ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Teare
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE LEGGATT
REAR ADMIRAL SNELSON
Elder brethren of Trinity House, as Nautical Assessors
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Vasanti Selvaratnam QC and James Shirley (instructed by Clyde & Co LLP) for the Respondent
Hearing dates: 4th and 5th July 2018
Crown Copyright ©
LORD JUSTICE GROSS:
" The Judge's decision was wrong in that:
1. He erred in law in failing to apply the crossing rules (Rules 15 and 16) and holding instead that crossing rules did not and/or could not apply where one vessel (EVER SMART) was in a narrow channel and the other vessel (ALEXANDRA 1) was navigating towards that narrow channel with a view to entering it.
2. He erred in his application of the law in failing to find that, on the facts, the crossing and the narrow channel rules could (and did) apply safely and without conflict to the respective vessel and to any other collision regulations.
3. On his alternative approach (in paragraph 70):
(1) He erred in law, in wrongly imposing a requirement that the give way vessel be on a 'sufficiently constant' course for the crossing rules to apply. He should have held that:
(a) The vessels were crossing; and
(b) Since (as he found at paragraph 66) the compass bearing of ALEXANDRA 1 did not appreciably change, there was a risk of collision under Rule 7(d)(i) and, therefore, Rules 15 and 16 were engaged irrespective of the course or heading of ALEXANDRA 1.
(2) Further or alternatively, he erred in his application of the law and/or in failing to find as a fact that ALEXANDRA 1 was on a 'sufficiently constant' east-south-easterly course to engage Rules 15 and 16.
4. He erred in law or misdirected himself by taking into account the extent of the damage alleged to have been caused by the respective vessels in determining the causative potency of their faults."
Longmore LJ refused PTA on a further ground going to the Judge's apportionment of liability.
i) Issue I: the applicability of the crossing rules;
ii) Issue II: the Respondent's Notice;
iii) Issue III: causative potency.
With reference to EVER SMART's grounds of appeal, Issue I is intended to cover grounds 1 – 3 and Issue III ground 4. Issue II picks up the various arguments advanced under ALEXANDRA 1's Respondent's Notice.
"10. The dredged channel leading out from Jebel Ali lies on an axis of 315/135 degrees (true) and is about 8.5 nautical miles in length and slightly less than 2 cables in width. It is marked by lateral buoys, from buoys no. 1 at the seaward end to buoys no. 12 at the outer breakwater, and is dredged to 17 meters. At the seaward end is the designated pilot boarding area, a circular area with a 1 nautical mile radius. The limit of the circular area as shown on the chart is about 3 cables beyond buoys no. 1."
There was and is no dispute that the dredged channel was a "narrow channel" for the purposes of the Collision Regulations.
"13, The collision occurred at 23.42:22 on 11 February 2015 about 5 cables west north west of the no. 1 buoys and so outside the dredged channel but within the pilot boarding area. EVER SMART had disembarked her pilot during the course of her passage along the dredged channel and ALEXANDRA 1 was waiting to embark that same pilot. The port bow of EVER SMART struck the starboard bow of ALEXANDRA 1 at an angle of about 40 degrees…..leading aft on EVER SMART. At collision the speed of EVER SMART was 12.4 knots over the ground and the speed of ALEXANDRA 1 was 2.4 knots over the ground. "
" ….The master of ALEXANDRA 1 mistakenly thought that Port Control was speaking to EVER SMART. This caused him concern because he did not understand how EVER SMART could pass one mile astern of ALEXANDRA 1. He feared that if ALEXANDRA 1 went around buoy no.1 there would be a 'fucking crunch' at the entrance to the channel….."
" At 23.37 or C-5 (when the course made good was 314 degrees and the speed over the ground was 9.5 knots or 8.3 knots through the water) the engines of EVER SMART were put to half ahead and at 23.38 or C-4 her engines were put to full ahead (manoeuvring). 30 seconds later, at C-3 ½ her engines were put to full sea speed…… Thus the vessel's speed over the ground and through the water increased. By 23.41 or C-1 the speed of EVER SMART was 11.8 knots over the ground or 9.8 knots through the water."
"35. Less than 2 minutes after the collision the master said (apparently to the officer of the watch and helmsman) 'both of you…have you seen it or not?' He then said (it is suggested to himself) 'how come you didn't see it?'
36. At about 23.48 or C+6 the master reported the collision to his owners saying 'We hit her….because she stopped outside waiting, we were leaving the port, we did not see that….I saw the light, but didn't know she was transverse, so we knock against her bow."
ISSUE I: THE APPLICABILITY OF THE CROSSING RULES
"(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, ….which may make a departure from these Rules necessary to avoid immediate danger."
"(a) A vessel proceeding along the course of a narrow channel…shall keep as near to the outer limit of the channel…which lies on her starboard side as is safe and practicable."
" Rule 15
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.
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 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.
" 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."
" Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
"Traffic density" is included, at (a)(ii), amongst the factors to be taken into account in determining a safe speed.
"(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…..
(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;
" …both decisions are of considerable persuasive authority bearing in mind the experience and knowledge of collision actions possessed both by Hewson J (a naval officer, an Admiralty specialist, author of a treatise upon navigation and Admiralty Judge from 1958 until 1966) and by Lord Clarke (whose expertise in this field is too well-known to require explanation). I consider that I ought to follow their statements of principle unless I consider that they are wrong."
"….To have two sets of rules with different requirements applying at the same time is of course unsafe and cannot have been intended by those who drafted the Collision Regulations…..where one vessel is within a narrow channel and has a vessel on her port bow on a crossing course outside the channel but proceeding towards it in preparation for entering it, the vessel in the narrow channel cannot be under a duty (pursuant to the crossing rules) to maintain her course and speed and at the same time under a duty (pursuant to the narrow channel rule) to keep to the starboard side of the channel since the two duties may, depending on the circumstances, require different action. As Lord Clarke said there would be considerable scope for confusion."
" These considerations strongly suggest that in the interests of safety, which of course is the foundation of the Collision Regulations, the crossing rules cannot have been intended to apply where one vessel is navigating along a narrow channel and another vessel is navigating towards that channel with a view to entering it. In construing the Collision Regulations 'regard shall be had to all dangers of navigation and collision'; see rule 2. One such danger is the risk of collision created by two rules potentially requiring different action applying at the same time. The approach of Lord Clarke as expressed in paragraph 225 of his judgment in Kulemesin v HKSAR …..is therefore consistent with the principles underlying the Collision Regulations and permitted by them."
"I have therefore concluded that rule 15 of the Collision Regulations, the crossing rule did not bind ALEXANDRA 1 when she approached the dredged channel leading to Jebel Ali and so she was not under a duty to keep out of the way of EVER SMART. Her duty, as a matter of good seamanship, and as formulated by Lord Clarke, was to navigate in such a manner that, when she reached the channel, she would be on the starboard side of the channel in accordance with rule 9. She required to embark a pilot but that circumstance did not…absolve her from that duty."
" Subject to a good aural and visual lookout, it would be reasonable and good seamanship for the Master of ALEXANDRA 1 to have approached the first pair of buoys keeping close to her own side of the entrance channel."
" Was she on a sufficiently constant direction or heading to be on a course? I do not consider that she was. Her 'course made good' varied between 81 and 127 degrees (and her heading varied between 84 and 112 degrees). It is difficult to describe that as a 'a course' (though her preliminary act describes her as being on an east south easterly course)…… I would describe ALEXANDRA 1 as waiting for the pilot vessel to arrive rather than being on a course. Had a good lookout been kept on board EVER SMART from C-21 until collision it would have been apparent that ALEXANDRA 1 had moved less than a mile. It would or ought to have been obvious that she was awaiting to embark a pilot."
"To have two sets of rules with different requirements applying at the same time is of course unsafe and cannot have been intended by those who drafted the Collision Regulations. "
The "situation" here related to the situation as a whole; not the precise, individual manoeuvres undertaken. Teare J's conclusion reflected the advice of the Elder Brethren, as to good seamanship requiring ALEXANDRA 1 to approach buoys no.1 keeping to the starboard side of the narrow channel: see, the judgment at  – , set out above. Moreover, the pilot boarding area itself created the potential for difficulty if the crossing rules applied; was the stand-on vessel obligated to maintain course and speed as she passed through that area? The Judge's approach was consistent with authority, principle and safety and was to be upheld.
i) It is to be acknowledged, as Mr Jacobs contended, that keeping "course and speed" within rule 17 is not to be interpreted literally (and, it might be said, unthinkingly). Thus, as explained by Lord Alverstone CJ in The Roanoke  P 231, at p. 239:
"… 'course and speed' ….mean course and speed in following the nautical manoeuvre in which, to the knowledge of the other vessel, the vessel is at the time engaged. …….The 'course' certainly does not mean the actual compass direction of the heading of the vessel at the time the other is sighted….A vessel bound to keep her course and speed may be obliged to reduce her speed to avoid some danger of navigation, and the question must be in each case, 'Is the manoeuvre in which the vessel is engaged an ordinary and proper manoeuvre in the course of navigation which will require an alteration of course and speed; ought the other vessel to be aware of the manoeuvre which is being attempted to be carried out?"
See too, The Taunton (1928) 31 Ll. L. Rep. 119, at p.120 (Scrutton LJ) and Lord Wright's observations in The Alcoa Rambler  AC 236, at pp. 243 and 250 — a case on facts far removed from the present – where he urged that the crossing rules "ought to be applied and strictly enforced because they tend to secure safe navigation" even "in cases where in a strict sense there is deviation from the ship's course", though such applications required attributing "to the give-way ship actual or imputed knowledge of the situation".
ii) However, even allowing for the impact of these authorities on the interpretation of the crossing rules, I am wholly unable to accept Mr Jacobs' submission that there was no risk of any such inconsistency here, by reason of the precise manoeuvres undertaken by EVER SMART as she proceeded along the channel. It is the situation as a whole that falls to be considered and it is, to my mind, unrealistic to suggest that there was no risk of the narrow channel rule and the crossing rules potentially requiring different actions at the same time. It must be unlikely that a proper application of the Collision Regulations would place a seaman in an invidious position of this nature. That a particular course correction (for example, a one-off, obvious and decisive manoeuvre to regain the starboard side of the channel) might not be inconsistent with both rules, seems to me to be neither here nor there. In any event, were both rules to be applicable, the scope for confusion for the putative give-way vessel faced with a putative stand-on vessel lingering to port of mid-channel is considerable.
iii) For my part, I would not regard this as a situation when the crossing rule ought to be applied (in the words of Lord Wright in Alcoa Rambler) as tending to secure safe navigation.
i) In the "ordinary" case of two vessels approaching each other in a narrow channel, navigating respectively up and down the channel, the crossing rules will not apply; there is no room for them to do so and the requirements of the crossing rules and the applicable narrow channel rule are different: Willmer J (as he then was), in The Empire Brent (1948) 81 Ll. L. Rep. 306, at p.312; Brandon J (as he then was) in The Glenfalloch  1 Lloyd's Rep. 247, at p. 255.
ii) However, the mere fact that a narrow channel or narrow channels are involved does not of itself mean that the crossing rules will be inapplicable. Thus, by way of example, the crossing rules may be applicable with regard to the navigation of vessels approaching the junction between two narrow channels: see, The Leverington (1886) 11 PD 117. So too, the crossing rules may apply in a situation where a vessel is crossing a narrow channel and another vessel is navigating up or down the channel: The Empire Brent (ibid); The Glenfalloch (ibid).
" It is fruitless to attempt to envisage all the possible combinations of circumstances in this or any other river and I am not going to attempt it."
There were various River By-laws but, other than a By-Law (Rule 38) which was in materially the same terms as the narrow channel rule, these were not applicable – albeit Hewson J did remark that the principle of By-Law (Rule 40) covering a vessel entering the main channel from a tributary or creek was one of good seamanship and that principle applied in full force. Insofar as Mr Jacobs sought to distinguish the Canberra Star on the basis that the decision owed all or much to a local by-law, I cannot agree.
" In the circumstances of this case, where vessel A, proceeding down river outside the channel, intending to enter it, sees an upcoming vessel B approaching in the next reach, bearing on her starboard side, on a main-channel course which, if followed into the reach in which A is navigating, will or should enable the two vessels to pass safely port to port by reason of the fact that B should keep to her own starboard side of the channel and A will navigate into and keep to her own starboard side, the crossing rule does not, in my view, apply. The actions of vessel B should be governed by Rule 38 [equivalent to the narrow channel rule], and A by the rule of good seamanship….. The rule of good seamanship for a vessel entering a main channel is that she should do so with caution and not hamper traffic already navigating in it. Vessels already in it, as well as those about to enter it, should behave reasonably. It does not appear to me that the vessel already in the channel has a complete right of way, and she must not hog the river regardless of the reasonable aspirations of other vessels."
" This was an appeal in a criminal case arising out of a serious collision off Hong Kong as a result of which there was much loss of life. The masters of both vessels had been convicted of a criminal offence and each appealed. One of the questions certified for hearing on the appeal was whether the crossing rules apply when a vessel is approaching a channel on a crossing course involving risk of collision with another vessel navigating in the channel; see paragraph 142. There was however another question, which Lord Clarke described as 'the most important issue' in the case namely, whether the buoyed channel was a narrow channel within rule 9 of the Collision Regulations; see paragraph 150. It was held that it was; see paragraph 198. Lord Clarke further held that the vessel (N67) which was navigating in the narrow channel was bound by the narrow channel rule and not by the crossing rule. He said the observations of Willmer J in The Empire Brent were 'plainly correct'; see paragraph 201. He also said that the observations of Hewson J in The Canberra Star seemed 'good sense'; see paragraphs 217-8. When dealing with the navigation of the other vessel (YH) which was approaching the entrance of the narrow channel he said this, at paragraph 225:
'….vessels approaching a narrow channel and intending to proceed along it are not bound by the crossing rule but must enter the channel and, as they do so, keep as near to the starboard side as is safe and practicable in accordance with r.9. It seems to me to follow that a vessel shaping to enter the channel should, as a matter of good seamanship, navigate in such a manner that, when she reaches the channel, she is on the starboard side of the channel in accordance with r.9.' "
" Safety requires a vessel approaching the channel so as to proceed along it to navigate so that if the vessels pass in the channel they will pass port to port. This will be achieved if the narrow channel rule applies. If it does not, there is considerable scope for confusion. "
As is clear from Lord Clarke's approval of the conclusions of the Judge at first instance (at ), underlying that approach and the "good sense" of Hewson J's views in The Canberra Star was that:
"….vessels approaching the channel and vessels within it must acknowledge that there must be some continuity so that r.9 applied at the entrance to the channel in order to avoid chaos and ambiguity…. "
i) First, in agreement with Teare J, I regard the observations of both Hewson J and Lord Clarke as powerfully persuasive, supporting the inapplicability of the crossing rules in the present situation. I do not think that either The Canberra Star or Kulemesin is meaningfully distinguishable.
ii) Secondly, I respectfully agree with the reasons given by Teare J, Hewson J and Lord Clarke. As already discussed, the risk of potentially different actions being required at the same time is thereby avoided; this is not a situation where it is necessary to apply the crossing rules to secure safe navigation – and if it is not necessary to apply the crossing rules it can fairly be said that it is necessary not to apply them, so as to avoid adding a layer of confusion.
iii) Thirdly, the view upheld in The Canberra Star, Kulemesin and by the Judge, ensures continuity and a seamless entry into the channel, as explained in Kulemesin. It is to be underlined that in the present case the entrance to and exit from the narrow channel were in the pilot boarding area and that at all material times ALEXANDRA I was manoeuvring in that area.
iv) Fourthly, with respect, like Hewson J, I am wary of over-generalising. On the facts here, I am persuaded that the crossing rules did not apply. Any rule of law in this regard must be limited to factually indistinguishable or materially similar situations. Beyond that, I would not go and, reading the judgment as a whole, I do not think the Judge went either.
" In circumstances where:
1. A vessel is proceeding outbound in the Jebel Ali dredged channel ('the narrow channel');
2. A vessel ('the incoming vessel') is approaching the mouth of the narrow channel from the East on a broadly Westerly heading;
3. A risk of collision between the two vessels exists in the vicinity of the entrance to the narrow channel;
what actions would you expect from a prudent mariner in accordance with the ordinary practice of seamen on (a) the outbound vessel; (b) the incoming vessel?"
"The prudent mariner in the outbound vessel in such circumstances would:
- keep a sharp lookout
- ensure compliance with Rule 9 by staying on the starboard side of the channel and proceed at a safe speed
- acquire the vessel coming from the east as an ARPA target at an early stage and watch its bearing to determine the risk of collision
- consult the onboard pilot and Jebel Ali VTS/port control re the subject vessel's identity and intentions
- make contact with the other vessel on VHF at an early stage to advise own ship's constraints in a narrow channel and his intentions when dropping his pilot
- be prepared to adjust own ship's speed to resolve close quarter/collision risk if necessary within the constraints of remaining in the channel and on the starboard side
He would then proceed at a safe speed to the vicinity of the Fairway Buoy before increasing to full sea speed.
The prudent mariner in an incoming vessel approaching from the east would:
- keep a sharp lookout
- consider approaching via the fairway buoy to avoid a close quarter or collision risk in the vicinity of the channel, particularly if not immediately entering the channel
- acquire information from Jebel Ali VTS/port control regarding own pilot boarding time and position, ensuring that when manoeuvring to pick up his pilot he stays clear of the channel mouth and lines up to enter on his starboard side of the channel
- acquire the outbound vessel as an ARPA target at an early stage and keep a close watch on the vessel's bearing to determine the risk of collision
- identify and make early contact with the outbound vessel on VHF (identify via AIS or Jebel Ali port) in order to ensure that collision risk is avoided and agree to keep clear of the vessel navigating under Pilotage in a narrow channel.
This accords with the ordinary practice of seamen having regard to the particular circumstances of the case."
" As the purpose of arts. 19 and 21 [the then crossing rules] is to impose a duty on the give-way ship to keep clear, that ship must be in a position to appreciate what the situation is and to know what the other ship is doing, and whether it is on a course at all or, if so, on what course."
But what of the give-way vessel?
ISSUE II: THE RESPONDENT'S NOTICE
" The term 'vessel restricted in her ability to manoeuvre' means a vessel which from the nature of her work is restricted in her ability to manoeuvre as required by these Rules and is therefore unable to keep out of the way of another vessel. The term 'vessels restricted in their ability to manoeuvre' shall include but not be limited to:
(iii) a vessel engaged in …..transferring persons…while underway;"
In Ms Selvaratnam's submission, ALEXANDRA 1 was waiting in the pilot boarding area for the pilot to board with minimum steerage way; she therefore came within the definition. If so, it was EVER SMART's obligation to keep out of the way of ALEXANDRA 1. In support of this submission, Ms Selvaratnam drew attention to the observation of ALEXANDRA 1's master, that she was a "hog on ice, with no skates". The observation, while certainly graphic, does not suffice to persuade me that ALEXANDRA 1 was a vessel restricted in her ability to manoeuvre within the meaning of rules 18 and 3(g)(iii). I agree with Mr Turner both that the facts of Forest Pioneer  EWHC 84 are distinguishable and that ALEXANDRA 1 was not required to embark the pilot at the precise place chosen. I further entirely agree with the Judge's conclusion (at ):
"….had the crossing rule applied and ALEXANDRA 1 been obliged to keep out of the way of EVER SMART she could have done so, for example at C-6, by putting her engines astern and so permitting EVER SMART to cross ahead in safety or by turning to starboard. She was not restricted in her ability to take such action by reason of embarking the pilot because that work had not commenced (and never did commence)…."
It follows that this ground too fails.
ISSUE III: CAUSATIVE POTENCY
" ….in circumstances where at C-4 ALEXANDRA 1 was heading so as to cross the approaches to the channel and was about a mile ahead of EVER SMART fine on her port bow and where that would have been apparent to EVER SMART had she been keeping a good lookout EVER SMART ought to have reduced her speed substantially. Instead, she increased her engines to full ahead manoeuvring at C-4 and then to full sea speed at C-3 ½ . Her unsafe speed was a direct consequence of her failure to keep a good lookout. "
The Judge added this (at ):
"There can be no doubt that the causative potency of her excessive speed with regard to the damage which in fact occurred was substantial."
"….The master of ALEXANDRA 1 misheard or misunderstood the VHF conversation between Port Control and ZAKHEER BRAVO. He thought, mistakenly, that the conversation was between Port Control and EVER SMART and so concluded that EVER SMART was being instructed to pass astern of him at a distance of a mile. Since the name of ZAKHEER BRAVO was clearly stated on VHF, as was the fact that she was towing a barge from west to east, it is likely that the master was not listening carefully. "
In consequence (at ), the master of ALEXANDRA 1 did not turn to starboard towards the channel and instead headed so as to cross the approaches to the channel, in order to give room for EVER SMART to turn to port and for the vessels to cross starboard to starboard. This fault was causative of the collision.
" (1) Where, by the fault of two or more ships, damage or loss is caused to one or more of those ships, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was in fault.
(2) If, in any such case, having regard to all the circumstances, it is not possible to establish different degrees of fault, the liability shall be apportioned equally."
"It is now well established that in assessing degrees of fault and apportioning blame, regard must be had both to the blameworthiness or culpability of the conduct and also its causative potency as a factor contributing to the collision and damage….. " (Italics added)
"The conclusion that it is possible to establish different degrees of fault must be a conclusion proved by evidence, judicially arrived at, and sufficiently made out. Conjecture will not do… "
He went on to say (ibid) that "fault" under the 1911 Act "must be fault as regards the collision". In The SS Haugland v The SS Karamea  AC 68, Viscount Finlay (at p.71) commented on this latter passage as meaning "…that only faults which contribute to the accident are to be taken into account…". Insofar as EVER SMART sought to rely on these observations, I am not persuaded that they assist her case. On a fair reading of Lord Sumner's speech, he was distinguishing causative from non-causative fault – rather than drawing any distinction between fault causing the collision and fault causing damage. This is clear too from Viscount Finlay's very next sentence in SS Haugland (at pp.71-2), where he said that the "existence of fault on the part of one of the ships is no reason for apportionment unless it in part caused the damage". Moreover, as to Lord Sumner's earlier observations in The Peter Benoit (set out above), they do no more than reinforce the general rule against speculation; they do not preclude a Judge from forming a view as to the propensity for greater speed to increase the damage caused – a matter which in any event Mr Jacobs (rightly) accepted in argument.
"Later cases have thrown more light on the meaning of the proviso, and in particular….it is now accepted that in assessing degrees of fault regard must be had both to the blameworthiness of the conduct alleged and also to its causative potency as a factor contributing to the collision and damage." (Italics added)
So too, Sellers LJ expressed the matter as follows (at p.280):
"Where negligence contributing to the collision is found or admitted….then the burden is on the one side or the other to justify a departure from a decision of both being equally to blame. There must be a preponderance of fault on the one side to disturb the balance. Only fault which affected the collision must be assessed, and fault must be measured by blameworthiness, causation and by the damage caused by the negligent conduct. The decision calls for an appreciation and a comparative assessment of those ingredients of the respective faults found against each party." (Italics added)
See further, Marsden and Gault, at para. 16-021.
" 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 contributed to the damage or loss resulting from the collision or other casualty. Two examples of faults of this kind in collision cases may be given. The first is excessive speed, whether in fog or clear weather. The second is an improper alteration of course which increases the angle of blow or results in one ship being struck by another in an especially vulnerable area. Both these kinds of fault are likely to be causatively potent, not only with regard to causing the collision to occur at all, but also with regard to the extent and severity of the damage or loss resulting from it."
In the EVER SMART skeleton argument, an effort was made to suggest that Sir Henry Brandon was saying no more than that a vessel's speed or improper alteration of course might attract greater culpability. I cannot agree. Sir Henry wrote with the utmost clarity, distinguishing culpability and causative potency – and this final passage was squarely addressed to two aspects of causative potency. For my part, Sir Henry's contribution lends unequivocal support to the Judge's approach and carries very great weight indeed.
"149. Sir Henry Brandon's extra-judicial exposition of the law and practice of apportionment of liability in his article in the Tulane Law Review should be better known than it is. It will assist all who have to consider such matters. His understanding and knowledge of how liability for damages in collision cases was in practice assessed was gained at a time when almost every week there was a collision action in the Admiralty Court, unlike the present time when, perhaps because voyage data recorders and other electronic devices have almost eliminated the need for a trial, there are few such trials. In his article Sir Henry Brandon described the proposition that both culpability and causative potency must be taken into account as 'the true principle of law applicable'….. Whilst there were no universal rules with regard to the assessment of culpability or causative potency he identified ('on the basis of practical experience in numerous cases over many years') certain broad lines of approach which can be used when apportioning liability (see 1037-1041). They may be summarised as follows:
(i) 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 than their number, that matter.
(ii) 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.
(iii) 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 the fault contributed to the damage resulting from the casualty.
(iv) 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 as greater than that of the ship that fails to react properly to such situation after it has been created.
(v) 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 omission only.
150. The court deals with questions of apportionment in a fairly broad way….."
With respect, as with Sir Henry Brandon's article, Teare J's summary is of real value. Paragraph (iii) of that summary is of course directly relevant to the present Issue.
"The degree of fault is judged objectively and cannot be increased or decreased by the actual amount of damage caused."
This sentence is not easy to reconcile with the earlier sentence, making reference to the contribution to the damage; it is also irreconcilable with the views of Sir Henry Brandon in the article in question. For my part, the sentence must either be read (1) as confined to culpability only; or (2) as meaning that it would be neither necessary nor appropriate to assess the degree of fault by reference to the precise calculation of damage, as established by the later Reference (which, would not be available at the time of the Collision Action). Alternatively, with respect, it must be disapproved.
i) Liability for damage in a collision case is to be apportioned under s.187 of the 1995 Act having regard to the degree of fault of each vessel.
ii) Both the culpability and the causative potency of the faults established are relevant to the apportionment of liability.
iii) Causative potency has two aspects; the first relates to the extent to which the fault contributed to the fact of the collision occurring; the second, to the extent to which the fault contributed to the damage or loss resulting from the collision.
iv) Excessive speed is a prime example of a fault likely to contribute to the extent and severity of the damage or loss suffered.
v) A Judge is amply entitled to take into account the propensity of excessive speed to increase the damage suffered when undertaking the exercise of apportionment – and thus to have regard in broad terms to the magnitude of the damage sustained. That the correlation between the extent of physical damage and ultimate financial loss may well be less than perfect, is neither here nor there. Two caveats apply: first, the Judge needs to keep in mind that a detailed assessment of the damage and loss must await the Reference; secondly, the Judge cannot engage in speculation – faults and their causative potency need to be proved.
vi) Approached in this manner, the apportionment of liability will constitute, in the words of the judgment in The Dream Star, "a broad, commonsensical and qualitative assessment of the culpability and causative potency of both vessels".
LORD JUSTICE LEWISON:
LORD JUSTICE LEGGATT: