QUEENS BENCH DIVISION
ADMIRALTY COURT
Admiralty action in rem against the ship "URTER"
Strand, London, WC2A 2LL |
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B e f o r e :
and
COMMODORE JOHN BURTON-HALL RD
(Elder Brother of Trinity House) sitting as an Assessor
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THE OWNER OF THE FISHING VESSEL "HEATHER MAID" |
Claimant |
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- and - |
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THE OWNERS OF THE MOTOR VESSEL "URTER" |
Defendants |
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Thomas Macey-Dare (instructed by More Fisher Brown) for the Defendants
Hearing dates : 29th-30th November, 1st-2nd and 15th-16th December 2004
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Crown Copyright ©
His Honour Judge Havelock-Allan QC :
Scallop dredging
The Urter's moorings
The claimant's version of events
The defendants' version of events
The damage to the Heather Maid
Did the Heather Maid collide with the Urter's mooring?
Did the collision cause the damage?
Who was to blame for the collision?
Rule 5 (Look-out): "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."
Rule 7 (Risk of Collision): (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 must be determined to exist. (b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects."
Rule 8 (Action to avoid collision): (a) "Any action to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship." … (d) "Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear. (e) If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion."
Rule 16 (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."
Rule 18 (Responsibilities between vessels): (c) "A vessel engaged in fishing when underway shall, so far as possible, keep out of the way of; … (ii) a vessel restricted in her ability to manoeuvre."
Rule 20 (Lights and Shapes, Application): (b)"The Rules concerning lights shall be complied with from sunset to sunrise, and during such times no other lights shall be exhibited, except such lights as cannot be mistaken for the lights specified in these Rules or do not impair their visibility or distinctive character, or interfere with the keeping of a proper look-out."
Rule 36 (Sound and Light Signals, Signals to attract attention): "If necessary to attract the attention of another vessel any vessel may make light or sound signals that cannot be mistaken for any signal authorized elsewhere in these Rules, or may direct the beam of her searchlight in the direction of the danger, in such a way as not to embarrass any vessel. Any light to attract the attention of another vessel shall be such that it cannot be mistaken for any aid to navigation. For the purpose of this rule the use of high intensity intermittent or revolving lights, such as strobe lights, shall be avoided."
Questions to the nautical assessor
1. Should the Master of the Heather Maid have kept listening to channel 16 on the VHF at all times whilst he was at sea on 26th November 2001?
Answer: Yes. A continuous watch on channel 16 should have been kept.
2. Ought the yellow buoy to have been lit?
Answer: Yes. The yellow buoy should have been lit.
3. Assuming that the yellow buoy was lit, was the lighting described in the evidence adequate to mark the buoy in all the circumstances? If not, what kind of lighting or other marks should have been used?
Answer: A light to draw attention to the buoy's position would have been sufficient.
4. Should the master of the Urter have included in his request to the N.I. Coastguard for a warning broadcast, the fact that there was a mooring line from the stern of the vessel to seaward? If so, should he have informed the Coastguard (i) of the length of the mooring line, (ii) of the fact that the mooring line was marked by an inner buoy and a mooring buoy, (iii) whether any of the buoys was lit.
Answer: The request for a warning broadcast notified the Coastguard about the mooring lines to the shore and to Muck Island but not the mooring line to seaward. The Coastguard should have been told about the mooring line to the yellow buoy, its approximate length and direction and whether the buoy was lit.
5. Should the owners of the Urter have notified any other organisations in Northern Ireland, such as the harbourmasters at Larne and/or Bangor and/or Belfast of the proposed underwater cable work and how/where it was proposed that the Urter should be moored?
Answer: No. Larne, Bangor and Belfast harbourmasters have no jurisdiction outside their districts. The Isle of Muck lies outside the jurisdiction of the Larne harbourmaster.
6. Was there anything else which the Urter could and should have done to warn the Heather Maid to stay clear of her moorings? In particular should the Urter (i) have hailed the Heather Maid by VHF, (ii) played her searchlight on her, (iii) sounded her horn or whistle, (iv) maintained a guard ship, and/or (v) despatched her tender sooner? (In relation to (iii) please have regard to the evidence as to the Urter's heading, the distance from the Urter of the Heather Maid, and the direction and force of the wind in considering whether an audible warning would have been heard or noticed on board the Heather Maid).
Answer: In view of the fishing vessels working in the area, a better look-out should have been kept by Urter. As to particular steps:
(i) Urter should have tried to contact the Heather Maid by VHF. There was evidence that she tried to do so on more than one channel, including channel 16.
(ii) Urter was not at fault if she failed to train her searchlight on the buoy when that could have affected the photocell in the light on the buoy and caused it to cease flashing. The Urter was not at fault if she failed to train her searchlight on the Heather Maid because that could have been confusing and could have obscured Heather Maid's view of the lights displayed at Urter's masthead. However there was evidence that Urter used her searchlight for both purposes.
(iii) Urter should have sounded her horn or whistle as Heather Maid approached, either using the morse signal for "standing in to danger" (dot dot dash) or in such a manner as to alert Heather Maid to stay clear. In the prevailing conditions it is probable that Urter's horn would have been heard by Heather Maid when she was up to 1,000 metres away.
(iv) There was evidence that Mika gave advance notice to the Northern Ireland Fish Producers' Organisation Ltd of Urter's intended operations off the Isle of Muck and that, when the notice was received, the Organisation requested that a guard ship be posted or a Fishery Liaison Officer be appointed. Both requests are said to have been turned down, presumably by Mika or those acting on behalf of Urter. Given the practice of scallop dredging vessels to fish close inshore in the area of the Isle of Muck, the Organisation's request was not unreasonable. Urter should have agreed to provide either a guard ship or a Fishery Liaison Officer.
(v) Urter should have launched the tender sooner than she did and in time to reach Heather Maid before Heather Maid approached to within 100 metres of the yellow buoy.
7. Did the Heather Maid fail to maintain a proper visual lookout?
Answer: Yes. In the evidence given, the wheelhouse was unmanned during hauling and streaming of the gear and the crew's attention was focussed on the aft deck.
8. Did the Heather Maid sail too close to the Urter in any event?
Answer: Scallop fisherman work in very confined areas. Heather Maid's intended track was too close to Urter only if Heather Maid had reason to know in advance that Urter had a mooring line extending several hundred metres to seaward.
9. In the light of your answers to the above questions, did either vessel in your opinion fail properly to observe any of the International Regulations for Prevention of Collisions at Sea 1972? In particular, did the Heather Maid fail to observe Rules 5, 7(a), 7(b), 8(a), 8(d), 8(e), 16 and/or 18(c)(ii)? Did the Urter fail to observe Rules 5, 7(a), 8(a), 8(d), 20(b) and/or 36?
Answer: Heather Maid failed to observe Rule 5 for the reasons given in the answers to 1 and 7 above. Heather Maid also failed to observe Rule 5 if the buoy was lit.
Urter failed to observe Rule 7(a) because she saw Heather Maid approaching too close and failed to determine that a risk of collision existed until too late. Heather Maid failed to observe Rule 7(a) if the buoy was lit. Heather Maid failed to observe Rule 7(b) for the reasons given in the answer to 7 above, but use of radar equipment would not have assisted in this case to avoid a collision with the yellow buoy.
Urter failed to observe Rule 8(a) for the reason given in the answer to 6(v) above. Urter also failed to observe Rule 8(d) for the reason given in the answer to 4 above and by failing to monitor Heather Maid's position so that she remained well clear of the yellow buoy. Heather Maid did not fail to observe Rule 8(e). Her speed is not an issue in this case.
Heather Maid failed to observe Rule 16 because she was in breach of Rule 5 and did not hear Urter's radio warnings to stay clear.
Heather Maid did not fail to observe Rule 18 for the reason given in the answer to 8 above. If it had not been for the mooring line to the yellow buoy, a safe distance from Urter would have been about 200 metres.
If the yellow buoy was lit, Urter did not fail to observe Rule 20. The evidence also was that she was displaying on board the correct shapes by day and lights by night.
Urter did not fail to observe Rule 36 in the use of her searchlight. Rule 36 is permissive as to the use of signals. There was no breach of the Rule by failing to use the horn.
Apportionment of blame
Quantum
Conclusion