Miom 1 Ltd & Anor v Sea Echo ENE [2010] EWHC 3180 (Admlty)

Case No 2009 FOLIO 1117[2010] EWHC 3180 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/12/2010
Before
Mr. Justice TeareSitting with Captain Richard Woodman,Elder Brother of Trinity House, as Assessor
Between
(1) MIOM 1 LIMITEDClaimants(2) THE ISLE OF MAN STEAM PACKET COMPANY LIMITEDClaimantSEA ECHO E.N.E.Defendant
Jeremy Russell QC and John Kimbell (instructed by Weightmans LLP) for ClaimantsTimothy Brenton QC (instructed by Wikborg Rein) for DefendantHearing Hearing dates: 26-29 October 2010
JudgmentMr. Justice Teare :
[1]On 3 February 2007 at about 1138 SEA EXPRESS 1, a high speed twin hull catamaran passenger and vehicle ferry, collided with ALASKA RAINBOW, a conventional geared bulk carrier, in the River Mersey off the Liverpool Landing Stage. SEA EXPRESS 1 was almost at the end of its regular crossing from Douglas in the Isle of Man to Liverpool and was carrying 274 passengers, 58 vehicles and 20 crew. ALASKA RAINBOW was laden with a part cargo of steel products and had been seeking to stem the tide whilst waiting to enter Albert Lock assisted by two tugs. The collision occurred in dense fog. The bulbous bow of the ALASKA RAINBOW struck the starboard quarter of the SEA EXPRESS 1 causing her damage below the waterline. Her starboard machinery and propulsion spaces were flooded and she had to be towed to the Liverpool Landing Stage. ALASKA RAINBOW suffered only superficial damage and proceeded out of the Mersey to her anchorage.[2]The court is required to apportion liability for this collision.

The vessels

[3]SEA EXPRESS 1 is of aluminium construction, 74 m. in length overall and 26m. in breadth. Propulsion is provided by four steerable waterjets which are powered by four diesel engines capable of giving her a speed of about 30 knots at 720 rpm. Two engines and waterjets are located at the aft end of each hull. The thrust generated by the waterjets is regulated by adjusting the main engines’ rpm and by operating a reversing bucket fitted to each waterjet. The position of the reversing buckets can be changed to achieve varying amounts of ahead or astern thrust, or neutral/zero thrust. At 250 rpm on the main engines and with the buckets fully open in the ahead direction SEA EXPRESS 1 has a speed through the water of about 6.5 knots. Minimum speed to maintain steerage is about 3-4 knots. The direction of the waterjets can be adjusted up to 30 degrees either side of amidships to provide steering. On 3 February 2007 the drafts of SEA EXPRESS 1 were 2.7m. even keel.[4]The bridge is located about 18m. from the bow and extends the full width of the vessel. The navigation and engine control equipment is mounted on a console at the front of the bridge. Behind the equipment are three chairs. The left hand chair is the engineer’s position intended for monitoring the performance of machinery, propulsion and auxiliary systems. The middle chair (“the Captains’ chair”) is positioned on the centreline and is used for steering. The operator may select all four waterjets, alternatively the 2 outer or 2 inner waterjets, for steering. The speed controls consisting of four levers, one for each engine, are also in front of the chair as is an ARPA radar (“the secondary radar”). The right hand chair (“the Chief Officer’s chair”) has a further radar (“the main radar”) in front of it. To the right of the chair is the GPS receiver and AIS receiver. The display on the latter is usually in tabular mode. Targets are listed according to range, with the closest at the top of the list. SEA EXPRESS 1 is fitted with a Voyage Data Recorder (VDR) which records what can be heard on the bridge and what is shown on the main radar.[5]ALASKA RAINBOW is 157m. in length and 23m. in breadth. She has 4 cargo holds forward of the accommodation and machinery space each serviced by a crane. She has a single 6 cylinder diesel engine generating 6,500 PS at 112 rpm driving a single right handed propeller, giving her a maximum speed of 15 knots. On 3 February 2007 her drafts were 5.8m forward and 6.8 m. aft.[6]On the bridge are two ARPA radars, two GPS receivers and an AIS receiver. Although there is a course recorder which was stated in a check list to be in working order it does not appear to have been so. No course record trace was disclosed.

Manning

[7]SEA EXPRESS 1 was under the command of her master, Captain O’Toole. He was assisted by the Chief Officer, Ms. Royston and a lookout. On 3 February 2007 there was also on the bridge Mr. Pirrie, who was that day under examination for his type rating as a master of SEA EXPRESS 1. Type rating includes route familiarisation and he was under examination for the task of berthing SEA EXPRESS 1, having failed that examination the day before. Captain O’Toole was examining him. At the material time, and it appears since leaving Douglas, the Chief Officer was in the Captain’s chair and Mr. Pirrie was in the Chief Officer’s chair. The Chief Officer was steering the vessel and operating the levers for the water jets. Mr. Pirrie was conning the vessel and keeping a lookout by radar. The master stood behind them, monitoring what each was doing. Responsibility for an aural lookout, specifically for relevant vhf transmissions, was not allocated to any one person. Both the master and Mr. Pirrie held pilotage exemption certificates for the River Mersey. The master, Mr. Pirrie and the lookout gave oral evidence. The Chief Officer did not. Although it was suggested to the master and Mr. Pirrie that each was not being or had not been entirely truthful I was satisfied that each was doing his best to give his honest recollection of the events leading up to the collision.[8]ALASKA RAINBOW was under the command of her master, Captain Koveris. He was assisted by a third officer, a helmsman and a lookout. The master had not visited the River Mersey before but had the advice of a local pilot. There was also a trainee pilot on the bridge. The master gave oral evidence. The pilot did not. The master did not seek to dissemble in his evidence and was engagingly frank in his answers.

The collision position

[9]The collision position was about 1.5 cables from the west bank of the River Mersey close to Seacombe Stage. Liverpool Landing Stage (to where SEA EXPRESS 1 was headed) was a little up river on the east bank. Alfred Lock (to where ALASKA RAINBOW had been headed) was a little up river on the west bank. Further up river on the west bank was the Twelve Quays RoRo Terminal.

The weather and tidal conditions at the time of collision

[10]There was a dense fog. The collision occurred about 25 minutes before high water. There was a flood tide running of some 3-4 knots. But there was also a counter current which ran north along the west bank from about an hour before high water which could attain a rate of up to 2 knots. Thus SEA EXPRESS 1 had the flood current with her and ALASKA RAINBOW was seeking to stem the flood tide but in an area where she might be affected by the counter current.

The Mersey VTS

[11]The port of Liverpool provides an information service to traffic in the River Mersey. Radar data is combined, processed and displayed on a digital chart for the VTS operator. This radar record is preserved. It displays the navigation of each vessel leading to their collision.

The navigation of SEA EXPRESS 1

[12]As SEA EXPRESS 1 proceeded towards the entrance to the River Mersey the ARPA radar in front of Mr. Pirrie was set “north up”, in relative motion, on a range of 1.5 miles and sea stabilised. Radar targets were tracked on this radar. The other radar was similarly set up save that it was ground stabilised. At about 1110 a shallow bank of fog could be seen ahead and KEEWHIT, also inbound, could be seen half a mile ahead. SEA EXPRESS 1 decided to maintain station about that distance, 5 cables, astern of her. The speed of SEA EXPRESS 1 was being reduced to about 6.5 knots through the water.[13]On passing buoy C23 to starboard at about 1114 SEA EXPRESS 1 reported to Mersey Radio VTS. Mersey Radio had earlier mentioned KEEWHIT and other inbound vessels to SEA EXPRESS 1 but did not inform SEA EXPRESS 1 of ALASKA RAINBOW.[14]At about 1116 ALASKA RAINBOW informed Mersey Radio that she was stemming the tide just north of Twelve Quays. This message was audible on the bridge of SEA EXPRESS 1 but was not heard by Mr. Pirrie.[15]At about 1117 WD MEDWAY II (an inbound vessel which Mersey Radio had mentioned to SEA EXPRESS 1) asked Mersey Radio who was stemming the tide by Twelve Quays. Mersey Radio informed WD MEDWAY II that ALASKA RAINBOW, together with two tugs, was stemming the tide at Twelve Quays. This vhf message was audible on the bridge of SEA EXPRESS 1 but was not heard by Mr. Pirrie.[16]SEA EXPRESS 1 again reduced speed so that by about 1121 her speed was about 3 knots through the water. SEA EXPRESS 1 was now in dense fog and a second lookout went forward to the bow. At about 1125 SEA EXPRESS 1 altered course to 160 degrees (T) from 150 degrees (T). At about the same time KEEWHIT asked Mersey Radio “what we’ve got moving around in the south river at the moment”. Mersey Radio replied to KEEWHIT and informed her that ALASKA RAINBOW was stemming the tide whilst making a decision whether to enter Alfred lock. This vhf message was audible on the bridge of SEA EXPRESS 1. It was not heard by Mr. Pirrie.[17]At about 1127 (that is about 11 minutes before the collision) SEA EXPRESS 1 passed the Tower Buoy at a distance of about 1 cable to starboard. She was thus proceeding on her correct side of the river.[18]At about 1128 the speed of SEA EXPRESS 1 was increased. The reason for doing so was that KEEWHIT was now about 7 cables ahead and Mr. Pirrie wished to maintain station about 5 cables astern of KEEWHIT.[19]At about 1129 (C-9), by which time the speed of SEA EXPRESS 1 was about 6 knots, Mr. Pirrie noted a large radar target at the bottom of his screen distant about 1.59 miles and bearing 166 degrees (T). He placed the cursor over it. Shortly afterwards he noted that the AIS was showing the name of two tugs, SVITZER BIDSTON and THORNGARTH, at the appropriate distance and bearing. The course of SEA EXPRESS 1 was altered to 165 degrees (T).[20]At about the same time KEEWHIT contacted the “vessel stemming the tide off Alfred lock”. Mersey Radio told KEEWHIT that that vessel was ALASKA RAINBOW. This was audible on the bridge of SEA EXPRESS 1. Thereafter KEEWHIT and ALASKA RAINBOW switched to channel 6. At about 1130 the chief officer referred to “somebody stemming the tide at Twelve Quays” and mentioned the word “Rainbow”. At the same time the master and Mr. Pirrie were observing Seacombe Stage and Liverpool Landing Stage on the radar.[21]Mr. Pirrie placed the cursor over the echo again at 1132 (and altered course to 160 degrees (T) and at 1134. On the latter occasion when the echo was distant about 6 cables and bearing 167 degrees (T) the echo was seen to be heading towards the west side of the river. Mr. Pirrie and Captain O’Toole concluded that the echo posed no threat of collision. Speed was reduced to about 3 knots.[22]At about 1135 (C-3) the fog signal of SEA EXPRESS 1 was sounded manually. The automatic fog signal had not worked.[23]At about 1137 (C-1) Captain O’Toole advised VTS of his intention to turn so as to approach the Liverpool Landing Stage from the south. VTS acknowledged this message. No mention was made of ALASKA RAINBOW.[24]Less than one minute before the collision the pilot of ALASKA RAINBOW called SEA EXPRESS 1 and asked “is that you just off Seacombe?” to which SEA EXPRESS 1 replied that it was. ALASKA RAINBOW then informed her as follows:
“I’m just about to let the tug go now.We’re just aborting now. We’re going to be heading out shortly.”
[25]Captain O’Toole replied:
“Yes, I can see you there. Okay, thank you.”
[26]At about the same time the lookout on the bow saw SVITZER BIDSTON emerging from the fog fine on the starboard bow of SEA EXPRESS 1 distant about 50 metres.[27]The helm of SEA EXPRESS 1 was put hard to port. The bow of ALASKA RAINBOW was seen emerging out of the fog distant about 50 metres, and the helm of SEA EXPRESS 1 was put hard to starboard (and her engines full ahead) in an attempt to swing the vessel clear of the bow of ALASKA RAINBOW.[28]Thirty nine seconds after the conversation between the pilot of ALASKA RAINBOW and Captain O’Toole began ALASKA RAINBOW and SEA EXPRESS 1 collided at 1138. The heading of SEA EXPRESS 1 at collision was 148 degrees (T) and the angle of blow was about 30 degrees leading aft on SEA EXPRESS 1.

The navigation of ALASKA RAINBOW

[29]In the early hours of 3 February ALASKA RAINBOW was lying at anchor at the Mersey Bar anchorage awaiting a pilot. She was intending to transit the River Mersey and enter Alfred Lock en route to Birkenhead. She weighed anchor at about 0830 and embarked a pilot and an apprentice pilot at about 0918. Whilst visibility at that stage was good ALASKA RAINBOW was advised that there would be fog inside the river which it was hoped would disappear. The pilot informed the master that entering the Alfred Lock would involve turning the vessel in the river with the assistance of two tugs. Those two tugs SVITZER BIDSTON and THORNGARTH were made fast at about 1050. The flotilla proceeded towards Alfred Lock in thick fog. At about 1100 ALASKA RAINBOW was turned off Alfred Lock but visibility was too poor to permit the vessel to enter Alfred Lock. ALASKA RAINBOW decided to stem the tide off Alfred Lock whilst waiting for the visibility to improve. At about 1116 ALASKA RAINBOW informed Mersey Radio that she was stemming the tide just north of Twelve Quays.[30]The task of stemming the tide did not prove to be easy. It is likely that this was because of the counter current off the west bank. The AIS data shows that ALASKA RAINBOW in fact “snaked” across the river, initially towards Alfred Lock and then back towards the east side of the river. Two inbound vessels, BRO GALAXY and WD MEDWAY II altered course to port to pass ALASKA RAINBOW green to green between 1120 and 1123. The master accepted in cross-examination that ALASKA RAINBOW and WD MEDWAY II passed at an extremely close distance and that the ARPA alarm sounded. He accepted that the distance was much too close.[31]SEA EXPRESS 1 was observed distant about 2 miles at about 1124.[32]At about 1129 - 1130 (C-9 to C-8) the next inbound vessel was KEEWHIT. She was about 8 cables distant from ALASKA RAINBOW and SEA EXPRESS 1 was astern of her, about 1.5 miles distant from ALASKA RAINBOW. At this time ALASKA RAINBOW was in about mid-channel. There was vhf discussion between ALASKA RAINBOW and KEEWHIT as described in paragraph 20 above.[33]At about 1131 both ALASKA RAINBOW and KEEWHIT altered course to port so that they passed green to green. ALASKA RAINBOW went back towards the west side of the river. The VTS record data shows that ALASKA RAINBOW approached close to the west bank of the river.[34]The deck and engine movement books record that at about 1134 (C-4) the engines of ALASKA RAINBOW were put astern and at about 1135 (C-3) were put full astern and then stopped. At 1136 (C-2) they were put dead slow ahead. The VTS data shows the forward tug pulling the bow of ALASKA RAINBOW to starboard. These actions appear to have been designed to prevent ALASKA RAINBOW from being taken by the counter current towards Seacombe stage. Their effect was to cause ALASKA RAINBOW to move back towards mid-channel.[35]At about this time the pilot advised the master that the window of opportunity to enter Alfred lock had been lost and the master decided to return to the anchorage. The deck log records that at 1136 (C-2) the aft tug was cast off.[36]Just after C-1 the pilot of ALASKA RAINBOW contacted SEA EXPRESS 1 in the terms described in paragraph 24 above. Having regard to the deck log entry it is likely that the order to cast off the aft tug (and the decision to return to the anchorage) had been given very shortly before this but that execution of those orders was in progress as the pilot was speaking to SEA EXPRESS 1.[37]Very shortly before the collision the VTS data shows that the forward tug was pulling ALASKA RAINBOW to port. It is likely that the helm was also put to port at this time.[38]Having regard to the angle of blow and the heading of SEA EXPRESS 1 at collision ALASKA RAINBOW must have been heading about north at the moment of collision.

Faults of ALASKA RAINBOW

[39]Mr. Russell QC, counsel for SEA EXPRESS 1, criticised the decision of the master of ALASKA RAINBOW to enter the River Mersey knowing there was fog in the river. He also criticised the decision of the master to stay in the river having turned off Alfred Dock. These decisions were taken at 0918 and 1100. They were not taken with reference to SEA EXPRESS 1 and were taken so long before the collision, the latter decision being taken at C-38, that they cannot, even if negligent, be regarded as effective causes of the collision.[40]The position in which ALASKA RAINBOW found herself at 1129-1130, C-9 to C-8, was that she had failed to stem the tide off Alfred Lock and instead was “snaking” across the river. Her third officer described his vessel in his police interview as making “little side to side movements”. In that position she was, as her master accepted in cross-examination, a hazard to other vessels. That this was so was indicated particularly by the close distance at which WD MEDWAY II passed her and by the fact that WD MEDWAY II and BRO GALAXY had to alter course to port towards their wrong side of the river in order to pass ALASKA RAINBOW starboard to starboard. The master was aware of two further inbound vessels, KEEWHIT and SEA EXPRESS 1. By C-9 to C-8 they were distant respectively 8 cables and 1.5 miles and ALASKA RAINBOW was in about mid-channel. Mr. Russell submitted that in these circumstances good seamanship dictated that ALASKA RAINBOW should continue on her north easterly course until fully on her proper side of mid-channel and then proceed out to anchorage. The master of ALASKA RAINBOW appeared to accept in cross-examination that he ought to have decided to return to the anchorage a few minutes before he in fact did so.[41]I asked Captain Woodman, the Elder Brother of Trinity House who was the Court’s Assessor, the following questions. 1. Did good seamanship require ALASKA RAINBOW to return to her anchorage at about 1129 or 1130, C-9 to C-8, when she had moved to about mid channel and both KEEWHIT and SEA EXPRESS 1 were proceeding up river distant about 8 cables and 1.5 miles respectively ? 2. If good seamanship did not require ALASKA RAINBOW to return to her anchorage at 1129 or 1130 did good seamanship require her to keep to the east side of the river to allow KEEWHIT and SEA EXPRESS to pass her port to port?[42]He gave the following answers: 1. It would have been in accordance with prudent seamanship if, at 1129/1130, C-9 to C-8, the decision had been made to continue the sheer across the river to position the ALASKA RAINBOW under the east bank and commence an outward passage back to the Bar anchorage. It is clear that great difficulty was being experienced in the attempt to hold the ALASKA RAINBOW in any position stemming the tide and the close-quarters situation that had occurred earlier with the inward vessels BRO GALAXY and especially the W.D. MEDWAY 2, should have given grounds for alarm, persuading those responsible for the ALASKA RAINBOW that her situation constituted a danger to incoming vessels. The next inward ships, consisting of the KEEWHIT and some half a mile astern of her the SEA EXPRESS 1, were as yet sufficiently distant for the ALASKA RAINBOW to have been on the correct side for an outward passage to the Bar. This would have cleared the fairway for both inward vessels, in particular the SEA EXPRESS 1 which was inbound to the Liverpool Landing Stage and would therefore require room to swing and stem the tide as she made her final approach. 2. In view of my answer to Question 1 above, this question is not applicable. However, if the opportunity to clear outwards in good time had been missed, then it was clearly in the interests of safe navigation in the river for the ALASKA RAINBOW – admittedly navigating under great difficulty – to have kept the incoming – western - fairway clear.[43]I accept that advice and the reasons given for it. Mr. Brenton QC submitted that ALASKA RAINBOW was not at fault in this regard because ALASKA RAINBOW did not create an undue hazard since it was not a hazard which could not have been detected and overcome by the exercise of basic navigational skill and care. I do not accept this submission. It is true that careful observation of the radar and/or aural lookout ought to have revealed to SEA EXPRESS 1 the presence of ALASKA RAINBOW in the tow of two tugs. However, ALASKA RAINBOW had failed to stem the tide which was what she had stated to Mersey Radio that she was doing. Instead she was snaking across a narrow channel. In my judgment her presence and the nature of her manoeuvres in the channel were such that they created a hazard to inbound traffic such that her duty was to abort her attempt at stemming the tide and to return to her anchorage. The submission that her failure to do so was not a fault because she could have been detected and avoided by inbound traffic echoed the long abandoned and discredited “last opportunity rule”.[44]I therefore find that ALASKA RAINBOW was at fault in not continuing to the west side of the river and commencing her return to the anchorage. Such action would have allowed SEA EXPRESS 1 to continue upriver on her correct side of the river before turning off the Liverpool Landing Stage.[45]However, ALASKA RAINBOW elected to turn to port and to head back towards the west side of the river. The forward tug commenced to pull to port and by about 1135 KEEWHIT, having also altered course to port onto her wrong side of mid-channel, passed her starboard to starboard. By this time, 1135 or C-3, the track of ALASKA RAINBOW was taking her close to the west bank, south of Seacombe stage, and SEA EXPRESS 1 was distant about 5 cables. It is very likely at this time that the attention of those on board ALASKA RAINBOW was directed towards keeping ALASKA RAINBOW away from the west bank and Seacombe stage. Her engines were put astern. It seems likely that ALASKA RAINBOW was not monitoring the approach of SEA EXPRESS 1. Mr. Brenton said that this inference should not be drawn in the face of the evidence of the master of ALASKA RAINBOW that a proper anti-collision radar watch was being maintained. However, when contact was made with SEA EXPRESS 1 less than 1 minute before the collision ALASKA RAINBOW asked “is that you just off Seacombe ?” That does not suggest that a careful radar watch had been kept on SEA EXPRESS 1 and that it was known where SEA EXPRESS 1 was. ALASKA RAINBOW also informed SEA EXPRESS 1 that she was about to let go a tug and head out. Had a careful radar watch been kept on SEA EXPRESS it is unlikely that a decision would have been taken at C-1 to let a tug go and head out to the anchorage. I am therefore satisfied that the radar echo of SEA EXPRESS 1 was not properly monitored on board ALASKA RAINBOW. The reason for this failure is likely to have been that attention was being directed to ALASKA RAINBOW’s approach to the west bank.[46]I asked Captain Woodman the following question: If it was in accordance with good seamanship for ALASKA RAINBOW to return to the west side of the river and to pass KEEWHIT starboard to starboard what did good seamanship require at 1135 or C-3 when ALASKA RAINBOW was close to the west bank of the river south of Seacombe stage and SEA EXPRESS 1 was distant about 5 cables ?[47]His answer was: Again, in view of my answer to Question 1 above, this question is not applicable. However, having had a close encounter with the WD MEDWAY II and a further starboard-to-starboard passing with KEEWHIT, the master and/or pilot of the ALASKA RAINBOW ought by now to have informed Mersey Radio (the port VTIS) of the difficulties she was having and her complete failure to ‘stem the tide off the Alfred Lock’.[48]I accept this advice. ALASKA RAINBOW had not been stemming the tide at all. Instead she had been snaking across the river and back again and was now in an extremely difficult position, close the west bank. ALASKA RAINBOW had informed Mersey Radio at 1116 that she was stemming the tide just north of Twelve Quays. Having done so she ought to have informed Mersey radio when it was plain that she failing to stem the tide. With regard to SEA EXPRESS 1 she ought to have contacted her, as she had KEEWHIT. She ought to have informed SEA EXPRESS 1 of the difficulty she was in. Mr. Brenton submitted that ALASKA RAINBOW took reasonable steps to ensure that inbound traffic was aware of her intentions and movements by presenting a large radar echo, operating her AIS transponder and informing Mersey Radio that she was stemming the tide. However, she did not inform either Mersey Radio or SEA EXPRESS 1 that she was in fact failing to stem the tide. I consider that ALASKA RAINBOW ought also to have been sounding the sound signal required by Rule 35 of the Collision Regulations to indicate that she was under tow.[49]At about C-3 the forward tug began to pull to starboard taking ALASKA RAINBOW away from the west bank and Seacombe stage and continued to do so until about C-1 or later thus bringing her into a close quarters situation with SEA EXPRESS 1.[50]I asked Captain Woodman the following question: At 1136:30 or C-1.5 what action did good seamanship require of ALASKA RAINBOW ?

At 1136:30 or C-1.5 what action did good seamanship require of ALASKA RAINBOW ?

[51]He gave the following answer: Given that the ALASKA RAINBOW found herself in the position she did at 1136:30, or C – 1.5, good seamanship thereafter required the ALASKA RAINBOW to: a). Do everything possible to maintain her station close to the Seacombe Landing Stage and as clear of the fairway used by incoming traffic as was possible. b). Maintain a vigilant radar watch on incoming traffic – notably the SEA EXPRESS 1. c). Contact incoming traffic by VHF either directly, or through Mersey Radio. d). Sound the appropriate sound signals under Rule 35. e). Cause the attending tugs to sound the appropriate sound signals under Rule 35. a). Do everything possible to maintain her station close to the Seacombe Landing Stage and as clear of the fairway used by incoming traffic as was possible. b). Maintain a vigilant radar watch on incoming traffic – notably the SEA EXPRESS 1. c). Contact incoming traffic by VHF either directly, or through Mersey Radio. d). Sound the appropriate sound signals under Rule 35. e). Cause the attending tugs to sound the appropriate sound signals under Rule 35.[52]I agree that at this stage it was incumbent upon ALASKA RAINBOW to keep clear of the fairway. The other steps listed by Captain Woodman ought also to have been taken if they had not already been taken, as in my judgment they should have been. Mr. Brenton submitted that those on board ALASKA RAINBOW did in fact seek to stop her crossing ahead of SEA EXPRESS 1 by putting her wheel hard to port and ordering the forward tug to pull to port and that these actions only failed to prevent a collision because of a failure of those on board SEA EXPRESS 1 to detect and track ALASKA RAINBOW. But the VTS data suggests that this action was taken later than C-1 and I do not consider that fault on board SEA EXPRESS 1 can absolve ALASKA RAINBOW from being at fault in her manoeuvres at and after C-3. She had put herself in a position where she not only had to avoid contact with the west bank and Seacombe stage but also had to do so in such a manner as would avoid a close quarters situation with SEA EXPRESS 1. Her attempt to turn to port at or after C-1 was too late. It appears to have been made at about the time ALASKA RAINBOW asked SEA EXPRESS 1 “is that you off Seacombe ?” which suggests that the impending danger had only just been appreciated. The failure to keep clear of the fairway was thus a consequence of ALASKA RAINBOW’s failure to monitor the track of SEA EXPRESS 1.[53]In summary the faults of ALASKA RAINBOW were: i) A failure to return to her anchorage at C-9 or C-8 when KEEWHIT and SEA EXPRESS 1 were distant about 8 cables and 1.5 miles respectively and ALASKA RAINBOW had failed to stem the tide and was now in mid channel and a hazard to inbound traffic. ii) A failure to monitor the track of SEA EXPRESS 1 and inform SEA EXPRESS 1 of the difficulty ALASKA RAINBOW was in having failed to stem the tide and having headed back across the river towards the west bank. iii) A failure to sound fog signals for a vessel under tow. iv) A failure to keep clear of the fairway after C-3.

Faults of SEA EXPRESS 1

[54]It is a remarkable feature of the navigation of SEA EXPRESS 1 that although the radar echo of ALASKA RAINBOW under tow of two tugs was observed at 1129 (C-9) neither the master nor Mr. Pirrie appreciated that there was a vessel under the tow of two tugs seeking to stem the tide off Alfred Lock until less than half a minute before the collision. Mr. Pirrie thought that the echo he observed was of two tugs (because he noted their names on the AIS receiver) but he did not appreciate that there was a vessel between them.[55]It is necessary to note what could be observed of the radar echo at 1129 when it was first particularly observed by Mr. Pirrie. Initially it appeared as a single large echo, heading across the river in a north-easterly direction. Between 1130 and 1130:40 the echo appeared not so much as single large echo as a large echo with a smaller echo both forward and astern.[56]The VDR records that at 1129.17 KEEWHIT mentioned a vessel stemming the tide and Mersey Radio said that ALASKA RAINBOW was at “Alfred entrance”.[57]Mr. Pirrie said in his statement that he noticed a large radar target appearing to move north towards the middle of river. He placed the cursor over the target but “perhaps because of its size and shape” could not acquire it for ARPA tracking. He consulted the AIS display and observed the names of SVITZER BIDSTON and THORNGARTH. The VDR records him at 1130:28 saying “Could be the tugs. There’s 2 tugs there. SVITZER BIDSTON and THORNGARTH.” The chief officer said “There’s somebody stemming the tide at Twelve Quays as well, the ……RAINBOW”.[58]The first question which arises from this evidence is whether the name of ALASKA RAINBOW was also shown on the AIS display but was not observed by Mr. Pirrie. It is known that ALASKA RAINBOW’s AIS transponder was functioning. Although ALASKA RAINBOW had not changed her status from “at anchor” there was no evidence that that would cause her name not to be reported on AIS. That is unlikely since the AIS material in evidence showed ALASKA RAINBOW proceeding inbound towards Alfred Lock and described her “at anchor”. Mr. Russell suggested that the fact that WD MEDWAY II and KEEWHIT asked Mersey Radio to identify ALASKA RAINBOW suggested that ALASKA RAINBOW was not being reported on the AIS traffic list. In order to evaluate this submission it is necessary to note the terms in which each vessel asked for information. WD MEDWAY II asked “so who is it err….stemming the tide by Twelve Quays?” KEEWHIT asked “what we’ve got moving around in the south river at the moment?” The terms of these questions do not suggest that the vessels were checking the name of a vessel which they already knew. On the contrary they suggest that they were unaware of the name of the vessel whose echo they had seen. The questions do therefore suggest that ALASKA RAINBOW did not, for some reason, feature in the AIS traffic list. In these circumstances I am not persuaded that the name of ALASKA RAINBOW was in fact shown on the AIS traffic list but was not observed by Mr. Pirrie.[59]The second question is whether Mr. Pirrie ought to have heard information being given to KEEWHIT that ALASKA RAINBOW was stemming the tide off Albert lock. The first such message was at 1125. The second such message was at 1129 at about the time when the large radar echo had first been particularly observed. It was accepted by Mr. Russell that a good aural lookout ought to have been maintained on board SEA EXPRESS 1. KEEWHIT was on Mr. Pirrie’s list of traffic which had been given to him by Mersey Radio and was the vessel being followed in by SEA EXPRESS 1. Mr. Pirrie said that he was “attuned” to VHF calls mentioning SEA EXPRESS 1 and to transmissions concerning vessels on his traffic list. Whilst there would be, as Mr. Russell put it, “a large amount of VHF chatter, most of which will not be of the slightest relevance” Mr. Pirrie ought to have heard the calls from and to KEEWHIT since that vessel was one to which he was “attuned” and was the vessel on which he was seeking to keep station. Information received by her was likely to be of relevance to SEA EXPRESS 1 also. Had he heard the calls to KEEWHIT at 1125 and 1129, as the chief officer appears to have done, it is very likely that he would have concluded that there was a vessel stemming the tide off Alfred Lock. The master accepted that this was a vital piece of information which ought to have been picked up. He said “with hindsight” but in my judgment, having regard to the circumstance that SEA EXPRESS 1 was keeping station on KEEWHIT messages to KEEWHIT would clearly have been of relevance to SEA EXPRESS 1 and should have been listened out for.[60]The third question is whether the size of the echo ahead of SEA EXPRESS 1 was such that it ought to have caused Mr. Pirrie to doubt that it was produced by two tugs. Mr. Pirrie said that if there were two tugs in close company they would appear as one echo. He accepted that he did not appreciate at the time that on occasion the radar showed a small echo at each end of the radar echo (or an irregularity in the shape of the echo).[61]I therefore asked Captain Woodman the following question: Would the size of the radar echo cause a prudent navigator of ordinary skill and care to doubt that it was an echo from two tugs ?[62]He answered as follows: While it is possible that two tugs may be in such a position relative to each other and the observing vessel as to produce a single echo, it is inconceivable that this should remain so for long as their aspect changed over time and they moved towards, and then away from, the Seacombe Landing Stage, all the time closing the distance to SEA EXPRESS 1. There is no doubt in my mind whatsoever, that such a large echo, seen with occasional additional small echoes ahead and astern (i.e. the two tugs), came from a large vessel and should have been recognised as such by a prudent and attentive radar observer of ordinary skill.[63]I accept that advice and consider that Mr. Pirrie, had he been keeping a good radar lookout, ought to have appreciated that a large vessel was ahead in the river. The VDR records some discussion about the echo at 1130:28. Mr. Pirrie is recorded as saying “Could be the tugs? There’s two tugs there. SVITZER BIDSTON and THORNGARTH.” At 1130:38 the chief officer is recorded as saying “There’s somebody stemming the tide at Twelve Quays as well, the …..RAINBOW.” Thereafter, Mr. Pirrie and the master discussed the echoes of places ashore such as the Liverpool Landing Stage. It would appear that as a result of this discussion inadequate attention was given not only to the radar echo but also to the chief officer’s observation.[64]Had Mr. Pirrie been keeping a good aural and radar lookout he would have concluded that the echo ahead of SEA EXPRESS 1 was ALASKA RAINBOW which was reported to be stemming the tide off Alfred lock. I accept that Mersey Radio had not informed SEA EXPRESS 1 of the presence of ALASKA RAINBOW but I consider that notwithstanding that failure Mr. Pirrie ought to have appreciated the presence of ALASKA RAINBOW from his aural and radar lookout.[65]Mr. Pirrie kept the radar on sea-stabilised mode, with the auto-clutter on and on a range of 1.5 miles. It was suggested by Mr. Brenton that switching to ground stabilised mode, manual clutter and reducing the range would have provided a clearer radar picture. In view of the conclusions I have already reached as to Mr. Pirrie’s aural and radar lookout it is unnecessary to consider this further question but since it was the subject of argument I shall determine it.[66]I asked Captain Woodman these further questions and received the following answers: Was it in accordance with good seamanship to keep the radar on SEA EXPRESS 1(a) in sea stabilised mode ? No, it was not. Ground stabilisation in a narrow channel and in a strong tide would have provided a sharper radar picture and aided analysis.(b) with the clutter control on “auto” ? In confined waters with little wind to create sea-clutter, modern automatic clutter controls are usually effective. However, with the radar set on sea stabilisation, the operation of manual control might have had the effect of alerting the radar observer to the impending danger.(c) on the 1.5 mile range In the circumstances I consider operating the set on 1.5 mile range should have adequately revealed the approach of the ALASKA RAINBOW had an efficient radar watch been being kept. However, a reduction in range would have better assisted the analysis of the approaching echo and revealed its true composition (of three vessels). The failure to do this stems from the failure to keep a proper radar watch in the first place. If the answer to any of the above is no:a. what would have been in accordance with good seamanship ?b. what further or better information would have been available to those on the bridge of SEA EXPRESS 1 had different settings been applied ? a. It would have been good seamanship to have operated the radar on ground stabilisation and adjusted the range to interrogate any echo perceived to be posing a threat to the safe passage of the SEA EXPRESS 1. b. Carrying out such adjustments as outlined in (a) above would have produced a clearer radar picture and been commensurate with keeping a good radar watch in severely reduced visibility. Had this been done it is inconceivable that an efficient radar watch-keeper could have avoided observing the large radar echo on the SEA EXPRESS 1’s starboard bow. Was it in accordance with good seamanship to keep the radar on SEA EXPRESS 1

If the answer to any of the above is no:

[67]I accept this advice. The language used by Mr. Pirrie suggests that he was not sure the echo was from two tugs. At 1130 he said “Could be the tugs ?” and at 1133 in response to a question from the chief officer about a vessel “waiting at Twelve Quays” he replied “It’s a tug I think Laurie. There’s two tugs around there.” Mr. Pirrie accepted that this language suggested that he must have had some doubt in his mind. A prudent mariner, if unsure of a large echo ahead, would use such means as were available to get a clearer radar picture. Switching to ground stabilisation would give a clearer picture (as accepted by the master of SEA EXPRESS 1) and so would be likely to reveal a large vessel in tow of two tugs. I accept that the master had been “brought up” on sea stabilisation for anti-collision work and that Mr. Pirrie was very familiar with sea stabilisation in the Mersey but if Mr. Pirrie was not sure of the large echo ahead switching to ground stabilisation for a short period would give a clearer picture. The master accepted that there was a real benefit in using the radar in ground-stabilisation mode from time to time in that it would give a clearer picture of what was in the river. But, as I have already held, a good aural and radar lookout on sea stabilised radar would also have revealed the presence of ALASKA RAINBOW to Mr. Pirrie.[68]If Mr. Pirrie was unsure of what lay ahead he could also have enquired of Mersey Radio what lay ahead of him as had KEEWHIT.[69]For all these reasons I have reached the conclusion that the lookout on SEA EXPRESS 1 was defective. Those on board ought to have appreciated that the radar echo observed distant about 1.5 miles tracking in a north easterly direction across the river was a vessel under the tow of two tugs. It appears that the chief officer may have appreciated this and suggested the same to Mr. Pirrie but he did not take sufficient account of what she was telling him. Instead, he and the master concerned themselves with observing shore based locations by radar.[70]At 1128 (or C-10), when the echo of ALASKA RAINBOW could be observed, the speed of SEA EXPRESS 1 was increased from about 3 knots to about 6 knots. SEA EXPRESS 1 reached a speed of about 6 knots by 1129. Mr. Brenton submitted that this increase of speed was also a fault.[71]The circumstances in which the speed was increased were that there was dense fog and KEEWHIT was about 7 cables ahead of SEA EXPRESS 1. Although the echo of ALASKA RAINBOW was not specifically observed by SEA EXPRESS 1 until about 1129 (or C-9) the echo was there to be seen at 1128 about 8 cables ahead of KEEWHIT. It had been visible on the radar screen for over half a minute and appeared to be tracking in a north easterly direction. I asked Captain Woodman the following question: At 1128, that is about C-10, when SEA EXPRESS 1 was inbound to Liverpool Landing Stage in conditions of dense fog at a speed of about 3 knots through the water in a flood tide of about 3-4 knots and assuming that a large radar echo fine on the starboard bow distant about 1.5 miles was observed, was an increase of speed to about 6 knots safe and in accordance with good seamanship ?[72]He gave me the following answer: No, it was not in accordance with good seamanship for the SEA EXPRESS 1 to increase her speed at 1128. Given the strength of the flood tide and assuming that the large radar echo on the starboard bow had been observed, an increase of speed from 3 to 6 knots reduced the time available for the processes of analysis, decision-making and manoeuvring.[73]I accept this advice. Although the radar echo of SEA EXPRESS 1 was not observed until 1129 the echo was there to be seen and ought to have been seen particularly if an increase of speed was contemplated in conditions of dense fog. The master of SEA EXPRESS 1 gave evidence that the speed was increased because KEEWHIT was now 7 cables distant and that he wished to keep the distance at 5 cables. He added, when being cross-examined, that the increase was to improve steerage way. However, he said that keeping half a mile behind KEEWHIT was the main reason. Whilst increasing speed would improve steerage way SEA EXPRESS 1 had been proceeding at about 3 knots though the water since 1121 and returned to that speed at 1135 which suggests that an increase was not necessary to maintain steerage way. The master said that SEA EXPRESS 1 had been steering satisfactorily for a long period at 3-3.5 knots albeit only “just”. Mr. Pirrie accepted that steering at that speed had been satisfactory.[74]I asked Captain Woodman a supplementary question. Would your answer be different if speed had been increased for the purpose of maintaining station astern of KEEWHIT at a distance of 5 cables and/or to improve steerage way?[75]He answered: No. The SEA EXPRESS 1, though perhaps challenging to handle at 3 knots, does not appear to have been unmanageable at that speed. While it was perfectly proper to maintain a safe distance astern of KEEWHIT and to follow her up the fairway, the prudent mariner ought not to have ‘kept station’ on another vessel in these circumstances.[76]I accept this advice. I therefore find that SEA EXPRESS 1 was at fault in increasing her speed to about 6 knots through the water. Although speed was later reduced to about 3 knots at 1135 or C-3 (when KEEWHIT was again 5 cables ahead) the effect of the increase was to reduce the time available on board SEA EXPRESS 1 to observe ALASKA RAINBOW and monitor her track.[77]Between 1129 and 1134 Mr. Pirrie monitored the echo (without appreciating that it was that of a vessel under the tow of two tugs). At 1134, when the echo was distant about 6 cables and bearing 167 degrees (T), it was seen to be heading towards the west side of the river. Mr. Pirrie and Captain O’Toole concluded that the echo posed no threat of collision.[78]It is common ground that thereafter Mr. Pirrie did not monitor the echo of ALASKA RAINBOW. There is no dispute that he was at fault in failing to monitor the echo after 1134. Had he done so he could not have failed to observe that by 1136 the echo was again heading away from the west bank and across the river.[79]SEA EXPRESS 1 did not sound her fog signal until 1135 or C-3. She ought to have been sounding this before this when she was navigating in dense fog. However, since the signal at C-3 was not heard it is unlikely that an earlier sound signal would have been heard.[80]I asked Captain Woodman the following question: Had the echo been seen at 1136 or C-2 to be clearly tracking back towards mid river what action did good seamanship require ?[81]The answer was: Had the approaching threat on the starboard bow crabbing across the river not been seen before the late stage of 1136, or C-2, the most seamanlike action at this moment would have been to take all way off the SEA EXPRESS 1 and – bearing in mind she had the flood tide under her – have used full stern-power to gather stern- way over the ground.[82]The master accepted in cross-examination that he would have either gone astern or altered hard to port. In re-examination he said he would not have gone astern. I accept the advice of the Elder Brother that the most appropriate action would have been putting the engines astern. Plainly, recognition that the echo, whatever it was thought to be, was now heading back across the river would have required prompt action by SEA EXPRESS 1. Full astern engine action would have stopped SEA EXPRESS 1 from advancing towards ALASKA RAINBOW as she came across the river. Such action would probably have avoided a collision.[83]In summary, the faults of SEA EXPRESS 1 were: i) A failure to appreciate by means of a good radar and aural lookout that the echo observed was that of a vessel under tow of two tugs. ii) The decision to increase speed at 1128. iii) A failure to monitor the echo after 1134. iv) A failure to take avoiding action at 1136.

Apportionment

[84]Both vessels were at fault. Liability is to be apportioned in proportion to the degree in which each was in fault; see section 187(1) of the Merchant Shipping Act 1995. It is well established that such apportionment requires the weighing of the culpability and causative potency of the respective faults. Apportionment is not a matter of adding up the faults on each side. Apportionment is a qualitative not a quantitative exercise.

Culpability

[85]The failure of the master of ALASKA RAINBOW to return to anchorage at C-9 or C-8 was the result of a failure to appreciate the danger ALASKA RAINBOW presented to inbound vessels and in particular to KEEWHIT and SEA EXPRESS 1. The danger was caused by the circumstance that, contrary to her intentions and to what she had informed Mersey Radio, she was not stemming the tide but was snaking across the river. The failure to appreciate the danger she presented was particularly culpable having regard to the close distance at which she and WD MEDWAY II passed. Having decided to move back across the river to the west bank it was particularly incumbent upon the master and pilot to monitor the track of SEA EXPRESS 1 and inform SEA EXPRESS 1 of the difficulty ALASKA RAINBOW was in having failed to stem the tide. Neither step was taken. Finally, having turned back from the west bank, ALASKA RAINBOW failed to keep clear of the fairway after C-3. This was probably a result of the failure to monitor the track of SEA EXPRESS 1. I regard the culpability of such faults as serious. They were probably caused by the master having too relaxed an attitude to navigation and his duties (illustrated by the shrug of his shoulders in the witness box when asked why he had not sounded fog signals), which attitude was exacerbated by relying upon the pilot to such an extent that he did not exercise his own judgment.[86]Mr. Brenton submitted that the reasons for Mr. Pirrie’s failure on board SEA EXPRESS 1 to appreciate that the large radar echo was a vessel under tow rather than two tugs lay in the circumstance that the master, in assessing Mr. Pirrie for his type rating as master of SEA EXPRESS 1, had required him not only to have the “con” of the vessel but also to be responsible for keeping a good lookout. It was therefore said that the master failed to have sufficient regard to the advice from the owners of SEA EXPRESS 1 in their Route Operating Manual. That Manual provided as follows:
“Bridge Manning ………. For enhanced navigation (visibility restricted to less than three miles or during the hours of darkness) the Captain, Chief Officer, Chief Engineer and a lookout should be on the bridge. In any event the Captain shall ensure that the requirement specified in the Permit to Operate for a constant radar watch under theses circumstances is complied with. Unless he requires otherwise, the Captain should retain the con and delegate the radar watch and collision avoidance function to the Chief Officer. ……….. Pilotage ………. While in pilotage waters the bridge shall be fully manned for enhanced navigation. The Chief Engineer should be seated at the machinery Control Position, the Captain should have the con at the Steering Position and the Chief Officer should be at the Navigation Position. ……….. The Chief Officer shall provide pertinent navigational and anti-collision information to the Captain and assist with arrival and departure procedures as directed. …………”

Pilotage

[87]I asked the following questions of Captain Woodman. Was it in accordance with good bridge management practice for(a) responsibility for conning the ship, radar and aural lookout and collision avoidance to be given to the master under examination;(b) responsibility for steering and engine movements to be given to the chief officer; and(c) for the master to be observing and monitoring the master under examination ? If not, to whom should the responsibilities have been allocated in accordance with good bridge management practice ?

Was it in accordance with good bridge management practice for

[88]His answer was:(a) I am of the opinion that it was not in accordance with good bridge management practice to expect the master under examination to fulfil the functions of conning the vessel, collision avoidance and the maintenance of a radar-watch. This situation was exacerbated by the restricted visibility adding the burden of aural lookout. Under normal operating procedures these functions would have been shared by the master and chief officer and the reasoning for the master under examination to occupy the chief officer’s usual chair, relegating the chief officer to a subsidiary post of helmsman and engine controller under orders (albeit she occupied the ‘master’s chair’), suggested that the entire matter had not been properly thought through.(b) It therefore follows that in answer to (b), it was inadvisable for the chief officer to be used in this role which under-utilised her skills and deprived the bridge team of her best and most useful services.(c) Yes. However, I am of the opinion that by the time the SEA EXPRESS 1 had run into fog, the vessel’s master should have aborted the type-rating examination, retaining the master under examination as dedicated radar observer and made better use of the effective ‘extra’ officer he had at his disposal in the person of the chief officer. Good management practice should not have diverted from the Isle of Man Steam Packet Co’s Standing Operating Procedures which would have allowed the master under examination to assume the proper role of master at the con (with his own radar), with the chief officer in support maintaining a proper radar-watch from the starboard (‘the chief officer’s’) seat. The actual master could then have maintained a supervisory position immediately behind both positions fully able to monitor developments and to act accordingly as occasion demanded. However, since a different deployment of available talent had been decided upon it would have been in accordance with good seamanship for the master to have taken decisive and positive control of the bridge team at an early stage as they approached the fog and thereafter to have proceeded as outlined above.[89]I accept this advice which is in accordance with the Claimant’s standing orders. The vessel was in pilotage waters and therefore the master under examination ought to have had the con at the steering position (the master’s chair) and the chief officer ought to have been at the navigation position (the chief officer’s chair) providing navigational and anti-collision information. Whilst the standing orders provide that the master may require otherwise I am not persuaded that there was any reasonable basis for placing the master under examination in the chief officer’s chair from where he was not only to carry out the required constant radar watch but was also to con the vessel.[90]I consider that the root cause of Mr. Pirrie’s failures in lookout was not so much a lack of care on his part as the fact that he was required not only to con the vessel but also to be responsible for a good lookout. Since he was under examination and had failed to berth the vessel safely the previous day one would expect that Mr. Pirrie was doing all he could to navigate SEA EXPRESS 1 safely. It is very likely that his failure to keep a good lookout stemmed from the fact that in addition to keeping a lookout he was required to con the vessel. The master said that as master he normally conned the vessel in addition to keeping a good lookout and therefore Mr. Pirrie was doing no more than he would have to do as master. It may be the case that this was the master’s practice but if so it was a practice contrary to that which his Owners thought was good practice in pilotage waters and restricted visibility and contrary to the advice I have received as to good bridge management practice. The master also insisted that the duties on Mr. Pirrie were not too onerous because he had the assistance of the master. It is true that the master was monitoring what Mr. Pirrie was doing but Mr. Pirrie remained the person who was conning the vessel and keeping a good lookout. As events proved the burden placed on him was not alleviated by the master monitoring what he was doing. The master did not appreciate that ALASKA RAINBOW was ahead of SEA EXPRESS I and also did not continue to observe the echo of ALASKA RAINBOW after 1134. I therefore consider that the failure to appreciate the presence of ALASKA RAINBOW was seriously culpable because it was the result of poor bridge management.[91]Nevertheless, despite these strictures as to the bridge management of SEA EXPRESS it is not possible, in my judgment, to separate or differentiate the respective faults of ALASKA RAINBOW and SEA EXPRESS 1 in terms of culpability. They were both culpable to a high order.

Causative potency

[92]The dangerous situation which lay ahead of SEA EXPRESS 1 was created by ALASKA RAINBOW. Her inability to stem the tide, the initial cause of which was probably the counter current off the west bank, caused her to snake across the river. She could have brought that dangerous situation to an end by aborting the attempt to stem the tide and returning to her anchorage. Her failure to monitor the progress of SEA EXPRESS 1 and warn her of the danger ahead worsened that danger. In addition ALASKA RAINBOW failed to sound fog signals for a vessel under tow. Such a signal (four blasts in succession, that is, one prolonged followed by three short blasts) was likely to have woken up those on board SEA EXPRESS 1 to her presence. These faults were therefore of great causative potency. The failure to monitor the progress of SEA EXPRESS 1 also led to the failure of ALASKA RAINBOW to keep clear of the fairway at the last.[93]However, the bridge management of SEA EXPRESS 1 was ill-equipped to observe and react to that dangerous situation. As a result the presence of ALASKA RAINBOW was not appreciated until it was too late to take effective avoiding action. The faults of SEA EXPRESS 1 were therefore also of great causative potency.[94]As with culpability I am not able to separate the respective faults of ALASKA RAINBOW and SEA EXPRESS 1 in terms of causative potency.[95]It will often be the case that the vessel which creates the dangerous situation will bear a greater share of responsibility than the vessel which has to react to that situation. However, I am not persuaded that in the present case it is possible to establish different degrees of fault on that basis. That is because the fault in reaction on board SEA EXPRESS 1 was of great causative potency and was the result of poor lookout stemming from poor bridge management.[96]It follows that I have not found it possible to establish different degrees of fault and therefore liability for the damage must be apportioned equally; see section 187(2) of the Merchant Shipping Act 1995.

Conclusion

[97]I have concluded that responsibility for the collision must be divided equally between the two vessels.

Cited in 2 later judgments