Samco Europe, The Owners or Charterers of the Ship v MSC Prestige, The Owners or Charterers of the Ship [2011] EWHC 1580 (Admlty)

[2011] EWHC 1580 (Admlty)Case No 2009 FOLIO 1313
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/06/2011
Before
MR. JUSTICE TEARESitting with Captain Glass and Commodore Squire,Elder Brethren of Trinity House, as Assessors
Between
THE OWNERS AND/OR BAREBOAT CHARTERERS AND/OR SUB BAREBOAT CHARTERERS OF THE SHIP SAMCO EUROPEClaimantsTHE OWNERS OF THE SHIP MSC PRESTIGEDefendants
Nigel Jacobs QC (instructed by Ince & Co.) for ClaimantsJeremy Russell QC and Benjamin Coffer (instructed by Thomas Cooper) for DefendantsHearing Hearing dates: 11-13 April 2011
Judgment

Mr. Justice Teare:

[1]On 8 December 2007 at 0247 (local time, GMT plus 3) a collision occurred in the Gulf of Aden about 16 miles to the south-east of the southern entrance of the Bab El Mandeb traffic separation scheme between the Yemen and Djibouti coastlines at the entrance to the Red Sea and in good visibility of about 10 miles between the VLCC SAMCO EUROPE and the containership MSC PRESTIGE. As a result of the collision both vessels suffered considerable damage. The claim of SAMCO EUROPE has been estimated at US$34.5m. and the claim of MSC PRESTIGE has been estimated at US$16m. Each vessel claims that the other was primarily to blame for the collision.[2]Both vessels carried a Voyage Data Recorder (“VDR”) the data from which has been extensively analysed and agreed by the parties’ representatives. As a result there was no dispute as to the navigation of each vessel leading up to the collision, though there were disputes as to the reasons why certain steps in the navigation were taken and as to what was, or was not, seen visually. There were written statements in evidence from both officers of the watch and other members of the respective crews but neither party called the officer of the watch or any other person to give oral evidence.

The vessels

[3]SAMCO EUROPE is a double-hulled VLCC, 333m. in length, 60m. in beam and 160,882 grt. She has a sea speed of over 16 knots. SAMCO EUROPE’s navigation equipment included two ARPA radars, AIS, and an electronic chart display and information system (“ECDIS”).[4]SAMCO EUROPE was on a voyage from Lavan Island, Iran, to Rotterdam via the Suez Canal laden with 284,844 mts. of crude oil. At the time of the collision her officer of the watch was Second Officer, Mr. Ranjit Singh Dhillon. He received his Second Officer’s certificate in December 2006 and had previously served as Second Officer on another VLCC for about six months in 2007 before joining SAMCO EUROPE on 19 November 2007.[5]MSC PRESTIGE is a containership of 293m. in length and 40m. in beam and was built in 2006. She has a sea speed of over 26 knots. MSC PRESTIGE’s navigation equipment also included two ARPA radars, AIS and ECDIS.[6]MSC PRESTIGE was on a voyage from Jeddah to Port Louis, Mauritius laden with about 22,863 mts. of containerised general cargo. At the time of the collision her officer of the watch was the Second Officer, K.S. Kumar. He had obtained his Second Officer’s certificate in 1997 and had served as Second Officer since 2000. He had served as Second Officer on container ships between 2004 and 2006. He then studied for his First Officer’s certificate which he obtained in September 2007. He joined MSC PRESTIGE on 14 October 2007.

The navigation of SAMCO EUROPE

[7]SAMCO EUROPE was steering a course of 300 0 and making about 16.5 knots. Both radars were in the relative motion, north up, sea stabilised mode and on the 12 mile range. Since the radar was off-centred the range was in fact about 16-18 miles.[8]At about 0220 (or C-27) the echo of a vessel which proved to be MSC PRESTIGE was observed about 1 point on the port bow at about 16-17 miles. She appeared to be a south-east bound vessel. The Second Officer “acquired” the echo as a target when MSC PRESTIGE was about 12 miles distant. At C-16 the ARPA revealed the speed of MSC PRESTIGE to be about 24 knots. The Second Officer correctly assumed that she was a container vessel. MSC PRESTIGE was, according to the ARPA data, set to cross ahead of SAMCO EUROPE from port to starboard with a passing distance (“CPA”) of 4 cables.[9]At the same time there was a vessel (“Target No.2”) on the starboard quarter of SAMCO EUROPE also proceeding in a north westerly direction but at a slower speed than SAMCO EUROPE. There was also a vessel (“Target No.11”) on the starboard bow of SAMCO EUROPE proceeding in a north westerly direction at a faster speed than SAMCO EUROPE.[10]The VDR contains a recording of what was said on the bridge of SAMCO EUROPE from which it is apparent that the Second Officer observed the green sidelight of MSC PRESTIGE at about C-16. In his statement he said that he also saw her white masthead lights. She was bearing about one point on the port bow and distant about 10 miles.[11]SAMCO EUROPE maintained her course and speed.[12]The data from the ARPA indicated that MSC PRESTIGE had altered course by about 6 0 to starboard by about C-8. The Second Officer said in his statement that he observed a small alteration of a few degrees to starboard from the ARPA. He assumed that it was to increase the port-to-port passing distance with the north-west bound vessel on the starboard bow of SAMCO EUROPE.[13]The data from the ARPA continued to show that MSC PRESTIGE was shaping to cross ahead of SAMCO EUROPE. By C-7.5 the ARPA was indicating that she would pass SAMCO EUROPE on her starboard side at a distance of about two cables. The vessel on the starboard bow of SAMCO EUROPE was distant about 3.8 miles and proceeding at a faster speed than SAMCO EUROPE and the vessel on her starboard quarter was distant about 2.2 miles and proceeding at a slower speed than SAMCO EUROPE.[14]The Second Officer decided to alter course to port. He put the vessel into manual steering and ordered the helmsman to steer “port 10”. The VDR of SAMCO EUROPE records that from about C-7.5 until C-7 or a little later the heading of SAMCO EUROPE altered to about 295 0. He stated that his reason for doing so was “to increase the CPA”.[15]The Second Officer ordered “midships” and SAMCO EUROPE remained on 295 0 for about a minute after which the Second Officer once more ordered the helmsman to steer “port 10”. The heading of SAMCO EUROPE began to alter to port at about C-6. As a result of this alteration to port the bearing of MSC PRESTIGE from SAMCO EUROPE passed from the port bow to the starboard bow.[16]During this alteration to port SAMCO EUROPE was called by MSC PRESTIGE on VHF at about C-5. The following conversation took place:
“MSC P: Red to red please SE : Please repeat MSC P : We’ll pass red to red SE : Ah yes, I’ve already altered to Port. Thank you. MSC : Thank you.”
SE : Please repeat MSC P : We’ll pass red to red MSC : Thank you.”

MSC P : We’ll pass red to red

[17]After this conversation the Second Officer instructed the helmsman to “come to port 280”. By C-4 the heading of SAMCO EUROPE was about 285 0. By this time the ARPA was indicating to the Second Officer a passing distance of less than a cable, starboard to starboard.[18]The Second Officer said in his statement that it was at this time that he “watched in amazement” as the masthead lights of MSC PRESTIGE narrowed and he saw both side lights, having previously seen only the green sidelight. It is however common ground that the red side light opened at about C-5.5. Mr. Russell QC, counsel for MSC PRESTIGE, submitted that the Second Officer was not keeping any visual lookout but was concentrating on the ARPA radar and so had not seen the red light open at about C-5.5. Mr. Jacobs QC, counsel for SAMCO EUROPE said that the red light had been seen but that the Second Officer was mistaken as to precisely when he saw it open. I will return to this dispute when dealing with the issue of fault.[19]At about this time SAMCO EUROPE called MSC PRESTIGE by VHF. The following conversation took place:
“SC : MSC PRESTIGE, you’re not giving me any CPA, I’m altering to port. I’m still getting this just 1 cable. Are you altering ? MSC P : I’m going to starboard right now, starboard. SE : I’m altering to port, you’re coming to starboard, you’re coming towards me. MSC P : I told red to red. SE : For red to red you have to alter to port. MSC P : Yeah OK, I maintain my course, you go to port please.”
MSC P : Yeah OK, I maintain my course, you go to port please.”[20]The Second Officer accepts that he was in error in saying that for a red to red passing MSC PRESTIGE would need to go to port. He said that he was confused in the heat of the moment. Mr. Russell submitted that it was more than that and revealed the Second Officer’s incompetence. I will return to that submission when considering the issue of fault.[21]The heading of SAMCO EUROPE continued to alter to port. By C-3 it was about 278 0 and by C-2 it was about 271 0. At this time there was a further exchange on VHF. “MSC P : I am maintaining my course. SE : Copy that, I am still altering to port. If you can alter a bit to port.”[22]The Second Officer ordered hard to port and the VHF exchange continued. “SE : MSC PRESTIGE, MSC PRESTIGE, come in please. MSC P : MSC PRESTIGE SE : Er, yes. I’m still not getting any CPA. MSC P : Just give hard to port please. SE : I’ve given hard to port.” MSC P : MSC PRESTIGE SE : I’ve given hard to port.”

MSC P : MSC PRESTIGE

[23]The Second Officer called the Master to the bridge.[24]By C-1 the heading of SAMCO EUROPE had reached 264 0.[25]At collision her heading was about 230 0. The angle of collision between the starboard bow of SAMCO EUROPE and the port bow of MSC PRESTIGE was about 90 0.

The navigation of MSC PRESTIGE

[26]MSC PRESTIGE was steering a course of about 101 0 and making about 24 knots. Both radars were on north up display with a range of 6 miles. Since they were off-centred the range was in fact about 9 miles. However, from time to time the range on the S band radar was increased.[27]It is now agreed that at about C-23 the echo of SAMCO EUROPE was acquired and that it is likely that this was acquired manually by the Second Officer. At this time the vessels must have been some 14 miles apart so that it would appear that at this time the range of the S band radar had been increased. This radar observation was not mentioned in the Defendants’ Collision Statement of Case, Part 1 (the successor to the Preliminary Act), but I gave leave for the Defendants to lead evidence about it because the detection of the radar observation had been made in a joint “re-interrogation” of the ECDIS data of MSC PRESTIGE which was conducted by legal and technical representatives of both parties shortly before the trial.[28]However, the evidence of the Second Officer was that the echo of SAMCO EUROPE was first observed distant about 9 miles, bearing about 112 0. The fact that the Second Officer, in a statement taken on 17-19 December 2007, that is less than two weeks after the collision, made no mention of any particular observation before the vessels were 9 miles apart strongly suggests that there was no active monitoring of the radar echo of SAMCO EUROPE before then. Mr. Russell suggested that this was probably because the Second Officer refreshed his memory by looking at the VDR which was linked to the X band radar whereas the ECDIS was linked to the S band radar. However, had the echo of SAMCO EUROPE been actively monitored before she was 9 miles distant the Second Officer is likely to have said so in his statement. I was therefore not persuaded that the Second Officer had given particular attention to the radar echo of SAMCO EUROPE any earlier than the time mentioned in his statement. I therefore find that the first particular radar observation of SAMCO EUROPE was as stated by the Second Officer. That was at about C-14. The echo was about a point on the starboard bow of MSC PRESTIGE distant about 9 miles.[29]The Second Officer observed another vessel (target 24) fine on the port bow distant about 6 miles proceeding in a north westerly direction.[30]MSC PRESTIGE’s VDR records that at about C-11 the heading of the vessel altered to starboard. Over a period of about 1.5 minutes (until about C-9.5) the heading altered to about 107 0. That heading was maintained for about 2.5 minutes.[31]The reason for this alteration of heading was the subject of detailed submissions by Mr. Jacobs. I will return to them when considering the question of fault. At this juncture it is sufficient to note that after the first alteration of heading by 6 0 to starboard SAMCO EUROPE must have remained on the starboard bow of MSC PRESTIGE.[32]The Second Officer recalled observing the masthead lights and red sidelight of SAMCO EUROPE when she was distant about 6 miles bearing about 112 0. According to the VDR this was at about C-9.[33]The Second Officer then instructed the helmsman to steer manually at about C-7 and thereafter to apply starboard helm. The heading of MSC PRESTIGE began to alter from 107 0. By C-6she was heading about 109 0 and by C-5 she was heading about 117 0.[34]In MSC PRESTIGE’s Collision Statement of Case, Part 1 (the successor to the Preliminary Act), it is stated in answer to question 12 that no other lights (in addition to the two white masthead lights and red sidelight) were seen. That is an admission that the green light was not seen. Mr. Russell nevertheless submitted that the Second Officer probably saw the green light open before C-5. This submission is based on statements made by the Second Officer to the helmsman (and recorded on the VDR) a little after C-7 (“Wait, wait, wait. This fellow is ……..”) and between C-6 and C-5 (“What is he doing ?”) It is further said that the Second Officer would not have initiated the VHF conversation had he not seen the green light. Mr. Russell did not seek leave to adduce evidence contrary to the answer to question 12 in Part 1 of the Collision Statement of Case. In any event in circumstances where there is no evidence from the Second Officer that he saw the green light, where it is admitted in Part 1 of the Statement of case that no such observation was made, where a full transcript of what was said is not available (some parts are said to be inaudible) and where, after the VHF conversation, the Second Officer asked the helmsman “Is he altering to port ? Fucking shit” (which suggests that he had not seen the green light of SAMCO EUROPE before the VHF conversation) I do not consider that it is appropriate to interpret the transcript references as meaning that the green light was seen.[35]At C-5 the Second Officer called SAMCO EUROPE by VHF and the conversations which I have already recorded took place. It is apparent from that conversation that the Second Officer was intending to pass SAMCO EUROPE port to port.[36]At C-4 the heading of MSC PRESTIGE had reached about 121 0 and by C-3.5 it was about 125 0. As a result of the VHF conversations and as stated in them the course of MSC PRESTIGE was then maintained but shortly before collision hard starboard helm was ordered.[37]At collision the heading of MSC PRESTIGE was swinging to starboard and, if the angle of blow was about 90 0, must have been about 140 0, although the VDR suggests the vessel had swung further to starboard.

Fault of MSC PRESTIGE

[38]Mr. Jacobs submitted that the Second Officer on MSC PRESTIGE failed to keep a good radar and visual lookout.[39]It is common ground that visibility was about 10 miles and yet the Second Officer did not actively monitor the radar echo of SAMCO EUROPE until the vessels were about 9 miles apart at C-14 and did not see her lights until the vessels were about 6 miles apart at C-9. In circumstances where MSC PRESTIGE was proceeding at 24 knots he ought to have been actively monitoring the echo of SAMCO EUROPE long before C-14 and ought to have seen her visually by then. It is an inevitable conclusion from his failure to do so that he was not keeping a good radar and visual lookout.[40]Before seeing SAMCO EUROPE visually MSC PRESTIGE had altered her course a little to starboard between C-11 and C-9.5. As I have already observed SAMCO EUROPE remained on the starboard bow of MSC PRESTIGE notwithstanding this alteration by MSC PRESTIGE to starboard. This strongly suggests that the alteration to starboard at C-11 was not ordered so as to pass SAMCO EUROPE port to port. It is much more likely that it was ordered so as to pass safely port to port the other vessel (target 24) which, at about C-14, was fine on the port bow of MSC PRESTIGE distant about 6 miles proceeding in a north westerly direction. That is also what the Second Officer of SAMCO EUROPE thought that MSC PRESTIGE was doing.[41]Mr. Jacobs submitted that the intention of the Second Officer was to “bisect”, that is, to steer a course between SAMCO EUROPE and another vessel (target 16) which was the vessel on the starboard quarter of SAMCO EUROPE. Mr. Jacobs placed much reliance on the use of the word “straight” by the Second Officer between C-10 and C-9. He suggested that this was an order to the helmsman to steer “straight” between the two vessels.[42]Had this been the Second Officer’s intention the intended passing distances would have been less than a cable on either side. This would be a remarkable intention for the Second Officer of a container vessel proceeding at 24 knots. I find it so remarkable that I am unable to attribute it to him. Too much weight is placed by Mr. Jacobs on the single word “straight” in circumstances where not all of the conversation has been transcribed.[43]It is much more likely that the Second Officer took navigational decisions with regard to the vessels ahead of him in turn. First, he altered course to starboard in order to increase the passing distance between MSC PRESTIGE and target 24. Second, having done so between C-11 and C-9.5, he turned his attention to SAMCO EUROPE and observed her visually at about C-9. He then ordered the helmsman to put the vessel into manual steering and to alter the vessel’s course to starboard. His intention was to pass SAMCO EUROPE (and therefore target 16) port to port. The Second Officer said that “in accordance with the Rule of the Road I started altering to starboard for SAMCO EUROPE and the vessel that was right ahead.” This is a somewhat compressed comment. He did alter course to starboard for both vessels but he did so consecutively, not simultaneously.[44]However, MSC PRESTIGE’s duty as the give way vessel was to take early and substantial action to keep out of her way. Mr. Jacobs submitted that MSC PRESTIGE failed to do so. Mr. Russell, after initially conceding that MSC PRESTIGE had failed to take early and substantial action to keep out of the way of SAMCO EUROPE, submitted that MSC PRESTIGE had taken timely action but conceded that it was not substantial. I therefore asked the Elder Brethren the following question:
“Assuming the vessels were in sight of one another at about C-15 when about 10 miles distant from each other and that MSC PRESTIGE, proceeding at about 24 knots, was the give way vessel, when did good seamanship require her to take action pursuant to Rules 15 and 16 and what action did those Rules and good seamanship require ?”
[45]The Elder Brethren answered as follows:
“In accordance with the Rules and good seamanship MSC PRESTIGE should have altered course to starboard at about C-12 (23:35:00) when SAMCO EUROPE was one point on his starboard bow at 8.1 miles. The alteration of course to starboard (early and substantial) should have been at least 20 degrees in order to show a broad “red” aspect.”
[46]The Owners of MSC PRESTIGE, in a note commenting upon the Advice of the Elder Brethren sent to me (but not, I apprehend, drafted) by their counsel, have urged me not to accept this advice. I received this Note having given the parties an opportunity to comment on the advice of the Elder Brethren pursuant to the guidance of the Court of Appeal in The Bow Spring and The Manzanillo II [2005] 1 Lloyd’s Reports 1 and in order to make the procedure of consulting the Elder Brethren compliant with Art.6 of the Convention on Human Rights. The Owners of MSC PRESTIGE made four comments in total. I have considered each of them but have only considered it necessary to deal expressly in the judgment with one of them. The subject matter of the other comments is already covered by other parts of the judgment. They say that an alteration of 20 0 would be “quite excessive” and would put undue stress on the container lashings and would risk overloading the engine. They say that for this reason junior officers are advised to alter course “gently”. However, Rule 16 of the Collision Regulations requires the give-way vessel to take substantial action to keep well clear of the stand-on vessel. I accept the advice of the Elder Brethren that an alteration of course to starboard of at least 20 0 was the appropriate substantial action required of MSC PRESTIGE. Such an alteration of course can be achieved quickly and smoothly by applying a limited amount of helm. It is unlikely that such an alteration of course would unduly stress the container lashings or overload the engine and there was no evidence that it would. If there was a risk that it might then that calls into question the seaworthiness of the vessel.[47]The helm of MSC PRESTIGE was first put to starboard at about C-11 when the distance between the vessels was over 7 miles. However, it was only an alteration of 6 0 and MSC PRESTIGE then steadied on a heading of 107 0 for about 2.5 minutes. As a result of this action SAMCO EUROPE remained on the starboard bow of MSC PRESTIGE. This action was not action to keep clear of SAMCO EUROPE but in any event, with whatever intention it was executed, it did not comply with MSC PRESTIGE’s duty as the give way vessel.[48]Starboard helm action was taken with reference to SAMCO EUROPE at about C-6.5 when the vessels were about 4 miles distant. This action, though better than nothing, was too late to comply with the Rules and good seamanship.[49]MSC PRESTIGE was thus at fault in failing to comply with Rules 15 and 16. It is likely that this fault was caused by the failure of the Second Officer to keep a good radar and visual lookout on SAMCO EUROPE whilst taking action with reference to “target 24”.[50]Rule 34(a) requires vessels when in sight of one another to indicate alterations of course by sound signals. Rule 34(b) provides that vessels may supplement their sound signals by light signals; one flash to mean “I am altering my course to starboard and two flashes to mean “I am altering my course to port.” Neither sound nor light signals were sounded by MSC PRESTIGE when her course was altered to starboard. Since the vessels were about 4 miles apart when MSC PRESTIGE altered to starboard to keep out of the way of SAMCO EUROPE a sound signal could not be expected to be heard (because Annex III to the Collision Regulations requires sound signals to be audible over a distance of 2 miles) the liberty to supplement sound signals by light signals ought to have been exercised.[51]It is common ground that by about C-5.5 the Second Officer ought to have observed the green light of SAMCO EUROPE open which would indicate that she was turning to port. I have held that he did not see the green light, as was admitted by MSC PRESTIGE in her Statement of case, Part 1. At C-5.5 the vessels were still over 3 miles apart. MSC PRESTIGE was turning to starboard. Mr. Jacobs submitted that the helm of MSC PRESTIGE ought to have been put hard to starboard. I therefore asked the Elder Brethren the following question:
“Assuming that MSC PRESTIGE, having put her helm to starboard at about C-6.5 and therefore in the course of turning to starboard from about 107 0, saw the green light of SAMCO EUROPE open at about C-5.5 thereby indicating that she was turning to port what action did Rules and 15 and 16 and/or good seamanship require of MSC PRESTIGE ? ”
[52]The Elder Brethren advised as follows. “As soon as it was clear that SAMCO EUROPE was altering course to port, at about C-5.5, the MSC PRESTIGE should have immediately increased her alteration to hard-a-starboard and prepared to take a round turn to starboard – reducing speed as necessary.”[53]I accept that advice.[54]Instead of putting the helm of MSC PRESTIGE hard to starboard the Second Officer decided to call SAMCO EUROPE by VHF. The failure to put the helm hard to starboard was a further fault.[55]There was disagreement between counsel as to whether the use of VHF was inappropriate. Whilst the Lloyd’s Reports contain many warnings as to the dangers of VHF conversations the most authoritative guidance as to the appropriateness of VHF conversations is now to be found in The Mineral Dampier [2001] 2 Lloyd’s Reports 419 at paragraphs 36-38. Whilst VHF must not be used to agree on a course of navigation which would conflict with the Collision Regulations there may be circumstances where VHF conversations can be useful as an exchange of information. For example it may be helpful for the give way vessel to inform the stand on vessel of action being taken to comply with the Collision Regulations. However, as explained in The Mineral Dampier at paragraph 39, the direct cause of a collision is the navigational action or inaction which conflicts with the Collision Regulations. Misuse of VHF is relevant when determining the extent to which that action or inaction was blameworthy. I will therefore deal with the question whether the use of VHF was inappropriate or not when comparing the blameworthiness of both vessels’ faults.[56]As a result of the second VHF conversation MSC PRESTIGE decided to maintain her course between C-3.5 and sometime before C-1.[57]Mr. Jacobs submitted that MSC PRESTIGE was under a continuing duty to keep out of the way of SAMCO EUROPE and could and should have applied hard starboard helm by about C-3.5. I therefore asked the Elder Brethren the following question:
“Assuming the MSC PRESTIGE had turned to about 117 0 by about C-5, to about 121 0 by about C-4 and to about 125 0 by about C-3.5 what action did Rules 15 and 16 and/or good seamanship require by about C-3.5 ?”
[58]The Elder Brethren advised as follows:
“Rules 15 and 16 and good seamanship required the MSC PRESTIGE to: 1. Call the Master 2. Put helm hard to starboard and take a round turn 3. Make an emergency reduction in speed.”
[59]I accept that advice. Thus MSC PRESTIGE’s failure to apply hard starboard helm continued until about C-3.5.[60]When, sometime before C-1, MSC PRESTIGE applied hard starboard helm it was too late to avoid collision.[61]In summary, the faults of MSC PRESTIGE were as follows: i) She failed to keep a good radar and visual lookout. ii) She failed to take early and substantial action to keep out of the way of SAMCO EUROPE by making a substantial turn to starboard at about C-12. iii) She failed to announce that she was altering to starboard at C-6.5 by appropriate sound and light signals. iv) She failed to observe at C-5.5 that SAMCO EUROPE was altering course to port and failed to apply hard starboard helm either then or at any time before about C-3.5

Fault of SAMCO EUROPE

[62]Mr. Russell submitted that SAMCO EUROPE’s duty pursuant to Rule 17 of the Collision Regulations required her to maintain her course and speed and that she was not entitled at C-7.5 to alter her course.

(a) (ii) of the Collision Regulations provides as follows:

“The latter 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.”
[63]Mr. Russell submitted that whether “it became apparent to her” is a subjective test dependent upon what the particular officer of the watch did or did not appreciate. I am unable to accept that submission. Questions of navigational fault are assessed objectively by reference to what the prudent mariner, following the Collision Regulations and the dictates of good seamanship, would or would not do. Thus a vessel will be required to exercise the liberty to alter course and speed provided by Rule 17(a)(ii) when good seamanship so requires; see The Koscierzyna [1996] 2 Lloyd’s Reports 124 at p.129 per Sir Thomas Bingham MR. I respectfully agree with Gross J. in The Topaz [2003] 2 Lloyd’s Reports 19 at para.50 that the test is objective.[64]I therefore asked the Elder Brethren the following question:
“When SAMCO EUROPE altered course at about C-7.5 would it have been apparent to the officer of the watch on SAMCO EUROPE, assuming that he was keeping a good visual and radar lookout, that MSC PRESTIGE was not taking appropriate action in accordance with the Rules 15 and 16 ?”
[65]The Elder Brethren advised me as follows:
“At about C-7.5 it would have appeared to the officer of the watch of SAMCO EUROPE that MSC PRESTIGE was not taking appropriate action in accordance with Rules 15 and 16.”
[66]I accept that advice. It therefore follows that SAMCO EUROPE was entitled to alter course at C-7.5. However, Rule 17(c) provides that the stand on vessel “shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.”[67]It was not suggested on behalf SAMCO EUROPE that she was unable to alter course to starboard by reason of the vessels on her starboard bow and starboard quarter. Mr. Jacobs was correct, in my judgment, not to make that suggestion. SAMCO EUROPE was proceeding at a slower speed than the vessel on her starboard bow and at a faster speed than the vessel on her starboard quarter. However, Mr. Jacobs submitted that it was “counter-intuitive” to alter course to starboard given that there was traffic to starboard. The Second Officer’s own explanation for altering to port was that MSC PRESTIGE, although she had altered her course to starboard, was still shaping to cross ahead and pass starboard to starboard at close quarters and that he wished to increase the “CPA”. I therefore asked the Elder Brethren the following question:
“What action did good seamanship require of SAMCO EUROPE at that time (C-7.5) bearing in mind (a) that MSC PRESTIGE appeared by ARPA to be heading so as to cross ahead of SAMCO EUROPE and pass green to green at a distance of about 2 cables and (b) there was a vessel on the starboard bow distant about 3.8 miles and proceeding at a faster speed than SAMCO EUROPE and a vessel on the starboard quarter of SAMCO EUROPE distant about 2.2 miles and proceeding at a slower speed than SAMCO EUROPE?”
[68]The Elder Brethren advised me as follows:
“At about C-7.5 the officer of the watch of SAMCO EUROPE should have 1. Called the Master 2. Gone hard-a-starboard and made a bold alteration of course to starboard – by at least 20 degrees – crossing ahead of the vessel on the starboard quarter, and clear ahead of MSC PRESTIGE.”
[69]I accept that advice. I therefore find that the Second Officer was at fault in altering the course of SAMCO EUROPE to port at C-7.5. The Second Officer made a further alteration to port at C-6 and shortly after C-5 ordered the helmsman to come to 280 0.[70]The Second Officer failed to indicate that SAMCO EUROPE was turning to port by either sound or light signals.[71]Mr. Russell submitted that the Second Officer of SAMCO EUROPE failed to keep a good visual lookout because he concentrated on the ARPA to the exclusion of looking out through the bridge window. I am not satisfied that he failed to keep any visual lookout because the VDR records him at C-16 referring the helmsman to the starboard light of MSC PRESTIGE. However, there is evidence that the Second Officer was, at a later stage, basing his navigational decisions upon what the ARPA indicated to him rather than on what he could see through the bridge window. Thus his statement describes the reason for altering course to port at C-7.5 as being to “increase the CPA”. After the VHF conversation at C-5 he said to the helmsman:
“Bastard son of a bitch, now he’s telling me, when the TCPA is 4 minutes.”
The most striking evidence in this regard is his complaint made in the VHF conversation at C-4 that MSC PRESTIGE was not giving him “any CPA”. These references to data observable from the ARPA paint a clear picture of the Second Officer concentrating on the ARPA rather than on visual observation through the bridge window.[72]In his statement, which was taken on 15 December 2007 the Second Officer said that both sidelights of MSC PRESTIGE were visible after he had instructed the helmsman to steer 280 0. This was at just before C-4. It cannot be right however that the red sidelight only became visible at this time. It is common ground that the red sidelight would have opened at about C-5.5. It would appear that the Second Officer noticed that the lights had changed more than a minute after they had done so. He observed to the helmsman:
“Look at this, he’s altering towards me.”
Mr. Jacobs submitted that in this respect the Second Officer’s evidence was simply a misrecollection of the time when the red sidelight opened. Mr. Russell submitted that it was the product of a failure to keep a good visual lookout. I have not had the benefit of seeing the Second Officer cross-examined. But on the evidence before the court it is more likely than not, in my judgment, that the explanation for the erroneous evidence is that the Second Officer was not at this time, for the reasons already given, keeping a good visual lookout. Had he been observing the lights of MSC PRESTIGE and seen the red light open at about C-5-5 he would have known then that MSC PRESTIGE was altering to starboard and it is unlikely that he would have said after the VHF conversation at C-5:
“.…now he’s telling me….”
Similarly, the timing of the observation to the helmsman - “Look at this, he’s altering towards me” – suggests that the changed aspect of the lights was not observed promptly.[73]The extensive navigational aids now available to mariners are capable of providing much information but safe navigation also requires the navigating officer to keep a good visual lookout. Rule 5 requires a proper lookout to be maintained “by all available means appropriate in the prevailing circumstances so as to make a full appraisal of the situation and of the risk of collision.” A good visual lookout is necessary, notwithstanding the assistance of ARPA, because ARPA takes time to calculate the information it provides and therefore the information is, to an appreciable extent, historic. This was common ground. In the Claimants’ ARPA instruction manual it was stated that it may take three minutes or more to establish an accurate vector. In the present case a good visual lookout would have informed the Second Officer at about C-5.5 that MSC PRESTIGE was altering to starboard.[74]I therefore asked the Elder Brethren the following question:
“Assuming that SAMCO EUROPE, having put her helm to port at about C-6 and therefore in the course of turning to port from about 295 0, saw the red light of MSC PRESTIGE open at about C-5.5 thereby indicating that she was turning to starboard, what action did good seamanship require of SAMCO EUROPE ?”
[75]The Elder Brethren advised me as follows:
“At C-6, in the process of turning slowly to port, SAMCO EUROPE seeing the red light of MSC PRESTIGE should have: 1. Called the Master 2. Immediately ceased turning to port 3. Put the helm hard-to-starboard, to show a clear “red” to MSC PRESTIGE, and steadied at least 20 degrees to starboard, watching the bearing of the slower vessel on the starboard quarter as SAMCO EUROPE crossed ahead of this vessel at a safe distance.”
[76]I accept that advice. I therefore find that SAMCO EUROPE was also at fault in continuing to turn to port at about C-5.5 rather than applying starboard helm.[77]Mr. Russell submitted that the Second Officer was incompetent in that he lacked the most basic appreciation of the action required of SAMCO EUROPE and the vessels around her. He relied upon certain remarks of the Second Officer recorded on the VDR.[78]Incompetence is not a separate fault but may be the cause of a fault and may make a fault more blameworthy than would otherwise be the case. I shall therefore deal with this submission when comparing the blameworthiness of the vessel’s respective faults.[79]In summary the faults of SAMCO EUROPE were as follows: i) She altered course to port at C-7.5 when she ought to have altered course to starboard. ii) She failed to announce her alteration to port by appropriate sound and light signals. iii) She failed to keep a good visual lookout and so failed to apply hard starboard helm at C-5.5 when a good visual lookout would have revealed that MSC PRESTIGE was altering course to starboard.

Apportionment

[80]In MIOM 1 Limited and the Isle of Man Steam Packet Company v Sea Echo ENE [2010] EWHC 3180 (Admlty) at paragraph 84 I summarised the court’s task when apportioning liability as follows:
“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. ”
[81]Apportionment of responsibility for a collision depends upon an assessment of the blameworthiness and causative potency of both vessels; see The British Aviator [1965] 1 Lloyd’s Reports 271 at p.277 per Willmer LJ. The assessment is of the relative degree of responsibility of each vessel; see TheMineral Dampier [2001] 2 Lloyd’s Reports 419 at para.39. For that reason Admiralty judges often consider, where one ship is more to blame than the other, how many more times to blame one vessel is than the other; see, for example, The Angelic Spirit [1994] 2 Lloyd’s Reports 595 at p.608 per Clarke J. and The Mineral Dampier at paragraph 52 per Lord Phillips MR.[82]Mr. Russell detected in Mr. Jacobs’ submissions what he said was an echo of a submission made in The Savina [1975] 2 Lloyd’s Reports 141 to the effect that the duty of the give way ship was a higher duty than the duty of the stand on vessel and should therefore attract the greater measure of blame. That proposition was rejected by Sir David Cairns in the Court of Appeal at p.145: “ [The appellants’] contention that as a matter of law there was a higher duty on the give-way ship to keep out of the way of the stand-on ship than there was on the part of the stand-on ship to maintain course and speed. No authority was cited for this proposition ad we do not accept it. In any particular case the need for the give-way ship to take helm or engine action may assume greater or less importance than the need for the stand-on ship not to embarrass the give-way ship by alteration of course or speed. Neither obedience to rr.19,22 and 23 nor obedience to r.21 can be said as a matter of law to be paramount.” [Rules 19, 22 and 23 of the 1960 Regulations correspond to Rules 15, 17 and 16 of the 1972 Regulations respectively.][83]However, I did not understand Mr. Jacobs to challenge that statement of principle. Rather, he submitted that on the facts of this case, where vessels were crossing a closing speed of 40 knots and the give-way ship failed to take substantial action at any stage to keep well clear of the stand on vessel, the give-way ship ought to attract the preponderance of blame because it had created the situation of danger from which the stand-on ship failed successfully to extricate itself.[84]It seems to me that it is right in principle to consider which vessel has created the situation of danger for that will assist in determining the relative causative potency of the each vessel’s fault. In MIOM 1 Limited and the Isle of Man Steam Packet Company v Sea Echo ENE [2010] EWHC 3180 (Admlty) at paragraph 95 I said:
“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.”
[85]However, the fair and just apportionment in any case will ultimately depend upon an assessment of the relative causative potency and blameworthiness of the faults of each vessel taking into account all the circumstances of the case. In some cases the stand-on vessel may properly be held to bear a greater responsibility for a collision than the give way vessel; see for example The Estrella [1977] 1Lloyd’s Reports 141.

Causative potency

[86]In the present case MSC PRESTIGE ought to have made a substantial alteration to starboard at about C-12 when the vessels were about 8 miles apart. Had she done so the vessels would have been likely to pass port to port at a distance of about 1 mile which, as Mr. Russell accepted in argument, would have been a safe passing distance. Instead, the alterations of course to starboard in fact made by MSC PRESTIGE at C-11 and C-6.5 would have resulted in the vessels passing at a distance of about or little less than half a mile, assuming that SAMCO EUROPE had maintained her course and speed. For a laden VLCC and a container ship closing at a combined speed of 40 knots that would not have been a safe passing distance[87]However, when SAMCO EUROPE chose to take action, as she was entitled to pursuant to Rule 17(a)(ii), she made matters worse by altering course to port towards a vessel on her port bow.[88]At about C-5.5 when the vessels were about 3.5 miles apart both vessels had an opportunity to avoid a dangerous close quarters situation developing. Each ought to have observed the opening and closing of the other’s side lights and applied hard starboard helm. Neither vessel observed the opening and closing of the other’s lights at that time and neither took the correct action to avoid a dangerous close quarters situation either then or later. SAMCO EUROPE continued turning to port and MSC PRESTIGE, although turning to starboard, failed to apply hard starboard helm. She then maintained her course before, at the last, altering hard to starboard.[89]The dangerous close quarters situation which resulted was therefore not the fault of the give-way vessel alone but was brought about by the faults of both vessels. I nevertheless consider that the causative potency of MSC PRESTIGE’s initial fault was the greater because it resulted in her appearing on SAMCO EUROPE’s ARPA to be shaping to cross ahead of SAMCO EUROPE and so led to SAMCO EUROPE’s alteration to port “to increase the CPA”. An early and substantial turn to starboard by MSC PRESTIGE would have resulted in her shaping to pass port to port. In those circumstances it is unlikely that SAMCO EUROPE would have altered course to port.[90]Mr. Russell submitted that as a result of the alterations to starboard by MSC PRESTIGE at C-11 and C-6.5 there would have been no collision had SAMCO EUROPE maintained her course and that it was SAMCO EUROPE’s alterations to port which led to a collision which would otherwise not have occurred. He therefore submitted that SAMCO EUROPE was primarily to blame for the collision. I have not accepted that submission. It is true that there would have been no collision had SAMCO EUROPE maintained her course. But MSC PRESTIGE’s failure to take early and substantial action to keep out of the way of SAMCO EUROPE led to SAMCO EUROPE’s erroneous decision to alter course to port.[91]The failures by both vessels to indicate their course alterations by sound and light signals in accordance with Rule 34 were probably not causative. The course alterations were made when the vessels were more than 2 miles apart and so sound signals were unlikely to be heard. Since neither vessel saw the other’s sidelights change at C-5.5 it is unlikely that they would have seen any light signals.

Culpability

[92]The blameworthiness of MSC PRESTIGE’s faults was high. When the vessels were 8 miles apart at C-12 the Second Officer had had plenty of time to think what action to take with regard to SAMCO EUROPE yet he failed to make a substantial alteration to starboard which was the obvious action required of MSC PRESTIGE. Instead, MSC PRESTIGE made an insubstantial turn to starboard at about C-11 followed by a more substantial but late turn at C-6.5 when the vessels were about 4 miles apart. Thereafter, a good visual lookout would have revealed at about C-5.5 that SAMCO EUROPE was altering course to port. The vessels were still over 3.5 miles apart and the helm of MSC ought to have been put hard to starboard. As it happened the Second Officer learnt during the VHF conversation at about C-5 when the vessels were about 3 miles apart that SAMCO EUROPE was altering to port but he did not order hard starboard helm. It is not known why the Second Officer was reluctant to do that. Mr. Jacobs suggested that the Second Officer was anxious to divert from his intended course line to the least extent possible so as to keep to the loss of time to a minimum. This is possible but is speculation. The Second Officer’s fault thereafter in maintaining his course from about C-4 until C-1 was less blameworthy because there was now less time to think what to do and there was a sense of panic, induced in part by the broadcast confusion in the mind of the Second Officer of SAMCO EUROPE that a port to port passing required MSC PRESTIGE to go to port.[93]The blameworthiness of SAMCO EUROPE’s fault in going to port at C-7.5 when the vessels were 5 miles apart was also high. The Second Officer had had time to think what to do. However, he was confronted with a situation in which it appeared from his ARPA that MSC PRESTIGE was shaping to cross ahead and to pass at an unsafe distance starboard to starboard. This led him to take the wrong action (though active regard to Rule 17(c) ought to have dissuaded him from altering course to port). For this reason his fault in going to port was not as culpable as the fault of MSC PRETIGE in failing to take and early and substantial action to keep out of the way of SAMCO EUROPE. Thereafter, like the Second Officer on MSC PRESTIGE, he failed to keep a good visual lookout and failed to observe the red light of MSC PRESTIGE open. Had he seen the red light open he ought to have applied hard starboard helm. His failure to apply starboard helm was, I think, more culpable than the failure of MSC PRESTIGE to apply hard starboard helm at the same time because MSC PRESTIGE was at least altering course to starboard. SAMCO EUROPE continued to turn to port until collision. This was the result of her fault in going to port at C-7.5 and C-6 and her failure to keep a good visual lookout at about C-5.5 rather than being a further or independent fault.[94]Overall, I consider that blameworthiness of MSC PRESTIGE was greater than that of SAMCO EUROPE. MSC PRESTIGE’s greater culpability in the early stages was not eliminated by SAMCO EUROPE’s greater culpability at C-5.5 but was reduced by it.[95]Incompetence: Mr. Russell submitted that the faults of SAMCO EUROPE stemmed from the inability of her Second Officer to tell port from starboard. He relied not only upon the Second Officer’s admitted mistake at C-4 in saying that for a red to red passing MSC PRESTIGE had to alter to port but also on what Mr. Russell said were further illustrations of the Second Officer’s inability to tell port from starboard, in particular at C-16 where it appears that he may have referred to a vessel on his starboard bow as being on his port bow and to his comment at C-5 when, after being informed that the vessels would pass red to red, he replied that he had already altered to port. The Second Officer’s remarks are certainly open to the interpretation urged upon me by Mr. Russell but had the Second Officer given oral evidence it would have been possible to explore with him whether his remarks at C-16 and C-5 really did suggest an inability to tell port from starboard and whether that at C-4 was a result of panic rather than of incompetence. The Second Officer had recently obtained his Second Officer’s certificate and had served as second officer on another VLCC for some six months. It would be very surprising to find that such a person could not tell port from starboard. In these circumstances and bearing in mind that the Second Officer has not given oral evidence I do not consider that it has been established, or that it would be fair to find, that he was incompetent.[96]VHF: Mr. Russell submitted that the Second Officer of MSC PRESTIGE contacted SAMCO EUROPE by VHF in order to inform SAMCO EUROPE of his intention to pass red to red and that that was not inappropriate for the reasons stated by Lord Phillips MR in The Mineral Dampier. I am not sure that the purpose of the VHF call was simply the provision of information. The words “red to red please” are indicative of a request, although the words “we’ll pass red to red” are more in the nature of a statement. More significantly, the VHF conversation was commenced at a time when MSC PRESTIGE ought to have been applying hard starboard helm. Instead of taking the action required of her by the Collision Regulations she chose to commence a conversation by VHF when the vessels were closing each other at a combined speed of 40 knots and the vessels were about 3 miles apart. The time when MSC PRESTIGE ought to have taken early and substantial action to keep clear of SAMCO EUROPE had passed (though that remained her duty) and as a result SAMCO EUROPE as the stand on vessel was entitled to take avoiding action herself. At such time VHF conversations may result in valuable time being lost, distraction from obedience to the Collision Regulations and possible confusion. For that reason I consider that the VHF conversation was inappropriate. To some extent therefore that makes MSC PRESTIGE’s fault in failing to apply hard starboard helm at and after C-5.5 more blameworthy.[97]The VHF conversation achieved nothing of benefit. SAMCO EUROPE continued to turn to port and MSC PRESTIGE did not put her helm hard to starboard. When the VHF conversation was resumed by SAMCO EUROPE at about C-4 SAMCO EUROPE requested MSC PRESTIGE to alter to port which led to MSC PRESTIGE agreeing to maintain her course rather than alter course to starboard contrary to the Collision Regulations. This resumption of the VHF conversation and mistaken request by SAMCO EUROPE makes SAMCO EUROPE’s fault of going to port to some extent more blameworthy.[98]I therefore consider that the use of VHF by each vessel was inappropriate and, in relative terms, increased each vessel’s culpability by about the same extent.

Conclusion

[99]For the reasons I have endeavoured to explain the dangerous close quarters situation was brought about by the fault of both vessels but the fault of MSC PRESTIGE in not taking early and substantial action to keep out of the way of SAMCO EUROPE had the greater causative potency because it contributed to SAMCO EUROPE’s fault in altering course to port. Each vessel failed to take the appropriate action to avoid collision at C-5.5. Overall, MSC PRESTIGE’s fault was also more culpable though the extent of the disparity was reduced by SAMCO EUROPE’s greater culpability at C-5.5. Thus MSC PRESTIGE’s fault was greater than that of SAMCO EUROPE both in terms of causative potency and of blameworthiness. However, having considered all the circumstances of this particular case, I do not consider that MSC PRESTIGE was as much as twice to blame as SAMCO EUROPE. I have therefore concluded that MSC PRESTIGE should bear 60% responsibility for the collision and that SAMCO EUROPE should bear 40% responsibility for the collision.

Cited in 1 later judgment