England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT
Neutral citation number: [2002] EWHC 370 (Admlty)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th March 2002

Mr Justice David Steel :

Introduction

1. This action arises out of a collision on the 29^th January 1998 in the Dardanelles, between the Norwegian vessel Siboeva, owned by the claimants, and the Cypriot vessel Vitastar, owned by the defendants.
2. Siboeva is a motor vessel of a 45,593 tonnes gross, some 246.9 metres in length and 32.3 metres in beam and powered by diesel engines of 10,901 bhp. At the time of the collision, she was in the course of a voyage from Constanza to Suez in ballast.
3. Vitastar is a motor vessel of 37,700 tonnes gross, some 228.6 metres in length and 32.2 metres in beam and powered by diesel engines of 17,100 bhp. At the time of the collision, she was in the course of a voyage from China to Constanza laden with 65,616 tonnes of coal.
4. It follows that Siboeva was proceeding southwards through the Dardanelles and Vitastar northwards. There is a traffic separation scheme in the Dardanelles. Given that Siboeva was equipped with a course recorder and an engine logger, it might be anticipated that there would be little issue as to the primary facts. However, whilst it became common ground that the collision occurred in the southbound lane, there remain substantial issues between the parties, in particular as to whether Siboeva had earlier entered her wrong water or had at least trespassed in the separation zone.

Siboeva’s witnesses

5. Siboeva had taken on a pilot (Captain Tok) at Jelibolu at about 0410 hrs. Manning the bridge was the Chief Officer, Kaare Rasmussen, as officer of the watch and a helmsman. The Master was also on the bridge initially but went below to his cabin well before the collision occurred. In accord with the indications given at the time of the case management conference, both the pilot and the Chief Officer were called to give oral evidence.

Vitastar witnesses

6. Vitastar did not engage a pilot. Pilotage was only compulsory in the Dardanelles for a vessel of Vitastar’s size if she had been registered in Turkey. The maritime traffic regulations merely provided that “foreign vessels are advised for safety purposes to take a pilot”. The vessel was being navigated by the Master, Captain Acol, with the assistance of the Chief officer and a helmsman. At the case management conference, the defendants indicated that they intended to call the Master to give oral evidence at the trial.
7. In the event, he was not called. An application was made on the 21^st December 2001 by the defendants to vacate the trial fixed for the 14^th January 2002. The grounds for the application were that the master was unavailable for the trial. The Order of the Court upon that application was that an adjournment would be refused unless an assurance was given that the Chief Officer and Pilot of Siboeva would be available for an adjourned trial date in December 2002. No such assurance was forthcoming.

Siboeva contemporary documents

8. As already mentioned, Siboeva was fitted with a course recorder. This was the subject of an agreed interpretation. The appropriate course for the commencement of the three-mile leg past Akbas point and into the Narrows was 240 degrees true. The agreed interpretation in respect of that leg was as follows:

CRT	Heading	Rate of Turn	Rudder Angle
3.30	240	0	‘Midships +/- 10°
3.31	‘’	‘’	‘’
3.32	‘’	‘’	‘’
3.33	‘’	‘’	‘’
3.34	242	2	‘’
3.35	241.5	- 0.5	‘’
3.36	‘’	0	‘’
3.37	243.5	2	‘’
3.38	248	4.5	‘’
3.39	248	0	‘’
3.39.5	253	10	‘’
3.40	270	34	35° to Starboard
3.40.5	274.5	9	Moving to port
3.41	275	1	‘’
3.41.5	277.5	5	35° to port
3.42	273	- 9	14° to port

9. There was also an engine logger with a printout. This read:- full ahead at 0217:24, slow ahead at 0341:22 and full astern and stop at 0341:38. The working chart on the Siboeva recorded a fix at 0530, some 6 cables past Akbas Point, just south of the Eceabat leading lights but within the southbound lane. It also recorded a collision position at 0535, about half a mile due west of the earlier fix towards the northern side of the southbound lane. Those times and positions were also recorded in the log with the annotation “correct collision time was 0540 hrs.”

Vitastar contemporary documents

10. There was no engine logger on board Vitastar but in the engine room the electrician kept a note of engine movements. The relevant entries were:

0502 15	Full ahead
0527 30	Half ahead
0536 40	Full ahead
0537 25	Half ahead
0539	Full ahead

11. In his statement, the electrician sated that, whilst in the process of responding to the 0536:40 engine order, he felt the impact of the collision. This was not challenged by the claimants and I see no reason not to accept it.
12. The bridge bell book made strange reading. It recorded the manoeuvres referred to as above, but only after the following entries: “0442 Half ahead, 0502 full ahead, hard to starboard, 0511 hit port side of other ship.” The explanation tendered for the content of this document in a supplementary statement by the Master was nothing short of incomprehensible.
13. The deck log merely recorded the time of the collision as 0511. This reflected the time allocated to a position on the working chart, well within the northbound lane, due north of the outer buoy off Nara Point. The defendants did not suggest that his position was reliable. The working chart contained numerous other positions plotted in the stretch of the narrows running north from Cannakkale. In the event (although I revert to the matter later in this judgment), I do not believe that the claimants’ contention that these positions were probably entered after the collision, as part of a reconstruction, was seriously challenged.

Navigation of Siboeva

14. Given the accepted reliability of the mechanical recording of Siboeva’s heading and engine speeds, it is convenient to consider her navigation first. It is common ground that she was proceeding at manoeuvring full ahead, which would have given her a speed of about 12 knots through the water. Given the prevailing current, her speed over the ground would have been about 14 knots.
15. It is also common ground that her fix at 0530 was geographically correct in the sense that the vessel passed approximately through that position with a margin of error of about plus or minus half a cable. The defendants also accepted that it was approximately correct in terms of time, i.e. plus or minus one minute. The claimants contended that the time was significantly in error, i.e. about 0536. This strikes me as highly unlikely. The time of collision according to Vitastar’s clock was about 0536 / 0537. I, like my assessors, would expect the two ships clocks to be recording approximately the same time. Indeed, there is no material (save the addendum to the log of Siboeva) to suggest otherwise. The pilot had checked his own watch against the ship’s clock and his initial report suggested that the collision took place at 0535.
16. The chief officer could not find any convincing explanation for the correction to 0540. Whether the adjustment flowed from an examination of the course record trace and an assumption that the times were synchronised remains a matter of speculation. A great deal of time and effort was expended on this issue and I have made my findings. But I have never fully understood the value added to the debate thereby. The precise time according to the ship’s clock on Siboeva is of no material contribution to the resolution of the issues that I have to decide.
17. Of more significance was the issue as to the time of collision according to the course recorder. Even here the dispute was a narrow one, as between 0342 on the claimants’ case and 0340 on the defendants’ case. Whilst the resolution of this issue is only of marginal value in determining the allocation of responsibility and I have some doubt of the validity of any finding purporting to have such a degree of accuracy, I have concluded that the collision was at about 0340:30 CRT.
18. My reasons are as follows:

i) It is common ground that Siboeva was swinging to starboard in the moments leading up to the collision.

ii) That collision was between the port bow of Vitastar and the port side of Siboeva just forward of the aft accommodation.

iii) As the table shows, there was a distinct reduction in the rate of starboard swing at about 0340:30 reflected in the graphical representation of time against heading.

iv) Whilst I recognise the experts joint memorandum contains an agreement to the effect that the trace does not reveal the moment of contact, the only obvious explanation in my view (and in the view of my assessors) for such a sudden change in the rate of swing is the impact of the substantial displacement of the laden Vitastar aft of Siboeva’s turning centre.

v) The explanation tendered in argument by the claimants for the change in the rate of swing was that the experts had failed to identify the co-incident order of amidships, followed by a further order of hard of starboard. Yet there is no evidence of any such orders having been given, let alone any reason for them.

vi) It was the evidence of both the pilot, the Chief Officer and the helmsman that just before collision the wheel was ordered hard to port in an attempt to reduce the impact. I accept that evidence. The agreed interpretation demonstrates that order had been given just prior to 0340:30.

19. As regards the engine logger, it is also the pilot’s and the chief officer’s evidence that the stop order was given shortly before the order of hard to port. They suggested that a half-ahead order intervened. I reject that evidence since it is not recorded in the logger. I conclude that the sequence of engine orders was given at about C minus a half i.e. 0340 CRT. It follows from the findings that I made that the engine logger was about one and a half minutes fast of CRT and the ship’s clocks were about four and a half minutes slow of CRT. Again, it seems to me that there is an inevitable margin of error in all these findings, enough to absorb the differences in the parties’ respective cases. It is for that reason, as with the ships clocks, that I am wholly unpersuaded that there was any need (or indeed opportunity) to seek further to reduce the inevitable margin of error in order to assess responsibility for the collision.
20. From these findings it is possible to reconstruct in very general terms the track of Siboeva up to collision. There was no material reduction of speed. The only adjustment in her course was a gradual swing to starboard from 240° from C - 6 (i.e. shortly before passing through her 0530 position) to 253° at C - 1, such swing accelerating over the last minute to achieve a heading of 274.5° at collision. This latter heading is fully consistent with both parties’ pleaded case on the heading of Siboeva at collision.

Leeway

21. Although there was no dispute as to the heading of Siboeva as revealed by the course recorder trace, it was submitted by the defendants that her course made good was, as result of the prevailing wind, some one or two degrees less. This leeway was, it was contended, the inevitable consequence of the prevailing northerly wind operating on the starboard side of Siboeva.
22. Although it was pleaded by the claimants that the wind was northerly force 3, this was clearly derived from the log record at 0400 prior to the arrival of the pilot. It was the pilot’s evidence, and I accept it, that the northern coast of the Narrows affords substantial shelter from the northerly quadrant. In my judgment, the potential for leeway (which in any view was no more than about 100 or 200 feet over the last seven or eight minutes) can be disregarded.

Track of Vitastar

23. The paucity of reliable contemporary material available from Vitastar presented serious difficulties with regard to making any findings as to her course and speed, let alone her position, at any given time.
24. Various features of her navigation were not an issue:-

a) She reported being off Cannekale at 0515 (at about C – 21 or 22).

b) She was proceeding at full ahead, giving her speed through the water of about eleven knots.

c) She was stemming the current and thus her speed over the ground was about nine knots.

d) At C – 10 she reduced speed to half a head.

e) Over time, this would have resulted in a reduction of speed to about nine knots through the water (seven knots over the ground).

f) During her passage up the Narrows, she was maintaining a northerly course in the northbound lane.

g) At some stage she began to swing to starboard reaching a heading of about 060° to 080° at collision.

Alteration to starboard

25. Since it is common ground that the collision occurred in the southbound lane, the period of time over which the alteration to starboard by Vitastar was effected is only of assistance in determining the period during which Vitastar was in her wrong water. This is because of the configuration of the separation scheme off Nara Point. In short, the slower the turn, the longer Vitastar must have been out of the northbound lane.
26. The Master’s report made on the day of the collision stated as follows:

“At 0408 hrs, altered to 352°. 0435 hrs altered course to 040°. Engine to half ahead as approaching to Nara Beacon light…At 0502 hrs put the rudder hard to starboard… at same time engine full ahead…yet at 0511 hrs the vessel collided with other ship…position of collision was…four cables from Nara point bearing 117° true.”

27. Leaving aside the difficulty of reconciling this account with the uncontroversial facts already referred to, it is an impossible story in any event:-

a) Vitastar cannot have been on a course of 040° from a position approaching Nara Point for over half an hour before the collision: she would have travelled some four miles in that period and in the process have put herself aground off Akbas Point.

b) Vitastar cannot have had her helm hard a starboard and engines full ahead for some nine minutes: she would have accomplished several complete turns of 360 deg. in that period.

28. The only feature of this report which seems to be consistent with the established facts is that the turn to starboard by Vitastar commenced as she approached Nara Point and that the hard a starboard order was indeed co-incident with the full ahead order, ie at about C – 1.
29. Further, even allowing for the laden condition of Vitastar, and the influence of the current on the starboard bow in the vicinity of the bend, the hard a starboard order operating on the vessel already swinging somewhat to starboard would, in my view, have lead over a period of a minute to a swing of not less than 045°. Having regard to the turning circle data of the Vitastar, my assesors share that view.
30. It follows that any earlier starboarding, even allowing for half a head operating on a modest helm angle, could not have been implemented earlier than about C – 3 since the vessel would have otherwise turned substantially more than 90°.

The chart of Vitastar

31. In this context, I revert to the topic of Vitastar’s working chart. The Master would have had much explaining to do with regards to the chart. It was his story in his statement that, immediately after the collision, he noted the time from the satellite navigator as being 0311. To this he added two hours to synchronize with the ship’s clock. Shortly thereafter, he fixed the position of the vessel and allocated a time of 0513. He then ran back two minutes of run on 040° and plotted the collision position.
32. This is bizarre enough. The times are completely adrift from the agreed collision time of 0536 / 0537. Furthermore, the position of the collision, it is conceded, is inaccurate. Indeed it is in the wrong lane. But the story is made the more remarkable when it is said by the master that these wildly inaccurate times were entered immediately after a sequence of positions timed 0515 0522 0524 0527 0530 0534, all of which were then erased and then pencilled in again later.
33. The claimants submitted that these positions were part of a post collision reconstruction and were not contemporary. I was not entirely clear whether this submission was seriously challenged. If it was, I have no doubt that it was correct:-

a) It is wholly improbable that the master would have had the time, let alone the inclination, to fix his vessel at two or three minute intervals: indeed his preferred (and legitimate) method of navigating was by way of parallel index on the buoy off Nara Point.

b) The suggestion that a further “estimated” position was entered at 0535 on the assumption that no turn to starboard took place meanwhile is simply incredible.

c) The explanation for rubbing the positions out to allow for navigation in the northbound lane after the collision is uncorroborated and wholly unconvincing.

34. All that is not to say that the Master’s attempt at reconstruction was not genuine and reasonably accurate. In particular, having passed Cannikale at 0515, it would appear that the position plotted for 0535 (ie C – 2.5) may well be fairly accurate.

Juxtaposition of the two tracks

35. The general shape of the two tracks emerges fairly clearly from the above analysis. Their juxtaposition is, in a wholly approximate manner, demonstrated in the attached plot. The joint approach thus pictured is broadly consistent with the observations (both radar and visual) made by those on Soboeva of Vitastar which were unchallenged by the defendants.
36. Nonetheless, it was the defendant’s case that the picture thus presented was misleading in that it was possible to reconstruct matters in such a way that Siboeva crossed over the separation zone into the northbound lane at about C- 3 or 4 and only regained the southbound lane in the last half minute before the collision.
37. This contention was wholly misconceived, not least because it involved a complete misuse of reconstruction techniques – namely making allowances for all margins of error in favour of Vitastar to demonstrate what could have happened rather than making all assumptions as regards margins of error against Vitastar to demonstrate what could not have happened. Put another way, plotting the joint approach does not lead to the conclusion that Siboeva must have approached Nara Point in her wrong water.
38. In any event, the picture thus speculatively presented falls foul of the telling submission by the claimant that no complaint was made by Vitastar that Siboeva was ever approaching in her wrong water. Given the limited width of the northbound lane of Nara Point, that lack of complaint speaks volumes. I fully accept the oral evidence of the pilot and the Chief Officer of Siboeva that their vessel was at all material times in the southbound lane.

Fault of Vitastar

39. It was accepted that Vitastar was at fault in allowing herself to cross the separation zone and enter the southbound lane. Vitastar had chosen not to take a pilot, despite the recommendation contained in the regulations. This economy may well have contributed to her misjudgement of the turn at Nara Point.
40. Navigation at the bend for a Northbound vessel called for care and precision bearing in mind the narrowing of the Northbound lane in the vicinity, accompanied by the impact of the permanent Southbound current on her starboard bow. The difficulty was further enhanced by Vitastar’s surprising decision to order half ahead at about C –10 so as to reduce speed to 7 knots over the ground.
41. In any event, it is clear that starboard helm was not applied early or vigorously enough. It should have been applied at about C – 5 or earlier. As I have found, it was not applied until C – 3 or later when Vitastar was already within half a cable of, and at a broad angle to, the separation zone.

Fault of Siboeva

42. The first complaint made against Siboeva was that she was proceeding at an excessive speed. As already recorded, it was common ground that her speed (at manoeuvring full ahead) was about 12 knots through the water, giving her a speed over the ground of about 14 knots. The defendants emphasised the local regulations to the effect that the “normal” speed was 10 knots over the ground.
43. The pilot sought to explain in his oral evidence that this “normal” speed was of particular importance in other parts of the Dardanelles, where environmental considerations were paramount. I was not persuaded by this attempt to distinguish between sections of the Dardanelles.
44. I posed the following question to my Assessors:

What was the maximum safe speed for Siboeva as she approached Nagra Point?

Their reply was:-

Siboeva had a controllable pitched propeller which enabled her to proceed at any chosen speed. The regulations emphasised “the norm” of 10 knots over the ground. Having regard to the topography of the Narrows and the layout of the separation scheme, the maximum safe speed would have been 10 knots through the water i.e.12 knots over the ground.

I accept that advice.

45. The principal complaint against Siboeva was that the allegation that she had failed to take prompt action to get over to the starboard side of the southbound lane. (I have already rejected the suggestion that she cut that corner and that, in doing so, entered the northbound lane.)
46. Siboeva was under the guidance of a very experienced pilot, duly approaching the bend in proximity to the Eceabat Leading lights. When it became apparent at about C – 3 that the Vitastar was failing to negotiate the bend, starboard helm was applied to accommodate her.
47. Nonetheless, it was the defendants submission that by virtue of the provisions of Rule 9, and the dictates of good seamanship, Siboeva ought to have got well over to the starboard side of her lane when it became apparent that the vessels were to meet in the vicinity of Nara Point.
48. I posed the following question to my assessors:

What, if any helm action should have been taken by Siboeva as she approached Nara Point?

Their answer was:-

Given the limited room available at Nara point to a North bound ship, the recognition that the vessels were to meet at that point and the increasing proximity of the line of the leading lights to the separation zone, Siboeva should have taken steps to maintain a position in the middle of the south bound lane as from C – 6 (when the vessels were two miles apart). Thereafter a further alteration to starboard would have been an option if required.

I accept that advice.

Apportionment

49. In my judgment, the situation of danger in this case was occasioned by Vitastar in failing to make anything other than the most ineffectual attempt to round the bend at Nara Point and thereby presenting a serious and unexpected hazard to Siboeva. Siboeva was also to blame for a somewhat excessive speed and, more significantly, a failure to keep further to starboard in her lane. A fair apportionment is one quarter: three quarters in favour of Siboeva.