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Case No: AD-2023-000023 |
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ADMIRALTY COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
sitting with Commodore Robert W. Dorey MA RFA FIMarEST AFNI
an Elder Brother of Trinity House as Nautical Assessor
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MONFORD MANAGEMENT LIMITED (The Owners of the KIVELI) |
Case No: AD-2023-000012 Claimant |
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- and - |
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AFINA NAVIGATION LIMITED (The Owners of the AFINA I) |
Defendant |
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And Between: |
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AFINA NAVIGATION LIMITED (The Owners of the AFINA I) |
Claimant |
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- and - |
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MONFORD MANAGEMENT LIMITED (The Owners of the KIVELI) |
Case No: AD-2023-000023 Defendant |
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Nigel Cooper KC (instructed by MFB Solicitors) and Tatham & Co for the Owners of the AFINA I
Hearing date: 16 May 2025
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Crown Copyright ©
MR JUSTICE BRYAN :
A. INTRODUCTION
B. THE GROUNDS
(1) The Judge erred in concluding (at §238) that at C-22 a head-on situation existed so as to engage Rule 14. He should instead have concluded (in so far as there was a risk of collision at C-22) that a Crossing Situation existed.
(2) In so far as a Head On Situation existed at C-22, the Judge erred in concluding that it still existed at all times thereafter (§§152 – 155, 240, 247, 248 and 327). The Judge should, instead, have concluded that it no longer existed at C-7:45.
(3) The Judge erred in concluding that (in so far as there was a risk of collision) a crossing situation did not exist. The Judge should, instead, have concluded that a crossing situation existed, that AFINA I was the give way vessel, and that she was obliged to keep clear of KIVELI (which she failed to do) and to avoid crossing ahead (which she did do).
(4) In so far as there was a Head On Situation the Judge erred in concluding that KIVELI was four times more at fault than AFINA I and in apportioning liability 80%/20%.
C. APPLICABLE PRINCIPLES
"Where a judge's evaluation of facts is challenged, it is properly understood to be very difficult for an appellate court to place itself in the position of the trial judge who would have had to take account of both written and oral evidence. As Lord Hoffmann explained it in Biogen Inc v Medeva Plc [1997] RPC 1 at 45, an appellate court must be cautious in reversing a trial judge's evaluation of facts, just as it must be in reversing a primary finding of fact. In essence, the finding of fact challenged must be plainly wrong if it is to be overturned on appeal: Clin v Walter Lilly and Co Ltd [2021] EWCA Civ 136; [2021] WLR 2753 at [83]–[87]. The reasons for this approach, and authorities, are summarised in Lewison LJ's judgment in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26 at [114]–[115] and again in Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 at [2]–[4] and [52]. Authoritative guidance on the approach that appellate courts should take when called upon to assess a trial judge's evaluation of facts was given by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477; Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600; R. (R) v Chief Constable of Greater Manchester [2018] UKSC 47; [2018] 1 WLR 4079 and Perry v Raleys Solicitors [2019] UKSC 5; [2020] AC 352…
…
A judge's reasons should be read on the assumption that the judge knew (unless they have demonstrated to the contrary) how they should perform their functions and which matters they should take into account (Re C (A Child) (Adoption: Placement order) (Practice Note) [2013] EWCA Civ 431; [2013] 1 WLR 3720, CA, at [39] per Sir James Munby P; Piglowska v Piglowski [1999] 1 WLR 1360, HL, at 1372 per Lord Hoffmann). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that they misdirected themselves."
D. PRELIMINARY POINTS
(1) None of KIVELI's Grounds of appeal assist her, unless KIVELI can establish that the consequence of what it says were errors made by the Court is that the Court failed to apportion liability in a way which was open to it on the facts (given that KIVELI accepts that the Court correctly stated the law in relation to apportionment). KIVELI is not in a position to do that. Even were KIVELI correct that the situation prior to the Collision was properly to be treated as a crossing situation (contrary to the findings of the Court and the views of the very experienced Nautical Assessor), the egregious faults on the part of KIVELI's Chief Officer mean that KIVELI bears principal responsibility for the Collision and it was her failures which carried the overwhelming majority of the causative potency for the Collision.
(2) KIVELI does not have any realistic prospect of overturning the Court's conclusion that responsibility for the Collision rests 80% with KIVELI and 20% with AFINA I. As already noted, KIVELI cannot, and does not challenge the Court's findings of fact as to the inadequacy of the navigation of the Chief Officer of KIVELI (see paragraph 7 of KIVELI's Skeleton Argument). I have concluded that KIVELI's Chief Officer was knowingly sailing in breach of the Collision Regulations from C-22 and had both nibbled to port whilst manoeuvring towards AFINA I and then made a last-minute disastrous turn to port which was the immediate cause of the Collision. In such circumstances I do not consider there is any realistic prospect of the Court of Appeal interfering with the Court's apportionment, given the preceding full analysis of the factual evidence (almost all of which was agreed in terms of events), whilst the findings in relation to KIVELI's Chief Officer are not challenged, and the detailed consideration (and considered application) of the Collision Regulations whether a head-on or crossing situation (as supported by the views of the Nautical Assessor), leads to the same outcome on apportionment.
(3) All of the 4 Grounds are ultimately no more than a re-cycling of the arguments advanced on KIVELI's behalf at trial, and which are comprehensively addressed, and rightly dismissed, in the detailed Judgment (which entirely accords with the views expressed by the Nautical Assessor). KIVELI does not identify why there is a realistic prospect of persuading the Court of Appeal to interfere with the Court's conclusions, which I am satisfied were conclusions that were open to the Court on the evidence and the arguments before it.
(4) Inherent in all of KIVELI's Grounds of Appeal is a submission that the Court was wrong to adopt a construction of Rules 14 and 15 which avoids the risk of confusion on board vessels as to the appropriate action to take in a fine crossing situation. Such submission is heretical to the well-established purpose of the Collision Regulations, and the avoidance of collisions. What the Judgment provides is no more than further certainty to both rules and further goes to reduces the risk that a vessel will turn to port in circumstances where she should not and where, as this case illustrates, the consequences may be catastrophic. It is difficult to see on what basis the Court of Appeal would see fit to reach a different conclusion to the Court where the effect of KIVELI's arguments (both in relation to Rule 14 and Rule 15) would be to increase uncertainty as to the action to be taken by mariners to avoid collisions, and increase the danger of vessels failing to change to starboard, the very antithesis of the whole purpose of the Collision Regulations.
(5) Whilst KIVELI seeks to give the impression that the factual issues which it wishes to challenge are few, and seek to portray that the findings are based on documents such that the Court of Appeal (assisted by assessors – see Practice Direction 52C paragraph 26(B)(1) would be in equally as good a position to consider the relevant evidence, that is simply unrealistic and untrue. It is quite clear that from Grounds 3 and 4 (particularly as developed orally before me by Mr Smith KC), that KIVELI wants to re-open the entire factual evidence from C-22 not just in relation to the relative positions of the vessels to each other but also in relation to what each vessel could in fact see, their relative position to other vessels and the actions of the Chief Officer on board AFINA I (notwithstanding an express disavowal of any intention to do so). All such matters were for this Court, and the Court of Appeal would not have the benefit of hearing the evidence of KIVELI's Chief Officer, or an in-depth analysis of the agreed animated plot and radar flip books as the Court had had (see, in particular, the amended Grounds of Appeal at paragraph 8.3). As the commentary to CPR Part 52.6 makes clear, where the basis of a permission to appeal application is a challenge to a trial judge's findings of fact, an appeal court would need to be satisfied that those findings were either unsupported by the evidence before the Judge or that the decision was one that no reasonable judge could reach (see above). KIVELI does not even begin to suggest that that this is the case. The Court heard from the Chief Officer of KIVELI and heard detailed submissions on what conclusions could be drawn from the radar flipbooks and the animated plot as well as the NMEA spreadsheet. I am satisfied that there is no basis on which it could be concluded that the Court's findings of fact were not supported by the evidence or were ones which no reasonable judge could reach. What KIVELI envisages is, I am satisfied, no less than a root and branch re-argument of all factual issues from C-22 right through to C-7.5 and then onwards to the Collision, which is not an exercise that an appellate court would perform, or even be in a position to perform.
E . OVERARCHING POINTS
(1) The language of the Rules.
(2) The common ground between the parties as to the approach to be taken by the Court to the construction of the Collision Regulations.
(3) The legislative context – in particular, a comparison with the previous Rule 18.
(4) The purpose of the Rules – in particular, the need to provide a test for the inter-relationship between Rules 14 and 15 (which is to be understood by professional and amateur seafarers alike).
(5) The authorities. In this regard-
(a) The Court's reasoning is consistent with the decision of the Supreme Court in The Ever Smart [2021] UKSC 6, as well as the reasoning in The Maloja II [1993] 1 Lloyd's Rep. 48.
(b) Whilst KIVELI suggests that there is a difference in reasoning between the Court and the decision of Teare J in The Apollo [2023] EWHC 328 (Admiralty), the reality is that there is no real difference for the reasons that the Court has given in the Judgment, namely, the point was obiter in that case, the factual situation in that case was obviously a crossing situation and the two vessels concerned were clearly not on reciprocal or nearly reciprocal courses within the meaning of Rule 14(a), and in consequence (and in contrast to the present case), the argument before Teare J on the inter-play between Rules 14 and 15 was limited, and in consequence such statements as were made, were made without the level of legal and textual analysis undertaken by this Court.
(6) The commentaries, in particular, Farwell, Hirst and Cockcroft & Lameijer, which are consistent with the findings of the Court (and in many cases express the very same views), as quoted in the Judgment.
(7) The practical guidance, and opinion evidence, provided by the Nautical Assessor all of which has been accepted by the Court, and all of which supports the findings made by the Court.
(1) The Court's conclusions that the Chief Officer was knowingly navigating in breach of the Collision Regulations cannot be challenged.
(2) Even if the situation was a crossing situation so as to engage Rules 14 and 15 (contrary to the findings of the Court and the views of the Nautical Assessor)– the Court has found that:
(1) The Chief Officer of KIVELI fundamentally failed to (i) keep a good lookout and (ii) to comply with KIVELI's obligations as stand-on vessel (see the Judgment at [291] – [294] and [312] - [313]);
(2) The Collision would not have occurred if KIVELI had complied with her obligations as stand-on vessel;
(3) KIVELI failed to comply with her obligations under Rule 14 in relation to CAPE NATALIE, with which the Chief Officer admitted KIVELI was in a head-on situation. Again, the Court's conclusion that had KIVELI turned to starboard to avoid CAPE NATALIE (see the Judgment at [307]), the collision would have been avoided cannot sensibly be challenged.
F. THE GROUNDS
F.1 GROUND 1
The Judge erred in concluding (at §238) that at C-22 a head-on situation existed so as to engage Rule 14. He should instead have concluded (in so far as there was a risk of collision at C-22) that a Crossing Situation existed.
F.2 GROUND 2
In so far as a Head On Situation existed at C-22, the Judge erred in concluding that it still existed at all times thereafter (§§152 – 155, 240, 247, 248 and 327). The Judge should, instead, have concluded that it no longer existed at C-7:45.
F.3 GROUND 3
The Judge erred in concluding that (in so far as there was a risk of collision) a crossing situation did not exist. The Judge should, instead, have concluded that a crossing situation existed, that AFINA I was the give way vessel, and that she was obliged to keep clear of KIVELI (which she failed to do) and to avoid crossing ahead (which she did do).
F.4 GROUND 4
In so far as there was a Head On Situation the Judge erred in concluding that KIVELI was four times more at fault than AFINA I and in apportioning liability 80%/20%.
(1) That the Chief Officer of KIVELI was knowingly navigating in breach of the Collision Regulations.
(2) That the Chief Officer of KIVELI was not keeping a good lookout at C-22 or thereafter (and indeed was using his mobile phone and was singing shortly before the Collision).
(3) That whether Rule 14 or Rule 15 applied to the situation prior to the Collision, the Chief Officer of KIVELI failed to comply with KIVELI's obligations under either Rule and, in fact, did the one thing KIVELI should not have done, namely turn to port (and not at a time when the Chief Officer of the KIVELI was in the "horns of a dilemma" (as addressed in the Judgment)..
G. ANY COMPELLING REASON FOR AN APPEAL TO BE HEARD
H. CONCLUSION