Owners of the Ship "Topaz" v Owners of the Ship "Irapua" [2003] EWHC 320 (Admlty)

Case No 1992/308[2003] EWHC 320 (Admlty.)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 March 2003
Before
THE HONOURABLE MR JUSTICE GROSSSitting with Admiral Sir Patrick Rowe Elder Brother of Trinity House as a Nautical AssessorCaptain Ian Gibb Elder Brother of Trinity House as a Nautical Assessor
Between
The Owners of The Ship “Topaz”ClaimantThe Owners of The Ship “Irapua”Defendant
Charles Macdonald QC & John Kimbell (instructed by Holman Fenwick & Willan) for ClaimantJeremy Russell QC & Thomas Macey-Dare (instructed by Clifford Chance) for DefendantHearing Hearing dates : 27 January 2003 – 28 January 2003
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................THE HON MR JUSTICE GROSS

INTRODUCTION

[1]This case concerns a collision which took place as long ago as the evening of the 6th May, 1991, off the East coast of Brazil, near to the port of Ubu. The lapse of time is unfortunate and due, as I understand it, to protracted, doubtless well-intentioned, negotiations, ultimately proving fruitless; at all events, the matter has now come to trial before the Court.[2]The ships which came into collision were The “TOPAZ”, registered in Panama and The “IRAPUA”, registered in Brazil.[3]The “TOPAZ” was an ore/oil carrier, built in Japan in 1976, 285.58 metres in length overall, 44.48 metres in beam, of 83,712 grt, 62,567 nrt, 157,773 dwt and 32,000 BHP. On the evening of the 6th May, 1991, she was in ballast, proceeding broadly Westwards, on a voyage from Mohammedia in Morocco, to Ubu, Brazil, to load a cargo there; at the time of the collision, her reported drafts were 6.5 metres fwd and 10.5 metres aft.[4]The “IRAPUA” was a bulk carrier, built in Brazil in 1978, 146.01 metres in length overall, 21.21 metres in beam, of 11,188 grt, 6,785 nrt, 15,429 dwt and 7,200 BHP. On the evening of 6th May, 1991, she was proceeding broadly Northwards, on a coastal voyage from Necochea in Argentina to Fortaleza, Brazil, laden with a full cargo of about 15,000 mt of wheat in bulk; at the material time, her drafts were about 8.4 metres fwd and 9.04 metres aft.[5]It is apparent and was common ground, that this was a crossing case; “TOPAZ” was the stand-on vessel and “IRAPUA” the give-way vessel.[6]Rules 15 – 17 of the Collision Regulations 1972 (as amended, “the Rules”) were accordingly applicable. These Rules 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 accorance 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 16 Action by give-way vessel

Rule 17 Action by stand-on vessel

[7]The collision took place at about 20.55 hours (GMT –3), as already observed, on the 6th May, 1991, in a position about or a little to the South of latitude 20 degrees 42.3’ South, longitude 40 degrees 11.6’ West, some 23 miles from Ubu. These coordinates reflect the position contended for by “TOPAZ”, which was not or not seriously disputed at trial and was to be preferred to the position contained in “IRAPUA’s” Preliminary Act (“PA”); the formulation “about or a little to the South” of the coordinates given, allows, realistically, for an element of approximation of anything up to 5 cables, given that the position needed to be ascertained after the collision and with “TOPAZ” then heading broadly Northwards. I take no more time over it because, as will be seen, the precise position of the collision is immaterial.[8]As to background matters: i) The weather was good and played no part in the collision. It was dark but visibility was good. ii) The wind was pleaded as Southerly, force 3 (“TOPAZ”) or South-Westerly, force 3 (“IRAPUA”). Whichever it was and although Mr. Russell QC, for “IRAPUA”, suggested that it might have had some effect on “TOPAZ”, proceeding in ballast, I am not of the view that the wind was material and say no more of it. iii) There was considerable debate at the hearing as to the current. Notwithstanding her PA which recorded as to current, “None particularly noted”, Mr. Macdonald QC, for “TOPAZ”, submitted that there was a current setting broadly S to SSW at a rate of about 1 knot and that it had the effect of setting “TOPAZ” (broadly) to the South and “IRAPUA” (broadly) to the West; the impact of the current indeed served to explain some of the evidence as to the courses steered and made good by “TOPAZ”. For his part, Mr. Russell argued that any current was of no more than 0.5 knots, setting about 210 degrees. Once again, for reasons which will become apparent, I do not regard the current as material to the collision; it is sufficient therefore to conclude that the current was setting broadly S / SSW, at a rate of about 0.5 – 1k; it probably had some effect in setting “TOPAZ” to the South and “IRAPUA” to the West; its impact on the speed of “IRAPUA” is dealt with next. iv) “IRAPUA” proceeded throughout at her maximum sea speed of about 14 knots through the water; the effect of the current was probably to retard her somewhat, so that her speed over the ground was about 13.6 knots. v) “TOPAZ” was proceeding at about 14 knots through the water; while her speed was not reduced before collision pursuant to any engine order, it is likely (and was not in dispute) that there was some loss of speed in her last turn to starboard, to which I shall come in due course. vi) The angle of blow was agreed at about 51 degrees with the starboard bow of “IRAPUA” leading forward on the port side of “TOPAZ” in way of her no. 4/5 cargo wing tanks. In the event, it was not in dispute at the hearing that the heading of “TOPAZ” at collision was about 330 degrees true and that of “IRAPUA” about 021 degrees true.[9]It is a most striking feature of this case and was common ground that “IRAPUA” neither saw “TOPAZ” nor observed her by radar before the collision. Against this background, Mr. Russell’s skeleton argument inevitably and realistically made the following concession:
“ The Defendants accept that those on board the “IRAPUA” failed to comply with Rule 5 of the Collision Regulations in failing to keep a proper lookout and that, as a consequence, … they were also in breach of Rules 7, 8, 15 and 16. They acknowledge that this was a serious fault, which contributed significantly to the collision. They accept that they should bear a substantial portion of the blame for the collision.”
For the avoidance of doubt, at the hearing, Mr. Russell explained that “substantial” did not mean “overwhelming” or anything like that; again realistically, however, Mr. Russell at no stage disputed that, on any view, “IRAPUA” was more than 50% to blame; the question, therefore, became, how much more ?[10]It follows that the principal issue in the case was whether “IRAPUA” was alone to blame for the collision or whether “TOPAZ” was at fault at all and, if so, to what extent. In the light of all this, it follows that the essential focus of the trial lay with the navigation of “TOPAZ”; in this regard, I underline Mr. Macdonald’s pertinent reminder of the need to keep one’s “eye on the ball”; it would otherwise be all too easy to forget that the focus was on “TOPAZ” because the wholly deplorable navigation of “IRAPUA”, the give-way vessel, was common ground. It is convenient to mention here that “IRAPUA” did not pursue a pleaded allegation that “TOPAZ” was not displaying navigation lights.[11]As to the navigation of the “TOPAZ” and looking ahead, the principal issues were these: i) Lookout: Was “TOPAZ” maintaining a proper look-out ? In particular when was “IRAPUA” first observed ? What was the quality of the lookout, in terms of appreciation of the developing situation? ii) The alleged alteration of course: Did “TOPAZ” alter course from 246/250 degrees (as the case may be) 10 degrees to starboard ? If yes, did she do so at a proper time? Was a 10 degree alteration of course adequate? Was “TOPAZ” in breach of Rule 17(a)(i) and/or Rule 17(a)(ii) ? iii) Sound and light signals and VHF: What signals did “TOPAZ” give? What attempts at VHF contact did she make ? On any view, were such matters causative ? iv) The final manoeuvre: It was not in dispute that “TOPAZ” put her wheel hard to starboard in the final minutes before collision. When did she do so ? Should she have done so sooner ? Was “TOPAZ” in breach of Rule 17(b) ?[12]There was, understandably, given the lapse of time, no oral evidence. As to evidence of fact, the most important witness statements and other documentary material, came from Mr. So, the 3rd Officer and officer of the watch (“ the OOW”) on “TOPAZ” and from the experienced helmsman on the watch with him, AB Yeong Hun Yun (“the AB”). There were, additionally, statements and other material from her Master and Chief Officer, to which, in the event, some significance attaches, though neither was a witness to the collision. Expert evidence, as to angle of blow and speed, was, as already noted, agreed. For obvious reasons, statements from those on “IRAPUA” were not relied on, save insofar as they “corroborated” the account of the “TOPAZ” witnesses.[13]Applications to amend: Before proceeding further, it is appropriate to refer to the various applications to amend, made on the first day of the trial: i) As to the relevant principles, there is an important difference between Part I and Part II of the PA. a) Part I of the PA (now a Collision Statement of Case) is not a pleading; it constitutes a set of formal admissions which the party concerned must file promptly and “blind” (ie., without sight of the opposing case): see, Marsden, “Collisions at Sea” (12th ed., 1998), at paras. 18-79 – 18-80 and 18-85; it is well-established that leave to amend in this regard is not lightly given because any such amendment involves departure from a formal admission and is likely to be made with knowledge of the opposing case; see too, Meeson, “Admiralty Jurisdiction and Practice” (2nd ed., 2000), at paras. 7-044 and following, where it is said that the correct course is not to amend the PA but to lead evidence contrary to it – plainly a course which cannot be followed when there is no such evidence. For the avoidance of any doubt, there is no suggestion that in the era of the CPR there will be any greater readiness to permit amendments to Part I of the Collision Statement of Case; to the contrary, the law relating to PAs continues to apply: see PD61, para. 4.5 and the Admiralty & Commercial Courts Guide (August 2002), para. N5.4. In practical terms, a refusal of leave to amend Part I of a PA may not be the end of the matter; while the party concerned will be held to the admissions contained in the PA, the Court is not similarly bound; the Court must, regardless, proceed on the evidence which “it deems most accurate and trustworthy”: Marsden (ibid). b) By contrast, Part II of a PA is deemed to be a pleading; the usual rules as to amendments apply. ii) Applying these principles and in the exercise of my discretion, after close scrutiny, I granted Mr. Macdonald’s applications to amend Articles VIII and XIII of Part I of the “TOPAZ” PA(1) to deal with courses allegedly steered by “TOPAZ”, essentially (and despite Mr. Russell’s opposition) because these amendments related to the proper interpretation of evidence as to true and gyro courses given by the OOW;(2) to deal with the distance between the vessels when a whistle signal was allegedly sounded by “TOPAZ”; this amendment was not opposed. iii) Mr. Macdonald further applied to amend Art. XIII of Part I of the “TOPAZ” PA, in respect of the distance between the vessels when “TOPAZ” allegedly altered her course from 246/250 degrees to 256/260 degrees, as the case may be. Originally, Art. XIII put the distance as “about 6 miles”; the proposed amendment provided for “less than 6 miles”. This amendment was strongly opposed by Mr. Russell and, in the event, I disallowed it. In all the circumstances and, in particular, the absence of supporting evidence from the OOW (whose evidence formed the basis of the unamended PA in this regard), amendments such as this would undermine the important principles underpinning Part I of the PA. Plainly the proposed amendment was designed to permit Mr. Macdonald to advance a case of a course alteration when the vessels were 3-4 miles distant, in recognition of the fact that an alteration of course at about the distance originally stated in the PA could not work, consistently with the (approximate) time and position of the collision. However, as already explained, the Court is not bound by the admissions contained in the parties’ PAs and will have to make sense of the collision on all the material available to it. iv) Mr. Russell, for his part, applied to amend para. 3(iii) of Part II of the “IRAPUA” PA; originally, it had criticised the propriety and timing of any “TOPAZ” alteration of course to starboard; the proposed amendment involved introducing, additionally, a denial that the “TOPAZ” in fact did make a 10 degree alteration of course to starboard; applying the usual rules as to amendments, in the exercise of my discretion, I allowed this amendment.

THE NAVIGATION OF THE “TOPAZ”

[14]The evidence: I turn now to the evidence as to the navigation of “TOPAZ”.[15]I start with the OOW. i) At 00.30 on the 7th May, 1991 (a few hours after the collision), the OOW pasted a short handwritten statement into the “TOPAZ” logbook; it merits quotation at some length:
“ My ships true course 246 degrees gyro course 250 degrees and sighted other collision vessel on radar scope bearing 233 degrees distance 12 miles off (local time 20.25 hrs) and visual on our portside. I seen binocular telescope that other collision vessel sighted green light also continued gave morse signal light and search light and I seen that the other collision vessel have no change their bearing. I call to the VHF but no other respond to the other collision vessel and I adjusted course 260 degrees (G) to avoiding collision. I continued call there’s no answer 6 mile off the other collision vessel. Approaching my radar detected and continued morse signal light and search light also I continued VHF call to the other collision vessel and blowed air whistle quickly with 5 short. But no respond and my radar 3 mile off checked. Later when I seen the other collision vessel continued approaching and also their heading line no change realized each other have risk of collision I ordered quartermaster hard to starboard and one short blast but collision came …. ” ii) The signed witness statement from the OOW is dated 11th May, 1991, a few days after the collision. He records that the “TOPAZ” was the first ship on which he had served as Third Officer. On the night in question, he was on the bridge with an experienced quartermaster, namely the AB, with about 20 years sea time. The key passages of this statement read as follows: “ At 2025 the vessel was steaming on true course 246 (gyro course 250) in good weather and visibility, on passage from Las Palmas to Ubu, in ballast, out ETA Ubu being 2330 hrs of the same day. At that time I sighted another vessel on radar bearing 233, distance 12 miles and also sighted her visually, with the aid of binoculars, on our port side. I saw her green light. After a few minutes I noticed that the other ship was keeping the same bearing and then realizing that she had not manoeuvred to give way I started atracting her attention by morse signaling and by searchlight, but I noticed no change in her bearing. Therefore I called her on the VHF (channel 16) several times but had no answer…. I repeated my calls on the VHF but received no reaction. As a precaution, at about 2040 hours I adjusted the course to 260 (gyro). I kept on calling on VHF with no answer until our ship was about 6 miles from the other ship which was all the time showing her green light. I continued my signals (light and morse) and also calling her on the VHF. Then, having received no response I blowed five short blows on the whistle, noticing no reaction from the other ship. At that time by radar check the distance between us was of about 3 miles and she was still continuing with no change of course. Later when I realized that the other ship was continuously approaching our ship with no change of course, I realized that we were at the risk of a collision and I ordered the quartermaster hard to starboard the rudder and gave one short blast but I could not prevent the other ship from colliding with her bow against our port side approximately at the middle of our ship…… At the time of the collision the master was not on the bridge but in the cargo control room with chief officer dealing with some ballast operation. The master had instructed me to call him to the bridge when our ship would reach 15 miles off Ubu. At the beginning of my watch the vessel was being steered by automatic pilot but when I changed the course to 260 we switched to manual steering and …[the AB]… was on the wheel. ”
[16]The AB provided a short signed witness statement dated 11th May, 1991. He had started his sea-going career in 1970. On the night in question, he was on watch with the OOW. He could not remember what course was being steered. They observed a ship on their port side, showing her green light. The statement continued as follows:
“ The 3rd officer began making morse and searchlight signals to the other vessel and also to call her on the VHF. At a certain moment the 3rd officer ordered me to steer the ship manually on course 260. From my stand at the wheel I saw that the other ship was continuing to approach our ship, as before. The 3rd officer kept on making signals and calling on the VHF. There was no answer … Then the 3rd officer blew the whistle, five short signals. When the other ship was coming close to our ship the 3rd officer order rudder hard to starboard and then the other ship struck our port side amidships….”
[17]I come next to the evidence from the Master of the “TOPAZ”: i) Like the OOW, the Master pasted a short handwritten statement into the “TOPAZ” logbook; in the case of the Master, his is timed 23.30 hours on the 6th May, 1991, the night of the collision itself. This statement confirmed various details (which are unnecessary to repeat here), held the “IRAPUA” responsible for the collision and, importantly, stated that the “TOPAZ” course had been 260 degrees. ii) In a telex, apparently to agents, sent the next morning, the 7th May, 1991, the Master referred to the course of the “TOPAZ” having been 250 degrees. iii) The Master’s signed witness statement is dated 10th May, 1991. He confirms that he left instructions to be called when 15 miles off Ubu and that he was with the Chief Officer in the cargo control room, when he felt the thump which signified the collision. The Master states that he heard no whistle signals but explains that he was inside a closed and noisy place, with ballast pumps running. He records that his inquiries of, inter alia, the OOW and AB, yielded the information contained in his log entry on the night (ie., i) above).[18]The Chief Officer’s signed witness statement is dated 11th May, 1991. At the time of the collision, he was in the cargo control room with the Master, doing “some ballasing job” in preparation for the vessel’s arrival at Ubu. He too says that he did not hear any whistle signals but explains that he could not have heard any, because he was inside a closed and noisy space, with pumps operating nearby.[19]Finally here, it is instructive to note that both the Master and Chief Officer of “IRAPUA” record that, in VHF conversations relatively shortly after the collision, they were informed by those on “TOPAZ”, that “TOPAZ” had been on a course of 260 degrees prior to the collision.[20]It is convenient to note other evidence, from the “TOPAZ” logs and her working chart, in the course of summarising and considering the rival arguments, to which I next turn.[21]The rival arguments: For “TOPAZ”, Mr. Macdonald’s submissions were straightforward. i) The evidence of the OOW was to be accepted. There was no reason to doubt that he first observed “IRAPUA” at a distance of 12 miles, or that he made a 10 degree alteration of course to starboard, probably at 20.42 – 20.45, when some 3-4 miles distant from “IRAPUA”. Even if that case was not open to him as such, the Court should so conclude. At about C-90 seconds, the OOW ordered the AB to put the wheel hard to starboard. As the plots demonstrated, such evidence was consistent with a collision at 20.55 hours in approximately the position already referred to. ii) It was true but immaterial that(1) the OOW said that he had first seen “IRAPUA” distant 12 miles and bearing 233 degrees, when the plots revealed that the bearing must have been of the order of 227 degrees;(2) the OOW said that he had altered course 10 degrees to starboard at about 20.40 when distant from “IRAPUA” some 6 miles, whereas it was now clear that there could have been no collision at 20.55 in the position alleged if that were so; the alteration of course must have come later and when the vessels were closer together. These matters did not invalidate the evidence of the OOW overall, still less establish that he was not telling the truth. To the contrary, such imprecision was unsurprising, not least in the aftermath of a collision. iii) There was much debate at the hearing about the working chart of the “TOPAZ”, perhaps inevitably, given the erasures explored in a forensic examination. As to this, Mr. Macondald submitted that the erasures had not been carried out with the intention of deceiving anyone; if anything, the items erased supported the case advanced by “TOPAZ”; the erasures were most likely attributable to re-using the chart when the vessel departed from Ubu, alternatively, to some accidental but not sinister reason; it was clear that the chart without erasures had been seen by the legal representatives for “TOPAZ”, before those erasures had been made. This was inconsistent with any attempt at deception. As to the chartwork itself, there was no or no good reason to doubt it, allowing realistically throughout for the possibility of error, in particular in the case of those “fixes” taken by a radar range and single bearing line. The OOW was fixing the position of the ship regularly, as was to be expected when making landfall. He had been instructed to call the Master when 15 miles from Ubu and part of an erased 20 mile range ring can be seen on the forensically enhanced or restored chart. The evidence of the OOW was to be understood by treating his course (prior to alteration) as involving steering 250 degrees gyro to make good 246 degrees true, by reason of the prevailing current; a 4 degree gyro error would be unlikely and was against the weight of the evidence; his subsequent 10 degree alteration put “TOPAZ” on a course of 260 degrees true and gyro. When all these matters were factored in, the 10 degree alteration of course most likely took place in about the position of what became known as the “mystery” circle erased from the working chart, about 1.8 miles ESE from the collision position, when the vessels were some 3-4 miles apart and at about 20.42/ 20.45. Such a conclusion was supported, as a matter of probability by a line drawn through the positions marked on her working chart for “TOPAZ” at 20.01, 20.30 and 20.55 (the collision position). iv) As to the alteration of course 10 degrees to starboard: (1) it was justified under Rule 17(a)(i), as being in the ordinary course of navigation; alternatively (2) it was justified under Rule 17(a)(ii), given that the vessels were closing, “IRAPUA’s” bearing was remaining broadly constant and “IRAPUA” was apparently failing to take any action at all. v) As to going hard to starboard at the last, “TOPAZ” was not entitled to take this action sooner than she did; before C-90 seconds, the OOW could not safely conclude “that collision cannot be avoided by the action of the give-way vessel alone”; it was above all to be remembered that “TOPAZ” was the stand-on vessel. vi) In all the circumstances, “TOPAZ” was not at fault, alternatively “IRAPUA” was overwhelmingly to blame for the collision.[22]For “IRAPUA”, Mr. Russell developed a detailed and closely reasoned attack on the navigation of “TOPAZ”; it proceeded as follows: i) When regard was had to the voyage as a whole, no reliance could be placed on the “TOPAZ” records; her log and working chart were hopelessly inconsistent; insofar as that was due to prior fixes having been placed on plotting sheets, it was odd (at the least) that the only working chart available for the voyage was the one (allegedly) in use at the time of the collision. The position was aggravated by gaps in the “TOPAZ” disclosure. ii) The OOW’s evidence could not be relied upon. Plots based on a collision at 20.55 hours approximately in the position contended for by “TOPAZ” herself, demonstrated that:(1) the OOW could not have observed “IRAPUA”, 12 miles distant, bearing 233 degrees at C-30 (minutes);(2) “TOPAZ” could not have altered course by 10 degrees at 20.40 hours, when the vessels were about 6 miles distant;(3) “TOPAZ” could not have altered course in about the position of the “mystery” circle; that circle did not represent a fix at all; it was most likely part of an after the event reconstruction. iii) The evidence as to the courses of 246/250 degrees and, later 256/260 degrees could not be relied upon. There were too many inconsistencies; moreover, the “TOPAZ” case (as to true and gyro courses) diverged significantly from the OOW’s evidence rather than receiving support from it. iv) The most likely interpretation of the “TOPAZ” navigation was that she had not made any 10 degree alteration of course; the suggestion that she had was inconsistent with a line drawn through the positions for 18.10, 19.12, 20.01 and 20.55, marked on the “TOPAZ” working chart. The first three of those positions were fixed by satellite navigation (“satnav”) and were unlikely to be in error; they supported “TOPAZ” maintaining a course of about 246/250 degrees until the last few minutes before the collision. The reality was that those on “TOPAZ” had not observed “IRAPUA” until the final minutes before the collision; they arrived at the collision position by reason of a very late manoeuvre hard to starboard, commenced at about C-3. v) The OOW’s evidence as to light and sound signals and attempts to contact "IRAPUA” by VHF, could not be accepted. vi) In summary, the only facts which could safely be relied upon were (1) that there was a collision; (2) that “TOPAZ” turned very late hard to starboard, immediately prior to the collision, whether at C-3 minutes or C-90 seconds; (3) that “TOPAZ” did not see “IRAPUA” prior to this very late turn. vii) In the circumstances, “IRAPUA’s” case was that: (1) there were failures of lookout on the part of “TOPAZ”; (2) “TOPAZ” did not make the alleged 10 degree alteration of course; (3) if she did, it was not made within the ordinary course of navigation so as to come within Rule 17(a)(i);(4) alternatively, if there was such an alteration of course and it was made for precautionary reasons, it was a “nibble”, inadequate and therefore in breach of Rule 17(a)(ii);(5) the final turn hard to starboard was made too late and therefore in breach of Rule 17(b). viii) Overall, as already foreshadowed, Mr. Russell accepted that “IRAPUA” was more than 50% to blame for the collision but not, he submitted, by much.[23]To all this, Mr. Macdonald responded forcefully in reply, as follows: i) The OOW could not have been mistaken in respect of the stated 10 degree alteration of course; it followed that the “IRAPUA” case involved a finding of dishonesty against him. More than that, the AB must be lying as well. Nor did matters end there; they must have concocted the story very quickly, so as to tell the Master, alternatively, the Master and Chief Officer had to be in on the conspiracy as well. Irrefutably, a course of 260 degrees was being asserted shortly after the collision; see the statements from “IRAPUA” personnel. The “IRAPUA” case fell well short of justifying any such finding(s) of dishonesty. Nor was there any good reason for such a conspiracy; those on “TOPAZ” would have assumed that they were in the right, as the stand-on vessel. ii) There was, likewise, no good reason to disbelieve the OOW as to light and sound signals and efforts to contact “IRAPUA” by VHF. It was feasible that the Master and Chief Officer in the cargo control room (with some pumps running) did not hear the blasts from the vessel’s whistle. iii) The complaints as to disclosure and the elaborate criticisms of the “TOPAZ” records constituted much ado about nothing. In particular, the disclosure points had to be seen in perspective; the requests for specific disclosure came very late in the day, many years after the incident. iv) Still further plots adduced on behalf of “TOPAZ” meant that its case did or could work, given only the necessary allowance for imprecision in such situations. v) As to chartwork, the positions for 18.10, 19.12 and 20.01 were satnav fixes, checked by radar; thereafter, positions were fixed by radar ranges. As to the “mystery” circle, “IRAPUA” had not seriously suggested that any adverse inference was to be drawn from the erasures; once that was the case, there was every reason to accept that position as a fix; as such, it strongly supported the OOW’s evidence of an alteration of course prior to the hard to starboard manoeuvre in the last moments before collision. vi) The Court could safely accept the following facts:(1) that the OOW had observed “IRAPUA”, when 12 miles distant, bearing a little less than 233 degrees;(2) that “IRAPUA” was showing her green light;(3) that “IRAPUA’s” bearing did not appreciably change;(4) that “TOPAZ” made a 10 degree alteration of course to starboard before the hard to starboard manoeuvre of the final pre-collision moments. vii) The Court’s eye was to be kept on the ball. The alteration of course of 10 degrees to starboard came within Rule 17(a)(i) as being undertaken in the ordinary course of navigation; Mr. Russell had placed an unnecessarily restricted construction on the authorities. Alternatively, if that manoeuvre was undertaken for precautionary reasons, there was no breach of Rule 17(a)(ii); it was not negligent to alter course by no more than 10 degrees to starboard; hindsight was to be excluded. As to the final hard to starboard manoeuvre, there was no breach of Rule 17(b); “TOPAZ” was not entitled to take such action sooner. Finally, it was to be noted that “IRAPUA” did not contend either that “TOPAZ” should have ported or that she should have reduced speed. viii) In all the circumstances, “IRAPUA” was 100% or, at least, overwhelmingly, to blame for the collision.[24]Conclusions as to the navigation of “TOPAZ”: It is convenient to deal here with my factual conclusions as to the navigation of “TOPAZ”, deferring, for the moment, the question of her faults, if any.[25]Lookout: The OOW’s navigation must be approached in its practical context, namely that(1) he was making landfall,(2) he must have been anticipating an alteration of course to starboard, at some time, in order to reach Ubu, avoiding the shoal patch marked on the working chart (BA 3972) and(3) he was under orders to call the Master, when 15 miles distant from Ubu. In my judgment, the partly erased range ring, “recovered” in the forensic examination, a little over 20 miles distant from Ubu, is evidence of an “early warning” procedure in this regard. Against this background, it is inherently probable and I so find, that the OOW (assisted by the AB) was keeping a lookout and using radar to fix the position of the “TOPAZ” from time to time. How good the OOW’s appreciation was, is or may be another matter.[26]It follows that I have no reason to doubt and instead accept that the OOW probably did observe “IRAPUA”, first by radar, thereafter visually with binoculars, when some 12 miles distant, at about 20.25 hours (C-30). I find nothing surprising about the OOW’s remark that he saw “IRAPUA’s” green light and made no mention of her masthead light; as it seems to me, this is no more than readily intelligible shorthand.[27]I turn next to the OOW’s evidence that at this time (C-30), “IRAPUA” was bearing 233 degrees. At this point, it is convenient to refer to the plots introduced by the parties, of which, as already foreshadowed, there were a variety. These were helpful but must be approached subject to the cautionary remarks of David Steel,J., in The Sitarem [2001] 2 Lloyd’s Rep. 107, at p.109; plots were illustrations rather than accurate descriptions; all the assumptions were open to margins of error which may or may not be cumulative; as David Steel, J. had himself said of plots in the earlier case of The Pelopidas [1999] 2 Lloyd’s Rep. 675, at p.682:
“ Of course they enable the Court and the parties to have a broad birds-eye view of the events leading up to a collision. But their true probative value is that they may sometimes enable the Court to determine, not what may have happened, but what could not possibly have happened….”
[28]Reverting to the bearing in question, the plots are of use. They do demonstrate that the OOW’s bearing could not possibly be right; it is inconsistent with a collision in the position and at the time established. Mr. Macdonald recognised as much by contending for a bearing of “less” than 233 degrees, in the event 227 degrees. Mr. Russell relied on this inaccuracy to attack the suggestion that the OOW had observed the “IRAPUA” at this time and distance; although it was true that the OOW had not, apparently, committed the 233 degrees bearing to paper contemporaneously, it was not a figure easily forgotten; had he given some much more general figure (say, broadly SW) forgetfulness might have been the explanation; that was unlikely here. In my judgment:(1) for the reasons given, I do think that the OOW probably observed “IRAPUA” at about this time and distance; I do not regard his error as to bearing as undermining that conclusion;(2) I conclude that the OOW was in error as to the bearing and that “IRAPUA’s” bearing must have been of the order of 227 degrees; it is perhaps unnecessary to speculate as to the reason for this error save to say that bearing errors are readily made or perhaps that in the shock of the collision and its aftermath, the OOW erred in suggesting a more precise observation than he originally made;(3) looking on ahead, I do not think that this error undermines the OOW’s subsequent appreciation (as to which he was plainly correct) that the ships were on converging courses with no appreciable change in “IRAPUA’s” bearing.[29]Signals and VHF (1): To complete this chapter, it will have been noted that the OOW talks of making morse and searchlight signals and attempting VHF contact at this stage; in this he is supported by the AB’s evidence. Given “IRAPUA’s” complete failure to keep any lookout, whether or not such light signals were given is academic; had they been given, there is no reason to suppose that they would have been seen; much the same considerations apply to attempted VHF contacts, in that I certainly can place no reliance on any “IRAPUA” evidence as to what might or might not have been received. I therefore express no concluded view on this topic, save to observe that the suggestion of signalling and attempted VHF contact strikes me as improbable at this stage; this suggestion may reflect a general tendency on the part of the OOW to “enhance” the evidence as to his lookout. Such exaggeration does him no credit but does not, in my judgment, here or elsewhere, serve to undermine the essentials of his evidence.[30]Before proceeding further, it is right to record that there was force in Mr. Russell’s criticism of the record-keeping on “TOPAZ”, though his observations as to disclosure of documents must be tempered by the perspective that the specific requests were made years after the event. All that said, other than leading me to approach the navigation of “TOPAZ” with care and scrutiny, such “TOPAZ” record-keeping failures as there were do not shed much light on the events of the evening of 6th May, 1991.[31]The alleged alteration of course: I turn next to the hard-fought issue of the alleged “TOPAZ” alteration of course, 10 degrees to starboard. As already underlined, the Court is not bound by either party' s PA. It seems clear from the various plots that “TOPAZ” could not have altered course at 20.40 (C-15), when about 6 miles distant from “IRAPUA”. It follows that, to such extent at least, the OOW’s appreciation was in error. In my judgment, however, it does not follow that he did not make any such course alteration at all. I find that he did – and well prior to the final hard to starboard manoeuvre. My reasons are these: i) I am satisfied on all the evidence that such a manoeuvre was possible, in the sense that it was consistent with the established time and approximate position of the collision, provided it was made at about C-8 to C-10, when the vessels were distant about 3 miles. When allowance is made for the margins of error inherent in the assumptions underlying the plots, it cannot be said that such an alteration of course could not have been made. ii) In the event it follows that this alteration of course was probably made in or about the position of the “mystery” circle on the chart, though, when all is said and done, that marking has very much less significance than was suggested at the hearing. Insofar as it matters, my impression is that it was probably part of an after the event reconstruction, rather than a contemporaneous fix; moreover, the two lines beneath some illegible writing immediately to the right of it, almost certainly reflect someone mistakenly writing it in as the collision position. Once it is accepted, as Mr. Russell very properly did, that the “mystery” circle and its erasure were not part of some “TOPAZ” endeavour to deceive others as to its course(s) and position(s), then all such matters are largely distractions, save insofar as they point to the chartwork on “TOPAZ” leaving something to be desired. iii) To my mind, there was much force in Mr. Macdonald’s submission that the evidence as to the 10 degree alteration of course was unlikely to be mistaken and that the case (in this regard) for dishonesty on the part of the OOW and others had not been made out. Any such case of dishonesty would have to be made good against not only the OOW but also the AB (who could have had but little self interest in the matter); moreover, it would entail the OOW inventing this course alteration very quickly after the event, when(1) he was bound to have been shaken at the least and(2) it must be unlikely that he would have perceived the need for the invention; he was, after all, the stand-on vessel. It is plain that this version of events was current very shortly after the collision, not only from the OOW’s and Master’s statements pasted in the log but also from the account given to those on “IRAPUA”, as indicated by their evidence. I should add that the evidence of the AB being instructed to take the wheel and steer the ship manually at the time this alteration of course was made is credible and reflects what is to be expected in such a situation. iv) I am not dissuaded from the above conclusion by the master’s telex of the next morning (already referred to) in which he spoke of a course of 250 degrees. The better evidence, to my mind, is the master’s evidence of what he was told on the night of the collision. v) It is fair to say that the OOW’s evidence as to true and gyro courses is unclear and difficult to follow. I regard as improbable any suggestion of a 4 degree gyro error. I reach no final conclusion on the question of whether “TOPAZ” was initially steering a course of 250 degrees to make good a course of 246 degrees, by reason of or an appreciation of the current setting her to the south; whatever the explanation it does not seem to me to matter. However that may be, I am satisfied that the vessel did then alter course by 10 degrees to starboard so as to come on to a course of 260 degrees true and gyro; whether (as was suggested) a counter-current was then operating, again seems to me neither here nor there and I say no more of it. vi) I did here anxiously consider Mr. Russell’s attractive argument that the alleged alteration of course was inconsistent with a line drawn through three reliable positions on the chart (fixed by satnav), namely those for 18.10, 19.12 and 20.01, and the collision position. For my part, I respectfully think that is putting the matter too high; these positions may be explained consistently with no 10 degree alteration of course; however, given the margins of error, they are not inconsistent with such a course alteration. For the reasons already given and on the basis of all the material available to me, I think that this course alteration was made. vii) What then of the OOW’s evidence that this course alteration was made at 20.40 and when the vessels were about 6 miles apart (evidence which I have already rejected) ? In my judgment, this evidence points towards a failure of appreciation on the part of the OOW, or, perhaps, an attempt to bolster his account of events, a matter to which I have already referred; it does not, however, lead me to conclude that no such alteration of course was made.[32]Sound and light signals and VHF (2): It remains to deal with the OOW’s evidence, supported by the AB, that at about this time he signalled by light and morse to the other vessel, called her on the VHF and gave 5 short blasts on the “TOPAZ” whistle. I remark at once that if he did not do so, it was not in any way causative of the collision; furthermore, at a distance of more than 2 miles, the whistle blasts would not have been heard by “IRAPUA”. All that said, I have no reason to doubt that at about this time, with the vessels coming considerably closer together, the OOW did as he said. Again, it is unlikely that the Master and Chief Officer “conspired” with the OOW to invent the story; I regard it instead as plausible that the forward whistle of “TOPAZ” was used; that the Master and Chief Officer were, as they said, in the cargo control room in the accommodation block aft; that a pump was in operation, again as they said – the log evidence does not, carefully considered, negative such a conclusion; that in all the circumstances, they did not hear the whistle blasts.[33]The final manoeuvre: I come to the final hard to starboard manoeuvre. It was not in dispute that such a manoeuvre had been undertaken. Essentially, the difference between the parties here, depended on the anterior question of whether “TOPAZ” had made an earlier 10 degree alteration of course; if “TOPAZ” had, as she contended, made such an alteration, then it was likely that the final manoeuvre commenced at about C-90 seconds; if, per contra, as “IRAPUA” contended, there had been no previous alteration of course, then, consistent with the collision time and position, it would follow that there had been a more extended final manoeuvre, probably commencing at about C-3. Given my conclusions so far, I find that the final hard to starboard manoeuvre commenced at or about C-90 seconds; there was, no doubt, some loss of speed in this manoeuvre but its precise extent is neither here nor there and need not be discussed further.

ALLEGED FAULTS IN THE NAVIGATION OF “TOPAZ”

[34]I have earlier indicated in outline Mr. Russell’s case as to the navigation of “TOPAZ”. I now turn directly to the principal issues in this regard, against the background of the conclusions of fact to which I have come.[35]Lookout: In the light of these conclusions, the submission that the OOW was not keeping a lookout cannot be sustained. The criticism which survives goes to the appreciation of the OOW, evidenced by errors as to bearings, distances and times. For the reasons already given that criticism, going to the quality of lookout kept, is established. However:(1) The error as to the bearing of “IRAPUA” when she was first observed, was not causative; the OOW correctly appreciated that “IRAQUA” maintained a constant bearing and was on a converging course;(2) The error as to the time and the distance between the vessels when “TOPAZ” made her 10 degree alteration of course, while it might have contributed to the OOW’s decision as to what alteration of course to make, adds nothing to the question of whether such an alteration of course was appropriate. In the circumstances, I cannot regard any failures of lookout appreciation as constituting an independent cause of the collision.[36]Rule 17(a)(i): I have concluded that “TOPAZ” altered course by 10 degrees at about the time when the vessels were 3-4 miles distant. Mr. Russell argued here that this alteration of course was not permitted by Rule 17(a)(i) because(1) this Rule provided for “TOPAZ” to “keep her course and speed” and no qualification was applicable;(2) an alteration of 10 degrees was insufficient. In my judgment, as set out below, at the time when this alteration of course was made, Rule 17(a)(ii) already applied and required “TOPAZ” to take avoiding action. In the circumstances, it is unnecessary for me to express any concluded view as to whether there would otherwise have been a breach of Rule 17(a)(i) and I do not do so; moreover, Mr. Russell’s argument (2) will in any event be considered under Rule 17(a)(ii). However, Mr. Russell’s argument (1) was fully debated and it is right that I should say a few words about it.[37]As is well-established, Rule 17(a)(i), is subject to the qualification that the obligation of the stand-on vessel to “keep her course and speed” does not preclude, broadly and neutrally, alterations of course and speed in the ordinary course of navigation. In short, the “course and speed” are the course and speed that the stand-on vessel was going to take for the object she had in view, not the course and speed at any particular moment: see, The Aracelio Iglesias [1968] 2 Lloyd’s Rep. 7, esp. at pp. 11-12, together with the other authorities referred to there. Mr. Russell’s contention was that this qualification was limited to alterations of course and speed where it was obvious that the manoeuvre related to something specific and did not apply to an alteration of course and speed carried out in the open sea. Mr. Macdonald disputed that the qualification was limited in this way; there was, here, he said an alteration of course, in the ordinary course of navigation; at some stage, “TOPAZ” needed to alter course to starboard to make Ubu and to avoid the shoal patch, evident on Chart BA 3972, in doing so.[38]As already indicated, I express no concluded view as to whether this “TOPAZ” manoeuvre would have been permissible under Rule 17(a)(i) had it applied but I incline to the view that Mr. Macdonald was right in saying that the qualification, for alterations of course and speed made in the ordinary course of navigation, is capable of applying in the open sea; provisionally at least, I did not read the Rule as limited in the manner suggested by Mr. Russell. Whether any particular manoeuvre comes within the permissible qualification is a separate factual question, depending on the circumstances of the individual case.[39]Rule 17(a)(ii): As already recorded, the OOW’s evidence was that he altered course 10 degrees to starboard “as a precaution”; it was not the OOW’s evidence that the alteration of course was undertaken in the ordinary course of navigation, in order to reach Ubu. While the question of whether Rule 17(a)(i) or 17(a)(ii) applies is objective rather than subjective, I see no reason here to doubt the correctness, in this respect, of the OOW’s appreciation. In my view, with the vessels closing, “IRAPUA” on a constant bearing and now some 3-4 miles distant, Rule 17(a)(ii) applied. It was certainly by now apparent that the give-way vessel was not taking appropriate (or any) action in compliance with the Rules.[40]Rule 17(a)(ii) is couched in permissive language; while the primary duty of the stand-on vessel is to keep her course and speed, she “may” take action to avoid collision by her manoeuvre alone, when this Rule applies. That said, situations may arise in which good seamanship requires the stand-on vessel to take avoiding action before the stage at which Rule 17(b) applies: see, The Koscierzyna [1996] 2 Lloyd’s Rep. 124, at pp. 128-129.[41]Was this such a situation? I asked my Assessors and received their answer, as follows: Q.1: On the assumptions that:(1) the OOW on “TOPAZ” had been observing “IRAPUA” from the time when the vessels were about 12 miles apart;(2) “IRAPUA” was and remained on a steady bearing;(3) “IRAPUA” had apparently taken no action to avoid a collision;(4) the two vessels were closing rapidly; at what stage, if any, did good seamanship require “TOPAZ” (as the stand-on vessel) to take action to avoid collision by her manoeuvre alone under Rule 17(a)(ii) (before the stage at which Rule 17(b) applied) ? A: By the time when the vessels were about 3 miles apart; i.e., about C-8 to C-10.[42]I accept that advice. “TOPAZ” was then obliged to take avoiding action under Rule 17(a)(ii). I underline the particular circumstances of the case: the OOW had been observing “IRAPUA” for some time; “IRAPUA” was not taking any let alone appropriate action to avoid collision; the vessels were now, on a true appreciation, no more than about 3 miles apart and closing rapidly.[43]On the basis that the OOW was obliged to take avoiding action, the argument next focussed on whether it was negligent of “TOPAZ” to alter course by only 10 degrees. Mr. Russell said yes; Mr. Macdonald said no. Mr. Macdonald submitted that in the nature of Rule 17(a)(ii) there was a question of judgment involved; simply because there was a difference of opinion, or because someone else might have altered course by more than 10 degrees, it did not mean that the OOW was negligent to make the alteration of course which he did; in any event, the manoeuvre was to be judged on the facts available to the OOW; hindsight, with the knowledge that there was in fact a collision, was to be excluded.[44]I agree with Mr. Macdonald’s approach but, with respect, I am unable to accept his suggested conclusion. For my part, the 10 degree alteration of course was a “nibble”; at the time in question it was too little; the situation appeared to call for a far more bold alteration of course. My view in this regard was confirmed by the answer given by my Assessors to the question which I posed: Q.2: What manoeuvre should have been undertaken by “TOPAZ” at the time referred to in the Answer to Q.1 ? A: A bold alteration of course to starboard of at least 30 degrees; such an alteration of course would have avoided the collision; an alteration of course of 10 degrees was inadequate. I accept this advice. This difference between the alteration of course made and that which should have been made is not one which can be ascribed to a mere difference of opinion or hindsight. It follows that it was negligent of the OOW to alter course by only 10 degrees; inescapably this fault was causative of the collision.[45]Rule 17(b): As its terms make clear, this Rule is mandatory; the difficulty, here, lies in determining when the time has arrived for the stand-on vessel to take action. The officer in charge of the stand-on vessel faces a dilemma; he runs the risk of being criticised if he acts too soon or too late. Plainly he must be allowed some latitude in determining precisely when to act. The point is summarised in Marsden (supra), as follows, at para. 6-128:
“ ….The conduct of a prudent seaman in such circumstances is not to be tried by mathematical calculations subsequently made. A vessel will not be held at fault for keeping her course and speed, although she could have avoided collision by an alteration of either, if the other vessel by her action alone could also have avoided it. To stand on as long as it is possible to do so without immediate and manifest danger seems always to be justifiable. In The Ranza, Lord Gorall neatly epitomised the duty of the stand-on ship as being that she must wait until the other ship cannot avoid the collision and then she must act. The stand-on vessel is not to be held to blame because of the continued inaction of the give-way vessel or because the action taken by the other vessel was itself so belated as to actually aggravate the situation. But, in the end, act she must, and a vessel was held partly to blame where, being the stand-on ship and having the other’s complete lack of action plain before her for some time, she took absolutely no steps to avoid collision…. ”
[46]Applying this guidance, was “TOPAZ” negligent in leaving her hard to starboard manoeuvre until (about) C-3 (“IRAPUA’s” case) or C-90 seconds (“TOPAZ’s” case) ? Mr. Macdonald said she was not; “IRAPUA” was a much smaller and handier vessel than “TOPAZ”; the OOW was obliged, or at least entitled, not to act any sooner. Mr. Russell said she was; to wait until C-3 or C-90 seconds, was far too late for a vessel the size of “TOPAZ”.[47]Here too, I consulted my Assessors and received their advice as follows: Q.3:(1) At what stage, in the circumstances of this case, should “TOPAZ” (as the stand-on vessel) have appreciated that she found herself so close that collision could not be avoided by the action of “IRAPUA” (as the give-way vessel) alone, so that Rule 17(b) required that she would take such action as would best avoid collision ?(2) Were the size and manoeuvrability of “IRAPUA” relevant to this appreciation ? A: (1) When the vessels were about 2 miles apart, at about C-5. (2) No; they would have been unknown in any event.[48]I accept this advice. Notwithstanding sympathetic consideration of the OOW’s predicament, in my judgment, he was at fault in this respect as well. The object of Rule 17(b) is to avoid collision; to leave the hard to starboard manoeuvre until C-3 or, a fortiori, C-90 seconds (as I have found to be the case) is simply too late, regardless of the size and manoeuvrability of the give-way vessel, of which (as the Assessors point out) the OOW was necessarily unaware. In the circumstances already described, for a vessel the size of “TOPAZ”, this manoeuvre should have been undertaken earlier. The OOW’s fault in this regard was plainly causative.[49]Sound and light signals and VHF: For reasons already discussed, there were no and certainly no causative faults on the part of the “TOPAZ” in this regard; no more need be said of it.

APPORTIONMENT

[50]Given my conclusions as to causative faults on the part of “TOPAZ”, both vessels were to blame for the collision. Further, it cannot properly be said that “TOPAZ’s” faults were so minor that they should attract only a de minimis share of the blame. These were real faults; decisive action under Rule 17(a)(ii) or earlier action under Rule 17(b) would have avoided the collision. In a nutshell, too little action was taken too late; whether the underlying cause was a fault in appreciation or lack of experience or both is neither here or there; the test is objective. All that said, “TOPAZ’s” faults came about in circumstances forced upon her by the lamentable conduct on the part of “IRAPUA”, involving a complete failure to see or observe “TOPAZ” prior to collision or to take any action whatsoever to avoid it. In my judgment, these grave faults on the part of those on board “IRAPUA” were inexcusable and result in her being overwhelmingly to blame for the collision. It is indeed fortunately rare that there is a complete failure of lookout such as occurred on “IRAPUA”. In all the circumstances, having regard to both blameworthiness and causation, a fair apportionment is, in my judgment, 80/20 in favour of “TOPAZ”.

Cited in 1 later judgment