England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT
ADMIRALTY action in rem against:
The Ship "MANZANILLO II"

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 July 2003

Mr Justice David Steel :

Introduction

1. This case, to quote Langton J in The Pembrokeshire (1936) 55 Ll. L. Rep.77 "belongs to a small but interesting class, because the claim arises not out of a collision, but out of what is known in riverside language as "putting by" ".
2. The claim is for damages suffered as a result of the grounding of the Claimant's chemical tanker "Bow Spring" in the Northern By-pass Channel of the Suez Canal at about 1800 hours local time on the 8^th July 1999. Bow Spring's case is that she deliberately beached herself just outside the Eastern edge of the channel in order to avoid a risk of collision with the Defendant's dredger Manzanillo II which appeared to be shaping to enter the channel.
3. Albeit in the event Bow Spring was able to refloat herself relatively easily, in the process she lost half her rudder which in turn caused damage to her propeller.

The vessels and their cases

4. Bow Spring is a chemical tanker of 17,651 grt, 170.53 metres in length and 25.33 metres in beam. She was powered by diesel engines of 17,000 hp. At the material time, she was fully laden with flammable and explosive cargoes. She was drawing 11.05 metres fwd and 11.2 metres aft.
5. Manzanillo II is a trailer suction hopper dredger of 115 metres in length and 19 metres in beam. She is powered by two engines totalling 4,710 kilowatts attached to controllable pitch propellers. She is also fitted with bow thrusters. Her draught was about 3.2 metres fore and aft.
6. The weather was fine, with good visibility (it was daylight). There was no material current. Bow Spring was proceeding northbound from Port Said following the dredged by-pass channel. The channel is dredged to a depth of 21.8 metres.
7. Manzanillo II was proceeding in a south westerly direction towards the dredged channel. Other than in the immediate area of the dredging operations for a new channel (more fully described below), the depths to the east of the by-pass channel were in the order of 6 to 8 metres.
8. The Claimant's case, in summary, is as follows. The bearing of Manzanillo II remained constant on Bow Spring's starboard bow and her course suggested that she was shaping to cross the by-pass channel. Manzanillo II was not identified as a dredger and no shapes could be seen indicating that she was engaged in dredging until she turned to port shortly before the Bow Spring grounded. There was no response to VHF calls and sound signals had no effect. In order to avoid collision, Bow Spring altered hard to starboard and her engines were put full astern. She then grounded.
9. The Defendant's case in equally summary form is as follows. Manzanillo II had been dredging and was turning slowly to port to continue dredging on a north easterly course. She was displaying regulation shapes applicable to a vessel restricted in her ability to manoeuvre. Bow Spring was then seen turning to starboard in the channel and so a VHF call was made to ask her intentions. There was no reply. Bow Spring was then seen to leave the by-pass channel shaping to continue north east towards Manzanillo II's dredging area. Contact was then made by VHF and it was agreed that Bow Spring would turn astern of Manzanillo II and re-enter the channel.

The New Channel

10. In April 1999 work commenced on the construction of a new container terminal for Port Said to the east of the Suez Canal channel. This included the construction of an access channel to the new port from a position some 12 kilometres off shore. This new channel ran from the existing junction of the main Suez Channel and the by-pass channel slowly diverging east to the new terminal area.
11. The dredging contractors, who engaged Manzanillo II inter alia for the dredging work, issued a request to the Egyptian Ministry of Transport and Communications on the 14^th April 1999 for an appropriate notice to mariners. The request enclosed a list of co-ordinates within which the dredging operations would take place, together with a chart extract showing the relevant area. This encompassed the entire area to the east of the new channel including the dumping or disposal site some 5 or 6 km away. However, the chart extract also marked the boundaries of the new channel itself.
12. In the event, the relevant navigation warning issued on the 20^th April, which was thereafter duly promulgated by Navtex as set out below, merely gave notice of the overall area bounded by the co-ordinates and provided no information about the position of the new channel.
13. I should add that in a statement put before the court by the Defendants, Mr Pierre Tison, the project manager for the dredging contract, said this: -

"6. It was also agreed with the Suez Canal Authority that their pilots would inform ships northbound in the by-pass channel of the dredging activities and confirm to the masters that the dredgers would not enter the by-pass channel. … Northbound ships were of particular concern since they would have dredgers on their starboard side.

7. This was monitored by the dredgers who called northbound ships by VHF radio from time to time and it was confirmed that the pilots were giving this information. …"

14. In fact the master of the Bow Spring said in his oral evidence (and it was unchallenged) that he was given no information by his pilot, who had disembarked shortly before this incident, about the dredging activities or any assurances as to their navigation. Further, the master appears to have been ignorant even of the content of the Navtex giving details of the overall co-ordinates of the area: -

"Arab Republic of Egypt.

Navigational Warning No 66/1999

To all Ships

Medit Sea Port Said BA chart No 234

Breakwater, slope protection, dredging the access Channel and the basin of Port Said east port will be established in the area bounded by the following positions…. All ships are to take note of the above data until further notice".

The Tower Survey System

15. Manzanillo II was equipped with a Tower Survey System. This was fed from two differential GPS satellite navigators. The screen of the system showed the position of the vessel to a high degree of accuracy against a background of a detailed chart including the new channel that was being dredged marked by gridlines.
16. A striking feature of the system was that it enabled a record to be maintained of the area dredged. The practice was to preserve a "photographic record" of the position of the vessel at the end of a dredging run and at the end of a discharge run. Thus the position of Manzanillo II prior to returning for the run during which Bow Spring ran aground and her position at the end of that same run was firmly established. Usually the entirety of the dredging run would be recorded on the system. Unfortunately the operator failed to do so on the relevant occasion (and not for the first time). Thus the track of Manzanillo II prior to the termination of dredging remains a matter of controversy save for a short tail showing the last few minutes.

Witnesses

17. The Claimants called their Master, Captain Loenning to give oral evidence. He was not available for the trial in April but gave his evidence at an earlier hearing in February. At the trial the Claimants had also wanted to call their Chief Officer, Mr Niseteo. Unfortunately, due to difficulties with him obtaining a visa, he was unable to attend. However, I am satisfied that in the result the Claimants were not thereby prejudiced.
18. The Defendants called the Mate of Manzanillo II Mr Roels.
19. Both witnesses did their best to assist the court in recounting events of some antiquity. Inevitably, where there was a conflict, I have concluded that it is appropriate to rely upon the contemporary material.

Track of Bow Spring

20. There was little controversy as to her passage. Following disembarkation of the pilot at Port Said, her engines were initially put slow ahead and then at about 17.51 half ahead. She proceeded up the by-pass channel toward the open sea. The working chart of Bow Spring records the time of passing the various sets of buoys in the channel. I accept those times as broadly accurate. Accordingly she passed buoys HM 30 at about 17.56 at a speed of about 10 knots.
21. The time of grounding was recorded in her deck log as 1800. This again, in my judgment, is reasonably accurate. Her position aground is recorded on a soundings chart and is not in issue. As regards her heading, I agree with the Defendants that the soundings chart is consistent with her having probably grounded on a heading of about 045°.
22. Her deck log records events as follows: -

1756 passed HM 30 buoy. Observed one vessel heading approximately 230° Good Speed trying to cross the channel ahead of us. Called vessel by VHF 16 and used ship's horn with negative results.

1758 stopped engine. Speed 10.2 knots by GPS.

1759 Hard-a-starboard wheel in order to avoid collision.

1800 Grounded 1.8 cable southeast off buoy 5.

23. These times are obviously approximate but an alteration of about 30° to starboard prior to grounding does suggest that starboard helm was indeed applied less than a minute before grounding and I accordingly accept this record of manoeuvres (which in any event was not seriously challenged). I reject the suggestion made by the Master that the engines were put full astern prior to grounding (although I do not regard the point as significant).

Track of Manzanillo II

24. The material for reconstructing the track of Manzanillo II is more meagre. As already explained her position at the dumping area following her previous run is known. So also is her position, heading and immediately proceeding course line on completion of the run in which the grounding of Bow Spring occurred.
25. In addition there is a contemporary record to the effect: -

a) that the return trip from the dumping ground to the recommencement of the dredging took about 25 minutes, and

b) that dredging was then continuous of about 15 minutes up to 18.10 (from which it follows that if the dredger turned during this period, it did so within the dredging area and without lifting the dredging pipes).

26. The only relatively contemporaneous document prepared by the witnesses was a sketch made by Mr Roels, the Mate, the day after the grounding. This shows Manzanillo II entering the dredging zone on a south westerly course at the North end of area 4, turning to port and proceeding down the middle of the new channel and into the North end of area 5.
27. In his statement Mr Roels said as follows: -

"18… At 1730 hrs… I finished dumping and turned to port onto a south south westerly course towards the south east corner of dredging area 4… My speed was about 10 knots… As I approached the southern part of the eastern edge of the dredging area 4 I started to slow down in order to reach the dredging speed of 2 to 3 knots. … Just before crossing the eastern edge of dredging area 4 we reached that speed and I told the dredge master to lower the dredge pipes and they were lowered into the water as we entered area 4. ….

20... My plan for this dredge which was in fact carried out was to cross the south east corner of area 4 into the centre of the northern part of area 5 and then to dredge on diagonal passes in the north eastern part of area 5 and then dredge the south east area of area 4 before proceeding on a north easterly course towards the dumping area.

21... As I approached the plan turn point at which time I was making about 2 knots in the north area of area 5 and on the centre line of the new channel being dredged, I started turning to port using 10° of helm."

28. Mr Roels' oral evidence was to similar effect save that he asserted that Manzanillo II had entered the dredging area 4 at about 10 – 11 knots rather than at dredging speed and only reduced to dredging speed by the time area 5 was entered.
29. In contrast, the Claimant's reconstruction of Manzanillo II's track presented a very different picture. It involve her coming into the dredging area at the northern end of area 5, continuing on her south westerly course to the extreme western side before slowing down, swinging around to port and then commencing dredging from the southern end of area 5. Manzanillo II is then shown proceeding to port back across her track before turning to starboard to her known position at 1810.
30. I reject the broad shape of this reconstruction for two principal reasons: -

i) it is clear from the sounding survey that dredging was taking place in the northern end and not the southern end of area 5 and

ii) it is wholly improbable that the dredging pattern would follow a figure of eight course.

31. In any event, I see no reason to reject the broad thrust of Mr Roels evidence both documentary and oral and, accordingly, I find that the Defendants reconstruction is to be preferred. This shows Manzanillo II returning from the dumping ground on a south westerly course to enter section 4 of the dredging area at about its mid-length turning somewhat to port before slowing and commencing dredging down the centre line of the dredging area and then, at about the time the Bow Spring grounded, turning to port to make her way back up to the known position at 1810.

Ship to ship observations

32. Manzanillo II was first particularly observed at about 1756 when Bow Spring passed buoys HM 30. Manzanillo II was then entering the dredging zone. It may well be that she had been observed earlier on a broadly steady bearing albeit during a period when Bow Spring was slowly increasing speed.
33. By 1756 Manzanillo II was bearing about 15 degrees on the starboard bow of Bow Spring at a range of about 1.7 miles shaping to cross ahead at about half a mile. By 1759, when hard a starboard was ordered, the bearing would have been somewhat broader (as a result of Manzanillo's alteration to port) at a range of about 0.6 of a mile.
34. Although the north bound convoy had been seen in general terms, those on board Manzanillo II did not particularly observe Bow Spring until she had commenced to swing to starboard by which time Manzanillo II had come somewhat to port, slowed down and started dredging.

Fault on Manzanillo II

35. Manzanillo II was or ought to have been aware that northbound vessels, with dredgers approaching on the starboard side, might be concerned that the dredgers would enter the by-pass channel. Indeed the system of pilots giving both warnings and assurances in that regard (and the attempt to monitor that system) was prompted by this very consideration.
36. But there could be no assurance that appropriate warnings had been given. Further although it could be assumed that Bow Spring would have become aware of the Navtex warning about the dredger activity, the coordinates specified gave no indication of the precise area in which the dredging would occur or, indeed, the direction from which the dredgers would approach.
37. In these circumstances I have sought the advice of the Elder Brethren on the following question: -

"On the assumption that about 1755, Manzanillo II was proceeding at about 10 knots on a south westerly heading approaching the eastern edge of the dredging zone, with Bow Spring northbound in the by-pass channel bearing about 25 degrees on the port bow distance about 2 miles, was there a risk of collision and, if so, what helm or engine action should she have taken to avoid embarrassing Bow Spring°"

38. Their answer was : -

"She should have been aware that her course and speed, if maintained, would result in her crossing ahead of Bow Spring at about half a mile. Such would have been a close quarters situation in the sense that she would thereby risk impeding the passage of Bow Spring, which was retracted by her draft to the channel. Manzanillo II should have made it clear that she was in fact not going to cross into the channel. She ought to have altered substantially to port to open her port side broad to Bow Spring."

39. I accept that advice and find Manzanillo II was at fault in only coming very slowly to port at about 17 56.

Causation

40. Was this a cause of the grounding of the Bow Spring or was the grounding entirely attributable to the fault of Bow Spring° Again I have asked the Elder Brethren for their advice: -

"1. Ought those on board Bow Spring to have appreciated that Manzanillo II was a dredger and would reliably confine itself to the area east of the by-pass channel?

2. If concerned that Manzanillo II was shaping to cross ahead at close range, what action should she have taken?"

41. Their answers were: -

"1. The Navtex information was insufficiently precise to indicate the likely route of Manzanillo II. In any event, it is understandable that Manzanillo II was not recognised as a dredger. Furthermore, any shapes showing a limited ability to manoeuvre would have been difficult to observe on the dredger's starboard side and, in any event, would only have been raised at about the time of Bow Spring's alteration to starboard.

"2. Concerns as to Manzanillo II's intentions and closest point of approach were legitimate. The proper action, even allowing for the dangerous nature of her cargo, was to reduce speed, if necessary with astern action."

42. I accept this advice and, in the light of it, conclude that the fault of Manzanillo II contributed to the grounding.

Apportionment

43. The situation of danger was initially created by Manzanillo II by leaving Bow Spring in doubt about her intentions when the latter vessel could only safely navigate within the channel. However, whilst it is right to have some sympathy with those on Bow Spring when faced with this situation, particularly as a laden tanker, the obviously appropriate reaction was to take off way. The decision to beach the vessel was a hurried and ill-considered over-reaction, with significant consequences in terms of damage. I assess the contributory fault of Manzanillo II as 50%.