Monford Management Limited (The Owners of the KIVELI) v Afina Navigation Limited (The Owners of the AFINA I) [2025] EWHC 1185 (Admlty)

Neutral Citation Number: [2025] EWHC 1185 (Admiralty)
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ADMIRALTY COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 16/05/2025
Before
THE HON. MR JUSTICE BRYANsitting with Commodore Robert W. Dorey MA RFA FIMarEST AFNIan Elder Brother of Trinity House as Nautical Assessor
Case No AD-2023-000012
Between
MONFORD MANAGEMENT LIMITEDClaimantAFINA NAVIGATION LIMITEDDefendantCase No: AD-2023-000023
Between
AFINA NAVIGATION LIMITEDClaimantMONFORD MANAGEMENT LIMITEDDefendant
Christopher Smith KC and Francis Hornyold-Strickland (instructed by HFW LLP) for Owners of the KIVELINigel Cooper KC (instructed by MFB Solicitors) and Tatham & Co for Owners of the AFINA IHearing Hearing dates: 5, 6 and 7 November 2024Questions to Nautical Assessor 27 November 2024Answers from Nautical Assessor 29 January 2025Observations of parties 19 and 20 February, 6, 7, 12 and 14 March 2025Draft Judgment sent to the parties 9 May 2025.
Approved JudgmentThis judgment was handed down remotely at 10.00am on 16 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
[1]At about 06:01 local time (UTC + 2) on 13 March 2021, while both underway, the bulk carriers KIVELI, now renamed “PHOENIX DAWN” (“KIVELI”), and AFINA I (“AFINA I”) collided off the South coast of Greece and in a position North West of Kithira Island at approximately 36°22’N 022°42’E (“the Collision”). The Collision occurred when KIVELI turned to port as AFINA I was turning to starboard.[2]As a consequence of the Collision, the bow of KIVELI hit the port side of AFINA I’s no.4 cargo hold at an angle of approximately 90° and became embedded in the hold, immediately causing flooding, and putting AFINA I at risk of sinking. Fortunately, there were no casualties. An inspection carried out by AFINA I’s crew at 07:00 revealed that hold no. 4 was flooded, as were nos. 3 and 4 port side double bottom tanks, and that there was water in nos. 3 and 4 port top side tanks.[3]Subsequently, a tug arrived at 1600 hrs on 13 March 2021 and made fast to the bow of AFINA I in order to tow both vessels to Ormos Vatika, a bay located on the Peloponnese, Greece, near to the town of Neapolis. The vessels remained locked together for the next 20 days whilst plans were made to separate them, without further damage, so that repairs could be made.[4]The time of the Collision was 06:01 local time (UTC + 2) or 04:01 UTC. Any references below to ‘C-x’ or ‘C+x’ are calculated from this time. Times referred to below are local time unless otherwise stated.[5]This is the hearing of liability in the collision actions brought by the Owners of each vessel against the Owners of the other. The actions were consolidated with the agreement of the parties pursuant to an order of the Court dated 24 October 2023.[6]At the Case Management Conference on 30 January 2024, Cockerill J ordered that the Court would sit with one nautical assessor appointed by the Court. The nautical assessor who sat with me was Commodore Robert W. Dorey MA RFA FIMarEST AFNI, an Elder Brother of Trinity House (“Commodore Dorey”).[7]I followed the usual procedure for obtaining the advice of the nautical assessor set out by Gross J (as he was then) in The Global Mariner and the Atlantic Crusader [2005] EWHC 380 (Admlty) at [12]-[17], especially at [14]. Specifically:(1) I ensured that counsel made any submissions they wished to make as to the questions that might be put to the assessor and, in the event, there was almost total agreement between counsel as to the questions to be asked. I then set out the questions to be asked of Commodore Dorey in a written brief to him dated 27 November 2024. The questions posed to Commodore Dorey, and his answers, are set out in Annex 2 to this judgment.(2) Commodore Dorey provided his advice in response, in writing, on 29 January 2025, and my Clerk sent a copy to counsel on receipt so they could take instructions and provide observations on behalf of their respective clients, if so advised.(3) The parties provided written observations to me in relation to the advice of Commodore Dorey on 19 February 2025 (AFINA I), 20 February 2025 (KIVELI) and upon each other’s observations on 6 March 2025 (KIVELI) and 7 March 2025 (AFINA I), with further submissions in relation thereto being sent to me on 12 March 2025 (KIVELI) and 14 March 2025 (AFINA I). Having considered such observations, I did not consider it necessary to seek any further advice from Commodore Dorey, and I proceeded to my judgment.[8]I would like to express at the outset my thanks to Commodore Dorey for his expertise and insightful responses to the questions posed to him.[9]The only witness that gave evidence before me was the Chief Officer of the KIVELI Mr Agriam Jay R Ejeda (“Mr Ejeda”/“KIVELI’s Chief Officer”), who was KIVELI’s Officer of the Watch (“OOW”). I address my findings in relation to Mr Ejeda, and his evidence, in due course below.[10]There were also witness statements served in respect of other witnesses. Hearsay notices were served in respect of those on behalf of AFINA I, but not those on behalf of KIVELI. However, no point was taken in that regard on behalf of AFINA I, and the parties were content for such statements to be before me, with submissions being made as to weight, where appropriate, including in the context of the fact that none of this evidence had been tested in cross-examination.[11]In this regard I had before me:-(1) On behalf of the KIVELI, a statement of the Master, Captain Guram Chkhaidze, dated 21 May 2024, the statement of the Chief Officer Mr Ejeda, dated 30 May 2024, and the statement of the Second Officer, Mr Ryan Jose Montinola Jayme Jr, dated 30 May 2024.(2) On behalf of the AFINA I, the statement of the Master, Captain Iurii Reizvikh, dated 14 May 2024, a statement of the Chief Officer, Mr Roman Kyselyov (“Mr Kyselyov”/“AFINA I’s Chief Officer”), AFINA I’s OOW at the time of the Collision, dated 13 March 2021, and a witness statement of Mr. Mark Paternoster (“MP1”), dated 24 May 2024, attaching a draft statement of AFINA I’s Chief Officer, dated 23 March 2021, and a draft statement of the Helmsman, Mr Vladyslav Makhmut, dated 24 March 2021.[12]I had before me agreed audio transcripts for both vessels, an agreed MADAS animated plot produced by Avenca Limited for both parties showing both vessels’ courses together with their radar display and navigational data, a NMEA Schedule of Parameter Values allowing comparison of the vessels’ data including Course Over the Ground (“COG”), heading, Speed Over the Ground (“SOG”), bearings, relative bearings and range at 15 second increments from C-60 until C+10, as well as radar flip books for each vessel showing each vessel’s radar displays at 1 minute increments.[13]I attach at Annex 1 hereto, two what-if plots (that formed Annex 1 to AFINA I’s Skeleton Argument) showing what would have happened(1) if KIVELI had either held her course or(2) made a turn to starboard rather than turning to port when she did. Both plots show that there would have been no collision if KIVELI had not turned to port at this time, or had held her course.

LIST OF COMMON GROUND AND ISSUES

[14]There was an agreed List of Common Ground and Issues before the Court, setting out common ground between the parties, and issues identified by the parties. After the hearing the parties also provided a detailed agreed Statement of Facts (the “Agreed Statement of Facts”) which I also provided to Commodore Dorey. It suffices to note at the outset, by way of overview, that the two principal issues are as to:-(1) Whether the vessels were (at any material time) on reciprocal or nearly reciprocal courses so as to involve a risk of collision, alternatively whether there was any doubt as to whether such a situation existed, for the purposes of Rule 14 of the International Regulations for Preventing Collisions at Sea 1972 (“the Collision Regulations”).(2) Whether the vessels were (at any material time) crossing so as to involve a risk of collision pursuant to Rule 15 of the Collision Regulations.[15]The answers to these two questions inevitably assist in relation to the Court’s assessment of navigational decisions taken by each vessel after they were in sight of each other and, it is said, there was a risk of collision. In summary:-(1) AFINA I says that these two questions should be answered “Yes” and “No”. AFINA I says that the vessels were, at all material times, on reciprocal or nearly reciprocal courses so as to involve a risk of collision, or alternatively there was a doubt as to whether such a situation existed, for the purpose of Rule 14 (a “head-on situation”), rather than a “crossing situation” (Rule 15), and that responsibility for the Collision rests 100%, or at least 80%, with KIVELI who failed, in breach of Rules 2, 7, 8, 14, and (if applicable) 17, as well as in breach of her duty of care, to turn to starboard in order to avoid AFINA I and, instead, turned to port thereby causing the Collision. AFINA I further submits that, even if the vessels were, at any material time, to be considered as being in a “crossing situation” and AFINA I were found to be the give-way vessel, KIVELI, as the stand-on vessel for the purposes of Rule 17 of the Collision Regulations was causatively negligent because she turned to port into AFINA I instead of turning to starboard or holding her course.(2) KIVELI says that these two questions should be answered “No” and “Yes”. In this regard KIVELI submits that at relevant times AFINA I only ever had KIVELI on her starboard side, and this was, in so far as a risk of collision existed at this time, a “crossing situation” and AFINA I was the give-way vessel, with a duty to keep out of the way of KIVELI and avoid crossing ahead of her (Rule 15) and with a duty to take “early and substantial action to keep well clear” (Rule 16), and was 100% responsible for the Collision in doing neither. As for KIVELI’s late alteration of course to port immediately prior to the Collision, it is said that this was an understandable and reasonable reaction in the agony of the moment in an attempt to avoid the danger coming from her starboard side (“even if (with hindsight) it appears that turning to port may not have been the correct response” – as it was candidly acknowledged in KIVELI’s Skeleton Argument). THE WITNESSES

C.1 KIVELI’s CHIEF OFFICER (MR EJEDA)

[16]Mr Ejeda had held his Certificate of Competency as a Chief Officer since 2017 (and had also been ticketed as a Master in 2020 or 2021). His statement was dated 30 May 2024, although it was stated at paragraph 39 thereof that he made his statement “during a face-to-face interview, only 11 days after the incident, while the events are fresh in my mind”. In his evidence in chief he confirmed that he did not wish to make any changes to his statement and he stated that his statement was true. He had also made a statement about 2 hours after the Collision at 08:00 on 13 March 2021.[17]Mr Ejeda was OOW of the KIVELI in the hours leading up to the Collision and at the time of the Collision. It was his obligation under Rule 5 of the Collision Regulations to maintain a proper look-out, and in the circumstances in which he found himself that burden fell upon him alone, as he was without the assistance of the watch-keepers on the Bridge, who had been given the night off by the Master following maintenance works they had been involved in during the previous day.[18]As will appear, Mr Ejeda did not keep a proper look-out, and I accept Commodore Dorey’s advice in that regard (Answers 11 and 12) that he should have acquired the contacts with other vessels, namely CAPE NATALIE and AFINA I, much earlier than he did, after which he should have taken action with a bold alteration to starboard which would have resolved the collision risk with both vessels. He did not do so, and instead made small alterations to port which were not appropriate (and I accept Commodore Dorey’s advice in this regard (Answer 6)).[19]Thereafter it is indisputable that his late decision to turn to port, as AFINA I was turning to starboard, was the immediate cause of the Collision, for if he had either maintained KIVELI’s course or turned to starboard (as he should have done whether it was a “head-on” situation or a “crossing” situation) the Collision would not have occurred (as is common ground, and as is confirmed in Commodore Dorey’s Answer 17, as well as being portrayed in Annex 1 hereto). However, as will be seen, the die was cast much earlier than that, and it was also Mr Ejeda’s failings in navigation and seamanship that were the root cause of the events that were to play out from 05:39 (C-22) to the Collision itself.[20]I found Mr Ejeda to be an unimpressive, and unreliable, witness who I am in no doubt told untruths during the course of his evidence, though not, I think, through innate dishonesty, but in a clumsy attempt to cover up his all too obvious failure to follow the “Master’s Standing Orders (A) Guidance for Master’s Standing Orders for Bridge Watch at Sea” (the “Master’s Standing Orders”) and the Master’s handwritten “Night Orders” (the “Night Orders”) as well as his failings in his watch keeping and associated failings in navigation and seamanship. However, as will be seen, he nevertheless made what I consider to be important admissions that shed light on the shortcomings in his navigation and seamanship, and what can only be described as a cavalier approach to compliance with the Collision Regulations, if not a positive disregard of the same, despite his professed familiarity with such Regulations.[21]The Master’s Standing Orders for KIVELI provided, amongst other matters, as follows:- “Mobile phones shall not be used in any circumstances while on watch. They must be left in the cabin”.[22]The Night Orders for KIVELI for 12 March 2021 (signed by Mr Ejeda when he came on watch) provided, amongst other matters, as follows:- “Follow master’s standing order Keep a sharp lookout, give a wide CPA, avoid close quarter situation follow the COLREG’S … Call me in advance when your [sic] in doubt” Keep a sharp lookout, give a wide CPA, avoid close quarter situation follow the COLREG’S Call me in advance when your [sic] in doubt”

follow the COLREG’S

[23]In the trial bundle there was a transcript of what could be heard by way of sounds from the microphones on the Bridge of the KIVELI on the watch up to the time of the Collision. At 04:37:25 and 04:43:31 (adjusted to UTC +2), the transcript states, “audio of what sounds like a video clip of child laughing” and at 04:53:19 the transcript states, “audio of what sounds like video clip of baby and mother playing”. From listening to that audio myself, those are accurate descriptions of what can be heard.[24]Instead of Mr Ejeda admitting the obvious, namely that he had his cell phone or other media device on the Bridge (contrary to the Master’s Standing Orders and the Night Orders) and was either listening to such video clips or actually engaging with whoever was making those sounds remotely, Mr Ejeda suggested that he did not have a mobile and possibly it was the Second Officer who had stayed on the bridge at the end of his watch at back of the chart room to do some paperwork.[25]When it was pointed out that this meant that the Second Officer would have had to have had his mobile with him whilst on watch (which would be contrary to the Master’s Standing Orders and the Night Orders), Mr Ejeda then suggested that the Second Officer might have gone and got his phone at the end of his watch and come back. The real difficulty with all of this (quite apart from its inherent implausibility) is that the third clip at 04:53:19 is over 50 minutes since Mr Ejeda came on watch, and it is inherently improbable that he was other than alone at that time.[26]Mr Ejeda also accepted that had the Second Officer been on the Bridge using his phone after the end of his watch, Mr Ejeda, as OOW, should have reprimanded the Second Officer, and should have told him to take his phone off the Bridge. The reality, I am sure, is that this was all an untruth on the part of Mr Ejeda in a clumsy attempt to deny that he was in breach of the Master’s Standing Orders and the Night Orders (quite apart from the distraction that such activities would have represented whilst he was alone, at night, in the dark, and with sole responsibility for keeping a proper look-out).[27]This was not, I am satisfied, the only series of untruths told by Mr Ejeda. I am also sure that other examples included attempts to suggest that he was acquiring vessels on AIS when he was not, his apparent failure to know what the look ahead cone on the ECDIS was for, and his alleged lack of recollection that he did not acquire either CAPE NATALIE or AFINA I as targets on ECDIS (despite his earlier admission that he was not monitoring AFINA I using his ECDIS display).[28]There was then an unedifying series of explanations (such as they were intelligible) as to why the microphones catch Mr Ejeda singing on the Bridge very shortly before the Collision. In this regard the transcript of the microphones on the Bridge catch him “very soft singing and humming” at 05:51 and 05:53 which he himself accepted rather suggested he was not really alive to the risks posed by AFINA I, yet when it was put to him that he was still singing, and singing “will shelter you” at 05:57:51, Mr Ejeda then said this singing was to “release my worry about the situation”, only for him then to say that “I’m singing on that time because I know Afina I was already pass clear my starboard side”, a series of very different answers in very short order.[29]I am in no doubt at all that Mr Ejeda’s singing was a reflection of his lack of appreciation of the risk of collision, which may well be why, when he finally woke up to such risk, he did precisely what he should not have done, which was to turn to port. It is also notable that the singing, “will shelter you” was only seconds before the Chief Officer of the AFINA I called on the VHF, “Kiveli Kiveli Afina I, Kiveli Kiveli Afina I” to which there was no response from Mr Ejeda, with a further call 9 seconds later, “Kiveli, Kiveli Afina I”, getting the response from Mr Ejeda: “I am altering my course to portside. Altering course my to portside now”.[30]This provoked the immediate (and no doubt shocked) response from the Chief Officer of AFINA I, “No Portside. No Portside. Ok? Ok?” (per KIVELI bridge audio transcript), which, despite suggestions to the contrary on KIVELI’s behalf, was clearly AFINA I’s Chief Officer saying (in effect, and rightly), “Do not turn to port. Do not turn to port. Do you understand? Do you understand?” (In fact the AFINA I bridge audio transcript is even clearer still in terms of what it captures as to what was actually said, “no port side, no port side … ok, ok, no port side”).[31]However, notwithstanding the untruths that were told by Mr Ejeda, there was much in Mr Ejeda’s evidence that sheds real light both as to the factual position, and as to his approach to seamanship and navigation on the night in question, and I accept such evidence (variously) as it either has the ring of truth about it, or amounts to admissions against interest or on the basis that it is supported by other evidence:-(1) He acknowledged that if he felt it appropriate he would not follow the Collision Regulations.(2) His evidence was that he did not acquire either CAPE NATALIE or AFINA I as targets on his ECDIS system at any time.(3) His evidence was that he acquired CAPE NATALIE and AFINA I as targets on his radar at 05:47.(4) His agreement that looking at the position of each of the CAPE NATALIE and AFINA I at 05:45, KIVELI had room to turn to starboard to avoid them.(5) He acknowledged his willingness to countenance passing CAPE NATALIE and AFINA I at a distance of 200-300 metres in what he accepted was a close quarters situation and was “not a safe passing distance” and which he acknowledged was also a breach of the Master’s Standing Orders and the Night Orders.(6) He countenanced such a passing with CAPE NATALIE despite the fact that, “when I first visually saw CAPE NATALIE I remember seeing her two masthead lights in a straight line and both her port and starboard lights” (a classic “head-on” situation within Rule 14(b) by reference to what he could see (KIVELI’s Chief Officer’s statement at paragraph 27)).(7) He was also countenancing (at 05:48hrs) passing AFINA I starboard to starboard at a mere 200 metres (evidence volunteered in re-examination).(8) He acknowledged that when he turned to port he was in breach of the Collison Regulations.

C.2 AFINA I’S CHIEF OFFICER (MR KYSELYOV)

[32]KIVELI would have wished to cross-examine AFINA I’s Chief Officer Mr Kyselyov. However, he was unable to attend for cross-examination in circumstances where he no longer works for AFINA I and is in occupied Ukraine. Mr Smith KC, on behalf of KIVELI, indicated that he accepted that the draft statement of the Chief Officer of the AFINA I recorded what he had told Mr Paternoster. For its part KIVELI made submissions as to the Chief Officer of AFINA I, and his evidence, in its Closing Note to which I have had regard.[33]I bear well in mind that the Chief Officer of AFINA I did not give oral evidence and so it was not possible for his evidence to be tested in cross-examination. To the extent that there are inconsistencies between his recollection and the VDR data I do not consider that such inconsistencies were deliberate or designed to mislead or call into question the veracity of his evidence, not least having regard to the navigation of the AFINA I as a whole as addressed in due course below. In such circumstances, I have accepted his evidence where consistent with the other evidence before me and the advice of Commodore Dorey as to AFINA I’s navigation. Where there are inconsistencies between the Chief Officer’s evidence and the VDR data I have proceeded on the basis of the VDR data.[34]Apart from the parties’ respective submissions as to the navigation of the AFINA I (which inevitably engage the actions or inactions of AFINA I’s Chief Officer over the time period leading up to the Collision), one factual issue that remained between the parties in relation to the evidence of AFINA I’s Chief Officer was whether, as he said he did, he used AFINA I’s Aldis lamp to signal KIVELI at 05:54. This is but one small aspect of the evidence before me, and ultimately nothing turns on it given the other evidence in respect of this very same time period (which speaks for itself and in volumes), however I find, on balance of probabilities, that he did so.[35]My reasons for so finding are as follows. First, this was recorded in the deck log at 07:02. It would be a serious allegation to suggest that such entry was falsely made (which in reality underlies KIVELI’s submission), and such serious allegation lacks substantiation. Secondly, this was the Chief Officer’s evidence at paragraph 35 of his draft statement which KIVELI accepts records what AFINA I’s Chief Officer told Mr Paternoster. I see no reason or justification to conclude that his statement was an untruth in circumstances where such action and conduct is entirely consistent with the fact that he was clearly concerned, contemporaneously, about KIVELI’s navigation, and in this regard it is he who contacted KIVELI shortly thereafter on the VHF. In such circumstances there was neither reason nor need to make such a statement unless it is what occurred. I do not consider that the fact that nothing is caught on AFINA I’s bridge audio takes matters any further. It is not possible to draw any conclusions from that. Thirdly, it was AFINA I’s pleaded case that the Aldis lamp was used, and it is notable that that was not challenged at the time by KIVELI. Fourthly, the fact that KIVELI’s Chief Officer did not see the flash of the Aldis lamp (evidence which I accept) is entirely consistent with the evidence, and my conclusion, that Mr Ejeda was not keeping a proper look out. THE FACTS D.1

INTRODUCTION

[36]Following the oral hearing the parties liaised with each other and produced an agreed statement of facts (the “Agreed Statement of Facts”) which was provided to the Court on 27 November 2024, and which form the basis of this Section. The Agreed Statement of Facts includes agreement (for example) as to what individuals have said.[37]What follows is subject to the findings I have made as to the truth or otherwise of particular statements that have been made (for example Mr Ejeda saying that he was monitoring vessels on ECDIS). The parties also made clear that whilst the Agreed Statement of Facts sets out those facts which have been agreed by the parties, it is intended to be considered with the oral and written submissions made by each party and is not intended to amend either party’s case. I have borne that distinction well in mind.

D.2 THE VESSELS

[38]Each of the vessels is a bulk carrier. AFINA I is registered in Malta with a home port of Valetta. KIVELI (now re-named “PHOENIX DAWN”) is registered in Liberia with a home port of Monrovia.[39]AFINA I has a length overall of 138.6 metres, breadth of 20.50 metres and a gross tonnage of 9,997 tons. Her main engine develops 5833 horsepower (4,350kW). Her draught is about 7.9 metres and her maximum draught for the voyage was 8.1m. At the time of the Collision she was enroute from Novorossiysk to Bilbao, Spain with a cargo of hot briquetted iron.[40]KIVELI has a length overall of 193.84 metres, breadth of 27.6 metres and an even keel draught of 10.9 metres at the time of the Collision. The main engine has a power output of 10,625 kW. KIVELI was carrying a cargo of approximately 36,100mt of rock phosphate from Casablanca to Bulgaria.[41]Both vessels were displaying two white masthead lights, their red and green side lights, and a white stern light. Masthead lights must be visible from a minimum of 6 miles and side lights from a minimum of 3 miles. In practice, they are visible from a greater range in good visibility. In the present case sunrise was at 06:42 such that the Collision occurred while it was still dark but in circumstances where visibility was good.

D.3 THE VESSELS’ INTENDED COURSES AND THE LOCATION OF THE COLLISION

[42]KIVELI was on passage from Casablanca, Morocco to Varna, Bulgaria via Istanbul. Her course was such that prior to the Collision she was approaching the Stenó Elafonísou Strait from a south westerly direction.[43]The Chief Officer of KIVELI describes her course from about 04:00 on 13 March 2021 starting at paragraph 18 of his Witness Statement. From waypoint 14 to waypoint 15 KIVELI was heading between 79-80° from 05:00 until around 05:22 when the Chief Officer says he made a course alteration to c.077°T to “place the vessel on the planned track between waypoints 14 and 15”.[44]AFINA I was enroute from Novorossiysk to Bilbao and her voyage took her through the Stenó Elafonísou Strait, which she entered at about 03:50. AFINA I made a number of course alterations to keep a safe distance from the CAPE NATALIE before, having passed clear of the Strait and moved into the Western Approaches to Stenó Elafonísou at c.05:10, she altered course between 05:13:18 to 05:17:00 on to a heading of about 242°T. AFINA I’s intended course was 256°T.

D.4 THE WEATHER AND SEA CONDITIONS

[45]Prior to and at the time of the Collision, there was a Westerly wind Beaufort force 3. The sea state was slight with a swell of approximately 0.5 metres. There was no appreciable current at the time of the Collision. It is not suggested that the weather conditions played any part in the events that occurred.

D.5 THE VESSELS’ WATCHKEEPING AND COURSE PRIOR TO THE COLLISION

[46]On 12 March 2021, KIVELI’s Master, Captain Guram Chkhaidze, gave the duty watchkeepers the night off (after they had been involved in maintenance work during the day) so that each watchkeeping officer on KIVELI was on the bridge on their own. The Chief Officer, Mr. Ejeda, came on watch for the 04:00 to 08:00 watch at about 04:00 and relieved the Second Officer. The Chief Officer says (but this is in issue) that he was navigating KIVELI using ECDIS and the X-band radar.[47]As already noted, the Night Orders of the Master of KIVELI for 12 March 2021 provided inter alia:
“(a) Follow Master’s standing orders; (b) Keep a sharp lookout give a wide CPA avoid close quarter situation; (c) Follow the ColRegs; … Call me anytime when your in doubt.”
Call me anytime when your in doubt.”[48]The night orders of the Master of AFINA I for 12 March 2021 provided inter alia:
“(a) Keep navigation and radio watch acc. ColReg and GMDSS …; (b) Keep course acc passage plan; (c) Keep safety distance to other vessels; (d) Call master in case of any doubt.”
[49]AFINA I’s Chief Officer, Roman Kyselyov, says, in his draft witness statement at [14], that he was also doing the 04:00 to 08:00 watch and relieved the Second Officer at shortly before 04:00. According to the draft witness statement of Mr. Makhmut, the duty watchkeeper, he was also on watch.[50]At around 05:30 KIVELI’S Chief Officer says he started “to take particular note of the target echoes of” AFINA I and CAPE NATALIE on “the radar and their AIS signals as shown on the ECDIS”. At this time, AFINA I was on a heading of 245.2 with a COG of 244.7 and a SOG of 12 knots at a distance of about 12.135 nm from KIVELI. KIVELI at this time was on a heading of 77.4 with a COG of 77.6 and a SOG of 11.85 knots. The difference between their reciprocal headings was 12.2 (257.4-245.2) and between their reciprocal COGs was 12.9 (257.6 – 244.7). AFINA I was bearing 2.8° off the Port bow of KIVELI. KIVELI was bearing 3.7° off AFINA I’s Starboard bow.[51]KIVELI’s Chief Officer says that when he first visually saw CAPE NATALIE, he saw her two masthead lights in a straight line and both her port and starboard lights and also says (but which is not accepted by AFINA I) that he could see from the ECDIS that she was passing safely ahead.[52]At 05:38 (C-23) AFINA I’s Chief Officer says he first observed KIVELI on her radar at a distance of around 8.67 nm. The Chief Officer considered that the vectors of the two vessels meant that they would pass green to green with a CPA of 0.213 nm. The Chief Officer says that he was monitoring KIVELI by radar and visually and that KIVELI was showing predominantly a green side light but on occasions her green and red side lights as the two vessels independently yawed ([28] of his statement) (although this is not accepted by KIVELI).[53]On behalf of AFINA I, Mr. Paternoster says, when he interviewed AFINA I’s Chief Officer, the latter said he could also see KIVELI’s masthead lights (at [10] of MP1). At that distance of 8.67 nm the time was 05:38:45 (C-23), AFINA I was on a heading of 249.9°T and a COG of 250.2°T and an SOG of 11.9 knots. KIVELI at this time was on a heading of 77°T with a COG of 77.3°T and an SOG of 11.78. The difference between their reciprocal headings was 7.1° (257°-249.9°) and between their reciprocal COGs was 7.1° (257.3°-250.2°). AFINA I was bearing 2.3° off the Port bow of KIVELI. KIVELI was bearing 4.9° off AFINA I’s starboard bow.[54]By about 05:39 (C-22), AFINA I was on a heading of about 250.2°T and with a COG of 250.2°T. and SOG of 11.9 knots (having altered her heading to starboard from a heading of about 245.2 degrees at c. 05:30). KIVELI was on a heading of 77.2°T with a COG of 77.1°T and SOG of about 11.77 knots. The reciprocal between the vessels’ respective headings at this time was 7° and the difference between their COG was 6.9°. According to AFINA I’s AIS tracker, the CPA was 0.213 nm and Time to Closest Point of Approach (“TCPA”) was 22:02 minutes and the range was 8.688 nm. AFINA I was bearing 2.1° off the Port bow of KIVELI.[55]At this time, at 05:39 (C-22):(1) The OLYMPOS SEAWAY was travelling at more than 20 knots and therefore overtaking AFINA I, passing clear astern of AFINA I;(2) The CAPE NATALIE was approaching KIVELI ahead of AFINA I and fine off her starboard bow;(3) The COSCO SAGITARIUS was shaping to pass KIVELI red to red;(4) THE NORDAUTUMN was approaching KIVELI from astern;(5) The AS CARELIA had overtaken KIVELI to starboard of her.[56]While KIVELI’S Chief Officer says he was observing AFINA I by radar at 05:30, KIVELI first particularly observed AFINA I visually and by radar at about 05:45 (C-16) when KIVELI was on a heading of 077.3° true with a COG of 077.4° and an SOG of approximately 11.7 knots. KIVELI was 5.6 degrees on AFINA I's starboard bow and AFINA I was on a heading of about 250°T with a COG of 250.9° and an SOG of about 11.9 knots. AFINA I was showing a starboard aspect and her bearing was opening to starboard such that she was shaping to pass KIVELI at a distance of approximately 0.25 miles. The reciprocal between the vessels’ respective headings was 7.3°T (257.3°- 250°) and between their COG 6.5°T (257° - 250.9). According to AFINA I’s AIS tracker, the CPA was 0.233 nm the TCPA was 16:17 minutes and the range was 6.379 nm. AFINA I was bearing 1.7° off the Port bow of KIVELI.[57]By 05:45 AFINA I’s Chief Officer says he was monitoring both KIVELI and CAPE NATALIE as CAPE NATALIE was directly ahead of AFINA I and shaping to pass KIVELI green to green but with a small passing distance ([29] of the Chief Officer’s statement).[58]At 05:45:(1) The OLYMPOS SEAWAY was astern of AFINA I, overtaking her on a diverging heading with a lateral separation of nearly 1 nm;(2) The CAPE NATALIE was directly ahead or nearly ahead of AFINA I;(3) The COSCO SAGITARIUS had passed KIVELI red to red;(4) THE NORDAUTUMN was approaching KIVELI from astern on her port side;(5) The AS CARELIA had overtaken KIVELI to starboard of her.[59]Between 05:45 (C-16) and 05:55 (C-6), KIVELI made two minor alterations to port steadying onto a heading initially of 075 and then 074 by 05.53:00 (C-8:00). KIVELI commenced her turn just before 05:47 (her rudder angle starts to move to port at about 05:46:52, see the Agreed Animated Plot).[60]The ARPA on KIVELI shows that three targets were manually acquired at 05:47:27 (see the Agreed Animated Plot). At that time only the data for target No. 1 (CAPE NATALIE) was displayed. At 05:47:42 the data for targets No. 2 and 3 (AFINA I and OLYMPOS SEAWAY) was displayed (Agreed Animated Plot). At 05:47:57 the alarm was activated for CAPE NATALIE (her vector line goes red) and at 05:49:10 the alarm was active for AFINA I (Agreed Animated Plot). KIVELI’s radar alarm was, at some point, muted.[61]At around 05:49 the CAPE NATALIE altered course to port, thereby increasing the passing distance (green to green) between her and KIVELI. By 05:50 KIVELI’s CPA/TCPA alarm was for AFINA I only.[62]By about 05:49 (C-12) KIVELI was on a heading of 075.3°T with a COG of 75.7° and an SOG of 11.64 knots. AFINA I was on a heading of 249.9°T with a COG of 250.8° and a speed of 11.8 knots. The difference between the reciprocal headings of the Vessels was 5.3° (255.2°- 249.9°) and between their COG was 4.9° (255.7°-250.8°). According to AFINA I’s AIS tracker, the CPA was 0.252 nm, the TCPA was 12:26 minutes and the range was 4.859 nm (Agreed Animated Plot). According to KIVELI’S ARPA tracker the CPA was 0.21 nm, the TCPA was 12:10 minutes, and the range was 4.81 nm. AFINA I was bearing 1° off the starboard bow of KIVELI and would have been able to see both her sidelights. KIVELI was bearing 6.4° off the starboard bow of AFINA I and would have been able to see her green sidelight but not her red sidelight.[63]In his witness statement, the Chief Officer of KIVELI stated that:(1) At 05:45 (C-16), he saw AFINA I visually and on the radar. He believed that she was at a range of about 3 miles and very fine to port – 1 to 2 degrees to port and that he could see both AFINA I’s masthead lights and her green starboard light (statement at [29]).(2) At 05:50 (C-11) he saw the masthead lights and starboard light of AFINA I fine to starboard (about 2 degrees to starboard) and that he noted on radar that the CPA was about 2 cables (c. 0.2 nm) (statement at [31]).[64]At 05:51 (C-10), the Chief Officer on board AFINA I was continuing to monitor KIVELI visually and on the radar. AFINA I was heading 250.2°T with a COG of 251.4° and an SOG of 11.8 knots. KIVELI’s heading was 75.4°T with a COG of 75.6° and an SOG of 11.6 knots.[65]KIVELI’S ARPA radar gave a CPA of 0.23 nm, the TCPA was 10:03 minutes and the range was 4.04 nm (see the Agreed Animated Plot). The difference between the two vessels’ reciprocal headings was 5.2° (255.4°-250.2°) and between their COG was 4.3° (255.6° - 251.3°). AFINA I was bearing 1.5° off the starboard bow of KIVELI and would probably have been able to see both her sidelights. KIVELI was bearing 6.7⁰ off the starboard bow of AFINA I and would have been able to see her green sidelight but not her red sidelight.[66]At about 05:51 (C-10), the Chief Officer of AFINA I says he believed that KIVELI was aware of both AFINA I and CAPE NATALIE and expected that KIVELI would alter course to starboard to pass AFINA I red to red when abeam of CAPE NATALIE (which at that time was shaping to pass KIVELI green to green) (see the Chief Officer’s witness statement at [32]). The AS CARELIA was passing AFINA I port to port with a CPA of 0.946 nm and at range of 1.012 nm, nearly abeam of her.[67]By 05:53:45 (C-8:15) KIVELI came further to port to a heading of about 74.2°T with a COG of 75.2° and an SOG of 11.62 knots. AFINA I was on a heading of 250.1°T with a COG of 251.7° and an SOG of 11.8 knots. The reciprocal between the vessels’ headings at this time was 4.1° (255.2° – 250.1°) and between their COG was 3.5°. According to KIVELI’s ARPA radar, the CPA was 0.29 nm, the TCPA was 6.4 minutes and the range was 3.42 nm (see the Agreed Animated Plot). By 05:53:45 when KIVELI had completed her two alterations to port, AFINA I was bearing 2.9° off the starboard bow of KIVELI and KIVELI was bearing 8.1° off the starboard bow of AFINA I.[68]At approximately 05:54 (C-7), the Chief Officer of AFINA I says he used the vessel’s Aldis lamp to signal five short and rapid flashes in the general direction of the bridge of KIVELI (as I have found he did). At this time, KIVELI’s ARPA radar showed the distance between the two vessels was 3.28 nm (see the Agreed Animated Plot). In other words, well within the range at which KIVELI should have seen AFINA I’s light signal if AFINA I had made one and KIVELI had been keeping a proper lookout. The evidence of KIVELI’s Chief Officer is that he did not see any flashes (I accept that evidence but my finding is that that is because he was not keeping a proper look-out, as already addressed). There is no sound associated with the use of the Aldis Lamp recorded in any of the bridge microphones on board AFINA I.[69]At approximately 05:55 (C-6), the CAPE NATALIE passed clear of KIVELI off her starboard bow (see the Agreed Animated Plot). At this time, KIVELI was on a heading and COG of 74°T and an SOG of 11.59 knots and AFINA I was on a heading of 250°T with a COG of 251.9° and an SOG of 11.8 knots. The difference between the vessels’ reciprocal headings was 4° (254°-250°) and between their COG was 2.1° (254°-251.9°). KIVELI’S ARPA radar identified that the CPA was 0.27 nm, the TCPA was 6.4 minutes and the range was 2.51 nm (see the Agreed Animated Plot). AFINA I was bearing 5.3° off the starboard bow of KIVELI and KIVELI was bearing 9.3° off the starboard bow of AFINA I. It is at this time that the Chief Officer of KIVELI says that AFINA I’s bearing had opened 5 to 10 degrees to starboard, her range was about 2.4 miles and AFINA I was passing down KIVELI’s starboard side with a CPA of about 2 cables (statement at [32]).[70]At 05:56 (C-5), AFINA I was on a heading of 252°T having commenced a slow turn to starboard, with a COG of 251.2°T and an SOG of 11.8 knots. KIVELI was on a heading of 73.9°T with a COG of 74.2° and a speed of 11.59 knots. The difference between the vessels’ respective headings was 1.9° (253.9°-252°) and between their COGs was 3° (254.2°-251.2°). According to KIVELI’s ARPA radar, the CPA was 0.27 nm, the TCPA was 5.1 minutes and the range was 2.04 nm (see the Agreed Animated Plot). AFINA I was bearing 6.7° off the starboard bow of KIVELI and KIVELI was bearing 10.1° off the starboard bow of AFINA I.[71]AFINA I continued her series of alterations to turn to starboard at this time such that by 05:57 (C-4) she was on a heading of 259.8°T with a COG of 258.7°T and an SOG of 11.6 knots. At 05:57, KIVELI was on a heading of 74.1°T and COG of 73.9°T and an SOG of 11.5 knots. The difference between the vessels’ reciprocal headings at this time was 5.7° (254.1° – 259.8°) and between their COG was 4.8° (258.7° - 253.9°). At this time KIVELI’s ARPA radar recorded the vessels’ CPA as 0.26 nm to starboard and her TCPA as being 4.2 minutes (see the Agreed Animated Plot). At this time, AFINA I’s AIS tracker recorded the vessels’ CPA as 0.220 nm and her TCPA as being 4.3 minutes. AFINA I was bearing 8.0° off the starboard bow of KIVELI and KIVELI was bearing 2.3° off the starboard bow of AFINA I.[72]By approximately 05:59:45 (C-1:15) AFINA I was on a heading of 284.9°T with a COG of 280.8° and an SOG of 11.2 knots. The Chief Officer of AFINA I says his intention was to pass KIVELI red to red in accordance with Rule 14 rather than green to green (see at [35] of the Chief Officer’s witness statement). By 05:59:45 (C-1:15), KIVELI was on a heading of 74°T with a COG of 74.9° and an SOG of 11.55 knots. The difference between the vessels’ reciprocal headings had increased to 30.9°T (254 - 284.9) and between their COG was 25.9° (254.9 – 280.8). AFINA I was bearing 9.3° off the starboard bow of KIVELI, the radar ARPA of KIVELI showed that the CPA had reduced to 0.01 nm.[73]KIVELI’S Chief Officer says that at 05:57 he observed that AFINA I was making alternations of course to starboard.(1) KIVELI’S case is that since KIVELI’s Chief Officer referred to extracts of KIVELI’S VDR when giving particular times in his statement ([39]) and, since it is agreed (following confirmation by AVENCA on 5 November 2024) that KIVELI’s VDR system time must be adjusted forwards by 1 minute and 41 seconds when compared to the times on the agreed animated plot, the time KIVELI’S Chief Officer noticed AFINA I was making alterations to starboard should in fact be 05:58:41. KIVELI’S data included in the animated reconstruction, schedules, and plots was adjusted by this amount to ensure that it was correctly aligned in time with the AFINA I VDR data, but the data viewed by KIVELI's Chief Officer would not have been so adjusted, because AVENCA made the adjustment post collision. Hence KIVELI says that the times in the Chief Officer's statement, which are based on the extracts of the VDR data he reviewed, need to be adjusted by the same amount to bring them into line with the animated reconstruction, schedules, and plots. KIVELI points to the fact that when the time of the agreed plot is 05:57:00 the time on KIVELI’s radar is 05:56.(2) AFINA I does not accept that the times in KIVELI’s Chief Officer’s statement do need to be adjusted as alleged. KIVELI’s Chief Officer does not explain which extracts of the VDR he was viewing for the purposes of his witness statement. To the extent that he was looking at the times shown on KIVELI’s radar display, those times are live times taken from the vessel’s GPS feed rather than from the VDR system time and would not be subject to the need for adjustment described above. Further as agreed above, AFINA I had in fact commenced her turn to starboard by 05:57. AFINA I points also to the fact that Box 12 in Part I of KIVELI’s Collision Statement of Case admits KIVELI’s Chief Officer noticing AFINA I altering course to starboard on the radar and visually at about 05:56.[74]According to AFINA I’s VDR transcript, about 05:59:35 (C-1:25), AFINA I contacted KIVELI by radio on VHF channel 16. During the six minutes prior to the radio call from AFINA I, the audio transcript of KIVELI records occasional very soft singing and humming and, immediately before the radio call from AFINA I, records the words, “will shelter you” being sung. I have already addressed such matters above and made associated findings. AFINA I’s Chief Officer also says that at C-5 he ordered the helmsman of AFINA I to “make a number of course alterations to starboard” (although there is no record of this in the agreed transcript for AFINA I).[75]The Chief Officer of KIVELI switched to manual steering at 05:59:40, and commenced a hard turn to port (see the Agreed Animated Plot). In response to AFINA I’s radio call, KIVELI’s Chief Officer responded “I am altering my course to portside. Altering course my to portside now”, to which AFINA I’s Chief Officer immediately responded, “no port side, no port side … ok, ok, no port side” (AFINA I transcript) or “no port side no port side … ok? ok?” (KIVELI transcript). Thereafter KIVELI continued her hard turn to port.[76]Prior to AFINA I commencing her series of alterations to starboard at C-5 (05:55:45), according to KIVELI’S ARPA tracker, the vessels would have passed green to green with a CPA of 0.26 nm (481.5 m) and a TCPA of 5.11 minutes (see the Agreed Animated Plot).[77]Prior to KIVELI making any alteration to port at 05:59:40 (C-1:20), by altering course to starboard at 05:55:45 (C-5:15) AFINA I reduced the CPA between the vessels from 0.26 nm (481.5 m) to 0.01 nm (18.52 m) (see the Agreed Animated Plot).[78]Had KIVELI not responded to AFINA I’s alteration to starboard by turning to port but held her course or made a turn to starboard at that time, the vessels would have passed close to each other but would not have collided. Specifically:(1) If KIVELI had maintained her course rather than turning to port, then at 06:01 AFINA I would have passed clear of KIVELI with a distance of about 66.44 metres between them (see Annex 1).(2) If KIVELI had turned to starboard at 06:00 instead of to port then a distance of about 185m would have opened up between the vessels and they would have passed red to red (see Annex 1). If KIVELI had turned to starboard sooner, then the distance between the vessels would have been greater.[79]At the moment of contact, AFINA I was heading 293.4°T. The bow of KIVELI hit the port side of AFINA I’s no. 4 cargo hold at an angle of approximately 90° and became embedded in the hold immediately causing flooding and putting AFINA I at risk of sinking.[80]Neither vessel made any sound signals.

D.6 FURTHER FACTUAL FINDINGS

[81]I make various further factual findings in Section F below. THE COLLISION REGULATIONS

E.1 APPROACH TO CONSTRUCTION OF THE COLLISION REGULATIONS

[82]The text of the Collision Regulations, as implemented under English law, is found in Merchant Shipping Notice MSN 1781 (M & F).[83]The proper approach to the construction of the Collision Regulations was common ground between the parties (although their construction was not), and I was referred to [37] to [44] in the speech of Lords Hamblen and Briggs JJSC in The Ever Smart [2021] 1 WLR 1436, in which the following propositions were laid down in relation to the construction of the Collision Regulations:-(1) As an International Convention, the Collision Regulations should be interpreted by reference to broad and general principles of construction rather than any narrower domestic law principles.(2) Such broad and general principles include the general rule of interpretation that they should be interpreted in good faith in accordance with the ordinary meaning to be given to terms of the treaty in their context and in light of their object and purpose.(3) The object and purpose of the Collision Regulations is to promote safe navigation and specifically the prevention of collisions at sea.(4) The international character of the Collision Regulations and the safety of navigation means that they must be capable of being understood and applied by mariners of all nationalities, of all types (professional and amateur), in a wide range of vessels and in worldwide waters.(5) They should accordingly be interpreted in a practical manner so as to provide clear and readily ascertainable navigational rules capable of application by all mariners. They are meant to provide international “rules of the road”.[84]In relation to (3) above (the object and purpose of the Collision Regulations being to promote safe navigation and specifically the prevention of collisions at sea) Lords Briggs and Hamblen quoted, at [40], what was said by Sheen J in The Maloja II [1993] 1 Loyd’s Rep. 48 at pp. 50 col 2 to 51:
“The structure of the Collision Regulations is designed to ensure that, wherever possible, ships will not reach a close-quarters situation in which there is risk of collision and in which decisions have to be taken without time for proper thought. Manoeuvres taken to avoid a close-quarters situation should be taken at a time when the responsible officer does not have to make a quick decision or a decision based on inadequate information. Those manoeuvres should be such as to be readily apparent to the other ship.”
[85]In The Majola II both ships failed to take appropriate action when first aware of each other distant 11 miles. They both made alterations of course (one at 9.5 miles and one at 6 miles). Neither was appropriate and thereafter neither kept a careful radar lookout. The vessels did not see each other until they were 7 cables apart when both took action. Sheen J. observed (at p. 57): “I do not doubt that when the ships came into sight of each other each took the action which, on the spur of the moment, seemed most likely to avoid a collision. It is irrelevant that it can now be seen that some other action would have been preferable. The officer in charge of each ship should not have found himself in such difficulty which could easily have been avoided”.[86]At p. 51 Sheen J also stated:- “The errors of navigation which (he) regard(ed) as the most serious are those errors which are made by an officer who has time to think. At that time there is no excuse for a failure to comply with the Collision Regulations.”[87]AFINA I submits (and I agree) that this passage is particularly apt to describe the serious errors of navigation committed by KIVELI’S Chief Officer, Mr Ejeda, in relation to his willingness to countenance passing CAPE NATALIE and the AFINA I at a distance of 200-300m in what he accepted was a close quarters situation; Mr Ejeda accepting that that is “not a safe passing distance” and that it was also a breach of his Standing Orders and his Night Orders. So brazen was his conduct that he countenanced such a passing with CAPE NATALIE despite the fact that, “when I first visually saw CAPE NATALIE I remember seeing her two masthead lights in a straight line and both her port and starboard lights” (a classic “head-on” situation within Rule 14(b) by reference to what he could see) (statement at paragraph 27) and equally he was countenancing (at 05:48) passing AFINA I starboard to starboard at a mere 200 metres (evidence volunteered in re-examination). Of course AFINA I also points out that the actions of Mr Ejeda were further misplaced (and causative) when he turned to port immediately before the Collision (and, in effect, turned into the port side of AFINA I).

E.2 COLLISION REGULATIONS RELIED UPON BY THE PARTIES

[88]Both parties rely on Rules 2 (Responsibility), 5 (Look-out), 7 (Risk of Collision), 8 (Action to avoid Collision), 34 (Manoeuvring and Warning Signals) and 36 (Signals to attract attention).[89]In addition:(1) AFINA I relies on Rules 14 (Head-on Situation) and 17 (Action by Stand-on Vessel).(2) KIVELI relies on Rules 15 (Crossing Situation) and 16 (Action by Give-Way Vessel) as well as the Admiralty Sailing Directions/Traffic Regulations (“Sailing Directions”).[90]Rule 2 is a rule of general application. Rules 5, 7, and 8 apply in any condition of visibility (Rule 4). Rules 14, 15, 16 and 17 apply to vessels in sight of one another (Rule 11). Rules 34 and 36 appear in Part D (sound and light signals) and Rule 34 applies when vessels are in sight of each other.

E.2.1 RULE 2

[91]Rule 2 provides:- “ Rule 2 Responsibility a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels.”

Responsibility

[92]Rule 2 emphasises the importance of the principle of good seamanship as a general prudential rule, the intention being that the Collision Regulations should conform as closely as possible to what mariners regard as good nautical practice. The principle of good seamanship does not, however, justify disapplication of the Rules (something for which neither party contends), save in so far as may be necessary in special circumstances (see Rule 2(b)).[93]As was said by Lord Briggs and Lord Hamblen JJSC in The Ever Smart at [66] – [67]:- “66. Attempt was made by the respondent to use rule 2 as the basis for justifying a complete disapplication of the crossing rules as a matter of construction, on the basis of an apparent conflict with the rules of good seamanship, or to treat good seamanship on its own as a sufficient alternative to the application of the crossing rules, in relation to both the questions before the court. We regard this approach to rule 2 as being misconceived. First, it is plain from rule 2(a) that compliance with the Rules is a first principle of good seamanship. The same priority appears in rule 8(a). As stated in Marsden and Gault on Collisions at Sea, 14th Edition, para 5-103, rule 2(a) “merely reminds seamen of the adverse consequences of failure to comply with the rules or with the practice of good seamanship”. In The Queen Mary (p. 341), Lord MacDermott said:
“In my opinion, it is not aimed at authorising departure from the Regulations, and I doubt if it is more than a solemn warning that compliance therewith does not terminate the ever present duty of using reasonable skill and care.” 67. Secondly, rule 2(b) builds in an inherent flexibility to meet particular dangers and special circumstances which points away from an approach which simply disapplies a rule as a matter of construction because, on particular facts, strict compliance may give rise to difficulties. Rule 2(b) contemplates not the disapplication of a rule as a matter of construction, but justifies a limited departure from its requirements, and only in particular circumstances which meet the stern test of necessity to avoid immediate danger. As stated at para 5-127 in Marsden and Gault on Collisions at Sea, 14th Edition (2016), citing The Concordia and Esther (1866) LR 1 A & E 93: “To justify a departure from the regulations which is alleged to have been necessary to avoid immediate danger, there must be clear proof that an adherence to them would have caused such danger, and the action taken must be in accordance with the requirements of good seamanship.” “In my opinion, it is not aimed at authorising departure from the Regulations, and I doubt if it is more than a solemn warning that compliance therewith does not terminate the ever present duty of using reasonable skill and care.” “To justify a departure from the regulations which is alleged to have been necessary to avoid immediate danger, there must be clear proof that an adherence to them would have caused such danger, and the action taken must be in accordance with the requirements of good seamanship.”

E.2.2 RULE 5

[94]Rule 5 provides:- “ Rule 5 Look-out Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.”

Look-out

[95]Rule 5 requires vessels to maintain at all times a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision. It includes the use of, and proper attention to, radar where it is of assistance in keeping a good lookout – see Marsden & Gault on Collisions at Sea, 15th ed at para 7-123 and The Maloja II, [1993] 1 Lloyd’s Rep. 48 at 55.[96]The obligation to keep a proper look-out encompasses not just the requirement to look-out but also the requirement to use the information obtained from that look-out to make a full appraisal of the situation and of the risk of collision. As to what is required by the obligation to keep a proper look-out, the look-out has to be vigilant and sufficient according to the circumstances - see Marsden at para 7-130 and The Century Dawn and Asian Energy [1994] 1 Lloyd’s Rep. 138 at p. 152 (affirmed at [1996] 1 Lloyd’s Rep. 125).

E.2.3 RULE 7

[97]Rule 7 provides:- “ Rule 7 Risk of collision(a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.(b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.(c) Assumptions shall not be made on the basis of scanty information, especially scanty radar information.(d) In determining if risk of collision exists the following considerations shall be among those taken into account: (i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change; (ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.” Risk of collision (i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change; (ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.”

Risk of collision

[98]Rule 7 requires every vessel to use all available means appropriate to the prevailing circumstances and conditions to determine if a risk of collision exists. A risk will be deemed to exist if there is any doubt. Rule 7 specifically requires the proper use of radar equipment and prohibits assumptions being made on the basis of scanty information - cf. Marsden, para 7-192 and The Oden & Pulkova [1989] 1 Lloyd’s Rep. 280.[99]So far as when a risk of collision exists, this is to be determined by reference to a non-exhaustive list of factors, which include the compass bearing of an approaching vessel not appreciably changing. Even when an appreciable change is evident, there may still be a risk of collision when approaching a vessel at close range.[100]In The Ever Smart at [55], the Supreme Court pointed out that a risk of collision will be deemed to exist if the compass bearing of an approaching vessel does not appreciably change. Rule 7(d)(i) does not make a steady compass bearing the only indicator of a risk of collision, see, for example, rule 7(a), (b) and (d)(ii) but nor is it a rebuttable presumption. Wherever it applies the risk of collision must be taken to exist.[101]In relation to Rule 7(a), and whether a risk of collision exists, I accept Commodore Dorey’s advice that a reasonably competent mariner would not consider a CPA of 0.25 nm to be a safe passing distance in the circumstances prevailing in the present case (Answer 7), and that this itself gave rise to a risk of collision under Rule 7(a) and required action to be taken under Rule 8, and (as applicable) Rule 14 or Rules 15 to 17.

E.2.4 RULE 8

[102]Rule 8 provides:- “ Rule 8 Action to avoid collision(a) Any action taken to avoid collision shall be taken in accordance with the Rules of this Part and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.(b) Any alteration of course and/ or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/ or speed should be avoided.(c) If there is sufficient sea-room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation.(d) Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear.(e) If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.(f) (i) A vessel which, by any of these Rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea-room for the safe passage of the other vessel. (ii) A vessel required not to impede the passage or safe passage of another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk of collision and shall, when taking action, have full regard to the action which may be required by the Rules of this Part. (iii) A vessel the passage of which is not to be impeded remains fully obliged to comply with the Rules of this Part when the two vessels are approaching one another so as to involve risk of collision.” (emphasis added) Action to avoid collision (i) A vessel which, by any of these Rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea-room for the safe passage of the other vessel. (ii) A vessel required not to impede the passage or safe passage of another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk of collision and shall, when taking action, have full regard to the action which may be required by the Rules of this Part. (iii) A vessel the passage of which is not to be impeded remains fully obliged to comply with the Rules of this Part when the two vessels are approaching one another so as to involve risk of collision.” (emphasis added)

Action to avoid collision

[103]Thus Rule 8 imposes a series of obligations in relation to actions to avoid a collision:-(1) Any action taken to avoid collision must be undertaken in accordance with Part B of the Collision Regulations (that is Rules 4-19 in Sections I, II and III, Section II (Rules 11-18 being “Conduct of vessels in sight of one another”)).(2) If the circumstances allow, any alteration in course must be positive, made in ample time and with due regard for good seamanship.(3) Any alteration of course must if the circumstances allow be large enough to be readily apparent to another vessel observing visually or by radar, a succession of small alterations of course or speed should be avoided;(4) Action taken to avoid a collision should be such as to result in passing at a safe distance. E.2.5 RULE 14

E.2.5.1 THE LANGUAGE OF RULE 14

[104]Rule 14 provides:- “ Rule 14 Head-on situation(a) When two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other.(b) Such a situation shall be deemed to exist when a vessel sees the other ahead or nearly ahead and by night she would see the mast head lights of the other in a line or nearly in a line and/or both sidelights and by day she observes the corresponding aspect of the other vessel.(c) When a vessel is in any doubt as to whether such a situation exists she shall assume that it does exist and act accordingly.” Head-on situation[105]Rule 14 applies when two power-driven vessels are meeting on a reciprocal or nearly reciprocal course so as to involve a risk of collision, each shall alter her course to starboard so that each shall pass on the port side of the other (Rule 14(a)) (in other words, red to red).[106]It differs from the other Rules in Section II because it places equal responsibility for keeping out of the way on each of the two vessels involved.[107]Rule 14, with the requirement that both vessels turn to starboard, highlights that the Collision Regulations seek to avoid a situation where one vessel turns to port as the other turns to starboard. As is stated in Cockcroft & Lameijer, A Guide to Collision Avoidance Rules, 7th edn. at p. 75:- “Whether power-driven vessels are meeting on reciprocal courses or crossing at a fine angle it is important that neither vessel should alter course to port. If it is thought necessary to increase the distance of passing starboard to starboard this implies there is a risk of collision. Several collisions have been caused as result of one vessel altering course to port to increase the passing distance and the other vessel turning to starboard.”[108]As it is put rather more pithily in Farwell’s Rules of the Nautical Road, 9th edn. at p. 305 (and in terms which I am satisfied is apt in relation to the (late) actions of KIVELI in the present case):- “A sure way to produce a collision is for one vessel to obey, and the other to disobey, the rule. … The head-on rule, when obeyed by both, is so nearly collision-proof that it should come as no surprise that the large majority of collisions of this kind occur because one of the two vessels turns to port. While various reasons …may be assigned for this disregard of the rule, they all point to the same disastrous result: the vessel wrongfully turning to port collides with the other vessel that had properly turned to starboard. If this obvious cause of disaster could be impressed on the consciousness of every watchstander, cases of head-on collision at sea would become mercifully rare.”[109]A not dissimilar comment, with which I agree, and which is of relevance on the facts of the present case not only in relation to KIVELI’s late turn to port, but also its earlier small alterations of course to port between 05:46:50 and 05:47:20 (C-14) and at 05:53 (C-8)), is the comment of Commodore Dorey in Answer 6 where, after stating his opinion that KIVELI’s “small alterations of course to port appear to be intended to increase the passing distance (Closest Point of Approach (CPA)) to starboard, which implies that KIVELI’s OOW considered the existing CPA to be unsafe and that a risk of collision existed” and that it “was not appropriate to make small alterations of course to port” he stated:- “General comment In my experience it is unfortunately not uncommon to see vessels ‘nibble’ to port where a risk of collision exists, in order to marginally increase the passing CPA to starboard. Subject to the specific circumstances and conditions of each case, this represents poor seamanship and is contrary to the rules specifically crafted to prevent collisions at sea. Such action relies heavily on the assumption that all parties will have a similar disregard for the rules and therefore carries significant risk.” Indicative of such inappropriate approach is also the evidence of KIVELI’s OOW that he was seeking to give AFINA I, “a little more room” (by such inappropriate “nibbling to port”).[110]The ethos of Rule 14 is consistent with the ethos of Rule 17(c) which requires that a power-driven vessel which is the stand-on vessel should not alter course to port for a vessel on her own port side.[111]A head-on situation is deemed to exist when a vessel sees the other ahead or nearly ahead and by night she could see the masthead lights of the other in a line or nearly in a line and/or both sidelights and by day she observes the corresponding aspect of the other vessel (Rule 14(b)).[112]When a vessel is in any doubt as to whether such a situation exists, she shall assume that it does exist and act accordingly (Rule 14(c)).[113]The structure of Rules 14 and 15 is such that Rule 14 takes precedence. This was acknowledged by the Supreme Court in The Ever Smart at [98(i)] when discussing a crossing situation: “(i) the obligation on a give-way vessel to keep well clear, imposed by the crossing rules, applies wherever it is reasonably apparent to those navigating the vessel which has the other on her starboard side that the two vessels, not being head-on or overtaking, are crossing so as to involve a risk of collision (we shall call that, for short, “a crossing situation”). (emphasis added) This was also acknowledged at [77]: “Since they were neither head-on nor was either overtaking the other, they were therefore “crossing so as to involve a risk of collision” within the meaning of rule 15”. (emphasis added)[114]If a vessel is in any doubt as to whether two vessels are meeting on reciprocal or nearly reciprocal courses so as to involve a risk of collision (i.e. a “head-on situation”) then she shall assume it does exist and act accordingly (per Rule 14(c)). Situations where a vessel may be in any doubt could include a fine passing or fine crossing situation (where, for example, the masthead lights of the other are in line or nearly in line but both sidelights of the other vessel are not necessarily seen).[115]Such matters arise as a matter of the application of the express words of Rule 14 (and see Hirst at p. 129). However, a number of issues emerged in argument as to the proper construction of Rule 14 on which the parties adopted fundamentally opposing positions:-(1) Whether Rule 14(b) sets/defines what is a “reciprocal or near reciprocal course” within Rule 14(a) (the “Definitional Issue”). KIVELI submits it does (in particular relying on the comments of Sir Nigel Teare in The Apollo [2023] EWHC 328 (Admiralty), [2023] 1 Lloyd’s Rep. Plus 95 at [101] when he said “The limit of “reciprocal or nearly reciprocal” courses is set by Rule 14(b)”, also relying on what was said by Lord Briggs and Lord Hamblen in The Ever Smart at [68]), whereas AFINA I submits that Rule 14(b) does not define Rule 14(a), as Rule 14(b) is a “deeming” provision such that if one comes within it, it is a Rule 14(a) situation, but it does not define every situation that will come within the universe of Rule 14(a), which itself defines when it applies.(2) Whether under Rule 14(b), a Rule 14(a) situation shall be deemed to exist: (i) when by night she would see the masthead lights of the other in a line or nearly in a line or both sidelights, or (ii) only when by night she would see the masthead lights of the other in a line or nearly in a line and both sidelights (the “And/Or” Issue”). AFINA I says the former, KIVELI the latter.(3) Whether Rule 14(b) must be satisfied by both vessels or by reference to what one of the vessels (“a vessel”) sees (the “A Vessel Issue”). KIVELI submits the former (in particular relying on the comments of Sir Nigel Teare in The Apollo at [101] (as quoted below)), AFINA I the latter (having regard to the language of Rule 14(b) itself).

E.2.5.2 RULE 14 COMPARED TO RULE 18(a) OF THE COLLISION REGULATIONS 1960

(a) OF THE COLLISION REGULATIONS 1960

[116]Before turning to the proper construction of Rule 14, and the issues that arise as to its construction, I consider it to be of relevance to bear in mind that Rule 14 replaced, with significant changes, Rule 18(a) of the Collision Regulations 1960. Rule 18(a) of the Collision Regulations 1960 provided as follows:- “ Rule 18 When two power driven vessels are meeting end on, or nearly end on, so as to involve the risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other. This Rule only applies to cases where vessels are meeting end on, or nearly end on, in such a manner as to involve risk of collision, and does not apply to two vessels which must, if both keep on their respective courses, pass clear of each other. The only cases to which it does apply are when each of two vessels is end on, or nearly end on to the other; in other words, to cases in which, by day, each vessel sees the masts of the other in a line, or nearly in a line, with her own; and by night, to cases in which each vessel is in such a position as to see both the sidelights of the other. It does not apply, by day, to cases in which a vessel sees another ahead crossing her own course, or, by night, to cases where the red light of one vessel is opposed to the red light of the other or where the green light of one vessel is opposed to the green light of the other or where a red light without a green light or a green light without a red light is seen ahead, or where both green and red lights are seen anywhere but ahead”.

Rule 18

[117]It will be seen that Rule 18 of the Collision Regulations 1960 was highly prescriptive as to the circumstances in which the Rule applied. Breaking the Rule down, Rule 18 stated:-(1) To apply to two power-driven vessels meeting end-on or nearly end-on so to involve a risk of collision.(2) To only apply at night if both vessels were able to see both sidelights of the other vessel.(3) Not to apply to two vessels which must, if both keep their respective courses, pass clear of each other.(4) Not to apply at night to cases where: (a) the red light of one vessel was opposed to the red light of the other vessel or where the green light of one vessel was opposed to the green light of the other vessel (passing); or where (b) a red light without a green light or a green light without a red light is seen ahead (crossing); or (c) where both green and red lights are seen anywhere but ahead.[118]Each of the restrictions at (2) to (4) no longer appear in the text of the new Rule 14. I consider that the effect of the new Rule 14 is to widen the circumstances where there will be a “head on situation” for the purpose of following the provisions in Rule 14(a), and also to apply Rule 14, by reason of Rule 14(c), to a situation were “a vessel” (that is either vessel) is in any doubt as to whether such a situation exists so that she shall assume it does exist and act accordingly (that is act in accordance with Rule 14(a) and alter her course accordingly).[119]I do not accept the submission of Mr Smith KC on behalf of KIVELI, in his oral closing submission, that the amendments from Rule 18 to Rule 14 were purely necessitated by the introduction of Rule 14(c). I consider that the intention behind what is now Rule 14 was to widen and clarify the scope of the application of Rule 14, fill any lacuna that may have existed between the old end-on rule and the crossing rule, and reduce or avoid the potential for conflicting actions by navigating officers by giving primacy to Rule 14, requiring both vessels to turn to starboard and making Rule 14 and Rule 17(c) consistent such that under both Rules turns to port are to be avoided (see Marsden at paragraph 7-320).[120]Rule 18, in contrast to Rule 14, applied to end-on or nearly end-on situations and expressly required at night that each vessel should be able to see both side lights of the other vessel. This requirement was dropped when Rule 18 was replaced by Rule 14 (subject to the And/Or Issue of what is meant by “and/or” in Rule 14(b) as addressed below).[121]The title to Rule 14 refers to “head-on” situations and in the text to “reciprocal courses” or near reciprocal courses rather than the previous “end-on”. Marsden suggests at paragraph 7-319 that under the old end-on rule a difference between courses of one point (11.5°) or more to be enough to take the situation outside the rule and a difference of a half a point (5.75°) or a little more to bring the situation within it. The inference from the text in Marsden is that a reference to vessels being on a reciprocal or nearly reciprocal course in Rule 14(a) is intended to give the rule a wider ambit than the old “end-on” rule had. In other words, a “head-on situation” applies to wider vector ahead of a vessel than the vector created by a difference of 5.75 – 6° under the old end-on rule.[122]AFINA I submits that a difference in course of 7° or thereabouts is nearly reciprocal and will be so if at night the masthead lights are in line or nearly in line or by day the vessel is presenting with a corresponding aspect. In The Lok Vivek [1995] 2 Lloyd’s Rep. 230 it appears that Clarke J considered that a difference of 8° or more may be outside the definition of reciprocal or nearly reciprocal for the purposes of Rule 14 (see at 240lhc). I note that in Farwell it is suggested that vessels will be nearly ahead if when the risk of collision arises her relative bearing is within 5-6° of the bow and recommends that borderline head-on situations should be treated as a head-on situation, which is consistent with the object and purpose of the Collision Regulations to promote safe navigation and the prevention of collisions at sea, with the purpose of Rule 14 itself, and the express inclusion of Rule 14(c).[123]As is pointed out in Farwell, one must be cautioned against harbouring unwarranted expectations regarding the ability of the human eye, or the kind of equipment typically found on tugs and fishing vessels, to discern bearings with a high degree of accuracy (p. 300). As is there stated:- “For some vessels and their operators, errors of plus or minus one point, particularly when one or both vessels are yawing, are not unreasonable, and can be relied upon in forming a conclusion that a vessel was nearly ahead. Borderline cases, which give rise to doubt in the watchstander about whether risk of collision exists or the encounter should be treated as a head-on situation, should be resolved in accordance with Rules 7(a) and l 4(c).” See also what is stated at p. 310 (in the context of Rule 14(b)), “A variance of more than 6 degrees from reciprocal courses may preclude sighting both sidelights on the approaching vessel, but a reasonable seaman may well conclude that the vessel’s masthead lights appear to be nearly in line”.[124]See also what is said in Hirst at p. 129:
“Doubt can arise in circumstances where the two vessels are shaping up to pass clear but close port to port (red to red) or starboard to starboard (green to green); and because of the cut-off requirements for navigation lights … one vessel may see the masthead lights of the other in line or nearly in line and both of her sidelights even though their courses can differ by up to 6' from reciprocal, and more if they are yawing noticeably. In such circumstances, a vessel may have difficulty determining whether she is in a head-on or a crossing situation, and Rule 1 4(c) requires her to resolve this difficulty in favour of a head-on situation and to apply Rule 14.”
(emphasis added)[125]The same point is reiterated in Hirst at p. 135:
“In calm conditions one vessel should only ever see the masthead lights and both sidelights of the other vessel when their courses do not differ by more than 6° from reciprocal. If the other vessel is noticeably yawing however, her masthead lights and both sidelights may be visible on occasions even though her course is more than 6° from reciprocal. Her heading is oscillating - yawing - either side of her course; and on certain headings her masthead lights and both sidelights may be seen, but not on others. There is accordingly, potential for conflict when applying the various elements of Rule 14 for determining if a-head-on situation exists. A vessel however, is likely to have doubts about the precise course of the other vessel where that other vessel is yawing and therefore having difficulty maintaining a steady course. In these circumstances, a vessel should assume a head-on situation exists and act accordingly [Rule 14(c)].”
(emphasis added)[126]I consider that a difference in course of up to 6° or slightly more should be considered to be nearly reciprocal, and given the terms of Rule 14(c) a vessel should assume a head-on situation exists if there is any doubt. Certainly (and as addressed in due course below), if the courses are nearly reciprocal and at night the masthead lights are in line or nearly in line or by day the vessel is presenting with a corresponding aspect, a head-on situation will be deemed under Rule 14(b).[127]There is also a question as to what is meant by “course” for the purpose of Rule 14. Is it the vessels’ course made good or the vessels’ headings which are determinative for the purpose of Rule 14? Prior to the decision in The Ever Smart, the prevailing view was that it was the heading or course through the water which was determinative; see the discussion in Hirst, Collisions at Sea, pp 129 to 135 and in Cockcroft & Lameijer at p. 74. However in The Ever Smart the Supreme Court held that “course” for the purposes of Rule 15 meant the vessels’ course over the ground (see the discussion at [48] to [53] and in particular at [49]).[128]In The Apollo, Teare J assessed whether there was a head-on situation by reference both to the vessels’ headings and to their course over the ground (at [99]). As is clear from the discussion in the judgment, the vessels’ respective headings and courses over the ground were essentially the same (a similar situation prevails in this case).[129]As to when there is a risk of collision, the answer to this question will depend on factors such as the speed of the vessels and the weather but where there is good visibility and sea room, then a safe passing distance is likely to be when there is a CPA of at least 0.5 miles and more likely a distance of 1 mile - see The Apollo at [77] to [79] and Hirst at p. 135.[130]That is also consistent with the advice of Commodore Dorey who advised (in the context of the particular passage in question), “At this stage, of the passage however, regardless of heading east or west, a minimum lateral passing distance of 0.5 nm would be considered to be safe, as this distance, while recognising the volume of traffic and the funnelling effect towards the Strait, is sufficient to make intentions clear, with due regard to the observance of good seamanship.” His advice, which I accept, is that “A reasonably competent mariner would not consider 0.25 nm to be a safe lateral passing distance in [the prevailing] circumstances”.[131]Range and TCPA are other factors that will play into when a risk of collision arises. In the present case the limit alarm on KIVELI’s radar was set to 0.5 nautical miles and for TCPA to a time of 12 minutes. KIVELI’s standing orders required a CPA of 3 miles in good visibility.

E.2.5.3 RULE 14(a) AND RULE 14(b): THE DEFINITIONAL ISSUE

(a) AND RULE 14(b): THE DEFINITIONAL ISSUE

[132]Rule 14(a) is, I am satisfied, the over-arching definitional Rule as to when Rule 14 applies. It defines what is “Such a situation” (as also used in Rule 14(b) and Rule 14(c)) where the specified action must be taken, namely, “When two power-driven vessels are meeting on reciprocal or near reciprocal courses so as to involve a risk of collision” (that is a “Head-on situation”). It then mandates that which must be done by each vessel, namely, “each shall alter her course to starboard so that each shall pass on the port side of the other”. It provides an objective test which defines when a “Head-on situation” applies.[133]As to its proper construction, and whilst it does, of course, have to be read together with the remainder of Rule 14 including Rule 14(b) (as rightly recognised by Sir Nigel Teare in The Apollo), Rule 14(a) comes first, and on its face, and applying the ordinary and natural meaning to its words, it defines a particular situation and then what action to take in that situation. It is not qualified in any way, and it does not state that it is “subject to” Rule 14(b) or that when such a situation applies is defined or set by Rule 14(b). If it were to be circumscribed in that way one would expect it to be expressly so caveated given that the international character of the Collision Regulations and the safety of navigation mean that the Rules must be capable of being understood and applied by mariners of all nationalities, of all types (professional and amateur) in a wide range of vessels and in worldwide waters.[134]Yet further, a general defining provision (in Rule 14(a)), rather than a circumscribed, set definition (as Rule 14(b) would be on KIVELI’s construction), is more consistent with the object and purpose of the Collision Regulations of promoting safe navigation and specifically the prevention of collisions at sea – that is best advanced by a general definition of when Rule 14 applies, rather than circumscribing it to specific circumstances (as set out in Rule 14(b)). Better for Rule 14 to apply than for it not to apply.[135]That is also entirely consistent with Rule 14(c) where, if a vessel is in any doubt as to whether “such a situation” (again which can only be a reference back to Rule 14(a) which sets out what the situation is) exists, “she shall assume that it does exist and act accordingly”. This expands the ambit of Rule 14. Yet further if, as KIVELI submits, it is Rule 14(b) that sets/defines the limit of “reciprocal or near reciprocal courses” it is difficult to give a great deal of scope to Rule 14(c) given how detailed/prescriptive Rule 14(b) is (in particular at night).[136]KIVELI submits that Rule 14(a) is not the definitional Rule as to when Rule 14 applies, rather that it is set/defined by Rule 14(b). She relies in this regard upon what was said by Sir Nigel Teare in The Apollo, in particular at [101]:- “It is implicit in counsel's submission that it is sufficient to bring about a head-on situation if only one of the two vessels can see both sidelights of the other. Reliance was placed on the wording of Rule 14(b) which referred to "a vessel". However, the essence of a head-on situation is that both vessels are meeting on reciprocal or nearly reciprocal courses. The limit of "reciprocal or nearly reciprocal" courses is set by Rule 14(b). It depends upon whether at night the masthead lights of the other vessel can be seen in line or nearly in line and/or both sidelights of the other vessel can be seen. In view of the express requirement for reciprocity or near reciprocity of courses in Rule 14(a) it is clear, in my judgment, that the test set out in Rule 14(b) must be satisfied by both vessels. Otherwise, Rule 14 would apply when the vessels were crossing on courses which were diverging to a substantial degree, for example, where one vessel is on a northerly heading and the other on an easterly heading. Yet that is the effect of counsel's submission. Rules 14(a) and 14(b) must be read together. Rule 14(b) does not say that a head-on situation is deemed to exist if "one of the two vessels" sees both side lights of the other vessel. I accept that Rule 14(b) also does not say that a head-on situation is deemed to exists if "each vessel" sees both side lights of the other vessel. But when one reads Rule 14(a) and (b) together, as they must be, that is the inevitable meaning of Rule 14. “ (emphasis added)[137]Mr Smith KC candidly acknowledged that when Sir Nigel Teare stated that, “The limit of "reciprocal or nearly reciprocal" courses is set by Rule 14(b)” what he stated was probably obiter (in the context of the fact that he determined that the situation, on the facts, was a crossing situation, and not a head-on situation). Nevertheless, he invites me to reach the same conclusion having regard to the indisputable wealth of Admiralty experience of Sir Nigel Teare at the Admiralty Bar and on the Bench, and as the Admiralty Judge for a number of years.[138]I consider that an important point to bear in mind (as Sir Nigel Teare expressly points out in The Apollo in [101] itself) is that the essence of a head-on situation is that both vessels are meeting on reciprocal or nearly reciprocal courses so as to involve a risk of collision. That is precisely what Rule 14(a) says. I do not consider this necessitates the conclusion that Rule 14(b) sets or defines the scope of when two vessels are meeting on “reciprocal or nearly reciprocal courses so as to involve the risk of collision”. It does not so provide, and the language used is not that of definition.[139]Rather Rule 14(b) is, I am satisfied, simply (or only) a deeming provision which is intended to assist a vessel in deciding whether or not she is in a head-on or nearly head-on situation. It is not a provision defining what is a head-on situation but provides a non-exhaustive route-map for a navigating officer to decide whether a head-on situation exists. The test is not exhaustive and Rule 14(b) is intended to support Rule 14(a), not to constrain it. It is also objective, not subjective (a vessel cannot avoid the application of Rule 14(b) (or 14(a)) by claiming not to have seen the lights of the other vessel).[140]I note this is also consistent with the view expressed in Farwell at p. 298, “The two paragraphs [Rule 14(a) and Rule 14(b)] can be harmonized – while giving effect to both if… Rule 14(b) is treated as a sufficient test, but not the sole test, for determining whether the situation is a head-on encounter”. That view is developed further at p. 299 (in terms with which I agree):- “Paragraph 14(b) must therefore be read as a sufficient test for whether a situation falls within the rule for head-on encounters, but not as the sole test. Rule 14(a) defines the head-on "meeting" situation. Rule 14(b) describes for the mariner the day and night visual aspect that will be deemed to satisfy the definition of a head-on situation when the vessels are close enough to permit such observations. But it does not say that it is the only test, and there is no sound reason that a mariner cannot apply the definition in Rule l4(a) to the radar and visual bearing information described above, to determine whether the approaching vessel ahead or nearly so is meeting on a course that is reciprocal or nearly reciprocal so as to involve risk of collision.”[141]This conclusion is entirely consistent with the language of Rule 14(b), that it is a “deeming” provision (deeming particular situations as being within the universe of Rule 14(a)) rather than a definitional provision defining (exclusively) as to what is within the universe of Rule 14(a), in circumstances where it uses the language of “deeming”, does not use definitional language, and Rule 14(a) is not stated to be subject to Rule 14(b).[142]I consider that this conclusion is entirely consistent with what was said by Lord Briggs and Lord Hamblen JJSC in The Ever Smart at [55] where they stated that each of Rules 13 and 14 contain “precise specifications which triggers its application: see rules 13(b) and 14(b). In order to make them work clearly at night, the lighting rules, and rule 21 in particular, operate precisely in tandem with those triggering provisions”. Rule 14(b) is indeed a precise specification which triggers Rule 14(a), but that does not mean that Rule 14(b) is the only trigger for the application of Rule 14(a). The ultimate trigger for 14(a) is simply a situation where “two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve a risk of collision” (as stated in Rule 14(a)).[143]That the entire universe of what is a Rule 14 “head-on” situation within Rule 14(a) is not, and cannot be, defined by Rule 14(b) can be neatly illustrated by the fact the Collision Regulations and Rule 14 apply “to all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels” (Rule 1(a)). The Collision Regulations apply to all motor vessels from the largest bulk carrier to the smallest motor vessel but, as is apparent from the wording of Rule 23, not all vessels are required to have the same masthead lights, or in certain cases sidelights, referred to in Rule 14(b), with the result that Rule 14(b) (in whole or in part depending on the vessels in question) cannot be applied in relation to them at night, yet Rule 14(a) will (indisputably) nevertheless apply. Accordingly, Rule 14(b) cannot set/define the limit of “reciprocal or near reciprocal course” as alleged on behalf of KIVELI.[144]To take but three examples:-(1) A power driven vessel of less than 50 metres in length is not obliged to have a second masthead light abaft of and higher than the forward one (but may do so) (see Rule 23(a)(ii)) so the provision of Rule 14(b) in relation to seeing the masthead lights (in the plural) in a line or nearly in line, cannot always apply (where there are not two masthead lights they can never be in line or nearly in line viewed at night), yet a situation where that vessel and another motor vessel are meeting on reciprocal or nearly reciprocal courses so as to involve a risk of collision could arise, and if it did Rule 14(a) would apply.(2) A power driven vessel of less than 12 metres in length does not have to have a masthead light forward or a second masthead light at all but may in lieu exhibit an all-around white light and sidelights (Rule 23(d)(i)). The same situation pertains as in relation to (1) save that an all-around white light does not even necessarily assist, at night, as to the direction of travel of that vessel yet a situation where that vessel and another power driven vessel are meeting on reciprocal or nearly reciprocal courses so as to involve a risk of collision could arise, and if it did Rule 14(a) would apply.(3) A power driven vessel of less than 7 metres in length whose maximum speed does not exceed 7 kts is not required to have a masthead light forward or a second masthead light at all but may in lieu exhibit an all-around white light “and shall, if practicable, also exhibit sidelights” (Rule 23(d)(ii)) (emphasis added). The fact that such a vessel shall, “if practicable” also exhibit sidelights implicitly recognises that it may not, in all cases, be practicable. Accordingly, there may be such vessels with no sidelights and only an all-around white light. In respect of such a vessel neither the provisions as to masthead lights nor the provisions as to side lights in Rule 14(b) could be applied at night (and so the deeming provision in Rule 14(b) could have no application) yet a situation where that vessel and another motor vessel are meeting on reciprocal or nearly reciprocal courses so as to involve a risk of collision could arise at night, and if it did Rule 14(a) would apply.[145]These examples all illustrate why (quite apart from the express language of Rule 14(a) and Rule 14(b) themselves) Rule 14(b) cannot set/define the entire universe of what is a Rule 14 “head-on” situation, with Rule 14(a) being the defining provision as to what is a “head-on” situation.[146]This is entirely consistent with the object and purpose of the Collison Regulations being to promote safe navigation and specifically the prevention of collisions at sea, and is consistent with Rule 7(a) that “Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists”, and “If there is any doubt such risk shall be deemed to exist” and Rule 7(b) that, “Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of the risk of collision and radar plotting or equivalent systematic observation of detected objects”. All such aids can and should be used by vessels to determine whether, “two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve the risk of collision” (for the purposes of Rule 14(a)).[147]Indeed, there may well be vessels in the future where only Rule 14(a) can be used – as noted in Farwell at p. 311, “it bears repeating that the application of Rule 14 to autonomous vessels, which will presumably be assessing the situation solely by electronic methods, will presumably rely on the test in paragraph (a) rather than that in paragraph (b)”.[148]Whilst the deeming provision in Rule 14(b) promotes safety by deeming the situation in Rule 14(a) to exist where described observational features exist, that is but part of the consideration as to whether two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve the risk of collision, with vessels being obliged to use all available means appropriate to the prevailing circumstances to determine if a risk of collision exists (Rule 7) – those other available means (quite apart from what can be seen as to masthead light(s) and/or side lights (where fitted)) may lead to the conclusion that there is a “head-on situation” within Rule 14(a).[149]In this regard, when determining whether two-power driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision for the purposes of Rule 14(a) such a conclusion can be reached (and in many cases should be reached) by reference to the vessels’ respective courses based on data commonly now obtained by AIS and ECDIS. As is said in Farwell at p. 297, “Rule 14(a) speaks of the courses of the two approaching vessels (data commonly obtained by radar plotting, ARPA and AIS) – for it is their respective courses over the ground that will lead to the vessels “meeting”” (original emphasis).[150]The position can be further illustrated by two high speed vessels within sight of one another (being observed visually from the other) but beyond the required range of masthead lights and side lights (under Rule 22), that could each have a SOG of 30 knots or more and a closing SOG of some 60 knots or more if they were meeting on reciprocal or nearly reciprocal courses so as to involve the risk of collision. This would give rise to a Rule 14(a) situation, and a need for each vessel to alter course to starboard so as to pass at a safe distance red-to-red, even before the deeming provision in Rule 14(b) could be applied.[151]Farwell makes a similar point (at p. 298):- “…in order to take the timely avoiding action required by Rule 8, the watch officer often must apply course and relative bearing information on the approaching vessel obtained by radar to the definition in Rule 14(a) before the vessel has closed to a range that permits the visual observations necessary to apply Rule 14(b). The need for avoiding action at longer ranges is particularly acute with high-speed craft. While it must be acknowledged that Rule 14 applies only to approach situations involving vessels in sight of one another, it would be fatuous to read that requirement as a bar against two vessels approaching each other at a closing speed of thirty knots or more taking collision avoidance action before the vessels draw near enough to discern the color and relative position of the other's lights.” (emphasis added)[152]Equally, it is to be borne in mind that once a risk of collision exists and the approach situation can be classified, subsequent changes do not affect the original classification (a point made in AFINA I’s Closing and subsequent submissions on 14 March 2025, in rebuttal of KIVELI’s submission on 12 March 2025). In this regard masthead lights are required to be visible at twice the range of the coloured sidelights by Rule 22, and so if on initial sighting an approaching vessel’s masthead lights appeared in a line or nearly in a line, and visual bearings on the closing vessel were constant, indicating a risk of collision, a head-on situation would exist (as per Rule 14(a) or would be deemed to exist as per Rule 14(b)) (as to which see below), even before sidelights could be seen.[153]As is stated in Farwell at p. 296:- “Similarly, if two vessels are approaching head-on, as soon as one of them, in obedience to the rules, changes course to starboard, she will at night exhibit only her port sidelight to the other vessel. Such a change in the observed visual aspect over time, or after a turn, does not affect the application of Rule 14 if, on initial sighting, the situation was deemed to fall within the rule by the test set by Rule 14(b). Once risk of collision exists and the approach situation can be classified, subsequent changes do not affect that original classification. Thus, if on initial sighting, an approaching vessel's masthead lights, which are required to be visible at twice the range of the colored sidelights by Rule 22, appeared ahead and in line or nearly in line, and visual bearings on the closing vessel were constant, indicating risk of collision, a head-on encounter would be deemed to exist.” (emphasis added)[154]See also the case of Gulfcoast Transit Company v MT Anco Princess Et Al 1978 A.M.C. 2471 (United States District Court, E.D. Louisiana) in which it was stated (in relation to what was then Article 18), “Once Article 18 comes into play, a vessel cannot change what is an end on situation to one which requires a starboard to starboard passage”, referring also to Griffin, The American Law of Collision 1949.[155]The principle is made explicit in other Rules such as Rule 13 (overtaking) which at Rule 13(d) provides, “Any subsequent alteration of the bearing between the two vessels shall not make the overtaking vessel a crossing vessel within the meaning of these Rules or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear”.[156]As was said by Commodore Dorey at Answer 2:- “Not all vessels will have 2 masthead lights, so the sidelights are relevant however the masthead lights of these vessels would have a 6 nm range whereas the sidelights will have a 3 nm range. Although binoculars will generally assist in identifying these lights at longer range, the masthead lights will give the first indication of the aspect of a vessel, which when coupled with Rule 8 and requirement for action to be taken to avoid collision in ample time, may mean that decisions need to be taken based on the aspect gained from the masthead lights, supported by observation of the sidelights as they become visible, noting also that Rule 14 (c) states that if in doubt, a head on situation shall be assumed to exist and to act accordingly.” (emphasis added)[157]The Supreme Court in The Ever Smart also made clear that when a risk of collision arises between two vessels in sight of each other, Rule 14 takes precedence over Rule 15 so as to determine the steps to be taken by each vessel to avoid a collision (at [98(i)]):- “i) The obligation on a give-way vessel to keep well clear, imposed by the crossing rules, applies wherever it is reasonably apparent to those navigating the vessel which has the other on her starboard side that the two vessels, not being head-on or overtaking, are crossing so as to involve a risk of collision (we will call that, for short, “a crossing situation”). This is what rule 15 expressly provides.” (emphasis added)[158]The reason for the subjugation of Rule 15 to Rule 14 (and Rule 13) is not difficult to divine – it reduces the number of collisions caused by any uncertainty on the part of Officers of the Watch as to whether they are in a head-on situation or a fine crossing situation.

E.2.5.4 RULE 14(b): THE AND/OR ISSUE

(b) : THE AND/OR ISSUE

[159]The next issue of construction relates to the deeming provision in Rule 14(b) and whether, under Rule 14(b), a Rule 14(a) situation shall be deemed to exist(1) when by night she would see the masthead lights of the other in a line or nearly in a line or(2) both sidelights or(3) only when by night she would see the masthead lights of the other in a line or nearly in a line and both sidelights (the “And/Or Issue”). AFINA I says the former ((1) or (2)), KIVELI the latter (3).[160]It will be recalled that Rule 14(b) provides, “Such a situation shall be deemed to exist [i.e., where two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision] when a vessel sees the other ahead or nearly ahead and by night she would see the masthead lights of the other in a line or nearly in a line and/or both sidelights and by day she observes the corresponding aspect of the other vessel” (emphasis added).[161]The short answer is that the ordinary and natural meaning of the language of Rule 14(b) with the use of “and/or” is that there is no necessity that a vessel sees the masthead lights of the other in a line or nearly in a line and both side lights, either will suffice as a matter of language. If both were required that would be failing to give meaning and effect to the “and/or” wording.[162]Yet further, if both had to apply, it is possible that, for example, the vessels’ courses might be such as to be reciprocal or nearly reciprocal, with the masthead lights in line or nearly in line but (for example) only one side light is visible on the other vessel – in such circumstance there would be a risk of collision, but on KIVELI’s interpretation that situation would not be within Rule 14(b) (or indeed on KIVELI’s construction on the Definitional Issue within Rule 14(a) either). It is difficult to see how such construction would be consistent with the objective and purpose of the “head-on situation” and the objective and purpose of the Collison Regulations to promote safe navigation and the prevention of collisions at sea, quite apart from the fact that such construction does violence to the language of Rule 14(b) itself.[163]I am satisfied that the deeming provisions of Rule 14(b) mean exactly what they say, namely that a vessel is in such a position where at night she can see the masthead lights of the other vessel in a line or nearly in a line and/or can see both side lights or by day the corresponding aspect of both vessels. This does not mean that Rule 14 can only apply if both vessels can see both sidelights of the other vessel.[164]I am satisfied that the clause is deliberately drafted with the words “and/or” such that the deeming provision in Rule 14(b) will apply in three situations:-(1) If a vessel can see the masthead lights of the other in line or nearly in line but not the other vessel’s side lights.(2) If a vessel can see both side lights of the other vessel.(3) If a vessel can see the masthead lights and the side-lights of the other vessel.[165]This is also the construction as stated, and understood, in Farwell at p. 300:- “In identifying the visual picture of the head-on situation, Rule 14(b) refers to two possible light configurations:(1) masthead lights in line or nearly in line, and/or(2) both sidelights. The and/or conjunction emphasizes that this test can be met by the masthead light configuration by itself, the sidelight configuration by itself, or by both configurations. It must be recalled, however, that vessels less than fifty meters in length are not required to carry the second masthead light, thus only the sidelights test would apply to such vessels. … Because the Rule 14(b) test is phrased in disjunctive terms, it bears repeating that the test is satisfied by sighting both sidelights simultaneously or by sighting the two masthead lights in line or nearly in line. As the discussion below reveals, courts on occasion overlook this important aspect of the rule.” (emphasis added)[166]Circumstances where the first situation may arise include situations where the weather and sea conditions are such that one or both vessels is yawing or where the vessels are on nearly reciprocal courses shaping to pass green to green or red to red but sufficiently close to each other that there is a risk of collision (as to which see Hirst at pp. 140 – 146).[167]The above construction of Rule 14(b) is also consistent with the fact that a vessel’s masthead lights are required to be visible at twice the range of the coloured sidelights by Rule 22. As already noted, it is important to bear in mind that once a risk of collision exists and the approach situation can be classified, subsequent changes do not affect that original classification (see Farwell at p. 296 and the cases there cited, as already addressed above). Thus, as is said in Farwell:- “Thus, if on initial sighting, an approaching vessel's masthead lights, which are required to be visible at twice the range of the colored sidelights by Rule 22, appeared ahead and in line or nearly in line, and visual bearings on the closing vessel were constant, indicating risk of collision, a head-on encounter would be deemed to exist.”[168]KIVELI relies upon what was said by Sir Nigel Teare in The Apollo at [99] to [106], and in particular at [101] which I will repeat for ease of reference:- “It is implicit in counsel's submission that it is sufficient to bring about a head-on situation if only one of the two vessels can see both sidelights of the other. Reliance was placed on the wording of Rule 14(b) which referred to "a vessel". However, the essence of a head-on situation is that both vessels are meeting on reciprocal or nearly reciprocal courses. The limit of "reciprocal or nearly reciprocal" courses is set by Rule 14(b). It depends upon whether at night the masthead lights of the other vessel can be seen in line or nearly in line and/or both sidelights of the other vessel can be seen. In view of the express requirement for reciprocity or near reciprocity of courses in Rule 14(a) it is clear, in my judgment, that the test set out in Rule 14(b) must be satisfied by both vessels. Otherwise, Rule 14 would apply when the vessels were crossing on courses which were diverging to a substantial degree, for example, where one vessel is on a northerly heading and the other on an easterly heading. Yet that is the effect of counsel's submission. Rules 14(a) and 14(b) must be read together. Rule 14(b) does not say that a head-on situation is deemed to exist if "one of the two vessels" sees both side lights of the other vessel. I accept that Rule 14(b) also does not say that a head-on situation is deemed to exists if "each vessel" sees both side lights of the other vessel. But when one reads Rule 14(a) and (b) together, as they must be, that is the inevitable meaning of Rule 14.” (emphasis added)[169]In the first highlighted passage, Sir Nigel Teare quotes the language of Rule 14(b) but he does not address what the consequences of the “and/or” are as a matter of language and construction. It does seem (from the second highlighted passage) that Sir Nigel Teare was of the view that a head on situation is deemed to exist only if each vessel sees both side lights of the other vessel.[170]However, I consider that it is important to understand the context in which the judge was expressing the views he expressed. It is clear from the judgment that he was concerned with an obvious crossing situation (which can be seen from the plots attached to the judgment and reciprocal of 17°). In this regard at [99] he stated that it was, “clear that at C-12, the vessels were not on reciprocal or nearly reciprocal courses” yet MSC Apollo nevertheless sought to rely on the deeming provision. Sir Nigel Teare rejected its application in such a circumstance (and was clearly right to do so as the vessels were not, on any view, on reciprocal or nearly reciprocal courses).[171]I consider that the views expressed by the judge (that both vessels need to see both sidelights of the other vessel (see at [101] to [106])), have to be seen in the context of his conclusion that the vessels were not on reciprocal or nearly reciprocal courses. There is no consideration (and apparently no argument) on the question of whether a vessel can be on reciprocal or nearly reciprocal courses and not see both side lights of the other vessels. For what it is worth, I was told by Mr Cooper KC in oral argument that the question of whether Rule 14 applied was apparently only developed during the course of oral submissions for MSC Apollo and, as is clear from the judgment itself, the case was principally concerned with the application of the crossing rule.[172]It is unclear to me how a test that would require both vessels to see both side lights of the other vessel would be of any practical assistance to mariners around the world. A vessel can only easily know which lights she can see and cannot easily know whether the other vessel can see both her side lights especially at a range in excess of 3 miles.[173]A similar point is made by Commodore Dorey in an important passage in his advice at Answer 10 (which advice I accept):
“I therefore concluded that by the time the vessels were approximately 8.5 nm apart at around C-22, a head on situation existed and both vessels should have altered their course to starboard when it was safe to do so, taking into account the location and movement of other vessels and therefore not creating another close-quarters situation, as required by Rule 8. It should however be noted that Rule 14 (b) allows for any one of the two vessels to be able to determine that a head on situation exists – ‘when a vessel sees the other’ and therefore the one which makes this assessment and conclusion should alter course to starboard in any event, as they will not have absolute certainty that the other vessel has reached the same conclusion or reached that conclusion at the same time.”
[174]The construction of Rule 14(b) advocated by KIVELI gives no effect to the provisions dealing with masthead lights or the position in daylight. I consider it would also place excessive focus on “both sidelights” and would impose a requirement that they be seen by both vessels, which is a requirement that was expressly removed from Rule 14 when compared to the previous Rule 18. Such an excessive focus on side lights, is not matched by the test for daytime, which relies on the navigating officer’s judgment of the aspect of the other vessel.[175]I consider that the key feature is whether it is a head-on situation which is defined by reference to whether the vessels are meeting on reciprocal or near reciprocal courses (per Rule 14(a)). That explains why Rule 14 (including Rule 14(b)) does not apply to vessels that are crossing and not meeting on reciprocal or nearly reciprocal courses. However, vessels can still meet on reciprocal or near reciprocal courses without being able to see both side lights.[176]So far as the textbooks are concerned:(1) Cockroft v Lameijer, at p. 73 does not say expressly that the rules can only apply when only one vessel can see both side lights of the vessel but equally does not say that the rule can only apply when both vessels see both side lights of the other vessel. It does, however, say that where the two vessels appear likely to pass at close distance starboard to starboard so as to involve risk of collision, they should make an early and substantial alteration of course to starboard to achieve a port to port passing. If both vessels are passing at close distance starboard to starboard so as to involve risk of collision, then it may well be that one or both of them will not see both side lights of the other vessel. See also p. 75.(2) Farwell: (a) Does at p. 294 suggest that vessels will be nearly ahead if when risk of collision arises her relative bearing is within 5- 6° of the bow and recommends that borderline head-on situations should be treated as a head-on situation. (b) Suggests that if on initial sighting a vessel’s masthead lights (visible at twice the range of the sidelights) are in line or nearly in line and visual bearings on the closing vessel are constant indicating risk of collision, a head-on encounter would be deemed to exist (p. 296). (c) Makes the point that to focus only on the visual test in Rule 14(b) ignores the requirements of Rule 14(a) relating to the vessels’ respective courses, data commonly now obtained by AIS and ECDIS – see p. 297. (d) Does expressly state that Rule 14(b) may be treated as a sufficient test but not the sole test for determining whether the situation is a head-on encounter, see pp. 298 - 299 and also the discussion at p. 310 especially in the final paragraph on the page. (e) Does give the phrase “and/or” in 14(b) – a disjunctive interpretation, see p. 300 (as quoted above). (f) Suggests that Rule 14(c) requires a cautious approach to resolving doubtful or ambiguous approach situations, see p. 301. (g) Highlights that a failure to properly assess whether or not a vessel has sea room for a turn to starboard does not justify a failure to comply with the requirements of Rule 14(a) (see p. 304). (h) Explains why starboard to starboard passage is rarely, if ever, proper, p. 312.[177]I therefore consider that Rule 14(b) can apply even where each vessel cannot see both side lights of the other vessel – for example where they can each see the masthead lights of the other in line or nearly in line, even if one or other vessel cannot see both side lights of the other (and can, for example, in the case of one vessel, only see one side light of the other). I consider that this gives meaning and effect to the express language of Rule 14(b) and its “and/or wording”, as well as the purpose of Collision Regulations to promote safe navigation and specifically the prevention of collisions at sea, and Rule 14(c) and its requirement that if a vessel is in any doubt as to whether the vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision it shall assume it does exist and act accordingly. E.2.5.5.

E.2.5.5. RULE 14(b): THE “A VESSEL” ISSUE

(b) : THE “A VESSEL” ISSUE

[178]The third issue between the parties is whether Rule 14(b) must be satisfied by both vessels or by reference to what one of the vessels (“a vessel”) sees (the “A Vessel Issue”). KIVELI submits the former (in particular relying on the comments of Sir Nigel Teare in The Apollo at [101] (as quoted below)), AFINA I the latter (having regard to the language of Rule 14(b) itself).[179]The starting point must be the language of Rule 14(b) (referring to “a vessel sees the other”) set in the context of Rule 14 as a whole, and that includes Rule 14(a) which refers to “two … vessels” (in the plural) and Rule 14(c) which refers to when “a vessel is in any doubt” (in the singular). I consider that the language of Rule 14 speaks with one voice and in that context “a vessel sees the other” in Rule 14(b) is directed at what “a vessel” (in the singular), can see, and not that Rule 14(b) must be satisfied by both vessels in terms of what each can see of the other.[180]There are any number of points that can be made in support of such a construction:-(1) First, the drafter knows how to (and does) distinguish between two vessels (in the plural) in Rule 14(a), and “a vessel” in the singular (in Rules 14(b) and 14(c)).(2) Secondly, there can be no dispute that in Rule 14(c) “a vessel” is referring to a vessel in the singular (KIVELI agrees – see paragraph 82.1 of Kiveli’s Closing Note). It would be unusual (if not very odd indeed) if “a vessel” had that meaning in Rule 14(c) but had a different meaning in paragraph 14(b) – when the same words are used in different sub-clauses the obvious inference is that the word has the same meaning in both. That should surely be the case when the Rules have to be applied by professional and amateur sailors alike.(3) Thirdly, the ordinary and natural meaning of the words “when a vessel sees the other ahead or nearly ahead [etc]” is that this is a reference to what one vessel (“a vessel”) is seeing of the other.(4) Fourthly, a vessel can only ever know (as a fact) what it sees of the other vessel. In this regard whatever assumptions it may make as to what the other vessel can see of it, it cannot know that what the other vessel will see of it, will be the same as what it can see of the other vessel (a point also made by Commodore Dorey). If KIVELI were right, then there would be an inherent uncertainty on the part of a vessel as to whether Rule 14(b) applied as each vessel would never know (as a fact) what the other vessel could see of it which would hardly be conducive to the triggering of Rule 14(b) or the promotion of safe navigation and prevention of collisions at sea.(5) Fifthly, that Rule 14(b) relates to “a vessel” in the singular is entirely consistent with the inclusion and purpose of Rule 14(c), that where a vessel is in any doubt as to whether vessels are meeting on a reciprocal or near reciprocal course it shall assume that it does exist and act accordingly—so too each vessel shall act in accordance with what that vessel sees.[181]The only support for KIVELI’s construction is what was said by Sir Nigel Teare in The Apollo at [101] that, “it is clear, in my judgment, that the test set out in Rule 14(b) must be satisfied by both vessels” and that “I accept that Rule 14(b) also does not say that a head-on situation is deemed to exists if "each vessel" sees both side lights of the other vessel. But when one reads Rule 14(a) and (b) together, as they must be, that is the inevitable meaning of Rule 14”.[182]I respectfully disagree with that view:-(1) The five points identified above all point to the deeming provision in Rule 14(b) applying whenever a vessel sees the other in the respects set out.(2) Reading Rules 14(a) and (b) together does not mean that the inevitable meaning is that the test in Rule 14(b) must be satisfied by both vessels (not least when Rule 14(a) is construed as the definitional provision and Rule 14(b) is only a deeming provision).(3) A clearer guide to meaning is reached by reading Rule 14(b) and Rule 14(c) together both as a matter of language (both use “a vessel”) and as a matter of the object and purpose of the Collision Regulations (to promote safe navigation and prevention of collisions at sea) which is best achieved by Rule 14(b) being satisfied by what either vessel can see (again entirely consistent with Rule 14(c) about Rule 14 applying where “a vessel” “is” in any doubt (both in the singular)).[183]In addition, and once again, what was said in The Apollo must also be understood in the context of the facts of that case (an undoubted crossing situation).[184]I am satisfied, and find, that Rule 14(b) is satisfied by reference to what a vessel can see of the other.

E.2.5.6 CONCLUSION ON RULE 14

[185]In consequence of my findings on the Definitional Issue, the And/Or Issue and the A Vessel issue, Rule 14 will apply:-(1) When the vessels are meeting on reciprocal or near reciprocal courses so as to involve a risk of collision (Rule 14(a) as a definitional provision).(2) When the deeming provision in Rule 14(b) applies, namely when a vessel sees the other ahead or nearly ahead and by night she would see the masthead lights of the other in a line or nearly in a line or both sidelights (as a consequence of the A Vessel Issue and the And/Or Issue).(3) When a vessel is in any doubt as to whether the two vessels are meeting on reciprocal or near reciprocal courses so as to involve a risk of collision (by reason of Rule 14(c)).[186]I accordingly reject KIVELI’s submission that in order for Rule 14 to apply AFINA I would have had to see both KIVELI’s sidelights at the relevant point(s) in time and that KIVELI would have to see both sidelights of AFINA I at the (same) relevant point(s) in time. On the contrary, Rule 14 would apply in any of the situations set out in the previous paragraph. None of those situations (save the “or” situation in Rule 14(b) if applicable on the facts viz sidelights) require that either of the vessels see both sidelights of the other.[187]I also reject the suggestion made by KIVELI, that if Rule 14(c) is engaged this does not mean that this is a “head on” situation and merely compels the vessel in doubt to act accordingly (and the other vessel to do nothing). That suggestion is contrary to the whole structure of Rule 14. Rule 14 bears the heading “Head-on situation” (which is then defined in Rule 14(a) and deemed in Rule 14(b)) and requires both vessels to act, whilst Rule 14(c) requires an assumption to be made that “such a situation” exists. All of sub-paragraphs (a), (b) and (c) are within the rubric of Rule 14 (a “Head-on situation” per the Rule’s heading). The point is in any event, somewhat academic for if one vessel is in any doubt the overwhelming likelihood is either that the other vessel will consider that it is a Rule 14(a) or a Rule 14(b) situation or like the first vessel will be in doubt and so too will be within Rule 14(c). On any such permutation each vessel shall alter her course to starboard. Even if KIVELI were right, KIVELI would be obliged to turn to starboard if Rule 14(c) applied (which she did not do).

E.2.6 RULE 15

[188]Rule 15 provides:- “ Rule 15 Crossing situation When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.” Rule 15

Crossing situation

[189]The wording of Rule 15 is self-explanatory. It applies where two power-driven vessels are crossing so as to involve risk of collision. In these circumstances, the vessel which has the other on her own starboard side has to keep out of the way and, if the circumstances of the case admit, avoid crossing ahead of the other vessel. As is inherent in the wording, for a crossing situation to arise, only one vessel can have the other on her starboard side. If both vessels have the other on their starboard side, then there can be no crossing situation with a give-way vessel and a stand-on vessel.[190]The application of Rule 15 was addressed by the Supreme Court in The Ever Smart, and at [98] the Supreme Court summarised the effect of the authorities on the crossing rule. In this regard at sub-paragraph 98(i) it is made clear by Lord Briggs and Lord Hamblen JJSC that the crossing rule only applies if the vessels are not in a head-on or overtaking situation:- “The obligation on a give-way vessel to keep well clear imposed by the crossing rules, applies wherever it is reasonably apparent to those navigating the vessel which has the other on her starboard side that the two vessels, not being head-on or overtaking, are crossing so as to involve a risk of collision (we will call that, for short, “a crossing situation”). This is what rule 15 expressly provides.” (emphasis added)[191]As Mr Smith KC accepted on behalf KIVELI in his oral opening submissions, Rule 14 prevails over Rule 15 where Rule 14 is engaged, and Rule 14(c) is drafted as it is, to reduce the number of collisions caused by uncertainty on the part of navigating officers as to whether they are in a head-on situation or in a fine crossing situation.[192]A crossing situation subsists until the stand-on vessel is well clear: Marsden on Collisions at Sea, 15th Edn. at 7-331; The Orduna (Owners) v Shipping Controller (1920) 5 LI.L.Rep 241, [1921] A.C. 250.

E.2.7 RULE 16

[193]Rule 16 addresses the action to be taken by a give-way vessel, namely, so far as possible. To take early and substantial action to keep well clear:- “ Rule 16 Action by give-way vessel Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear.” Action by give-way vessel

E.2.8 RULE 17

[194]Rule 17 addresses the action to be taken by a stand-on vessel:- “ Rule 17 Action by stand-on vessel(a) (i) Where one of two vessels is to keep out of the way the other shall keep her course and speed. (ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.(c) A power-driven vessel which takes action in a crossing situation in accordance with sub-paragraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.(d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way”. Rule 17

Action by stand-on vessel

[195]Thus Rule 17 requires the stand-on vessel to keep her course and speed. The stand-on vessel may take action to avoid collision by her manoeuvre alone as soon as it becomes apparent that the give-way vessel is not taking appropriate action in accordance with the Collision Regulations (Rule 17(a)(ii)).[196]The stand-on vessel must take action as will best aid the avoidance of a collision when she finds herself so close that that collision cannot be avoided by the action of the give-way vessel alone (Rule 17(b)). Although Rule 17(a)(ii) is expressed in permissive terms, situations might arise in which circumstances of good seamanship required a stand-on vessel to take avoiding action; see The Alexandra I and Ever Smart [2022] 1 Lloyd’s Rep. 470 at [118] to [120].[197]Rule 17(c) states that a power-driven vessel taking action in a crossing situation in accordance with Rule 17(a)(ii) shall, if circumstances allow, not alter course to port for a vessel on her own port side. In other words, Rule 17(c) prohibits an alteration of course to port for a vessel on the port side unless the circumstances do not permit any other course of action - see Marsden at paragraph 7-351.[198]Action for the purposes of Rule 17 includes not just an alteration of course or speed but also the making of an appropriate sound signal, namely a whistle signal of five short and rapid blasts; see Rule 34(d) and also The Angelic Spirit [1994] 2 Lloyd’s Rep. 595 at 607.

E.2.9 RULE 34(d)

[199]Rule 34 addresses manoeuvring and warning signals. In this regard it provides at Rule 34(d) as follows:- “ Rule 34 Manoeuvring and warning signals … d) When vessels in sight of one another are approaching each other and from any cause either vessel fails to understand the intentions or actions of the other, or is in doubt whether sufficient action is being taken by the other to avoid collision, the vessel in doubt shall immediately indicate such doubt by giving at least five short and rapid blasts on the whistle. Such signal may be supplemented by a light signal of at least five short and rapid flashes.” Rule 34

Manoeuvring and warning signals

[200]Thus Rule 34(d) requires approaching vessels which are in sight of each other and uncertain as to the intentions or actions of the other or is in doubt as to whether sufficient action is being taken by the other to avoid a collision to indicate their doubt immediately by sounding five short and rapid blasts on the whistle. This sound signal may be supplemented by a light signal of at least five short and rapid flashes.

E.2.10 RULE 36

[201]Rule 36 is permissive and permits a vessel, where it is necessary to attract the attention of another vessel to make light or sound signals which cannot be mistaken for any signal authorised elsewhere in the Rules.

E.3 THE ADMIRALTY SAILING DIRECTIONS

[202]KIVELI also relies on the Sailing Directions which relate to navigation of the Strait of Stenó Elafonísou. The Directions in question are intended to assist with safe navigation in the Strait of Stenó Elafonísou. They provide, under the heading “Stenó Elafonísou and Western Approach”:
“Area Covered 2.57 Stenó Elafonísou and its W approach are taken as extending from the vicinity of 3610.00N 2215.00E to 3624’.00N 2315.00E, about 52 miles ENE. The section comprises: Western approach to Stenó Elafonísou (2.59) Stenó Elafonísou (2.66). Traffic regulations 2.58 1. Owing to the heavy traffic in Stenó Elafonísou, E-bound vessels should keep: S of a line between Akra Tainaro (3623’.20N 2229.00E) and Akra Spathi (3623/.00N 2257.00E) until near the latter cape, thence: On the S side of the fairway of Stenó Elafonísou (3625.00N 2257.00E). 2. West-bound vessels should keep: On the N side of the fairway of Stenó Elafonísou, thence: N of a line between Akra Zovolo (3625’.70N 2007/.90E) and Akra Zovolo (3625’.70N 2307’.90E) and Akra Tainaro (3623’.20N 2229’.00E) until near the latter cape. WESTERN APPROACH TO STENÓ ELAFONÍSOU General Information Route 2.59. The W approach to Stenó Elafonísou leads from the vicinity of 3610.00N to 3624.50N 2248.00E about 28 miles ENE.”
The section comprises: Traffic regulations On the N side of the fairway of Stenó Elafonísou, thence: WESTERN APPROACH TO STENÓ ELAFONÍSOU General Information

Route

[203]BA Chart 1092 (which was the working chart in use on both vessels) sets out the Traffic Regulations for the Western Approaches to Stenó Elafonísou as follows: “Due to heavy traffic in Stena Elafonisou (3624’N, 2302’E) eastbound vessels should keep on the south side of the fairway and westbound vessels should keep on the north side. For further details see Admiralty Sailing Directions”.[204]KIVELI submits that the Collision occurred south of the line which KIVELI was obliged to keep south of, but well south of the line which AFINA I was obliged to keep north of. When in the Western Approaches to Stenó Elafonísou AFINA I did not stay north of the line between Akra Zovolo and Akra Tainaro until “near the latter cape” (i.e., Akra Tainaro) as she was obliged to.[205]However, as AFINA I points out, at the time of the Collision, neither vessel was navigating in the Strait itself and therefore the Sailing Directions are not applicable (contrary to KIVELI’s case). In any event, and whether that was so or not, there is no evidence that if either vessel was not complying with the Sailing Directions this had a causative effect on the manoeuvring of the other for the purposes of determining what caused the Collision.[206]I am satisfied that the Sailing Directions are not of any relevance on the facts of the present case. First, the Directions are advisory rather than mandatory. Secondly, the Directions are intended to govern navigation in the Strait but neither vessel was in the Strait at the time or in a position where the approach to the Strait was constraining their navigation. So far as the navigation of AFINA I is concerned, she had cleared the Strait and was on a course of 250°T which was intended to keep her a safe distance from Akra Tainaro. Thirdly, both vessels were navigating on courses which were similar to those of other vessels approaching or departing the Strait. Fourthly, and fundamentally, there is no evidence that if either vessel was not complying with the Directions, then this had any causative effect on the manoeuvring of the other for the purposes of determining what caused the Collision. The reality is that when the vessels came within sight of each other each vessel was obliged to comply with the Collision Regulations, and if the Collision Regulations had been complied with there would have been no Collision (as addressed below including as to the relevant Rule and relevant action to be taken). FAULT AND APPLICATION OF THE COLLISION REGULATIONS

F.1 WHEN DID A RISK OF COLLISION ARISE?

[207]KIVELI submitted that at all times until immediately prior to AFINA I’s alteration of course to starboard at 05:55:45 (C-5:15) the vessels were shaping to pass starboard to starboard at a safe distance, with the bearing of AFINA I opening to starboard, that there was no risk of collision until AFINA I altered course to starboard when there was no obligation to do so, and that that alteration of course was the cause of the Collision with KIVELI’s only failure being to turn to port in reaction to what it says was AFINA I’s “dangerous move”. However, if there was a risk of collision, KIVELI submitted, in opening and in its Closing Note, that that risk had existed since the vessels were first in sight of each other at 05:39 (whilst maintaining its position that this was a crossing situation).[208]Following Commodore Dorey’s advice that a risk of collision did indeed exist at 05:39, KIVELI then sought to submit that there had, in fact, been a risk of collision between 05:01 (C-60) through to 05:39 (C-22) on the basis that neither vessel’s bearing appreciably changed during this period (a factor relied upon by Commodore Dorey in relation to the position as at 05:39). However, such submission is purely based on the vessels’ respective bearings, and ignores the fact that prior to 05:39 the vessels were not in sight of each other, and their range was in excess of 23 nm. I do not consider that a risk of collision existed prior to 05:39, and the reason why a risk of collision existed at 05:39 is, as will appear below, multi-faceted, and is not simply based on the vessels’ respective bearings.[209]The attempt on the part of KIVELI to suggest that there was a risk of collision from C-60 not only focuses only on the relative bearings between the vessels, it also ignores that the fact that whilst the range between the vessels at C-22 (05:39) was 8.5 nm with a CPA of 0.22 nm, in contrast, the range between the vessels at C-60 (5:01) was 23.44 nm with a CPA of 3.76 nm, and there is no evidence whatsoever that the vessels could see each other visually at C-60 (and there was no risk of collision for the purposes of Rules 7 and 14 (or 15) at C-60). In contrast (and as will appear) there was a risk of collision at C-22 (05:39) when the vessels were in sight of each of other (which KIVELI failed to recognise and to which she failed to react).[210]Equally, I do not consider there is anything in KIVELI’s wider suggestion that the situation of a risk of collision was created by AFINA I’s earlier manoeuvres being two alterations of course leading AFINA I to be south of the horizontal line between Akra Spathi and Akra Tainaro as that is little more than a submission based on where AFINA I happened to be geographically as at 05:39 (as before that, the distance between the vessels was such that it cannot be said that a risk of collision existed, and the vessels were not even within sight of each other).[211]In any event, and as already addressed, AFINA I was not in breach of the Sailing Directions and her course was consistent with the courses adopted by other vessels proceeding in the same direction, such as, for example, the course of the CAPE NATALIE as shown on the agreed animated plot. I am satisfied that actions taken by AFINA I prior to 05:39 were of no causative effect. The situation which arose between the vessels from 05:39 onwards was (as shall be seen) largely caused by the failure of lookout on the part of the OOW on board KIVELI and by his decision that he was going to pass CAPE NATALIE and AFINA I green to green at an unsafe distance in breach of the Collison Regulations.[212]For its part, AFINA I submitted that a risk of collision existed at 5:56 (C-5), but that a risk of collision could be found to have arisen at three earlier alternative times when, AFINA I submitted, the vessels were on reciprocal or near reciprocal courses:(1) 05:39 (C-22) when the CPA was 0.213 nm, the TCPA was 22 minutes and the range was 8.668 nm. The evidence of AFINA I’s Chief Officer (which I accept) is that he could see KIVELI by radar and visually at this time. Equally I am satisfied that KIVELI’s Chief Officer would, if he were keeping a proper look out, have been able to see AFINA I visually and would have seen her on radar at this time (though I am also satisfied that he was not keeping a proper look out at this time).(2) 05:45 (C-16) when the CPA was 0.194 nm, the TCPA was 16.02 minutes and the range was 6.283 nm. Both Chief Officers acknowledge that they could see the other visually and on their radar by this time.(3) 05:51 (C-10) when the CPA was 0.231 nm and the TCPA was 09.30 minutes and the range was 3.717 nm.[213]It will be apparent therefore that there was a degree of convergence of the parties’ respective submissions as to a risk of collision at 05:39 (C-22), albeit it did not represent either party’s primary submission as to when (if at all) a risk of collision existed.[214]In this context the parties agreed that the first question that I should ask Commodore Dorey (Question 1) related to the position at 05:39:- “Was there a risk of, within Part B of the Steering and Sailing Rules collision shortly after 05:39 when the ships were 8.5 nm distant, and if not when, if at all, did a risk of collision first arise and why?”[215]Commodore Dorey’s answer (Answer 1) included the following (his complete answer is set out at in Annex 2 hereto):
“Although 8.5 nm is beyond the theoretical range of the navigation lights, being 6nm for the masthead lights and 3nm for the side lights for vessels of this size, provided that the height of eye is sufficient, the 6nm lights can often be seen at much longer range in good visibility, particularly with binoculars. Therefore, a visual bearing may have been possible in order to determine the risk of collision under Rule 7 (d) (i), provided a good visual lookout was being maintained. However, under Rule 7 (a) ‘Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists’, adding that ‘if there is any doubt, such risk shall be deemed to exist’. It is therefore expected that other means beyond purely visual observation should be used to determine whether risk of collision exists, including radar specifically, but all available means would also include AIS, displayed on both radar and ECDIS. In addition, Rule 7 (b) states that ‘proper use shall be made of radar equipment if fitted and operational, including long range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects’. This would include the use of ARPA. Both vessels had the means of determining whether risk of collision existed, including long range scanning, however, whether the means of determining if a risk of collision existed where fully utilised, or not, at 05:39 both vessels did have that capability. I initially comment that tenths of a degree in bearing become irrelevant in the practical application of navigation and the IRPCS as this is beyond the accuracy of the compass source or the ability of the user when taking a visual bearing, however, for consistency, from the agreed data provided: At 05:39 the bearing of Afina1 from Kiveli was 075.1 which had remained within the range of 073.2 – 075.4 since the plots commence at C-60, or 05:01. Equally for Afina1, the bearing of Kiveli is recoded at 05:39 as 255.1 which had remained within the range of 253.2 - 255.4 since the data commences at C-60, or 05:01 This minor variation of bearing indicates that the bearing of either vessel from the other had not appreciably changed, leading up to 05:39 and therefore, from the data provided, under Rule 7. (d) (i) the compass bearing of the approaching vessel has not appreciably changed and therefore risk of collision existed at 05:39.”
(emphasis added)[216]I accept that answer, and find that a risk of collision existed at 05:39, but the reason that a risk of collision existed at 05:39 is not simply because of the vessel’s respective bearings (per Rule 7(d)(i)). I also find that at 05:39:-(1) KIVELI and AFINA I were in sight of each other by radar and visually.(2) At that time they were meeting on reciprocal or nearly reciprocal courses.(3) Each vessel would have been able to see the other ahead or nearly ahead and each vessel would see the masthead lights in line or nearly in line.[217]Each of (2) and (3) also mean that there was a risk of collision at 05:39 (C-22).[218]As to (1) (KIVELI and AFINA I were in sight of each other by radar and visually) this is, or should, be common ground. It is the evidence of the Chief Officer of AFINA I which I accept. It is, I am satisfied, also what the Chief Officer of KIVELI would have seen had he kept a proper look out (which he did not).[219]As to (2) this is confirmed by Commodore Dorey in his Answer 2, which I accept. His full answer is set out in Annex 2 hereto. His conclusion is as follows:
“I draw the conclusion that for the timings from C-26 to C-6, the vessels were within reasonable tolerance of being considered to be on reciprocal or nearly reciprocal headings.”
[220]KIVELI appear to be correct that at C-30 the difference between the vessels’ reciprocal headings was 6.3°. Commodore Dorey correctly records that at C-22 the difference was 7°. These are differences which mean that the vessels’ courses are reciprocal or nearly reciprocal within Rule 14(a) and must also mean that the vessels’ masthead lights are in line or nearly in line for the purposes of Rule 14(b) even if, for whatever reason, KIVELI could only see a green sidelight of AFINA I (had the Chief Officer of KIVELI bothered to look). As AFINA I rightly points out, the fact that one vessel is fine to starboard of the other does not mean that the vessels are not in a head-on situation for the purposes of Rule 14 where the vessels are on reciprocal or nearly reciprocal courses.[221]KIVELI submits that Commodore Dorey’s view is qualified by the words “within reasonable tolerance of being” which is not the wording of Rule 14(a). However, I consider it to be clear that when Commodore Dorey refers to the vessels being “within a reasonable tolerance of being considered on reciprocal or nearly reciprocal headings”, he is describing the fact that the differences in headings between the vessels were within the range which he considers to be reciprocal or nearly reciprocal. As to this, I am satisfied that he is correct as his table (corrected for C-30) clearly demonstrates especially for the period after C-16.[222]In any event, Rule 7(a) is clear that if there is any doubt as to whether a risk of collision exists it shall be deemed to exist, and equally under Rule 14(c) if a vessel is in any doubt as to whether vessels are meeting on reciprocal or near reciprocal courses she shall assume that it does exist and act accordingly.[223]As to (3) (each vessel would have been able to see the other ahead or nearly ahead and each vessel would see the masthead lights in line or nearly in line) each of these is confirmed by Commodore Dorey in his advice which I accept. As to the former he considered the relative bearings of the vessels, and having set out such data concluded that:- “From the data above, for Kiveli observing Afina, the relative bearing from C-30 to C-6 remains broadly within plus or minus 5 degrees and therefore a reasonably competent OOW would see this as being ahead or nearly ahead. It is slightly different for Afina observing Kiveli, as the relative bearing of Kiveli remains within around 5 degrees where it could be reasonably stated that Afina would have seen Kiveli ahead or nearly ahead, until somewhere between C-22 and C-16 where the bearing starts to increase. By C-7.5 and certainly by C-6, the relative bearing of circa 009 degrees would be sufficient to say that Afina would by this time, see Kiveli as being fine to starboard.”[224]Although Commodore Dorey has adopted a range of plus or minus 5 degrees for determining whether a reasonably competent OOW would have seen the other vessel as being ahead or nearly ahead, the relative bearing of AFINA I to KIVELI between C-30 to C-7.5 was in a range of between 2.6° and 3.5° which I am satisfied was well within the range for which the OOW on board KIVELI should have treated the vessels as being ahead or nearly ahead of each other or should at least have been in reasonable doubt as to whether such a situation existed. Put another way between C-22 and C-16, AFINA I was within half a point to port of KIVELI and between C-16 to C-6, she was within half a point to starboard of KIVELI (see Farwell, as quoted above).[225]As for whether each vessel would see the masthead lights in line or nearly in line, I am satisfied that they would at 05:39 (C-22), and this is confirmed by Commodore Dorey in his Answer 4, which I accept:- “as soon as each vessel could be visually observed by the other, perhaps at around 8.5 miles at C-22, with binoculars, a reasonably competent Officer of the Watch of each vessel would have seen the masthead lights of the other vessel to be in line or nearly in line”. As already noted this is also consistent with Commodore Dorey’s analysis of the difference between the vessels’ reciprocal headings at C-22.[226]KIVELI appears to suggest that because Commodore Dorey has focused on angular separation as the best indicator of whether a reasonably competent mariner would or should have perceived the masthead lights as being in line or nearly in line (which KIVELI denies is an accurate way to assess whether there is a head-on situation), he has ignored the issue of lateral separation. I am satisfied that Commodore Dorey considered both issues, but determined that looking to the angular separation between the masthead lights gives the best indication of what an OOW looking at another vessel at the ranges given in Question 4 and in particular at a range of 8.5 nm would have observed. I agree with Commodore Dorey in this regard.[227]In any event at 8.5 nm, the perceived lateral separation between AFINA I’s masthead lights as seen from KIVELI was 9.25m which was (as AFINA I rightly points out) an inconsequential distance when observed through binoculars at a range of 8.5 nm. Equally for AFINA I, the perceived lateral separation between KIVELI’s masthead lights was even less, namely 5.45m.[228]For all the above reasons individually, as well as collectively (an a fortiori situation), a risk of collision existed at 05:39 (C-22) for the purpose of Rule 7 and accordingly Rule 8 (action to avoid collision).[229]This is so regardless of what (if any) sidelights of either vessel were visible to the other vessel at 05:39. In this regard it is to be borne in mind that at this time the vessels were about 8.5 nm apart which is considerably greater than the 3 nm range that sidelights are required to have, albeit that in good visibility, and with binoculars, it may be possible to see sidelight(s) at greater distances.[230]I do not consider it ultimately matters what (if any) sidelights were or might have been visible at this extended distance (given that the risk of collision in any event existed at that time for the reasons that I have given). However, such evidence as there is, is consistent with there being a risk of collision. In this regard in his statement AFINA I’s Chief Officer states that KIVELI was showing predominantly a green side light but on occasions her green and red side light as the two vessels independently yawed. This is entirely consistent with there being a further reason to regard there as being a risk of collision, and whilst KIVELI does not accept the evidence of AFINA I’s Chief Officer, it, itself, submits that AFINA I “would have seen predominately KIVELI’s port [red] side light and possibly her green sidelight”, though it asserts that KIVELI “could only have seen the green sidelight of AFINA I” (but does not assert that at this time, in contradistinction to certain later times, that KIVELI’s Chief Officer did see such green sidelight at this time).[231]Given the distance, the range required of sidelights, and the very limited factual evidence on the point, I do not consider that it would be either safe, or appropriate, to make any factual findings as to what sidelights could, or were, seen by either vessel at 05:39. However there are a number of (important) points to note in relation to side lights in this regard:-(1) The risk of collision existed as at 05.39 regardless of what (if any) sidelights could be seen by either vessel.(2) Once such risk of collision existed (per Rule 7) action was necessary to avoid collision (per Rule 8) and was to be taken in accordance with the Rules (specifically Rule 14 as appears below). As already addressed, once a risk of collision exists and the approach situation can be classified, subsequent changes do not affect that original classification.(3) Equally, and as also already addressed, Rule 14(a) is a free-standing Rule and arises and applies whenever (as here) two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve a risk of collision.(4) The deeming provision in Rule 14(b) applies when a vessel sees the other ahead or nearly ahead (as each of KIVELI and AFINA I should have seen the other at 05:39).(5) The deeming provision in Rule 14(b) applies when a vessel sees the masthead lights of the other in a line or nearly in a line (as each of KIVELI and AFINA I should have seen the other at 05.39).(6) In cases (4) and (5), and as already addressed, on the proper construction of Rule 14(b), such deeming provision in Rule 14(b) applies whether or not either vessel can see both side lights of the other (though if it did, that would be a further reason why the deeming provision in Rule 14(b) applied).(7) The fact a vessel cannot see both sidelights of the other does not mean that there is not a risk of collision for the purpose of Rules 7, 8 and 14.[232]In relation to sub-paragraph (7) above, the constant focus of those acting on behalf of KIVELI as to whether KIVELI could only ever see the green (starboard) light of AFINA I is misplaced even assuming (for present purposes) that that was the case, and for any number of reasons:-(1) Vessels are required to act in accordance with the Rules, whenever (and as soon as) there is a risk of collision. Such risk can arise even before sidelights are visible, and also in many situations that have nothing to do with what sidelights can be seen (for example, as here, where the vessels are within sight of each other, and there is a close quarters situation with the vessels due to pass each other at less than a safe passing distance).(2) Rule 7(d)(i) applies where the compass bearing of an approaching vessel does not appreciably change. That is not tied to what sidelight(s) can be seen by either vessel.(3) On the proper construction of Rule 14(a), and as already addressed, Rule 14(a) is a freestanding provision and applies whenever two power-driven vessels are meeting on reciprocal or near reciprocal courses so as to involve a risk of collision. That is not tied to what sidelight(s) can be seen by either vessel.(4) On the proper construction of Rule 14(b), and as already addressed, a Rule 14(a) situation is deemed to exist when (by night) a vessel would see the masthead lights of the other in a line or nearly in a line. Rule 14(b) is an “And/Or” provision, as I have found. There is no requirement that she should see both sidelights.(5) On the proper construction of Rule 14(b), and as already addressed, the fact that a vessel could not see both lights of the other does not prevent the deeming provision in Rule 14(b) applying. Accordingly, the fact that (for example) a vessel could only see one sidelight of the other does not prevent Rule 14(b) applying.(6) Once Rule 14(b) does apply, then the situation is deemed to be that stated in Rule 14(a), namely it is deemed that the vessels are meeting on reciprocal or near reciprocal courses so as to involve risk of collision, with the consequence that “each shall alter her course to starboard so that each shall pass on the port side of the other”. This is so regardless of whatever sidelights either vessel should, or does, see of the other. The obligation is simply to act in accordance with Rule 14(a) i.e. each shall alter her course to starboard so that each shall pass on the port side of the other,(7) Both Rule 7(a) and Rule 14(c) mandate how a vessel must act where a vessel is any doubt. In Rule 7(a) if a vessel is in any doubt if a risk of collision exists such risk shall be deemed to exist (leading to the application of Rule 8 to avoid collision and the following of applicable Rules (including Rule 14)). Equally Rule 14(c) provides that if a vessel is in any doubt as to whether the situation stated in Rule 14 exists it shall assume it does exist and act accordingly. Neither Rule 7(a) nor Rule 14(c) depends on what sidelights can be seen.(8) To conclude that a risk of collision does not exist because only one sidelight of the other vessels can be seen is not consistent with the Rules including, Rules 2, 5, 7 and 14, and the very object and purpose of the Rules to promote safe navigation and prevention of collisions at sea.[233]I am accordingly satisfied, and find, that a risk of collision existed as at 05:39 (C-22) (and thereafter). As addressed above, it is important to bear in mind that once a risk of collision exists and the approach situation can be classified, subsequent changes do not affect that original classification (see Farwell at p. 296 and the cases there cited, and The Eversmart at [98(i)], in each case as already quoted above). In this regard I am satisfied, as it was put by AFINA I, that the “die was cast” as at 05:39.

F.2 WAS THE SITUATION A HEAD-ON SITUATION (RULE 14) OR A CROSSING SITUATION (RULE 15)?

[234]The next issue that arises is whether, at the time when a risk of collision arose, the situation was a head-on situation (Rule 14) or a crossing situation (Rule 15). I am in no doubt whatsoever, that when the risk of collision arose at 05:39 (C-22) (and continuing thereafter) the situation was a head-on situation and Rule 14 applied. As addressed below, this is consistent with the advice of Commodore Dorey (at Answer 8) which I accept.[235]It is convenient to set out Rule 14 once again at this point:- “ Rule 14 Head-on situation(a) When two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other.(b) Such a situation shall be deemed to exist when a vessel sees the other ahead or nearly ahead and by night she would see the mast head lights of the other in a line or nearly in a line and/or both sidelights and by day she observes the corresponding aspect of the other vessel.(c) When a vessel is in any doubt as to whether such a situation exists she shall assume that it does exist and act accordingly.” Rule 14

Head-on situation

[236]As already addressed above, on the proper construction of Rule 14, Rule 14 applies where:-(1) Rule 14(a): Two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision.(2) Rule 14(b): When a vessel sees the other ahead or nearly ahead, and (a) by night i) she would see the masthead lights of the other in a line or nearly in line, and/or ii) both side lights (b) by day she observes the corresponding aspect of the other vessel.(3) Rule 14(c): When a vessel is in any doubt as to whether the two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve a risk of collision.[237]As I have already found at 05:39 (C-22):-(1) The vessels were meeting on reciprocal or nearly reciprocal courses (as also confirmed by Commodore Dorey in his Answer 2, which I accept). Accordingly, Rule 14(a) applies.(2) Each vessel would have been able to see the other ahead or nearly ahead and each vessel would see the masthead lights in line or nearly in line (as also confirmed by Commodore Dorey in his Answer 4, which I accept). Accordingly, Rule 14(b) applied (in any event).[238]The vessels were accordingly in a head-on situation within Rule 14 at 05:39 (C-22) and each vessel should have acted accordingly (i.e., and when safe to do so having regard to traffic conditions, alter her course to starboard so that each shall pass on the port side of the other).[239]I would only add that I am satisfied that if there was any doubt as to whether situation(1) or(2) existed, which I do not consider there was on the facts pertaining at 05:39, then in the circumstances pertaining at that time, each vessel should have assumed that it did exist (Rule 14(c)) and acted accordingly (as per Rule 14(a)).[240]It is also clear that the situation remained a “head-on” situation within Rule 14 thereafter. The trigger for the operation of Rule 14, however, was at 05:39.[241]It follows that when the risk of collision arose the vessels were not in a crossing situation, and Rule 15 did not apply.[242]In this regard I asked Commodore Dorey the following question (at Question 8) which was to be answered in the light of his answers to Questions 1 to 7 (as set out in full in Annex 2):- “… if a risk of collision arose, would a reasonably competent mariner have concluded that the vessels were (at that time) in a head-on or a crossing situation”.[243]His Answer (Answer 8), which I accept, was as follows:- “Taking the overall situation into account, including what could be observed visually and on radar and ECDIS, a reasonably competent mariner, taking a practical view of the circumstances would conclude that the safest deduction was to assume that this was a head on situation, with vessel ahead or nearly ahead and on reciprocal or nearly reciprocal bearings, and with the bearing not appreciable changing, thus creating a risk of collision.” (emphasis added)[244]I then asked Commodore Dorey Question 10, namely, “if there was a head-on situation, when did it begin and what should each vessel have done and when”? His answer involves comments on the construction of Rule 14 (which is ultimately a matter for the Court) and comments on the evidence (which is again a matter for the Court). However, his comments on Rule 14 are consistent with the construction I have found, and I have accepted the evidence of the Chief Officer of AFINA I to which he refers, save that I do not consider the evidence suffices to conclude precisely what the Chief Officer of AFINA I saw in terms of sidelights at this time. Albeit that AFINA I and KIVELI submit that AFINA I would have seen KIVELI’s red port sidelight and (even on KIVELI’s case, “possibly her green sidelight”) though KIVELI does not accept that either vessel was yawing.[245]I accept Commodore’s conclusions (as emphasised below) which accord with my own conclusions based on the proper construction of Rule 14, the evidence before me, and the findings I have made:- “General. IRPCS Rule 7 (Risk of Collision) applies to the conduct of vessels in any condition of visibility, with Rule 7 (b) stating that proper use shall be made of radar equipment if fitted and operational, including long range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects, however a head on situation under Rule 14 and Rule 15 for a crossing situation along with rules 16 and 17 concerning give-way and stand-on vessels are within the section concerning the conduct of vessels in sight of one another. Therefore, although early warning is advocated in any condition of visibility, the rules for head and crossing can logically, only be enacted once in sight. Use of binoculars would be appropriate in terms of good seamanship as well as under rule 7, in using all available means appropriate to the circumstances and conditions. The head on situation: Rule 14(a) explains the principles of the head on situation and then Rule 14(b) states when such a situation shall be deemed to exist – when a vessel sees the other ahead or nearly ahead and by night, she could see the masthead lights in line or nearly in a line and/or both side lights and by day a corresponding aspect of the other vessel. In his statement, the OOW of Afina 1’s first comment of a visual observation of Kiveli is when the vessels are approximately 8.5 nm apart. The vessels are therefore in sight of one another and Afina 1’s OOW has seen both of Kiveli’s sidelights as the vessels yawed. The situation was such that the vessels were nearly ahead and on a nearly reciprocal headings. The CPA was determined slightly earlier at 0.213nm and the bearing was not appreciably changing. Risk of collision therefore existed, emphasised by a slightly later comment that the green to green passing was very close. Rule 14 adds that if there is any doubt as to whether a head on situation exists, then it should be assumed that it does exist and act accordingly. I therefore concluded that by the time the vessels were approximately 8.5 nm apart at around C-22, a head on situation existed and both vessels should have altered their course to starboard when it was safe to do so, taking into account the location and movement of other vessels and therefore not creating another close-quarters situation, as required by Rule 8. It should however be noted that Rule 14 (b) allows for any one of the two vessels to be able to determine that a head on situation exists – ‘when a vessel sees the other’ and therefore the one which makes this assessment and conclusion should alter course to starboard in any event, as they will not have absolute certainty that the other vessel has reached the same conclusion or reached that conclusion at the same time.” (emphasis added)

The head on situation:

[246]Commodore Dorey was also asked (at Question 9), “if either vessel was in doubt as to whether there was a head on situation, what should she have done and when?”. I accept his answer (Answer 9) which accords with my own construction of Rule 14 (c) and my conclusion in relation to Rule 14(c) and its application of Rule 14(a):- “Rule 14 covers Head on situations and Rule 14 (c) states that if a vessel is in any doubt as to whether such a situation exists, she shall assume that it does exist and act accordingly. Acting accordingly would be in accordance with Rule 14 (a) where each shall alter her course to starboard so that each shall pass on the port side of the other.”[247]Accordingly, I find that the risk of collision arose at 05:39 (C-22) and the situation was a head-on situation within Rule 14. Rule 14 then continues to apply thereafter unless and until the risk of collision has ceased, and is not affected by subsequent changes of course (see Farwell at p. 296). In this regard, Rule 14 also takes precedence over Rule 15 such that once Rule 14 applies there cannot be a crossing situation (again see The Ever Smart at [98(i)]).[248]This is also why KIVELI’s suggestion that even if a head-on situation within Rule 14 had arisen at C-22 (or at any time before C-7.5), the situation changed at C-7.5, is wrong. The vessels were in a head-on situation so as to give rise to a risk of collision prior to C-7.5 and Rule 14(a) therefore continued to apply at and from C-22, and required each vessel to alter their course to starboard even if the relative bearings of the vessels were increasing from C-7.5.[249]I would only add that it was always rather difficult to pin KIVELI down as to when it was said that a crossing-situation ever existed (a point repeatedly highlighted, with some force, on behalf of AFINA I during the course of submissions).[250]I am satisfied that the Chief Officer of the KIVELI was mistaken in considering the situation to be a crossing situation. In consequence his actions were always likely to be flawed as a result. However, as will appear, his actions were not even consistent with what he should have done if it had been a crossing situation. What he should have done at and from 05:39 (C-22) was turn to starboard. Far from doing so he made corrections to port, and ultimately made the fatal turn to port driving the bow of KIVELI into the side of AFINA I.[251]I have already made adverse findings of fact about the Chief Officer of KIVELI, including :-(1) That he was not keeping a proper look out.(2) That (per his own evidence) if he felt it appropriate he would not follow the Collision Regulations.(3) That he did not acquire either CAPE NATALIE or AFINA I as targets on his ECDIS system at any time.(4) That he only acquired CAPE NATALIE and AFINA I as targets on his radar at 05.47.(5) That (as he agreed) looking at the position of each of the CAPE NATALIE and AFINA I at 05.45, KIVELI had room to turn to starboard to avoid them (but did not do so).(6) That he was willing to countenance passing CAPE NATALIE and the ALFNA I at a distance of 200-300 metres in what he accepted was a close quarters situation and was “not a safe passing distance” (and was also in breach of the Master’s Standing Orders and the Night Orders).(7) That he countenanced such a passing with CAPE NATALIE despite the fact that, “when I first visually saw CAPE NATALIE I remember seeing her two masthead lights in a straight line and both her port and starboard lights” (a classic “head-on” situation within Rule 14(b) by reference to what he could see (statement at paragraph 27)).(8) That he was also countenancing (at 05:48hrs) passing AFINA I starboard to starboard at a mere 200 metres (evidence volunteered in re-examination).(9) That when he turned to port he was in breach of the Collison Regulations (as he accepted).[252]Such findings (and criticisms) also accord with the views expressed by Commodore Dorey in Answer to Question 11 in terms which make clear that Commodore Dorey considered that the Chief Officer of the KIVELI was mistaken that it was a crossing situation (rather it was a head-on situation as per Answer 10), and that even if the Chief Officer of the KIVELI had thought it was a crossing situation within Rule 15, he did not do that which he should have done had it been such a situation.[253]Question 11 asks, “If there was a crossing situation, when did it begin and what should each vessel have done and when”? It is therefore predicated on the situation being a crossing situation (and not as Commodore Dorey advised in Answer 10, and I have found, a head-on situation). His answer shows, however, that even if KIVELI’s Chief Officer (wrongly) believed the situation to be a crossing situation his actions still stand to be criticised (in addition to the points already made above) and he did not do that which should have been done by KIVELI, including (but not limited to) in a crossing situation:- “The Chief Officer of Kiveli, in his statement only ever concluded that Afina 1 was a crossing vessel. In his statement he first noted the radar target echoes at around 05:30 and at about 05:35 (C-26) he states that he saw on ECDIS that Afina 1 had a CPA or 0.25nm to starboard, with the bearing of Afina 1 being fine to port. He also states that at this time he saw Afina 1, she was at 3nm. So for him, despite Afina 1 being only 2 degrees on the port bow at 3nm and with a CPA of 0.25nm to starboard, meaning that from a general appraisal of the situation, they could not be far off being on reciprocal courses, he declares that he could only ever see a green side light as his justification for convincing himself that it was a crossing situation and that he was content with a CPA of 0.25 nm. He assumed he was the stand on vessel, though he did make small alterations of course to port. Although he had acquired the radar contact at circa 5.5nm in his statement he says that he first observed Afina 1 visually at around 3.0nm. Rule 15 (Crossing situation) does not use the same language as Rule 14 (Head on situation) in that it does not state specifically that such a situation exists ‘when a vessel sees another’, however it is in the section for vessels in sight of one another. It is my opinion, that despite Kiveli only visually observing Afina 1 at 3.0nm, the state of visibility in his own statement, supported by the observations reported by Afina 1, means that Afina 1 could have been seen visually by Kiveli, much earlier and good seamanship coupled with Rule 5 (Look out) and Rule 7 (Risk of Collision), where both refer to using all available means appropriate in the prevailing circumstances, means that the OOW of Kiveli should have made attempts to visually observe Afina 1 sooner. If he had done so, he would have observed Afina 1 at around the same time that Afina 1 observed Kiveli, at around 8.5nm range. It would have been possible at that time to determine whether risk of collision existed, and which rule applied and act accordingly. If Afina 1 had assessed this to be a crossing situation with risk of collision, then she should have acted in accordance with Rule 15 (Crossing situation), 16 (Action by the give way vessel) and Rule 8 (Action to avoid collision) and altered course to starboard to avoid crossing ahead and to pass port to port or red to red. Kiveli’s OOW assessed that this was a crossing situation, with Afina 1 fine to port and that he was the stand on vessel. However, with a CPA of 0.25nm, he should have acted in accordance with Rule 7 in recognising that a risk of collision exists and then Rule 17 Action by the stand on vessel. Kiveli should have followed the Rules for the stand on vessel, Rule 17(a) (ii) and 17 (c) specifically in taking action 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 the rules. In complying with Rule 17 (a) (ii) and (c), Kiveli should not alter course to port for a vessel on her own port side and should therefore have altered course to starboard and in doing so also complied with Rule 8 (Action to avoid collision), including but not limited to, the alteration being large enough to be readily apparent to another vessel observing visually or by radar and to result in passing at a safe distance. Kiveli should not have left it so late that Rule 17(b) becomes applicable, where she shall take such action as would best aid to avoid collision. That rule exists for such circumstances where neither vessel has acted appropriately and in good time and reinforces the obligation in such cases for both vessels to take action to avoid collision.” (emphasis added)[254]Thus Commodore Dorey considered (and I agree) that if contrary to his view (and equally if contrary to my findings) it was not a “head-on” situation but a “crossing situation” KIVELI should have taken action pursuant to Rule 17(a)(ii) by altering her course to starboard (it being apparent on this hypothesis that AFINA I was not taking appropriate action in compliance with the Rules) and not (as KIVELI wrongfully did) alter course to port (contrary to Rule 17(c)). Equally, as Commodore Dorey considered (and I agree) KIVELI should not have left it so late that Rule 17(b) became applicable, and yet further in that situation KIVELI did not take “such action as will best avoid collision”, by either turning to starboard or by maintaining her course (which, though inappropriately countenancing a very close passing would have just avoided the Collision). What KIVELI undoubtably should not have done, was precisely what she did, namely turn to port, thereby causing the Collision.[255]Accordingly, I am satisfied that even if (contrary to Commodore Dorey’s views and my findings) it was a crossing-situation (which it was not) Commodore Dorey’s assessment of the position if there were a crossing situation is correct. In this regard I am satisfied that (as AFINA I submitted in its Response Observations of 7 March 2025 by way of rebuttal of KIVELI’s Observations of 20 February 2025):-(1) Commodore Dorey is correct that in the prevailing visibility KIVELI could and should have observed AFINA I by C-22 (05:39) (as I have already found). But even if that was not so, then by 05:45 when KIVELI says she first observed AFINA I visually, the range between the vessels was about 6.2 nm but the CPA was 0.161 nm. In other words, there was a risk of collision at that time even on KIVELI’s own evidence.(2) By that time, the OOW knew that AFINA I had not made any turn to starboard but was maintaining her course and speed.(3) Accordingly, as Commodore Dorey indicated in his Answer 6, by 05:46:50, the correct action for KIVELI (given that the CPA between KIVELI and AFINA I was at that time less than 0.197 nm) was to make a substantial alteration of course to starboard (on this hypothesis of a crossing situation) pursuant to Rule 17(a)(ii) when she had sea room to do so thereby avoiding both CAPE NATALIE and AFINA I.(4) Commodore Dorey is correct to conclude (as I am satisfied he did conclude) that if (contrary to his views and my findings) there were a crossing situation at C-22 or indeed C-14, then KIVELI failed to act in accordance with Rule 17(a)(ii) and Rule 17(c).(5) KIVELI is wrong to submit that Rule 17 (on the hypothesis contrary to my findings that it was ever a crossing-situation) would not have been engaged until AFINA I made her alterations of course to starboard.

F.3 HEAD-ON SITUATION (RULE 14) - WAS EITHER VESSEL IN BREACH OF THE REGULATIONS?

[256]I shall consider the position of each of KIVELI and AFINA I in turn. However, at the highest level, as Commodore Dorey states (Answer 10), and as I find, by the time the vessels were approximately 8.8 nm apart at around C-22 a head-on situation existed and, in accordance with Rule 14, both vessels should have altered their course to starboard when it was safe to do so, taking into account the location and movement of other vessels, and avoiding a close quarters situation as required by Rule 8.

F.3.1 KIVELI

[257]I have already made a number of findings as to the failings of the Chief Officer of KIVELI and I address further the failings of KIVELI and its Chief Officer in terms of breaches of particular Rules in due course below. However, turning specifically to the navigation of the KIVELI and Rule 14, I am in no doubt whatsoever that KIVELI was in breach of Rule 14, and was negligent in her actions. As I have found it was a “head-on” situation at, and from, C-22 and Rule 14 applied. KIVELI did not turn to starboard, as she should have done from C-22, and even on the basis of what the Chief Officer of KIVELI says he observed later (from 05:45 (C-16) when KIVELI says she first sighted AFINA I visually and by radar), KIVELI took no action to turn to starboard as required by Rule 14 as a “head-on” situation notwithstanding that she had the sea room to do so, and was negligent in not doing so.[258]Critically, KIVELI’s only actions were(i) the small turns to port made between 05:45 and 05:55 and(ii) the catastrophic (and negligent) turn to port made at 06:00 which drove KIVELI into AFINA I. Further, notwithstanding their reciprocal or nearly reciprocal courses, KIVELI was content for the vessels to pass each other starboard to starboard rather than port to port (as she had been with CAPE NATALIE, again in contravention of the Collision Regulations).[259]I asked a number of questions of Commodore Dorey in relation to KIVELI in this regard. Specifically, I asked the following of Commodore at Question 6:
“Between 05:46.50 and 05:47:20 (C-14) (from 077º to 075º) and at 05:53 (C-8) (to 074º), KIVELI altered course a total of 3 degrees to port. In all the circumstances and given the relative positions of KIVELI, AFINA I and CAPE NATALIE shown in the agreed animated plot a. Was it appropriate for Kiveli to alter course to port?”
[260]His answer (Answer 6 a.), which I accept, was as follows:- “Kiveli’s small alterations of course to port appear to be intended to increase the passing distance (Closest Point of Approach (CPA)) to starboard which implies that Kiveli’s OOW considered the existing CPA to be unsafe and that a risk of collision existed. It was not appropriate to make small alterations of course to port.”[261]I asked him why it was not appropriate to do so. His answer (Answer 6b.) included the following, which I accept:- “Following on from maintaining a good look out (Rule 5), an assessment of risk of collision is made (Rule 7), noting that if in doubt such risk shall be deemed to exist. Then if risk of collision exists, action is taken in accordance with Rule 8 and the appropriate rule for the circumstances as interpreted by the OOW. For a Head-on situation, under Rule 14 (a), each shall alter her course to starboard so that each shall pass on the port side of the other. Therefore, the correct action under Rule 14 was to alter course to starboard”.[262]As part of his Answer 6b. Commodore Dorey also considered the situation where (contrary to the views he expressed, and my finding) it was a crossing-situation. His answer, which I accept in relation to such a situation, is instructive as it shows why the actions of the KIVELI were incorrect even if the Chief Officer of the KIVELI considered it was a crossing-situation, and even if (contrary to my findings) it was in fact a crossing situation:- “For a crossing situation under Rule 15 as Kiveli claims in relation to Afina 1 and as the Stand on vessel, under Rule 17(a) (i), where one of two vessels is to keep out of the way, the other shall maintain her course and speed and therefore Kiveli should not have altered course. Rule 17 (a) (ii) then states what actions MAY be taken as the Stand on vessel ‘when 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’ and then Rule 17(b) states when action by the Stand on vessel SHALL be taken, ‘when from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give way vessel alone, she shall take such action as will best aid to avoid collision’. As Kiveli believes this to be a crossing situation then she should maintain her course and speed in the first instance, under Rule 17 (a). Therefore, at C-14 when Kiveli made the first alteration to port, with Afina 1 fine on her port bow, she would logically have been acting under Rule 17 (a) (ii) when she may take action to avoid collision by her manoeuvre alone if the other vessel is not taking appropriate action. At C-14 it cannot be said that Kiveli is at the point where Rule 17 (b) applies. However, Rule 17(c) states that a power driven vessel which takes action in a crossing situation in accordance with subparagraph (a)(ii) of this rule to avoid collision with another power driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side. Kiveli should therefore not have altered course to port. Good seamanship would also say that you would not alter to port because if either of the other two vessels, Cape Natalie and Afina 1 considered the existing CPA to be too close and considered themselves to be in a head on situation, then they should have altered to starboard under Rule 14. Also, in a crossing situation under Rule 15 as Kiveli suggests, Kiveli, in considering his manoeuvre, should have anticipated that if Afina 1 had come to the same conclusion, then with Kiveli fine on the starboard bow, the action required of Afina 1 was to avoid crossing ahead and therefore she too would most likely have altered course to starboard.”[263]Commodore Dorey also gives further reasons in his Answer 6b. as to why it was inappropriate for KIVELI to make alterations of course to port, which I accept (the last part of which I have already quoted previously):- “Furthermore, Kiveli should not have made a small alteration of course to port because under Rule 8 (Action to avoid collision), such action was contrary to the following;• Rule 8(a) it was not positive and with the observance of good seamanship.• Rule 8(b) it was not large enough to be readily apparent to another vessel observing visually or by radar.• Rule 8(c) it was not substantial, and the close quarters situation persisted.• Rule 8(d) it did not result in passing at a safe distance and there is doubt as to whether the effectiveness of the alteration was carefully checked until the vessel was finally past and clear. General comment In my experience it is unfortunately not uncommon to see vessels ‘nibble’ to port where a risk of collision exists, in order to marginally increase the passing CPA to starboard. Subject to the specific circumstances and conditions of each case, this represents poor seamanship and is contrary to the rules specifically crafted to prevent collisions at sea. Such action relies heavily on the assumption that all parties will have a similar disregard for the rules and therefore carries significant risk.”• Rule 8 (a) it was not positive and with the observance of good seamanship.• Rule 8 (b) it was not large enough to be readily apparent to another vessel observing visually or by radar.• Rule 8 (c) it was not substantial, and the close quarters situation persisted.• Rule 8 (d) it did not result in passing at a safe distance and there is doubt as to whether the effectiveness of the alteration was carefully checked until the vessel was finally past and clear.[264]As to what actions KIVELI should have taken in relation to the CAPE NATALIE, and the risk of collision in relation thereto, and having regard to the Chief Officer of the KIVELI’s statement at paragraphs 26 and 27, and his answers in cross-examination (specifically at [T2/148/20 to T2/150/22]), I accept the evidence of Commodore Dorey in this regard (in Answer 12), namely that the Chief Officer of KIVELI should have acquired the contacts much earlier, on ARPA and ECDIS, particularly (but not exclusively) those contacts close to the ship’s head which might appear to be on reciprocal courses as there should be a pressing need to ascertain the risk of collision, as in the case with each of CAPE NATALIE and AFINA I.[265]The presence of CAPE NATALIE with a CPA of less than that required in the Master’s Night Orders should have been recognised to require action to be taken, while a competent mariner would also consider such action in relation to the presence of AFINA I, following behind with an even closer CPA.[266]A competent mariner in the position of the Chief Officer of KIVELI would conclude that a bold alteration of course to starboard would be the safest action to take, which would resolve the issues with both vessels. Under Rule 8, this should be made in good time, large enough to be readily apparent to another vessel, does not result in another close quarters situation and results in passing at a safe distance, being carefully checked until finally past and clear.[267]In this regard I accept Commodore Dorey’s evidence (Answer 13) that KIVELI would have had sufficient sea room to turn to starboard at 05:47:56 when her CPA alarm was triggered by a CPA of 0.47 nm with CAPE NATALIE when the TCPA was 6.9 minutes and range was approximately 2.89 nm (with CAPE NATALIE bearing 4.6 degrees off KIVELI’s starboard bow) (Question 13). In this regard it is to be borne in mind that CAPE NATALIE was also obliged under Rule 14(a) to turn to starboard to avoid the risk of collision and had sea room to do so. I reject KIVELI’s suggestion that KIVELI was constrained from turning to starboard by CAPE NATALIE. In not turning to starboard, KIVELI was not only in breach of the Collision Regulations (in particular Rules 14 and 8) but was negligent in not doing so.[268]I also accept Commodore Dorey’s evidence (Answer 16) that if KIVELI had not altered her course to starboard earlier to pass both vessels at a safe distance, port to port (as KIVELI should have done in accordance with Rule 14), then KIVELI should have been poised to make a bold alteration of course to starboard as soon as CAPE NATALIE was sufficiently clear (which would have been by 05.55), but KIVELI did not do so. Contrary to KIVELI’s suggestion, Rule 14 continued to apply throughout.[269]I then asked Commodore Dorey (Question 17) what action the Chief Officer of KIVELI should have taken if (as is his evidence) the Chief Officer of KIVELI observed AFINA I turning starboard at about 05.57 or 05.58. I accept his answer which was that the most appropriate actions taken to avoid a collision arise from maintaining a proper lookout in order to make a full appraisal of the situation, along with monitoring until passed and clear. Specifically, however, in observing AFINA I on KIVELI’s starboard bow and turning to starboard, the action which should have been taken by KIVELI, and which should have been assessed to have had the greatest chance of averting a collision, would have been an immediate turn to starboard using maximum rudder accompanied by one short blast on the whistle (Answer 17). KIVELI did neither which was in breach of Rule 8, and was negligent.[270]I am satisfied that, if KIVELI had turned to starboard, as she should have done (rather than negligently turning to port), the vessels would not have collided. I reject KIVELI’s suggestion that AFINA I had created a situation of danger by turning to starboard – such action was in accordance with Rules 8 and 14, and any competent mariner in the position of KIVELI’s OOW would themselves have turned to starboard faced with such alteration of course by AFINA I. The contrary action that KIVELI took, was not “in the agony of the moment” but the culmination of the failures of KIVELI’s OOW to take appropriate action since the risk of collision first arose at C-22 (a head-on situation). In this regard he did not even act as he should have acted if he had (erroneously) believed it was a crossing situation shortly before the Collision. He should still have turned to starboard (though the Collision would also have been avoided had he maintained his course).[271]In this regard, I also asked Commodore Dorey as to whether the action to be taken by KIVELI would have resulted in the vessels passing clear, and if so whether that would have been at a safe distance. His answer, which I accept, and which is consistent with all of the data that is before me, is that an immediate hard over turn to starboard by KIVELI as soon as AFINA I was observed in the turn to starboard, would have resulted in the two vessels passing clear (as portrayed in Annex 1) however, this was not at a safe distance.[272]Of course what KIVELI actually did, which was wrong in relation to a head-on situation, and was wrong had the situation been (contrary to the view of Commodore Dorey and my findings), a crossing situation, was to turn to port. Such action was both in breach of the Collison Regulations and negligent. The data shows that even had KIVELI maintained her course (had she considered it was a crossing situation) the vessels would have passed clear, albeit again not at a safe distance (again as portrayed in Annex 1).[273]KIVELI simply did not take appropriate action at any time (still less in good time) from C-22 up to the time of the Collision, to avoid the Collision in accordance with the Rules, and in particular Rule 14 and Rule 8, and was in breach of the same. But whether the situation was a head-on situation (as I have found) or a crossing-situation (contrary to my findings), by the time KIVELI’s Chief Officer saw AFINA I turning to starboard at about 05.57 or 05.58 what KIVELI should have done was make a bold alteration of course to starboard accompanied by one short blast on the whistle (see Answer 17c.). KIVELI did neither, and disastrously turned to port.[274]This was not, as KIVELI seeks to portray it, no more than a technical breach of the Collision Regulations without negligence committed “in the agony of the moment”. On the contrary it was the culmination of KIVELI’s negligent, and continuing, failure to abide by Rule 14 from C-22, with the denouement being a grossly negligent decision to turn to port which was precisely what KIVELI should not have done whether it was a head-on situation (as I have found), or a crossing situation (as KIVELI alleges). KIVELI should have turned to starboard. To do the opposite to that which should have been done whether it was a head-on or a crossing-situation is not to act “in the agony of the moment” but to act contrary to what any competent mariner would know should be done, and would have done, namely, to turn to starboard.

F.3.2 AFINA I

[275]As Commodore Dorey states (Answer 10), and as I have found, by the time the vessels were approximately 8.8 nm apart at around C-22 a head-on situation existed and, in accordance with Rule14, both vessels should have altered their course to starboard when it was safe to do so, taking into account the location and movement of other vessels, and avoiding a close quarters situation as required by Rule 8.[276]As for AFINA I’s actions, the appropriate action for her to take whether the situation was a head-on situation, as it was, or a crossing situation, was an alteration of course to starboard (per Commodore Dorey’s advice which I accept), and that is what AFINA I did.[277]The data shows, as confirmed by the evidence of Commodore Dorey (Answer 15) that, “the result of AFINA I’s turn would have resulted in the vessels passing clear, but at very close range, only increasing slightly if KIVELI had turned to starboard”. Thus, viewing matters from the time immediately before the Collision, AFINA I’s action (which was the right action for AFINA I to take in accordance with Rule 14) would (just) have averted any collision if KIVELI had either done what she should have done (in accordance with Rule 14 and turned to starboard), or done nothing and maintained her course (had she considered it was a crossing situation in which case KIVELI would have been the stand-on vessel under Rule 17(a)(i) and so should not have altered course), or (if a crossing-situation and KIVELI considered that AFINA I was not taking proper action to keep out of the way, KIVELI had turned to starboard in accordance with good seamanship and/or Rule 17(c)). On all these scenarios a collision would have been avoided, and it was KIVELI’s turn to port that was not countenanced under Rule 8 or in accordance with Rule 14 (or Rule 15 and following had they been engaged), which was the immediate cause of KIVELI’s bow driving into the side of AFINA I.[278]However, criticisms can also be made of AFINA I’s navigation, which Commodore Dorey has identified.[279]First, I asked Commodore Dorey whether AFINA I’s alterations to starboard occurring from about 05:55:50 amounted to a positive turn to starboard made in ample time and in observance of good seamanship and large enough to be readily apparent to another vessel observing visually or by radar (Question 14). His advice, which I accept, is that it was a slightly stilted turn given the close proximity of KIVELI at the time and was not made in ample time, the better time being prior to AFINA I first crossing the bow of KIVELI (which was at C-13:30 – 05:47.30). As he advises, a turn back across the bow of KIVELI at this range does not represent good seamanship.[280]However, Commodore Dorey also advises that the turn was large enough to be observed visually (assuming KIVELI was keeping a proper look out) but the start of the turn would have been less apparent on radar, unless the observer’s radar was on a very short range, which would emphasise the change of bearing. The evidence of the Chief Officer of KIVELI (which I accept) is that he did see AFINA I making her alterations of course to starboard (his evidence being that he saw the alterations of course on the radar at 05:57 and thereafter visually (see paragraphs 33 and 34 of his statement)), which takes much of the sting out of this aspect of the criticism of AFINA I’s navigation.[281]Secondly, Commodore Dorey addressed the question of the timing of AFINA I’s turn to starboard not only in his answer to Question 14 (as addressed above), but also in his answers to Questions 15 and 17. Thus, at Question 17, Commodore Dorey advises that the point at which AFINA I initiated the turn to starboard could not be interpreted as action taken in ample time and with due regard to the observance of good seamanship.[282]He elaborated upon this in his Answer to Question 15 (which was, “Were AFINA I’s alterations to starboard such as would have resulted in the vessels passing clear and/or at a safe distance”). After confirming (as addressed above) that the result of AFINA I’s turn would have resulted in the vessels passing clear but at very close range, he then rightly concluded (in accordance with my finding above) that this was not a safe passing distance, and (therefore) did not reflect good seamanship. He explained (and I accept his evidence in this regard) that this was therefore contrary to Rule 8(a) in that it was not made in ample time and with regard to the observation of good seamanship; Rule 8(c) as it was not made in good time and it resulted in a close quarters situation and Rule 8 (d) in that it did not result in passing at a safe distance.[283]I therefore conclude that AFINA I’s turn to starboard was made late (and as such not in accordance with Rule 8), but when it was made, it was the correct action to take in accordance with Rule 14.[284]I address the apportionment of blame in Section G. However, I am satisfied that the causative potency of KIVELI’s breaches of the Collision Regulations and negligence was very much greater than AFINA I’s breach in only turning to starboard when she did. In this regard, in terms of causative potency, the criticisms made of AFINA I are very much less in comparison to those made of KIVELI.[285]In this regard the OOW of KIVELI was causatively negligent:-(a) In failing to treat the developing situation with AFINA I as a head-on situation from 05:39 (C-22).(b) In failing to observe AFINA I visually from C-22 or keep any good lookout in relation to either CAPE NATALIE or AFINA I.(c) In failing to make a substantial alteration of course to starboard.(d) Subsequently failing to make a substantial alteration of course to starboard at 05:55 or when he observed AFINA I commencing her alterations of course to starboard.(e) In failing as stand-on vessel, if (contrary to my findings) it was a crossing situation, either to hold KIVELI’s course or make a substantial alteration of course to starboard.(f) By “nibbling to port” at 05:46 and then altering course to port immediately before the Collision.[286]In contrast, the only real criticism of AFINA I that can be made is that whilst she took the right action in accordance with Rule 14, her turn to starboard was not made in ample time and with regard to the observation of good seamanship.

F.4 RULES 2, 5, 7 and 8

[287]Each of these Rules is applicable whether the two vessels were in a head-on situation (as I have found) or a crossing situation (as KIVELI submitted). F.4.1 BREACH OF RULE 2

F.4.1.1 KIVELI

[288]Rule 2 emphasises the importance of the principle of good seamanship as a general prudential rule, the intention being that the Collision Regulations should conform as closely as possible to what mariners regard as good nautical practice. I am satisfied that KIVELI’s failure to follow the requirements of the Collision Regulations (before and at the time of the Collision) evidences a general want of good seamanship on the part of KIVELI’s Chief Officer (in addition to my findings in Section C.1 above), most obviously in his failure to recognise that there was a “head-on situation” and failure to act accordingly. Yet further, in light of his evidence that he knew he was navigating in breach of the Collision Regulations but chose nevertheless to pass both CAPE NATALIE and AFINA I green to green at a distance he knew to be unsafe, this was a further, and obvious, breach of Rule 2. The decisions made by KIVELI’s Chief Officer from when he first saw CAPE NATALIE and AFINA I put KIVELI into a close quarters situation with both CAPE NATALIE and AFINA I where there was a clear risk of collision with both vessels. This was undoubtably a breach of the principles of good seamanship.[289]Further if, contrary to my findings, the situation was a crossing situation within Rule 15, then good seamanship required KIVELI’s Chief Officer to take action to turn to starboard under Rule 17(a)(ii) as soon as he saw AFINA I turning to starboard. Whether in the context of Rule 8, Rule 14 (or if applicable Rule 15 and following) to turn to port as KIVELI’s Chief Officer did, was a clear breach of the principles of good seamanship.[290]I also consider that the Master’s decision to dispense with lookouts was itself a breach of Rule 2.

F.4.1.2 AFINA I

[291]Save to the extent that I have found limited breaches of Rule 8 as identified above in terms of the timing of the turn to starboard, I do not consider, and do not find, any want of good seamanship on the part of AFINA I or its officers. I have already rejected KIVELI’s criticism of a failure to comply with Sailing Directions (above in E.3). F.4.2 BREACH OF RULE 5

F.4.2.1 KIVELI

[292]As noted above, Rule 5 requires vessels to maintain at all times a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision. It includes the use of, and proper attention to, radar where it is of assistance in keeping a good lookout. The obligation to keep a proper look-out encompasses not just the requirement to look-out but also the requirement to use the information obtained from that look-out to make a full appraisal of the situation and of the risk of collision.[293]It is clear that KIVELI failed to keep a proper look-out by sight and hearing. The failures of look-out on the part of KIVELI commenced with the inappropriate decision to stand down the lookouts for the night of 12 March 2021 notwithstanding that the Vessel was sailing in an area of busy shipping and approaching the Stenó Elafonísou Strait. This deprived KIVELI of lookouts and increased the burden upon KIVELI’s Chief Officer.[294]Equally, and as I have found, KIVELI’s Chief Officer failed to maintain a proper look-out either visually or by radar, and was distracted by whatever he was listening to on the Bridge (again see the findings made in Section C.1). He did not acquire either CAPE NATALIE or AFINA I as targets on his ECDIS system at any time, and only acquired CAPE NATALIE and AFINA I as targets on his radar at 05:47.[295]If he had maintained a proper look-out he would have recognised as at C-22 and at all times thereafter that there was a head-on situation within Rule 14 and he should then have acted accordingly by making a substantial alteration of course to starboard which he never did. He did not at any time take any steps to identify AFINA I’s intentions or to signal KIVELI’s intentions, and he failed to see AFINA I’s Aldis lamp signal and failed to act so as to avoid a collision, turning to port and ignoring AFINA I’s pleas by VHF not to turn to port but to turn to starboard.

F.4.2.2 AFINA I

[296]So far as AFINA I is concerned, I am satisfied that there was no failure of lookout on the part of AFINA I’s Chief Officer. He gives a detailed account of the steps he took to monitor traffic and react to that traffic from before the vessel entered Stenó Elafonísou Strait and thereafter and he monitored both KIVELI and the other vessels in the vicinity such as CAPE NATALIE both visually and with radar. He also signalled KIVELI with Aldis lamp without success. He contacted KIVELI by VHF, and he turned to starboard in accordance with Rule 14[297]Whilst AFINA I should have turned to starboard earlier, it was the failure of KIVELI’s Chief Officer to keep a proper lookout, and KIVELI’s failure to alter course to starboard (or indeed failure to maintain her course), coupled with her disastrous alteration of course to port, that was the immediate cause of KIVELI colliding with AFINA I. F.4.3 BREACH OF RULE 7

F.4.3.1 KIVELI

[298]KIVELI was in breach of Rule 7 in multiple respects. KIVELI did not use all available means to determine whether a risk of collision existed. There was no lookout on the bridge of KIVELI. KIVELI was not monitoring AFINA I by radar as is apparent from the radar flipbook for KIVELI. The sound for her CPA/TCPA alarms had been muted and the first occasion on which AFINA I is targeted by KIVELI on the radar is at 05:49 when she triggers KIVELI’s CPA and TCPA visual alarm. KIVELI’s Chief Officer was not using ECDIS (per my findings above) and as such he was not using ECDIS to actively monitor AFINA I, verify her CPA and TCPA or to provide warnings.[299]Notwithstanding that KIVELI’s Chief Officer acknowledges seeing AFINA I fine off KIVELI’s bows, at no time did he consider that there was a risk of collision and he apparently always intended to pass green to green. In this regard, AFINA I’s absolute and relative bearings from KIVELI did not materially change from 05:35 (C-35) when they were 74.1° and 356.7° respectively until 05:47 (C-14:00) when they were 75.9° and 358.7° respectively. The change in bearings at that time was relatively small such that by 03:48 (C-13), the absolute and relative bearings were 76° and 1° respectively. In other words, AFINA I had moved from a position fine off KIVELI’s port bow to a position fine off her starboard bow.[300]At 05:52 (C-9), AFINA I was still in a position fine off KIVELI’S starboard bow with absolute and relative bearings of 77.2° and 2° respectively. This should all have alerted KIVELI’s Chief Officer to the risk of collision and yet it appears (based on his own evidence) that what he was countenancing was an (inappropriate) very close green to green passing situation. KIVELI’s Chief Officer was aware by 05:35 that the CPA for AFINA I was 0.25 nm and by around 05:50 the CPA was even less, at about 0.20 nm. At no point did he apparently regard this information as giving rise to a risk of collision (as he should) which I am satisfied illustrates that his assessment of the situation was itself significantly at fault (see also Commodore Dorey’s Answer 11 as to KIVELI’s failings in the context of Rule 7 and (had it been applicable) Rule 17)).[301]It is not clear (given KIVELI Chief Officer’s inconsistent answers about “singing”) that he ever gave any consideration to the question of whether there was a risk of collision. He did not attempt to communicate with AFINA I using sound or light signals or radio at any point in time until he responded to the VHF call from AFINA I. In any event at no time did KIVELI take any appropriate steps to determine if a risk of collision existed (as it did).

F.4.3.2 AFINA I

[302]AFINA I was monitoring KIVELI by radar (as is clear from the radar flipbook for AFINA I) as well as visually, and was tracking KIVELI as a specific radar target by 05:38. As I have found, AFINA I’s Chief Officer did signal KIVELI using the Aldis lamp at 05:54; and when he did not get a response, he turned to starboard and contacted KIVELI by VHF radio. This was in accordance with his (correct) understanding that it was a head-on situation (Rule 14) and that the correct action to avoid the risk of collision was a turn to starboard (Rule 14(a)).[303]In such circumstances, I consider that the only criticism that can be made of AFINA I in relation to Rule 7 is that AFINA I could have acted earlier to determine KIVELI’s intentions, and could have used sound signals as well as the Aldis lamp, in circumstances in which use of VHF as a means of collision avoidance is discouraged (although on the facts of the present case KIVELI had failed to respond to the Aldis lamp, and VHF was successful in getting the attention of KIVELI and her Chief Officer). Such breaches of Rule 7 by AFINA I were minor in comparison to those of KIVELI. F.4.4 BREACH OF RULE 8

F.4.4.1 KIVELI

[304]Rule 8 specifically requires that any action to avoid collision is to be taken in accordance with the rules of Part B, including Rules 14 or 17 as applicable and with due regard to the observance of good seamanship. No such action was taken by KIVELI at any time.[305]KIVELI was in obvious, and causative, breach of Rule 8. She took no action to avoid a collision taking place, she did not undertake any positive action, in ample time or with due regard in the observance of good seamanship (Rule 8(a)). There was no appropriate alteration of course, and she made small alterations of course to port (“nibbling to port”), which narrowed the difference in reciprocal courses between the vessels and brought the vessels closer in what was a “head-in situation” (Rule 8(b)) which were inappropriate and should have been avoided. She wrongly created and countenanced a close quarters situation intending to pass green to green rather than red to red (Rule 8(c)) and disastrously turned to port, which rather than achieving a passing (still less a passing at a safe distance) (Rule 8(d)) was the immediate cause of the Collision. She wrongly failed to recognise at C-22, and all times thereafter, that it was a “head-on situation”, failed to act in accordance with Rule 14 (by turning to starboard), and if she recognised anything she wrongly considered it was a “crossing situation”, and even then (on such mistaken consideration) she failed to act in accordance with Rule 17 either, and turned to port instead.[306]The predictable consequence was that AFINA I’s Chief Officer was unclear as to KIVELI’s intentions (leading to him seeking to engage KIVELI by light signal to warn KIVELI and ascertain KIVELI’s intentions, which he followed up with the VHF call).[307]KIVELI’s actions are just the sort of (wrongful) actions which are deprecated, most obviously in the context of head-on and fine crossing situations, by the Court, (see The Maloja II); by IMO (see SN Circular 226 explaining amendments made to Rule 8(a)); and in the textbooks (see, for example, Cockcroft & Lameijer at p. 36).[308]I also accept Commodore Dorey’s views in this regard as to the failings on the part of KIVELI in relation to Rule 8 (and Rule 14), as already addressed above – see, in particular, his Answer 13, as already quoted above, as to the fact that KIVELI did have sufficient sea room to turn to starboard at 05:47:56 when her CPA alarm was triggered by a CPA of 0.47 nm with CAPE NATALIE when the TCPA was 6.9 minutes and range was approximately 2.89 nm (with CAPE NATALIE bearing 4.6 degrees off KIVELI’s starboard bow), and KIVELI should have made a bold alteration to starboard without delay to pass AFINA I red to red in accordance with Rule 14, but did not do so. Even if (contrary to my findings) CAPE NATALIE had provided any impediment to KIVELI’s manoeuvring, she had passed clear of KIVELI by 05:55, but KIVELI still failed to turn to starboard.[309]Even when KIVELI’s Chief Officer saw AFINA I’s alteration of course to starboard at 05:57 (which he acknowledged he did – see paragraph 33 of his statement), he did not act immediately, and when he did act he took precisely the wrong action in turning to port rather than starboard (as he should have done whether acting in accordance with Rule 14, or Rule 17 had it been applicable).

F.4.4.2 AFINA I

[310]AFINA I did take positive action to avoid a collision in accordance with Rule 8 (and Rule 14) by turning to starboard in circumstances where AFINA I’s Chief Officer correctly believed that the vessels were in a head-on situation, and his alteration to starboard was seen by KIVELI’s Chief Officer who was slow to react and who then (disastrously) failed to turn to starboard and instead wrongly turned to port, which was precisely what he should not have done.[311]However, as I have found above, AFINA I’s turn to starboard was made late (and as such not in accordance with Rule 8), but it was the correct action to take in accordance with Rule 14. I address the apportionment of blame in Section G. However I am satisfied, for the reasons there expressed, that the causative potency of KIVELI’s breaches of the Collision Regulations and negligence was very much greater than AFINA I’s breach of Rule 8 in only turning to starboard when she did.

F.4.5 RULES 15 to 17

[312]Rules 15 to 17 are not applicable, as the situation was not a “crossing situation”, rather it was a “head-on situation” (Rule 14) as I have found above, and I have already addressed the breaches of Rule 14 above. However to the extent that KIVELI’s Chief Officer erroneously considered that the situation was a “crossing situation” I have also addressed and made findings above as to what KIVELI should have done had KIVELI’s Chief Officer been correct that it was a “crossing situation”. I summarise the position in that regard below so far as it would relate to Rules 15 to 17.

F.4.5.1 KIVELI

[313]On KIVELI’s case, she was the stand-on vessel. As such, she had an obligation to keep her course and speed (Rule 17(a)(i)). This she failed to do, by turning 3 degrees to port between 05:46 and 05:53 and (even more disastrously) immediately before the Collision she did not keep her course and speed (which would have resulted in the vessels passing clear as portrayed in Annex 1) but instead turned hard to port which was precisely what she should not have done. That turn was a breach of Rule 17(a)(i) and Rule 17(c) and was critical in that it was the immediate cause of the Collision.[314]Equally, if KIVELI considered that AFINA I was not keeping out of her way and was not taking appropriate action she could and should have taken action to avoid the Collision herself (Rule 17(a)(ii) and 17(b)) by turning to starboard. What she should not have done, and was in breach of Rule 17(c) in so doing, was turn to port (see, in particular the evidence of Commodore Dorey in his Answer 11 which I have accepted).

F.4.5.2 AFINA I

[315]Again, it was not a crossing situation so Rules 15 to 17 are not applicable, but had it been, and had AFINA I been the give-way vessel for the purposes of Rules 15 and 16, she did, in fact, act to keep out of the way of KIVELI (whose intentions were unclear), and her turn to starboard was an appropriate approach in the circumstances that existed. If it had been a crossing situation, it would have been so fine that it would have been appropriate for AFINA I’s Chief Officer to be concerned that if AFINA I turned to port, she would potentially be turning into KIVELI if KIVELI decided to turn to starboard on the basis that the situation was a head-on situation or was to be treated as such. In any event, and as already addressed, turns to port are to be avoided, which is precisely what KIVELI did, but AFINA I did not do.[316]If it had been a crossing situation then again AFINA I might have turned to starboard earlier, but to the extent that it was not keeping out of the way, KIVELI should have acted under Rule 17(a)(ii) and/or Rule 17(b) as already addressed above, and in any event AFINA I’s actions would have avoided a collision but for KIVELI’s actions. F.4.6 BREACH OF RULES 34 AND 36

F.4.6.1 KIVELI

[317]KIVELI was undoubtably in breach of Rules 34 and 36. She made no sound or light signals to indicate either that she was manoeuvring, or to indicate that she was in doubt as to AFINA I’s actions, or to attract the attention of AFINA I (see Commodore Dorey’s answer in relation to signals at Answers 16 and 17 which I accept).

F.4.6.2 AFINA I

[318]AFINA I did not make any sound signals (as she should have when turning to starboard), but KIVELI’s Chief Officer in any event observed such change of course notwithstanding the lack of a sound signal. AFINA I did use a light signal in accordance with Rule 34(d) to indicate her doubts as to KIVELI’s attentions. As already addressed, I consider that the inference to be drawn is that KIVELI’s Chief Officer did not see it because he was not keeping an adequate look out. But if he did see it, he failed to respond. Whilst the use of VHF as a means of collision avoidance is discouraged, such use of VHF by AFINA I’s Chief Officer was successful in getting the attention of KIVELI and her Chief Officer in circumstances where use of the Aldis lamp had failed to do so.

F.4.7 THE SAILING DIRECTIONS

[319]I have already addressed the irrelevance of the Sailing Directions. They are advisory not mandatory, neither vessel was navigating in the Strait at the time, other vessels were adopting similar courses to those taken by AFINA I, and there was no breach of the Sailing Directions still less any causative breach given that there is no evidence that the Sailing Directions or any failure to follow them by AFINA I impacted upon the decision making of KIVELI’s Chief Officer or constrained KIVELI’s manoeuvring (in circumstances in which KIVELI’s Chief Officer had no recollection of the Sailing Directions, and his own evidence was that he was in any event aware of AFINA I’s presence by 05.30). APPORTIONMENT

G.1 APPLICABLE PRINCIPLES

[320]Section 187 of the Merchant Shipping Act 1995 requires that liability should be assessed in proportion to the degree in which each vessel was in fault. The assessment of fault involves consideration of both the blameworthiness and causative potency of both vessels, as well as the relative degree of responsibility of each vessel, so that admiralty judges consider, where one ship is to blame more than the other, how many more times to blame that one vessel is than the other; see The Samco Europe and MSC Prestige [2011] 2 Lloyd’s Rep. 579 at [81].[321]In The Nordlake and Sea Eagle [2015] EWHC 3605 (Admlty), Teare J summarised the principles behind the process of assessment at [149] as follows:(1) The number of faults on one side or the other is not decisive. It is the nature and quality of a ship’s faults rather their number that matter.(2) Breaches of the obligations imposed on ships in certain defined situations by the Collision Regulations will usually be regarded as seriously culpable. One such rule is the narrow channel rule.(3) Causative potency has two aspects. The first is the extent to which the fault contributed to the fact that the collision occurred. The second is the extent to which fault contributed to the damage resulting from the casualty.(4) In most cases, though not all, it will be right to treat the fault of a ship that creates a situation of difficulty or danger greater than that of the ship which failed to react properly to such situation after it has been created.(5) The fact that a fault consists of a deliberate act or omission may in certain circumstances justify the Court in treating it as more culpable than a fault which consists of omissions only.[322]As Teare J stated at [151]:- “Apportionment pursuant to s. 187 of the Merchant Shipping Act 1995 requires an apportionment of liability in proportion to the degree in which each ship was at fault. This requires an assessment of relative liability as was made clear in a case involving damage caused by the fault of three ships, the Miraflores and the Abadesa [1967] AC 826. The underlying principle was explained by Sir Henry Brandon thus: “The correct approach was to consider and weigh the faults of each vessel separately and individually and then to arrive at an apportionment of liability that justly reflected the relative degree of fault as between all three”.[323]Teare J’s exposition of the principles behind the process of apportionment takes as its starting point an article by Sir Henry Brandon, “Apportionment of Liability in British Courts under the Maritime Conventions Act 1911”. See also, in this regard, the recent article written by Sir Nigel Teare himself in the LMCLQ entitled, “Apportionment of liability for damage caused by two or more vessels: is it a simple or a complex exercise?” [2024] LMCLQ 225, which I agree is a “most authoritative account by a most distinguished judge” as it was described by Cockerill J in the recent case of The “X-PRESS MAHANADA” and The “BURGAN” [2025] EWHC 712 (Admiralty) at [141].[324]In this regard Sir Nigel Teare stated, in particular:- “Apportionment is therefore a crucial part of collision litigation and must, whether it be simple or complex, be conducted carefully… Let me begin with what you should not do. As has been said in several cases, you do not count the number of faults. The number is not decisive. What matters is their nature and quality, which must be assessed by reference to the two elements of fault: causative potency and blameworthiness... Sir Henry Brandon explained that causative potency had two aspects: ‘The first aspect is the extent to which the fault concerned contributed to the fact that the collision or other casualty occurred at all. The second aspect is the extent to which the fault concerned contributed to the damage or loss resulting from the collision or other casualty.’ … the causative potency of the vessel which fails to react to a situation of danger which has been created by another vessel will usually be regarded as less than that of the vessel which created the situation of danger. … the ultimate enquiry in collision litigation is as to the relative causative potency and blameworthiness of each vessel…. When comparing the faults of one vessel with those of another, the court must inevitably form a value judgment not only about particular aspects of the vessels’ navigation but also about the vessels’ navigation as a whole… How does one reach the ultimate decision as to relative degrees of fault expressed in terms of fractions or percentages? The court usually asks itself how many more times ship A was at fault than ship B…”[325]I have kept that guidance (and the other guidance in that article) fully in mind in carrying out the exercise which follows. I also bear in mind that apportionment is an exercise to be addressed in a fairly broad way and on common sense principles.

G.2 APPLICATION OF THE PRINCIPLES

[326]I have already set out the various breaches of the Collison Regulations that I have found in relation to each of KIVELI and AFINA I. It will be readily apparent that the number of breaches by KIVELI vastly exceeds those of AFINA I but much more importantly (given that it is not about counting the number of respective breaches) the nature and quality of KIVELI’s faults are far greater than those of AFINA I. KIVELI failed to recognise that it was a “head-on situation”, failed to act in accordance with Rule 14 (i.e., turn to starboard) and was in breach not only of Rule 14 but also Rule 8 in turning to port, with the result that KIVELI was seriously culpable.[327]From C-22 there was a “head-on situation” with Rule 14 governing the actions of the vessels in circumstances where there was a risk of collision from this time to the time of the Collision, and Rule 14 continued to apply throughout this time. AFINA I’s actions were consistent with following Rule 14 and she correctly turned to starboard even if she can be criticised for the late timing of her turn. In contrast, KIVELI failed to appreciate the risk of collision (at all or until almost too late), failed to appreciate it was a “head-on situation”, failed to turn to starboard in accordance with Rule 14, and even if she (erroneously) considered the situation was a “crossing situation”, she failed to act in accordance with Rule 17(a)(ii) and (b), in either event failing to turn to starboard or maintaining her course, but instead (and contrary to good seamanship and Rules 2, 8 and 14) she disastrously turned to port.[328]Such failure in seamanship on the part of KIVELI and its Chief Officer was not (as KIVELI alleges) when KIVELI’s Chief Officer was “on the horns of a dilemma”. First, there were not two equal options at that time but only one (and clear) right option, namely, to turn to starboard. Second what occurred was simply the culmination of KIVELI’s poor seamanship, and failure to act, from when the head-on situation and risk of collision first arose very much earlier. Even at this stage if KIVELI had turned to starboard (as she should have done at all material times) or maintained her course (based on an erroneous belief that it was a “crossing situation”), the Collision would not have occurred.[329]The nature and quality of KIVELI’s faults involved numerous breaches of KIVELI’s obligations under the Collison Regulations each of which, in of itself, was a serious breach, and there were potent and causative breaches by KIVELI of her obligations under Rules 2, 5, 7 and 8 with serious failures of look-out, of appreciation of the risk of Collision, and steps required to avoid the collision. There was an obvious and ultimately catastrophic breach of Rule 14 by KIVELI when she turned to port, which was the principal cause of the Collision. In addition, there were breaches of Rules 34 and 36 given the absence of any sound or light signals by KIVELI. Overall, it was KIVELI’s faults that are of the greatest potency in terms of the extent to which KIVELI’s fault contributed to the fact of the Collision and to the damage that resulted, and it was KIVELI that was the most blameworthy in that regard.[330]However, AFINA I is not free from fault or criticism (as addressed in my findings above), but the nature and quality of her breaches (focussed on the late timing of her turn and associated breach of Rule 8) are far less serious. If AFINA I had turned to starboard earlier the risk of collision would have been reduced, and equally the chances of a collision being avoided entirely would have been increased. Nevertheless, AFINA I’s breaches were of far less causative potency than those of KIVELI, and AFINA I was far less blameworthy than KIVELI.[331]In terms of reaching the ultimate decision as to relative degrees of fault, I consider, based on the findings that I have made, that KIVELI’s fault was 4 times as great as that of AFINA I, and accordingly my apportionment of liability is 80% to KIVELI and 20% to AFINA I.

Cited in 1 later judgment