Kamal XXVI, The Owners and/or Demise Charterers of the Ship and Barge v The Owners of the Ship Ariela [2007] EWHC 2434 (Comm)

[2007] EWHC 2434 (Comm)Case No 2006 FOLIO 375
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/10/2007
Before
MR JUSTICE DAVID STEELsitting withCaptain Ian Gibb and Captain John Burton-HallElder Brethren of Trinity Houseas Nautical Assessors
Between
THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP “KAMAL XXVI” AND BARGE “KAMAL XXIV”ClaimantsTHE OWNERS OF THE SHIP “ARIELA”Defendants
Stewart Buckingham (instructed by Ince & Co) for ClaimantsTimothy Hill (instructed by Russell, Ridley & Co) for DefendantsHearing Hearing dates: 3 rd& 4 th July 2007
Judgment

Mr. Justice David Steel:

[1]This action arises out of a collision in the entrance channel to Mormugoa (Goa) at about 2012 hours (UTC + 5 ½ hours) on 30 April 2004. The Defendants’ vessel ARIELA came into contact with the Claimants’ hopper barge KAMAL XXIV. KAMAL XXIV was moored alongside the Claimants’ dredger KAMAL XXVI. The impact brought the barge into contact with the dredger. Although the damage to ARIELA was minimal, the dredger was heavily damaged.[2]The relevant particulars of the barge KAMAL XXIV are as follows: 48.7 metres in length, 12.2 metres in beam with a draft of 2.65 metres. As regards the dredger KAMAL XXVI, she was 80 metres in length, 14.8 metres in beam with a draft of 2.2 metres.[3]It is common ground that KAMAL XXVI was not underway. She was lying, secured by five anchors, in line with the axis of the channel (i.e. 110°/290°). It is the Claimants’ case that she was on the Northern edge of the channel in the vicinity of Buoy 10. The Defendants say that she was in the channel some 100 metres south of the Northern limit thereby narrowing the gap between Buoy 10 and Buoy 9 on the Southern edge to about 200 metres.[4]It was also common ground that KAMAL XXVI was exhibiting 3 all round lights in a vertical line, two all round green and two all round red lights as prescribed by Rule 27 of the Collision Regulations. Her deck lights were also illuminated. In addition a flashing white light marked the position of the two anchors laid out on her portside. Prior to the trial it had been common ground that the KAMAL XXIV was unlit. However by consent the Claimants amended their collision Statement of Case to allege that search lights were being shone by KAMAL XXVI onto KAMAL XXIV and KAMAL XXIV was itself equipped with a search light and was also exhibiting port and starboard navigation lights.[5]ARIELA is a bulk carrier, some 235.63 metres in length and 52.22 metres in beam, some 44,985 tons gross and powered by engines of 16,500 h.p. ARIELA was in ballast with a draft of about 5.01 metres forward and about 7.61 metres aft.[6]ARIELA was bound to Mormugoa from Damman. She was exhibiting appropriate navigation lights. She had anchored off the port to the North of the entrance channel in the vicinity of Buoy 4. Having weighed anchor she proceeded into the channel and having been joined by a pilot she made her way inward bound in about the middle of the channel on a course of 080°.[7]The wind was West-North-Westerly force 4. It was dark but fine and clear. There was a tidal current flooding to the East at well under 1 knot.[8]The dredger was operating pursuant to an agreement between the Mormugoa Port Trust and Jaisu Shipping dated January 2004 although work had actually started in October 2003. Indeed on 14 October 2003, the Port Trust had issued a marine notice requesting pilots “to liaise with the dredger well in advance to ensure clear and safe passage.” The notice went on to say that the dredger would be moored with two anchors laid across the channel with marking buoys:- “Shifting of anchors would require at least 30 minutes notice and pilots are requested to advise the dredger well in advance so that movements can be co-ordinated without delay.”[9]On 30 April 2004, the dredger initially positioned itself in the vicinity of No. 10 buoy having dropped her starboard anchor with 3 shackles in a position 150 metres North West of the buoy. The master of the dredger records in a note to his owners written on 2 May that the dredging bucket ladder was lowered in a position 50 metres southwest of the buoy. She then set about laying out her working anchors. The form in which the anchors were laid was not in issue. There were two on her starboard side, two on her port side and a further one laid out astern.[10]On the first day of the trial, the Defendants sought and obtained leave to amend Part 2 of their Collision Statement of Case to allege that, not only was the dredger well into the channel, but also that the available width of the channel was further reduced because the port anchors of KAMAL XXVI and their associated lights were 80 to 100 metres inside the Southern Boundary.[11]Dredging appears to have commenced at 1610. The master’s report records (in an exchange confirmed by the record maintained in the Signal Station VHF log) that at 1615 the pilot of MEDY SYDNEY, outward bound from No. 1 berth, made a VHF request for the dredger to “remove 3 anchor buoys to secure passing loaded ship.” The master’s response was that the anchor buoys were in fact outside the channel. The pilot is said to have “agreed” and certainly the vessel duly left at 1700 without any change in the anchors’ position. The same pilot then brought in the AKER at 1730. Both these movements are recorded as having interrupted dredging no doubt as a result of slackening off the port side anchor cables.[12]At about 1800 the pilot, who was later to bring in ARIELA, was instructed to take out the TAI BAI HAI which he boarded at about 1840. As TAI BAI HAI got under way at about 1910, the pilot advised ARIELA, at this stage still anchored out in the roads, to weigh anchor and commence coming in.[13]At about 1940 the signal station spoke to KAMAL XXVI to report that ARIELA would be entering the channel and requested the dredger to “keep clear”. (This request is recorded in the dredger’s deck log at 1950.)[14]In considering the lead up to the collision, I have inevitably had particular regard to the contemporary documents albeit supplemented by evidence from witness statements.

Evidence of ARIELA

[15]The deck log of ARIELA reads as follows:
“2012 While vessel was manoeuvring at Mormugao channel towards berth No.9…passing between buoys 9 and 10, the barge tied up to dredger KAMAL 26 brushed the port side of ownship. The dredger was stationary. Its anchor was on the centre of the channel as marked by 2 white lighted buoys…Own vessel was under the advice of port pilot Capt. P. Singh at the time and was well inside the channel’s centre. Pilot notified Goa port control of the dredger’s anchor buoys not being in the right position.”
[16]In addition to her deck log, other documentary evidence was put before the court by the Defendants: i) A photocopy of her working chart recording two positions in mid-channel, the first at 2006 on an extension of a line from the harbour breakwater and the second at 2010 just short of a line joining buoys 10 and 9 and in close proximity to the position pictured for KAMAL XXVI. ii) An engine bell book noting that the engines of ARIELA were put dead slow ahead at 1942. iii) A letter of protest dated 30 April 2004 which contained an account similar to that contained in the deck log (and official log). iv) A sketch of the collision on the original working chart repeating the account that at collision ARIELA was in about mid-channel (and with the anchors of KAMAL XXVI buoy well inside the channel).[17]As regards factual witness evidence, the Defendants tendered a number of statements including: i) Two statements of the master of ARIELA the first dated June 2004 and the second dated February 2007. ii) A statement of the Pilot dated January 2005. iii) A statement of the helmsman dated June 2004. iv) A statement of the third officer (OOW) dated June 2004. v) A statement of the Chief Officer (who had been at forward station) dated June 2004. The Defendants were unable to call the Pilot to give oral evidence but did call the Master.

Evidence of KAMAL XXVI

[18]The log book of the dredger has the following entry: “1955 Stopped dredging, shifted the dredger up to boundary of channel, in accord with DGPS coordinates 1704943.3m. North, 371257.6m. East, port side and stern wires slackened, bucket ladder fixed downward (depth 14.9m CD) to avoid drifting of the dredger. Keep alongside portside, dump barge KAMAL XXIV. (It is common ground that this position if accurate is in the immediate vicinity of Buoy 10.) 2015 MV ARIELA (Singapore) moving with slow speed to berth No. 9. collided with dumb barge KAMAL XXIV…..” (It is common ground that this position if accurate is in the immediate vicinity of Buoy 10.)[19]In addition to the deck log and the dredging log, the Claimants’ documentary evidence included: i) A statement of facts prepared by the master dated 1 May 2004 and a report to owners by the master (already referred to above) dated 2 May. ii) Attached to the report two sketches of the master purporting to show the position of KAMAL XXVI in relation to the channel and the position of the dredger’s anchors.[20]As regards statements, the Claimants tendered: i) A statement of the second officer dated November 2006. ii) A statement from the Contractors Managing Director confirming the datum for operation of the vessel’s positioning (DGPS) equipment. The Claimants called no witnesses of fact to give oral evidence.

Issues

[21]The primary issue in the case was the location of the dredger. There were also subsidiary but related issues as follows: i) At what stage did ARIELA commence altering to starboard to come round into the next leg of the channel and what degree of helm was applied? ii) Did ARIELA put her helm further to starboard at any stage and, if so, when? iii) Where were the port anchor buoys of KAMAL XXVI? iv) Was the barge KAMAL XXIV lit? v) When was the barge first seen by those on ARIELA?

Initial alternative to starboard

[22]The second officer of ARIELA prepared a voyage plan on 20 April which was duly approved by her master. The passage into Mormugoa was planned with a way point in mid-channel between buoys 7 and 8 followed by a track on 109½° towards Buoys 9 and 10. This passage was duly plotted on the working chart.[23]It is common ground that ARIELA having entered the channel in the vicinity of Buoy 4 duly proceeded inwards in mid-channel on a heading of 080° at dead slow ahead (about 4 Knots). It was the pilot’s evidence (to some extent supported by the oral evidence of the master) that the helm was ordered 15° to starboard when buoys 7 and 9 were in transit. If correct, this helm order would have been given when the vessel was about 500 metres prior to the way point at C-9.[24]There are difficulties with this account on the documents:- i) The position contemporaneously recorded on the working chart at C-6 is still in mid-channel. ii) The master in his statement stated that the alteration to starboard began “just before light on the breakwater was abeam to starboard.”[25]These considerations alone create a degree of scepticism as to probabilities of the helm order having been given some 3 or 4 minutes earlier. There are also difficulties from the theoretical perspective. I have asked the Elder Brethren to express a view on the likely impact of an order of 15° starboard helm at the position suggested by the pilot. Their advice was as follows:
“The manoeuvring data of ARIELA suggests that she is quite responsive to her helm even at slow speed. (Indeed at half-speed/7.7 knots, a hard -a-starboard order would achieve a 90° alteration within about 4 minutes with a transfer of 0.22 miles and an advance of less than 0.4 mile. Notably, there is a note to the effect that “at slow speed transfer and advance about the same … but speeds proportionally lesser and times proportionally greater. In our assessment, if the turn had started at C-9, the vessel would already have altered to starboard very substantially, perhaps approaching 90°, and reached a position on the South side of the channel before reaching buoy 9.”
[26]Whilst not remotely decisive as to the position of the barge given the margins of error involved, if this advice is to be accepted, it throws further doubt on the Defendants’ case. In accordance with the practice of this court as established in the wake of the decision of the Court of Appeal in The Bow Spring and The Manzanilla II [2005] 1 Lloyd’s Rep 1 the parties were notified of the advice tendered by The Elder Brethren to enable comment to be made. The Defendants took the opportunity to tender expert evidence. This is not appropriate and inconsistent with the rationale behind the procedure outlined by Gross J in The Global Mariner and The Atlantic Crisader [2005] 1 Lloyd’s Rep 699 at p.702.[27]That said I will try and grapple with the points raised. First it was submitted that a “vessel acts quite differently when she is maintaining minimum steerage speed as opposed to half speed”. I have asked the Elder Brethren for their advice on this topic. They have responded as follows:
“It is clear from the manoeuvring characteristics sheet that the trial for half speed was conducted at 7.7 knots – i.e. half full sea speed. This was not materially different from “slow ahead”
. It follows that the reference to transfer and advance at slow speed must incorporate the equivalent of something in the range of “dead slow ahead” or 4 knots. In any event it is not our experience that a vessel, in terms of its turning circle, acts “quite differently” at dead slow ahead. There is no reason to treat the minimum steering speed as giving rise to unusual steering effects.”[28]I accept all that advice. The supplementary submissions went on to contend that the advice tendered failed to take account of the influence of wind and current. The Elder Brethren respond as follows:
“In our opinion, the influence of a West North Westerly wind (force 4) on a vessel turning from 080° to 140° would have been minimal. Indeed this seems to be supported by the latest plot produced by the Defendants. As regards the influence of tide, a current of 0.2 knots would only result in a transfer of 100 feet from C-5. The effect is so slight as to be discounted. ”
[29]Again I accept that advice. It follows that, both from the contemporary evidence and the reconstructions of the track, I find it very unlikely that ARIELA would have commenced her turn as early as suggested (C-9). She was likely to have commenced her turn no earlier than about C-6.

Hard-a-starboard

[30]At some stage, the helm of ARIELA was put hard-a-starboard. It was the Defendants’ case that this occurred at about C-7. The Claimants contended that the order was given no earlier than C-2. In my judgment the order is likely to have been given at a fairly late stage: i) The pilot refers in his statement to an increase in the rudder angle to 20° “as we started the turn” and “saw that we would approach close to dredger and barge.” It was accepted that this was probably a reference to the hard-a-starboard order but it could hardly have been earlier than about C-4. ii) The Master’s statements are not entirely clear but suggest that following the initial starboard order there came a stage when the Chief Officer began reporting the distance of the dredger. The first report was said to have been 200 metres (C-1 ½ ). It was only later that hard-a-starboard was ordered. iii) As already explained, given the manoeuvring characteristics of the vessel, I would have expected the vessel to have come well to starboard of 120° by the time of collision if the hard-a-starboard order was given as early as suggested by the Claimant. Looking at the matter in the round, it would seem likely that the hard-a-starboard order was given no earlier than C-2.[31]In this connection I have not forgotten the simulation produced by TMC on behalf of the Defendants. This puts ARIELA in about mid-channel at the time of collision. Part of the input modelled was the West North Westerly (i.e. 290°) wind at 12 Knots which appeared to limit ARIELA’s rate of turn at least initially. The helm orders assumed for the simulation were: C-9 15° Starboard rudder C-7 ½ Hard-a-starboard C-3 ½ Amidships C- ½ Hard-a-port As already indicated, I am not persuaded that these assumptions (and in particular the hard-a-starboard and amidships orders) reflect the helm orders actually given.

Port anchor buoys

[32]I have already recorded the amendment made by the Defendants in the form of an allegation that the port anchor buoys of the dredger were well out into the channel restricting the width available to ARIELA. The complaint seems to have been first raised by the other pilot who was conning vessels earlier that same day. Indeed his complaint is recorded in both the VHF log and in the report prepared by the Master of KAMAL XXVI.[33]In his statement, the pilot of ARIELA stated that, on his passage out on TAI BAI HAI, he saw the port side anchor buoys 80-100 metres inside the southern boundary. As regards the Master, his initial statement records what he understood to be the pilot’s concern about two white lights in the channel “near the vicinity of No. 9 buoy”. In his supplemental statement, he records hearing the pilot complaining to the Harbour Master “that some white lights were in the wrong place.” The Master added that the light “appeared to be inside the channel”. These observations are confirmed in the deck log of ARIELA and the sketch made after the collision.[34]In the event this issue somewhat evaporated during the course of the hearing since it was accepted in the course of argument by the Defendants that, unless it was established that the dredger was well into the channel, it could not be said that the position of the anchors was of any causative significance.[35]The Defendants have sought to withdraw that concession in their supplementary submissions. But even if it is open to them to do so the point fails on the facts. In short I am not persuaded that the anchor boys were positioned within the channel, let alone 80-100 metres inside: i) The dredger maintained its position by use of the anchors, moving by hauling on/paying out her port, starboard and stern anchors. Moving the anchors was a time consuming business. The Master’s sketch shows precisely the configuration that would be expected. Since the position of anchors would be only too conspicuous, it is improbable that she would lay any of them in the channel leading to valid complaint by the pilots and requiring the intervention of the harbour master. Moreover, a substantial length of chain paid out to the port anchors would enable the dredger to move significantly to starboard by merely slackening on those chains to keep out of the way of traffic. ii) Confidence in the sketch is enhanced by the fact that the stern anchor is shown in the vicinity of MD No. 1 Buoy (in stark contrast with the reconstruction on ARIELA’s working chart). The sketch is thus entirely consistent with the request of the harbour master at 1740 recorded in the VHF log for KAMAL XXVI to shift the anchor buoy “which is between MD1 and 2” so as to move it closer to MD1. Furthermore, if at that stage the port anchors also presented a hazard it is inevitable that the Port Trust would have required them to be moved. iii) Although the earlier pilot complained about the position of the anchors, his complaint was primarily directed at the buoy MD No. 1 off the berths. Indeed, as already noted, the master of KAMAL XXVI seems to have insisted that his anchors were outside the channel and this does not appear to have been challenged. iv) Although the pilot of ARIELA mentioned the port anchor buoys on his way out, he himself does not mention them on the return journey let alone make any complaint. This accordingly does not support the expressions of the pilot’s concern reported by the Master who in any event reported the anchors being in the vicinity of Buoy 9. (Indeed the master’s protest refers to anchor buoys off berths 8 and 9 not in the way of Buoy 9 at all.)

Was KAMAL XXIV lit?

[36]The unamended version of the Claimants’ Statement of Case was to the effect that the barge was unlit. I see no reason for the court not to hold the Claimants to that admission: i) The barge was alongside the dredger. I have asked the Elder Brethren if it would have been appropriate for the barge to exhibit lights. In their opinion, it would have been inappropriate to exhibit navigation lights and, as regards working lights, it was acceptable for the lights on the dredger to provide illumination. I accept that view. ii) The only evidence in support of the allegation that the barge was lit is in the Second Officer’s statement taken some 2 ½ years after the collision. iii) In contrast the Chief Officer, the Third Officer, the Master and the Pilot of ARIELA saw no lights.

When was the barge first seen by those on board ARIELA?

[37]The Master and Chief Officer did not see the barge until very close. In contrast the Pilot accepts that saw the barge through binoculars at a considerable range (around 1 ½ miles).

The position of KAMAL XXVI

[38]I now turn to the primary issue in the case: the position of the dredger. In this connection it is necessary to record that the dredger was equipped with a Differential Global Positioning System (DGPS) integrated with Hydropro Navigation dredging software.[39]Photographs of the screen on which information was exhibited were put before the court. The important feature was a digital read-out of the position of the vessel in DGPS coordinates. The figures contained in the Master’s report are examples of such coordinates. The coordinates need to be converted to coordinates of longitude and latitude and then further adjusted for plotting on the appropriate Admiralty Chart. Assuming the figures from the report (and the log book) are correct the position of KAMAL XXIV was Lat. 15° 25.16’ North, Long. 73° 48.01 East. This position is adjacent to Buoy 10 on the extreme edge of the channel.[40]Is this position reliable? In my judgement it is:- i) Although there is no record of when the reading was taken (or indeed who by) it is clear that it is a genuine reading from the machine (rather a reconstruction which would have to be in coordinates of longitude and latitude). ii) The appropriate adjustment and conversion is confirmed by the evidence of the Chairman of Jaisu Shipping and the calculation of Messrs. LOC retained by the Claimants. iii) The Master’s report sets out the initial position at 1320 on 30 April as being 50 metres south west of Buoy 10. At 1950 the position is recorded 12 metres from the boundary of the channel. Thereafter the port anchor cables were slackened off. iv) In any event, it strikes me as wholly improbable that the dredger could be manoeuvred 100 metres across the channel with the layout of the anchors set out above, let alone as depicted by the Defendants. Furthermore such could not in any event be achieved in a few minutes. v) It would appear that the dredger did not resume dredging until 1735 on 1 May by which time the initial report of the Master had been made containing the DGPS coordinates. vi) The Master presented a detailed sketch of the dredger’s position astride the boundary with the barge outside of it. As he put it in his report:- “Width of channel at this point is 295 metres out of which 7.5 metres was occupied by KAMAL XXVI and 10 metres by KAMAL XXIV leaving 277.5 metres clearance.” vii) It is very striking that the Deck log of the ARIELA and the Master’s protest being the most contemporary documents make no complaint about the position of the dredger (only her port anchors). Indeed the dredger is described as “positioned on the side of the channel”.

Master’s Evidence

[41]So far I have focused on the contemporary material, supplemented by witness statements. But, as already noted, the Defendants called their Master, Captain Sangil, who had been in command of ARIELA since June 2003. Captain Sangil obtained his masters certificate in March 1999 and first served as a master in January 2002. The occasion of the collision was his first visit to Mormugoa.[42]He was carefully cross-examined about many of the inconsistencies that emerged from his statement and that of the pilot. He was unable to furnish much assistance. This is not put forward as a criticism. Captain Sangil was transparently an experienced and careful master who did what he could to help the court. I am not remotely surprised that he was unable to resolve the disparities. He was giving evidence 3 years after the event in respect of a short passage in which an experienced pilot had the con of his vessel.

Expert Evidence

[43]I have already made passing reference to the expert evidence filed on behalf of each party. Each sought to use a computer model to simulate the track of ARIELA by reference to various assumptions.[44]The focus of such simulations was to identify where in respect of the width of the channel ARIELA was positioned at the time of the collision. Bearing in mind that the extreme cases between the parties only involve a transverse distance of 100 metres, it is important to recognise the limitations of any simulation. Given the margin of error in any given assumption, the inevitable disparities between the theoretical tracks calculated by the computer models and the actual behaviour of the vessel and indeed the disparities between the models themselves, it is important to recognise that the simulations are only helpful in showing what could and (more importantly) what could not have happened rather than what did.[45]It is quite apparent that dependent upon the timing of the starboard helm orders there is no difficulty in demonstrating a track which takes ARIELA to either mid channel or to the Northern edge of the channel in way of buoy 10. However what is notable is: i) The LOC model appears to demonstrate that ARIELA can only reach a position in mid channel on heading of 148° if the starboard alteration was made when abeam the breakwater but not if the alteration is left until the vessel is on a projection of a line of the breakwater (let alone the waypoint). ii) The TMC model appears to demonstrate that, accepting the influence of the wind at the beginning of the turn, to reach a position in mid channel on a heading of about 135° the helm of ARIELA needed to be put hard-a-starboard when abeam the breakwater but also by a significant period of amidships.[46]Neither plot is remotely determinative of the issues that I have to decide but the overall picture probably gives greater support to the Claimants’ case rather than that of the Defendants, the more so in the absence of any convincing evidence that ARIELA commenced her turn at C-9. Summary[47]I conclude as follows: i) KAMAL XXVI was anchored in the vicinity of Buoy No. 10 on a heading of about 260°. ii) At the time ARIELA approached, she was dredging in a position approximately 12 metres south of the channel edge (depicted in pecked lines on Admiralty Chart 492 between buoys 10 and 8). iii) Her port anchors were laid outside the channel to the south of the line between buoys 9 and 7. iv) With the approach of ARIELA, she ceased dredging and slackened her port anchor chain thereby moving Northward so that her centre line was approximately on the channel edge. v) With KAMAL XXIV moored on her port side, the channel side of the barge extended approximately 20 metres into the channel leaving approximately 280 metres of navigable channel North of buoy 9. vi) The barge was unlit save by reason of the deck lights of KAMAL XXVI. vii) ARIELA proceeded up the middle of the channel on a course of 080° towards buoys 9 and 10: her engines were working at dead slow ahead giving her a speed of 4 knots. viii) When in a position on the line of extension of the breakwater as marked on the working chart, her helm was put 15° to 20° to starboard. ix) Her helm was put hard-a-starboard when she closed on the dredger and barge to a range of about 200 metres. x) Having reached a heading of about 130°, the port side of ARIELA struck the portside of the barge.

Fault

[48]It is clear that ARIELA was at fault in commencing her turn too late and/or in failing to apply sufficient helm. (In the event that there was insufficient steerage way, then engine revolutions should have been increased.) I have asked the Elder Brethren to comment on this conclusion. They agree with my opinion.[49]I find that KAMAL XXVI was not at fault: i) Although the barge was unlit, she was seen by the pilot at a range of 1 ½ miles when inward bound. In any event, the Elder Brethren advise me (and I accept the advice) that a passing distance of 12 metres from the dredger was obviously dangerous and unseamanlike. In my judgment, the absence of lighting was of no causative significance. ii) Although the port side of the barge abutted some 20 metres into the channel, it is the Elder Brethren’s advice, which I accept, that such was a safe position. Given the width of the channel, any inward bound vessel was not embarrassed.[50]Accordingly there must be judgment for the Claimants.