of the "give-way" vessel alone, so that good seamanship required that she should take such action as would best aid to avoid collision. Answer: C-9 (ie about two miles distant). (8) If the "stand-on" vessel had concluded that action should be taken to avoid collision, what action would a prudent seaman take to do so in the circumstances of this case, in particular given that the Hanjin Madras sounded one short blast and begun to turn to starboard at about C-5. Answer: Hard to starboard and one short blast. (9) Assuming the Hanjin Madras altered course to starboard at about C-5 when the vessels would have been about 1.2 miles apart, given the relative positions of the vessels, is it likely that those on the bridge of the Mineral Dampier would have heard the one short blast by the Hanjin Madras , assuming that they were keeping a proper aural lookout? Answer: In our view the whistle signal would have been unlikely to have been heard for two reasons: (i) because of the directional nature of ships' whistles and the broad bearing of the vessels, the Mineral Dampier was just forward of the beam of the Hanjin Madras , and (ii) because of the wind strength and direction – Southwesterly force 5 – ie. blowing from the starboard quarter of the Mineral Dampier and from the starboard beam of the Hanjin Madras . However, the all-round white light of the Hanjin Madras should have shone when one short blast was sounded and this should have been seen by the Mineral Dampier if she was keeping a proper look-out. (10) Assuming that the Hanjin Madras altered course to starboard at about C-5 when the vessels would have been about 1.2 miles apart, and assuming those on board the Mineral Dampier were keeping a proper lookout, how long would it have been before the alteration of course of the Hanjin Madras would have been apparent from the change in the aspect of her masthead lights? Answer: The Hanjin Madras applied 15 degrees of helm in the first instance and this, in our view, would have taken at least half a minute to have any effect. The vessel was in ballast with minimum propeller/rudder immersion and pressure on the rudder. The increase in helm from 15 degrees to hard to starboard (at C-2.5) would have taken at least a further half a minute to take effect. We consider that more than a minute had elapsed from the beginning of the first alteration of course (C-5) before appreciable change in the vessels' heading was achieved. However, due to the "wide" bearing of the two vessels, (at C-5 the Mineral Dampier was 75 degrees on the starboard bow of the Hanjin Madras , thus appearing almost beam-on to the Officer on the bridge of the Mineral Dampier ), the change in aspect of the masthead lights of the Hanjin Madras would have been hard to detect until the change in heading was substantial – in our view about 1 minute 30 seconds after the beginning of the alteration at C-5. Conclusions of the Judge[20]The judge accepted the advice which the assessors gave him. He held that neither vessel was to blame for anything which she did or failed to do before the vessels were in sight of each other, which was at C-14 when they were about 3 miles apart. He also held that no blame attached to either vessel for either the fact or content of the first VHF conversation. He did however blame Mr Kim for failing to keep a proper radar lookout in that period. The question whether the judge was right to hold that neither vessel was at fault before they saw each other visually is the first and principal ground of the Hanjin Madras' appeal.[21]After the vessels were in sight of one another the judge blamed them in a number of respects. First he held that both were at fault for making what he held to be an agreement in the second VHF conversation, which took place at about the time they saw each other visually. He said (at page 289 paragraph 27):
"The effect of the agreement was that the Mineral Dampier was to maintain her course and speed, while she expected the Hanjin Madras to turn to starboard imminently. This would have meant that the Mineral Dampier was inhibiting herself from acting in accordance with rule 17(a)(ii) or (b) or good seamanship and so altering course or reducing her speed in circumstances that were fast amounting to a "close quarters situation"
. Blame must attach to the Mineral Dampier for letting herself be put in this position."[22]The judge held that in addition to making that agreement the Hanjin Madras was at fault in what he said (at page 290 paragraph 29) were three further and serious respects. First, as the give-way vessel, she should, pursuant to rule 15, have slowed down by C-12 at the latest. Secondly, again pursuant to rule 15, she should have been shaping to turn to starboard as she came clear of the last of the fishing fleet, which was at C-9 at the latest. In fact she did not take engine action to slow down at all and she did not alter course to starboard at C-9 or for a further 4 minutes thereafter. Thirdly, when she did put her helm to starboard, she applied only 15° of helm when she should have gone hard to starboard. The judge ascribed those faults to a failure to keep a proper lookout on the part of Mr Kim.[23]The judge also held that the Mineral Dampier was at fault which he ascribed to the VHF agreement: see page 290 paragraph 40. He held that the requirements of good seamanship did not require her to take action before C-9 but that the position from that time, when the vessels were about 2 miles apart, was different. From then on, the Mineral Dampier should have realised, in accordance with rule 17(b) that the position of the Hanjin Madras was "so close that collision cannot be avoided by the action of the give-way vessel alone". The judge held that the Mineral Dampier "should therefore have taken positive action at that stage, that is at or about C-9". Her action should have been a bold alteration of course to starboard. He said that he had no doubt that the reason she did not take that action was because the Hanjin Madras had said to her in the second VHF conversation: "keep your course and speed" and she had agreed to do so.[24]In the event the Mineral Dampier did not take action until about C-3 or C-2.5 when she went hard to port. The judge held that she was not further at fault for going hard to port and not to starboard at the last for the reasons which he explained in paragraphs 31 and 32 on page 290. We shall not, however, set them out here because they are accepted by both sides on this appeal. We turn to consider each of the grounds upon which Mr Teare submits that the conclusions reached by the judge were wrong. Breach of Rule 19?[25]The appellants say that the judge should have held that both vessels should have taken action under rule 19 before they were in sight of one another at C-14. The argument may be summarised in this way. It is common ground that there was restricted visibility. The judge found that as early as C-25 a close quarters situation was developing. He accepted his assessors' advice that a close quarters situation would have existed at 2 miles or C-9. Mr Teare submits that in these circumstances action should have been taken shortly after C-25 and by C-18 at the latest to avoid a close quarters situation developing. Recognising that the Hanjin Madras could not have made a substantial alteration of course to starboard because of the fishing fleet, he submits that she should have reduced her speed and he submits that the Mineral Dampier should have made a substantial alteration of course to starboard.[26]He relies upon the statement of general principle by Sheen J in The Maloja II [1993] 1 Lloyd's Rep 48 at 51, where, after setting out the rules, including rules 15, 17 and 19, he said:
"I have set out these rules in order to give emphasis once again to their importance. They should be well-known to every master and all officers in charge of a ship at sea. The deplorable fact is that these rules are disregarded all to frequently. The structure of the Collision Regulations is designed to ensure that, whenever possible, ships should not reach a close quarters situation in which there is a risk of collision and in which decisions have to be taken without time for proper thought. Manoeuvres taken to avoid a close quarters situation should be taken at a time when the responsible officer does not have to make a quick decision or a decision based on inadequate information. Those manoeuvres should be such as are readily apparent to the other ship. The errors of navigation which I regard as the most serious are those errors which are made by an officer who has time to think. At such a time there is no excuse for failure to comply with the Collision Regulations."
[27]Mr Teare draws attention to the express provisions of rule 19(d). He thus submits that each of these vessels was under a duty to determine whether a close quarters situation was developing, that each should have concluded that a close quarters situation was in fact developing and that in those circumstances each was under a duty to take avoiding action in ample time. He submits that that means each was bound to take action in ample time to avoid a close quarters situation. That action should have been taken by C-18 at the latest. Mr Teare also observes that when the first VHF conversation took place the circumstances were described by the judge as "fast amounting to a close quarters situation" and that he was wrong to hold that neither vessel was in breach of rule 19(d).[28]Mr Teare also necessarily submits that the assessors gave the judge wrong advice on this point since it is common ground that the answers given by the assessors, especially their answer to question 4, show that they did not think that action should have been taken by either vessel under rule 19 before C-14. In the light of the submissions made in the course of the appeal we thought it right to put some questions to our assessors, who are Captain PGJ Murison RN and Captain JS Thorpe FNI to whom we are much indebted for their assistance. However, we did not ask them all the same questions as were asked of the assessors at first instance because it is important to have in mind that, as appears from cases such as The Australia [1927] AC 145, this is not an appeal from one set of assessors to another and because we concluded that it was not necessary or helpful to do so in order to resolve the issues on this appeal.[29]The questions we asked and the answers they gave in writing were these:
"1. Question: Are there any aspects of the answers given by the assessors below to questions 1 to 3 with which you disagree? If so, give particulars of these. Answer: None. 2. Question: In these circumstances, what, if any action, should have been taken aboard either vessel under rule 19 or in accordance with good seamanship before the vessels came into sight of one another at C-14? Answer: None was required. 3. Question: Having regard to the answer to question 2 and assuming that the vessels came into sight of each other at a distance of 3 miles apart at C-14, and that the Hanjin Madras would clear the fishing vessels at about C-9, what steps would a prudent seaman have taken after assessing the situation in the absence of any VHF conversation ? Answer: (1) The Hanjin Madras should have altered course to starboard on clearing the fishing fleet at C-9, thereby opening a red light to the Mineral Dampier . (2) The Mineral Dampier should have maintained her course and speed unless and until it became apparent to her that the Hanjin Madras was not taking appropriate action to keep out of her way. 4. Question: When should it have been apparent to the Mineral Dampier that the Hanjin Madras was not taking appropriate action? Answer: By C-5 at the latest. 5. Question: What action should the Mineral Dampier then have taken? Answer: She should have gone hard to starboard. 6. Question: Should either VHF conversation have affected the manner in which either vessel was navigated at any stage? Answer: No."
[30]It can be seen that on the crucial question raised by this ground of appeal the assessors advising us take the same view as the assessors advising the judge, namely that neither vessel was in breach of rule 19 in failing to take action before the vessels were in sight of each other. We have considered the advice given by both sets of assessors on this point and, in the light of it, we agree with the judge that there was no such breach.[31]The reasons which have led us to that conclusion are shortly these. In expressing them we wish to make it clear that we entirely agree with the statement of principle set out in the judgment of Sheen J in The Maloja II which we have quoted. The vessels were navigating in conditions of restricted visibility and, having detected the presence of the other by radar alone, each was under a duty to determine whether a close quarters situation was developing, which it was, and to take avoiding action in ample time. However, it is common ground that what amounts to ample time depends on all the circumstances of the case. They of course include the sizes, characteristics and speeds of the vessels, the area in which they are navigating and the nature of the visibility.[32]In the present case the nature of the visibility was in our judgment an important circumstance. Before the vessels came into sight of one another Mr Kim assessed the visibility at about 3 miles. There is no reason to think that the officer of the watch on board the Mineral Dampier did not do so too. It is common ground that once the vessels came into sight of one another their navigation was governed by the crossing rules. That fact would have been apparent to both vessels. Thus both vessels would expect to see each other at a distance of about 3 miles and would then be bound by rules 15 and 17. Although a close quarters situation was developing, it would not in fact exist until the vessels were 2 miles apart, by which time each would be bound by the crossing rules.[33]In our view, as Mr Brenton submits, the vessels had ample time in which to consider what action to take under rules 15 and 17 when, as expected they came into sight of one another at about 3 miles. Equally, they had plenty of time to decide what to do if the visibility proved to be worse than they thought. In that event action would plainly be required under rule 19, but, given what they reasonably thought to be the actual visibility and given the fact that there was ample time to take action under rules 15 and 17, we do not accept the appellants' submission that both vessels were in breach of rule 19 in failing to take action before they were in sight of each other. It would of course have been open to either vessel to take the action suggested by Mr Teare, but we do not think that either vessel was in breach of duty in not doing so.[34]We return to the VHF conversations in more detail below, but we note that the judge did not criticise either vessel for the contents of the first VHF conversation. We also note from their answer to question 5 that the Elder Brethren were of the opinion that the first conversation was prudent (as they put it) as an exchange of information of intention. In the context of two vessels each of which was aware of the other and navigating in conditions in which visibility was about 3 miles, the conversation contemplated that the vessels would pass port to port, that the Hanjin Madras would alter to starboard in order to show the Mineral Dampier a red light and that the Mineral Dampier would maintain her course. It seems plain that both vessels contemplated that that action on the part of both vessels would be consistent with the crossing rules. We agree with the judge that neither vessel is to be blamed for the first VHF conversation. It seems to us that its contents made the subsequent failure of the Hanjin Madras to alter course to starboard in ample time all the more culpable. In all the circumstances the first ground of appeal fails. The Second VHF Conversation[35]Mr Teare submits that the judge was wrong in principle to hold that the Hanjin Madras was more to blame for the VHF agreement in the second VHF conversation than the Mineral Dampier . Before considering this point we wish to make some general observations about the use of VHF.[36]The Admiralty Court, has, on many occasions, warned against the dangers of navigators of vessels resorting to VHF in order to assist in navigating safely past each other. In the Maloja II Sheen J said at page 52:
"Any attempt to use VHF to agree the manner of passing is fraught with the danger of misunderstanding. Marine superintendents would be well-advised to prohibit such use of VHF radio and to instruct their officers to comply with the Collision Regulations."
[37]If this passage is read as a warning against agreeing on the VHF a course of navigation which is in conflict with the collision regulations, we would endorse it. It is consistent with other statements to that effect in recent years: see eg The Angelic Spirit [1994] 2 Lloyd's Rep 595 at 608. Circumstances must be quite exceptional before good seamanship will justify such conduct. But we do not think that Sheen J's comments should be read as an embargo on all VHF communications about navigation between two vessels which are passing or are approaching a close quarters situation. The Admiralty Court tends to experience cases where VHF conversations have led to disastrous misunderstanding. It does not become aware of cases where an exchange of VHF information has assisted safe navigation. As the judge observed in this case, in some circumstances VHF conversations can be useful in order to exchange information between vessels. It is, of course, important, that before paying regard to information received from another vessel, there should be no doubt as to which vessel is sending that information.[38]Where two vessels approaching one another are in VHF communication it can in some circumstances be helpful if the vessel which is required to give way informs the other vessel of action being taken in order to comply with the collision regulations. Equally there may be circumstances in which the stand-on vessel is justified in asking the give-way vessel what action the latter is taking in order to comply with the collision regulations. Where two vessels are approaching one another in restricted visibility in circumstances where rule 19 applies, a vessel which is taking avoiding action in compliance with that rule may well assist the other vessel if it informs that vessel on the VHF of the action being taken.[39]In a case where misuse of the VHF has contributed to inappropriate navigational action, or inaction, the fact that those in charge of the navigation have misused the VHF may make their culpability the greater. The effect of culpability on the apportionment of liability in a collision action depends, however, not upon the absolute degree of culpability of those responsible for the collision, but on the relative degree of culpability of each. Thus, where both vessels are open to criticism for a VHF agreement about navigation which should never have been made, that conversation may have the effect of reducing the culpability of one vessel, while increasing that of the other. The direct cause of a collision will always be the navigational action or inaction which conflicts with the requirements of the collision regulations or of good seamanship. Misuse of VHF is relevant when determining the extent to which the improper action or inaction of a vessel was blameworthy.[40]Before turning to the VHF conversations here, we note in passing that in the course of the appeal we were shown Marine Guidance Note MGN 27 (M+F) published by the Marine Safety Agency in August 1997 which seems to us to be consistent with the views which we have just expressed.[41]We have already expressed our views as to the first conversation. We therefore turn to the second. On the judge's findings, when this conversation took place the vessels were in sight of one another in a crossing situation. Under rule 15 the Hanjin Madras was under a duty to give way and under rule 17(a)(i) the Mineral Dampier was under a duty to maintain her course and speed. Had the Hanjin Madras been putting in hand the appropriate manoeuvre to perform her obligation, we do not consider that she could have been criticised for advising the Mineral Dampier to stand on, although it would have been more helpful if she had informed the Mineral Dampier of the action that she was taking. Her fault lies in suggesting a course of action to the Mineral Dampier which was predicated on appropriate action on her part which she then failed to take.[42]So far as the Mineral Dampier is concerned, we have some difficulty with the proposition that her reply 'understand your message' constituted the exchange of an agreement for which she should be blamed. It was, at this point, the duty of the Mineral Dampier to maintain her course and speed. The Hanjin Madras instructed her to do just that. What is it suggested that she should have answered? With hindsight 'I shall do so provided that you take appropriate action to keep clear of me' might have been preferable, but we feel that it would be unrealistically censorious to hold the Mineral Dampier to have acted culpably in failing to respond in this way.[43]Where the Mineral Dampier was at fault was in our judgment in failing to exercise her right under rule 17(a)(ii) to take appropriate evasive action soon after this conversation, when it should have become apparent that the Hanjin Madras was not taking appropriate action to keep out of her way in accordance with rule 15. We consider that this failure was somewhat the less blameworthy as a result of the VHF exchange as this had been calculated to reassure her that the Hanjin Madras had well in mind her duty to give way.[44]Accordingly our approach to the second VHF conversation is not the same as that of the judge. We are not persuaded that it amounted to an agreement, or that the Mineral Dampier is to be criticised for her VHF response to the Hanjin Madras's communication. Navigation after C-9[45]We have set out the judge's conclusions in this regard. We entirely agree with him that the Hanjin Madras was seriously at fault from C-9 onwards for the reasons he gave. In short, she failed to take positive action in ample time to give way by altering boldly to starboard as soon as she cleared the fishing fleet in order to show her red light to the Mineral Dampier . That conclusion is consistent with the advice given by both sets of assessors. In our opinion that failure was all the more blameworthy because of the contents of the two VHF conversations. Further, when she did finally take action, the Hanjin Madras was at fault for putting her helm only 15° to starboard which made the situation all the more difficult for the Mineral Dampier at the last.[46]We turn to the navigation of the Mineral Dampier , to which we have already made some reference. We agree with the judge that she was not to blame for failing to take action before C-9. The judge held that she should have taken action from C-9 onwards, apparently on the basis that he should have realised "in accordance with rule 17(b)" that the Hanjin Madras was so close that collision could not be avoided by the action of the give-way vessel alone. We can understand how he reached that conclusion in the light of his assessors' answer to question 7.[47]It will be recalled that that question and answer were in these terms:
"(7) At what stage, in the circumstances of this case, should the "stand-on" vessel have appreciated that she found herself so close that collision cannot be avoided by the action of the "give-way" vessel alone, so that good seamanship required that she should take such action as would best aid to avoid collision. Answer: C-9 (ie about two miles distant)."
That question is curious because it suggests that when the moment comes when the stand-on vessel is so close that collision cannot be avoided by the action of the give-way vessel alone, good seamanship requires that she should take such action as would best aid to avoid collision, whereas it is not simply good seamanship which so requires but the express terms of rule 17(b).[48]However that may be, the assessors' answer to question 7 suggests that they thought that the vessels were so close that the collision could not be avoided by the actions of the Hanjin Madras alone at C-9, whereas it is common ground that it was not until after C-5 and probably not until C-4 or later that that moment had arrived. In these circumstances, it is plain that a criticism of the Mineral Dampier that she failed to take action at C-9 cannot be based on a breach of rule 17(b). It can only be based on a suggestion that she should have taken action at that time as a matter of good seamanship and that she was at fault for failing to exercise the discretion afforded to the stand-on ship under rule 17(a)(ii), namely after it became apparent to her that the vessel required to keep out of the way is not taking appropriate action", as was held in this court in The Koscierzyna and Hanjin Singapore [1996] 2 Lloyd's Rep 124.[49]It did not seem to us to be clear whether the Elder Brethren were considering whether the Mineral Dampier should have taken action as a matter of good seamanship on that basis, so in addition to question 3 we asked our assessors questions 4 and 5 set out above. It is clear from their answers that their view is that the Mineral Dampier should have maintained her course and speed until it became apparent to her that the Hanjin Madras was not taking appropriate action to keep out of her way, which they said was by C-5 at the latest. We accept that advice. We do not think that the Mineral Dampier can fairly be blamed for not taking action at or immediately after C-9 because it was not until then that the Hanjin Madras could alter substantially to starboard because of the fishing fleet, which of course both vessels could see both visually and by radar.[50]It was only some time after that that the Mineral Dampier can fairly be blamed for not taking action which she was entitled to take under rule 17(a)(ii). As we stated earlier, she is to be blamed for not making a bold alteration of course to starboard. We accept our assessors' advice that she should have put her wheel hard to starboard at C-5 at the latest. It is not suggested that she is to be separately blamed for her hard to port manoeuvre at a very late stage. Apportionment[51]Those conclusions are similar to but not quite identical to those of the judge. They are if anything more favourable to the Mineral Dampier because we do not think that the she should be blamed for her failure to take action as early as C-9. On the other hand we note that our assessors do not blame the Hanjin Madras for not slowing down before C-9. That is we think because they take the view that she could have discharged her obligation to keep out of the way of the Mineral Dampier by making a positive alteration of course to starboard at C-9. In our view the reason why the Hanjin Madras was very substantially more to blame than the Mineral Dampier was that it was the duty of the former to keep out of the way of the latter. She could no doubt have done so either by slowing down or by altering to starboard or both.[52]In our judgment the apportionment of 80:20 in favour of the Mineral Dampier was just. The Hanjin Madras was in our view four times more to blame than the Mineral Dampier . Neither vessel was to blame before the vessels came into sight of one another. Thereafter the Hanjin Madras failed to take action to keep out of the way of the Mineral Dampier by making the alteration to starboard she told the Mineral Dampier she would make and even then took inadequate action. Against that, the Mineral Dampier failed to exercise the discretion she was given under the rules and was at fault as a matter of good seamanship, but her fault only arose after the serious failure of the give-way vessel and was mitigated by the fact that she was no doubt expecting the Hanjin Madras to do what she had said she would.[53]In all the circumstances we have reached the conclusion that this appeal should be dismissed.

ORDER

Appeal dismissed with costs summarily assessed in the sum of £23,300. (Order does not form part of approved Judgment)

Cited in 2 later judgments