England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th April 2001

Mr Justice David Steel: -

1. This is an action arising out of a collision between the Claimants' coaster Sitarem and the Defendants' VLCC Spirit. The collision occurred at about 22.45 hours (GMT +2) on the 12th March 1996 in the Elafonisos Strait between the Peloponnese and the island of Nisos Kithira at the south western entrance to the Aegean Sea.
2. Sitarem is a two hold, single deck cargo vessel registered at Istanbul. Her registered tonnage was 2,250 gross and 1,369 net. Her principal dimensions are 87.81 metres in length and 13.71 metres in beam. She is powered by an MAK 6 cylinder diesel engine rated at 2,000 bhp. Her navigational equipment included 2 non-ARPA radar sets one on each side of the bridge. Sitarem had sailed from the port of Gulluk in Turkey on the 11th March 1996 bound for Castello, Spain laden with a cargo of 3,700 metric tonnes of crude feldspar in bulk. Her draughts on departure were approximately 5.6 metres forward and 5.9 metres aft.
3. Spirit is a VLCC. She is registered at Valetta. Her dimensions are 253 metres in length and 38.94 metres in beam. Her gross registered tonnage is 57,517. She is powered by diesel engines of 20,900 hp. Her bridge equipment included an ARPA radar, linked to the vessel's speed log. The vessel was on a voyage from Venezuela to Constanza part laden with a cargo of 67,688 tonnes of fuel oil. Her draughts were 10.5 metres forward and 11.5 metres aft.
4. A significant disparity between the characteristics of the two vessels was, as might be expected, their manoeuvring ability. So far as Sitarem was concerned her turning statistics showed an advance of 180 to 200 yards and a transfer of 40 to 50 yards to accomplish a 90 degree turn. The manoeuvring characteristics also showed a stopping distance of 200 yards in 25 minutes.
5. In stark contrast the Spirit's characteristics showed an advance of between 615 and 650 metres and a half tactical diameter of about 380 metres for a 90 degree turn, with a crash stop over a distance of 3400 metres taking about 12 minutes.

Scene of collision

6. As is apparent Sitarem was westbound and Spirit was eastbound through the

Straits. The working chart of Sitarem was Admiralty Chart 1684. It had been published in June 1969 subject to corrections up to the end of 1974. Some additional manuscript corrections had been applied in 1983 and 1986. No further corrections had been made. (The chart in fact had been withdrawn by the hydrographer's office in 1994.)

6. The working chart of Spirit was Admiralty Chart 1030. This had been published in 1992, corrected up to 1994 correction number 3218. This disparity did not simply demonstrate a more rigorous attention to maintenance of the chart portfolio on board Spirit. Chart 1030 contained a potentially important printed note as follows:-

" STENO ELAFONISOU - TRAFFIC REGULATIONS ". Due to heavy traffic in the Strait, 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.

8. The Admiralty Sailing Directions stated as follows in paragraph 3.70 :-

"Traffic Regulations

Due to the heavy traffic in Steno Elafonisou, eastbound vessels should keep: south of a line between Akra Tainaro and Akra Spathi until near the latter cape; thence on the south side of the fairway of Steno Elafonisou Westbound vessels should keep on the north side of the fairway of Steno Elafonisou; thence north of a line between Akra Zovolo and Akra Tainaro until near the latter cape. "

7. The collision position pleaded by the Claimants was lat.36.degrees 24.2 minutes North, long. 22 degrees 57.7 minutes East. It was accepted that this position was probably accurate given that it was taken by the radio officer of Sitarem by GPS very shortly after the collision. This position, which was about 1 mile north northeast of Akra Spathi, was well on the southern side of the fairway.

Weather conditions

8. It was common ground that the weather was fine with a southerly or southeasterly wind, force 4 to 5. There was no material current. Visibility was good.

Course and speed of Sitarem

9. .There was no issue that Sitarem made no material alteration of course or speed before collision. She was proceeding throughout at full ahead making about 10 knots through the water. Her course was 268 degrees true until about C -9 when course was adjusted 2 degrees to starboard to 270 degrees true. Her helm may have been put to port and her engine speed reduced shortly before impact but it is common ground that, even if this happened, it did not impinge on her course or speed.

Course and speed of Spirit

10. .There was also little issue about the navigation of Spirit. Again at all material times she was proceeding at full ahead, giving a speed of 12 knots through the water. There was no engine order prior to collision although her speed would have reduced somewhat by reason of the substantial alteration to port made over the last 4 or 5 minutes before impact.
11. .This alteration is evidenced, as with her heading throughout, by a course recorder trace. There was an agreed interpretation as follows:

C -10 126°

C -5 126°

C -4 115°

C -3 090 °

C -2 070 °

C-1 030 °

C 020°

Angle of blow

12. .The stem of Sitarem struck the starboard quarter of Spirit. It was agreed that the angle of blow was about 70° leading aft. This was consistent with the heading of the two vessels at collision being 270° and 020° respectively.

Reconstruction

13. .From this uncontroversial material it is relatively easy to effect a reconstruction or plot of the approach of the two vessels. In this respect the court was much assisted by Plot 91(together with a transparent overlay to the same scale as an enlarged photocopy of Spirit's working chart). With the transparency placed appropriately with the 22.45 position of Spirit in way of the Sitarem collision position, this reconstruction was treated by both sides as a very helpful illustration.

Margins of error

14. I emphasise the word "illustration" because the temptation to treat the plot as an accurate depiction must be resisted. All the assumptions are open to margins of error which may or may not be cumulative. Thus I reiterate the postscript to my judgment in The Pelopidas [1999] 2 Lloyds Reports 675 at page 682 (echoing the call for realism by Lord Reid in The Statue of Liberty [1971] 2 Lloyds Reports 277 at page 280):-

"Of course they enable the court and parties to have a broad birds-eye

view of the events leading up to a collision. But their true probative

value is that they may sometimes enable the court to determine, not

what may have happened, but what could not possibly have happened.

It is important, where a plot is to be relied upon to demonstrate what

the tracks of the vessels must have been, that parties understand that

the impact of plotting is more effective if, despite assuming every

margin of error in favour of a particular hypothesis, that outcome can

be demonstrated to be highly improbable if not impossible. "

;,, ,; :,

15. .The present case provides paradigm example of the importance of this distinction:-

(a) Allowing for all margins of error in her favour, Sitarem crossed into the southern side of the Steno Elafonisou fairway when about 2 miles short of the collision position: C -12. During the very same period, again allowing for all margins of error in favour of the Sitarem, Spirit was on the southern side of the fairway.

(b) During the same period, the vessels were on crossing (intersecting) courses. It is common ground that the reconstruction shows that the CPA was about 4.3 cables. For the purpose of assessing whether there was a risk of collision arising from that crossing situation, it is important to remember that, assuming all margins of error in favour of Sitarem, the CPA might have been as much as 5.5 cables and assuming all margins of error in favour of Spirit the CPA might have been as little as 3.5 cables.

(c) It is also common ground that the reconstruction shows that when Spirit put her helm hard to port at C-5, her stem had almost reached a position dead ahead of Sitarem. But for the purposes of assessing the legitimacy of that order, it is necessary to bear in mind that, assuming all margins of error in favour of Spirit the stem was over a cable short of the heading line of Sitarem but assuming all margins of error in favour of Sitarem, Spirit had almost crossed ahead of Sitarem.

16. .Accordingly, whilst the reconstruction demonstrates by itself a failure by Sitarem to comply with the traffic regulations in the pilot book, further input is required to determine the issues as regards the existence of a risk of collision and the appropriateness of the alteration of course to port.

Lookout of Sitarem

17. .1 turn now to consider the lookout on board Sitarem (a task gravely inhibited by the fact she was not equipped with repeaters on the bridge wings or even on the bridge front). Her pleaded case was accepted to be impossible. The alleged distance and bearing of Sitarem when first seen was distance 5.2 miles bearing about 10° on the port bow. Thereafter Spirit was seen to close, always bearing fine on the port bow. These observations are irreconcilable with the agreed track of Spirit and were not relied upon. Indeed Spirit was at all material times on the starboard bow of Sitarem.
18. .It followed that little reliance could be placed on the statements taken from the witnesses from Sitarem from which this pleaded case was extracted. Furthermore no witness was called to give oral evidence and thus the Claimants were in some difficulty, given the admitted absence of any material alteration of course or speed prior to collision, in establishing that Spirit was ever observed before impact.
19. .The Master's statements suggested that the adjustment from 268° true to 270° true at C-7 was in response to the approach of Spirit on the port bow. This motive for the alteration (insignificant as it would have been as a collision avoidance manoeuvre in any event) must, it is conceded, be rejected. It was probably done to counter the set to port off Sitarem's course line. I also must reject, it is agreed, his evidence that at C-3 he observed the alteration of course to port by Spirit and, somewhat eccentrically, ordered slow ahead and port 10.
20. .There was no assistance forthcoming from the entries in the logs or bell books. There was a raft of inconsistencies between the evidence of the Master and the only other person on the bridge, the helmsman, as emerges from their statements. The conclusion I am driven to is that Spirit was not sighted by those on board Sitarem until seconds before impact during which time there may have been some attempt at manoeuvring without effect.

Look-out of Spirit.

21. .The pleaded case of Spirit was that Sitarem was first seen distant about 3 miles bearing about 25 ° on the port bow. Neither the fact nor the accuracy of that observation was challenged. By the same token it was accepted that there were two other vessels in the vicinity: one about 4 points to port, distant about 1.5 miles and on a course of about 270 deg. shaping to pass about 7 cables to port of Spirit and the other fine on the starboard bow, distant about 35 miles and on a reciprocal course shaping to pass at about 4 cables.
22. .As regards Sitarem, the Master's statement recorded that the ARPA radar gave an estimate of a CPA of 1 to 2 cables. The statement went on to record that the bearing remained steady throughout the approach at about 2 points on the port bow up until the alteration of course to port at a time when the vessels were about a mile apart.
23. .Again neither the Master nor the Officer of the Watch (the 2nd officer) were called to give oral evidence. The reliability of the Master's evidence was challenged on two grounds. First, it was rightly pointed out that the position plotted on the working chart at 22.35 which he purported to check was clearly wrong. This point is well made and justifies a degree of caution with regard to his narrative.
24. .Secondly it was urged upon me that the observations said to have been made of the approach of Sitarem were inconsistent with the plot of the vessels' approach. In particular it was contended that the plot demonstrated that from C-10 to C-5 the bearing of Sitarem did not remain constant but increased from about 23 ° to about 33 °. Secondly the plot it was emphasised demonstrated that the CPA was not 1 or 2 cables but about 4.3 cables.
25. .1 accept that, even allowing for the margins of error in the plot, the bearing was very slowly broadening and the CPA was greater than that recollected. If and to the extent that these more precise observations would have led Spirit to recognising that she was obliged to adopt a different course of action to that which was followed, a good lookout should have discerned them.

Narrow Channel

26. .It was accepted by the Claimants that the Traffic Regulations contained in the Admiralty Pilot and noted on the current edition of the Admiralty Chart were obligatory as far as Sitarem was concerned. Whether or not Steno Elafonisou was strictly speaking otherwise a narrow channel or fairway within the meaning of Rule 9 of the Collision Regulations is not to the point. The Elder Brother has advised me that the dictates of good seamanship required Sitarem to comply with the Regulations and I accept that advice.
27. .Accordingly it is accepted that as from at least C-12 (when the vessels were about 4 miles apart and sidelights might be expected to come into view) Sitarem was in her wrong water and thereafter increasingly so. During the same period Spirit was in her correct water and throughout proceeding further to her starboard side.
28. .It was nonetheless courageously submitted on behalf of the Claimants that the failure to comply with the Regulations was not causative. This is a hopeless point. As with all traffic separation schemes, the purpose of the Regulations is to ensure that opposing traffic is contained within their respective lanes so that risk of collision is eliminated. If issues of apportionment were to arise, I would hold that the overriding consideration from the perspective of comparative fault would be the persistent failure of Sitarem to navigate in her proper water giving rise to the position of difficulty. In short it was a fault not only of great culpability but also of substantial causative potency: see The Koningen Juliana [1974] 2 Lloyd's Rep 253 (CA) and [1975] 2 Lloyd's Rep. 111 (HL).

Crossing Rules

29. It was Sitarem's case that, although the vessels' courses were crossing, such did not involve a risk of collision and, accordingly, Sitarem was not under an obligation to give way to Spirit pursuant to Rule 15 of the Collision Regulations.
30. I have asked my assessor the following question:-

"On the assumption that, if a good lookout was being maintained on board both vessels as between about C-12 and C-10, it would have revealed that the vessels were on crossing courses with Spirit shaping to pass about 1.5 miles ahead of Sitarem with a CPA of 4.3 cables plus or minus 1 cable port to port, would a competent mariner conclude that there was a risk of collision?"

31. His answer was as follows:-

"Albeit the vessels were in a fairway, it was relatively open water with some 5 miles between the headlands on either side of the Strait. In the circumstances, a CPA of 4.3 cables plus or minus a cable was sufficiently close to establish a risk of collision. From the perspective of Spirit, the ARPA vector may have indicated a closer CPA given the course made good by Sitarem of 265deg. From the perspective of Sitarem, the bearing of Spirit would no doubt have been narrowing on the starboard bow but the size and proximity of Spirit was such as to make it wholly inappropriate to conclude no risk existed."

34.1 accept that advice. It accords with my impression that the vessels were shaping to pass, as Mr Macdonald QC phrased it, "uncomfortably close". It follows that by virtue of Rule 15, Sitarem was obliged to give way, and, equally, that far from taking early and substantial action to keep well clear under Rule 16, she took no action at all.

Crossing situation created by Spirit

32. .1 have not forgotten that the Claimants submit that Spirit cannot justify her status as the stand on vessel on the grounds that she created the crossing situation by her alteration to starboard between about C-18 and C-15. In making this submission, the Claimants prayed in aid the decision in the Tojo Maru [1968] 1 Lloyds Rep 365 and the Auriga [1977] 1 Lloyds Rep 384.
33. .In my judgment this submission is wholly misconceived. The alteration to starboard by Spirit was effected in the ordinary course of navigation. Spirit had completed her approach to Steno Elafonisou and then needed to take up a course to maintain a position on her starboard hand of the fairway. A course of 126 deg. was entirely appropriate to that end.
34. .In my judgment, it cannot be categorised as an example of a vessel deliberately putting herself on a crossing course so as to force another to give way. By way of confirmation I have sought the advice of the Elder Brother as to whether, in altering to starboard to the extent and at the time she did, the action of Spirit was proper or not. He advised :- " Given the Traffic regulations and the proximity of the other traffic, the alteration was entirely proper and seamanlike." I accept that advice.

Rule 17

38.This rule states under the heading of "Action by Stand-On Vessel":-

a (i) Where one of two vessels is to keep out of the way the other should 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 giveway 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.

35. .The primary focus of the Claimants' attack on Spirit was her alteration to port from about C-5. In the event that the vessels were not crossing with risk of collision, it was obvious that such a manoeuvre was wholly inappropriate. But I have already found that Spirit was indeed the stand-on vessel and in that context the Claimants' case is less easy to discern.
36. .The impact of Rule 17(b) is to all intents and purposes eliminated given the relative size and manoeuvrability of the vessels concerned. I say no more about it.
37. .As regards the liberty afforded by Rule 17a (ii), it is not clear to me whether it was even being alleged that action should have been taken earlier than it was, and if so what action. It seems to me that an alteration to port at any earlier stage would have presented a hazard with regard to another vessel approaching Spirit on her port side and an alteration to starboard in such close proximity to the headland would itself have raised its own dangers, quite apart from other traffic observed by Spirit to starboard.
38. .As regards astern action, this would have eliminated Spirit's ability to steer and any mere reduction in revolutions would have made no material impact on her headway. I am far from sure that these conclusions are controversial. If they are, I merely add that my assessor agrees with them.
39. .The only potentially legitimate complaint, as I see it, is that Spirit ought to have maintained her course and speed at C-5 . In this connection it is desirable to focus a little more precisely on the relative positions of the vessels at the time of the port helm order.
40. .It was the Defendants' case that the margin of error implicit in the agreed moment of impact on the course recorder trace of Spirit favoured an earlier rather than a later time. The reasons were as follows:-

i The rate of swing reduced markedly over the last minute. This

must have been attributable to the application of starboard helm: any

influence from the impact of Sitarem with its tiny displacement against

the starboard side aft of Spirit would have been limited in both scale and

time.

ii The mere process of putting the helm over to starboard from hard

port would have taken something in the region of a minute. Since

starboard helm was only applied very shortly before impact it is likely

that the collision occurred nearer the beginning of minute C than near the

end.

iii The sharp return of the pen at the end of minute C on the trace is in

fact not manifestly different from sharp reversals elsewhere on the trace.

The probability is that the vessel had not reached the extremity of her port

swing by the time of collision.

41. I regard these submissions as persuasive and, accordingly, find that the time that the vessel's helm was put to port was probably nearer C-4 than C-5. Thus the relative positions of the vessels at that time were probably with Sitarem bearing about 30° to port of the wheelhouse of Spirit, distant about 1.6 miles. This conclusion is given further support by the improbability of an alteration to port by Spirit at a time when Sitarem would otherwise have been bearing over 40° to port with her mast headlights almost in line and her red sidelight about to open.
42. Was the order to port helm something no reasonably competent mariner would have made in the circumstances, having regard in particular to the provisions of Rule 17c? My own analysis would be:

(a) On any view Spirit had been placed in an extremely embarrassing situation by Sitarem

(b) Sitarem was not complying with her obligation to take early action to keep out of the way but nonetheless was manifestly a much smaller vessel able to manoeuvre more readily that Spirit

(c) Spirit was inhibited from altering to starboard by the land nearby

(d) Any reduction in speed was not likely to be of assistance

(e) The option available therefore was either to attempt a dramatic turn to port or to steam on exposing her port side with a view to crossing ahead.

43. .The situation is a paradigm example of one in which the advice of my assessor would be, if not determinative, at least highly persuasive. Accordingly I put to him the following question: "On the assumption that the relative positions of the vessels was as set out in paragraph 45 above, was the proper action to take to proceed without alteration of course or speed or to alter hard-a-port?" His answer was:-

"If Spirit had been maintaining a good look-out, it would have been apparent that she was shaping to cross ahead of Sitarem at a range of about 1.5 miles. Albeit that the passing distance remained unsafely close, the maintenance of course and speed was to be preferred to that of alteration to port. In any event, the alteration to port should have been heralded by an appropriate sound signal followed if necessary with a warning signal pursuant to Rule 34 (d),"

Apportionment

44. I have already commented on the significance of the breach of the Traffic Regulations. Taken with a total absence of any look-out and the resultant failure to give way, it is obvious that the Claimants must bear the overwhelming proportion of blame. The porting on the part of Spirit must attract some significant share of the blame. A fair apportionment is in my judgment 75/25 in favour of the Defendants.