England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
ADMIRALTY CLAIM IN REM AGAINST THE M.V. "SNOW BUNTING"

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/10/2012

The claim

1. This is the trial of a claim brought by the Claimant in respect of a collision on the non-tidal part of the River Thames near Caversham at about. 0845 on the 19^th May 2010. The collision was between the Claimant's sculling boat (the Scull) and a 49 foot narrow boat canal and river cruiser, "SNOW BUNTING". The Claim is brought in rem against the owners and charterers of the "SNOW BUNTING".

The parties

2. The Claimant was an experienced and accomplished rower who was a member of Reading University Boat Club (RUBC) and had reasonable prospects of a place in the Lightweight Women's squad for the Commonwealth Rowing Regatta in Canada.
3. The charterer and person in charge of the "SNOW BUNTING" was Mr Ranshaw. He had chartered the "SNOW BUNTING" for a holiday in the United Kingdom. He had owned his own sailing yacht some years before and he has sailing experience in Australia in the areas of Pittwater and Sydney harbour. He had chartered a narrow boat once before in the United Kingdom about 6 years earlier. There was no evidence as to whether he had any sailing qualifications or held any certificates of competency.

Background and common ground

4. The Claimant was completing a morning training session in the scull and was returning downriver to the RUBC club house situated on the Northern bank of the river below the Caversham Bridge. Having come under Caversham Bridge, the Claimant intended to turn across the river at an appropriate point in order to reach the Rowing Club's landing stage.
5. The weather conditions were fine and the visibility was clear. It was a bright, sunny morning. The collision occurred between Caversham Bridge, Reading and a large island a little downriver, called Fry's Island (also referred to in the evidence as Bohemian Island). The "SNOW BUNTING" had passed to the south of Fry (Bohemian) Island and was proceeding up river towards Oxford.
6. Very shortly, or almost immediately, before the collision occurred the Claimant's scull was turned partially to port. The Claimant's scull was then struck on the starboard side by the bows of the narrow boat which rode over the top of the scull. The scull was apparently struck about amidships or a little forward of amidships at what appears to have been a broad angle. The Claimant abandoned or was forced out of the scull and under the "SNOW BUNTING's" hull. She sustained neck and rib injuries. She surfaced moments later and then held onto the forward part of the wreckage of her craft which apparently remained across the bows of the "SNOW BUNTING". Thereafter the Defendant manoeuvred the "SNOW BUNTING" to the southern bank. Once there the Claimant managed to climb out of the river. Subsequently she was taken across the river to the RUBC and her scull, which was severely damaged, was carried back to the RUBC by rowing colleagues.
7. The Scull was rowed with the Claimant sitting in a rearward-facing position. It is difficult for a sculler to see what is dead ahead of the boat and there is probably an area outside the scope of the rower's effective vision (the "blind spot") over an arc forward of the scull. The precise dimensions of the blind spot depend upon the individual oarsman's ability to turn his or her head. There was broad agreement between the parties that the arc could be as much as 70 degrees, however I think that, if one includes the area of peripheral vision (ie. seeing out of the corner of one's eye), the "blind spot" is probably much narrower than that. The Code of Practice for Rowing on the Tidal Thames above Putney 2009 ("The Tideway Code") published by the Thames Regional Rowing Council and the Port of London Authority (the "PLA") recommends that whoever is responsible for the navigation of an uncoxed rowing vessel should look over his or her shoulder to see what is on the river at least once every 5 strokes. The rower should look over alternate shoulders on each occasion.

The principal issues

8. The potential areas of dispute were identified as follows:

a) Were there any relevant rules of navigation applicable and, if so what were they?

b) Where in the river did the collision take place?

c) Was the "SNOW BUNTING" on the correct (starboard) side or the incorrect (port) side of the river?

d) Did the parties keep a proper lookout?

e) Did the Scull turn to port immediately into the path of the "SNOW BUNTING" and/or

f) Did the Scull fail to give way to the "SNOW BUNTING"?

g) Did the parties take proper avoiding action?

h) What was the causative potency of any breaches by either of the parties and what degrees of blame worthiness are attributable to each for such breaches?

The regulations

9. Three possible regulatory regimes were mooted. These were: (a) The International Regulations for Preventing Collisions at Sea 1972 which were originally ratified in 1976 but re-enacted in 1996 as the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 (the "Collision Regulations"), (b) The "Tideway Code" and (c) The Thames Navigation Licensing and General Byelaws 1993 ("the 1993 Byelaws"). At the hearing the parties were in agreement that it was the 1993 Bye-laws which provided the relevant regulations. However for reasons which appear below I take the view that the Collision Regulations cannot be completely ignored.
10. The Collision Regulations apply "to all vessels upon the high seas and all waters connected therewith navigable by seagoing ships" (The Collision Regulations Rule 1(a)) but "nothing in these rules shall interfere with the operation of special rules made by an appropriate authority for roadsteads, harbours, rivers, lakes or inland waterways connected with the high seas and navigable by seagoing vessels. Such special Rules shall conform as closely as possible to these Rules" (Collision Regulations Rule 1(b)).
11. In addition the present Collision Regulations are contained in an International Convention and can be taken to represent what is accepted as being the most up to date approach to maintaining safe navigation. In the circumstances if there is an area of water where no local regulations apply or a collision involving an object which is not to be a considered a "ship" for the purposes of the rules then the Collision Regulations are likely to be applied by a Court as representing a safe and sensible system for general application. The Tideway Code only applies above Putney and within the Port of London, the authority of which extends so far up river as the Teddington Locks, ie within the tidal part of the River Thames. It is interesting to note that the PLA has, where appropriate, adopted the 1976/1996 Collision Regulations. In this respect the Narrow Channel Rule (Rule 9 of the Collision Regulations) applies both on the high seas and within the jurisdiction of the PLA.
12. The Collision Regulations, Rule 1(b), provide that local rules should conform as closely as possible with the Collision Regulations however Byelaw 31(a) appears to adopt the form of the older 1965 Collision Regulations. There is a significant difference between Byelaw 31(a) and Rule 9 of the Collision Regulations with respect to how vessels are to be navigated in narrow channels.
13. The relevant portion of the 1993 Bye-laws 24-42 appear under the general heading Steering, Sailing and Speed. These include the requirement to keep a good lookout (byelaw 25); requirement for a safe speed (byelaw 26); maximum speed of 8 km/hour (5mph) (byelaw 27); action to avoid collision (byelaw 30; rules for vessels proceeding up and down river (byelaw 31); rules for vessels crossing the river (byelaw 34); head-on situation (bylaw 36). Of these the wording of the following is significant:

a) Byelaw 24(a): "Nothing in Byelaws 27 to 42 shall exonerate the master of any vessel from the consequences of any neglect to comply with these Byelaws or from the neglect of any precaution which may be required by the ordinary practice of seamen or by the special circumstances of the case" (emphasis added).

b) Byelaw 24(c): "In construing and complying with Byelaws 27 to 42 the master of every vessel shall have due regard to all dangers of navigation or collision or to any special circumstances including the limitations of the vessels involved which may make a departure from these Byelaws necessary to avoid any immediate danger to persons or property".

c) Byelaw 25: "The master of every vessel shall keep or cause to be kept a proper lookout . . . ."

d) Byelaw 31(a): "The master of every power driven vessel proceeding up or down the river shall when it is safe and practicable keep the vessel in the fairway or mid-channel and shall keep to that side of the fairway or mid channel which lies on the vessel's starboard side or right hand side."

e) Byelaw 34: "Notwithstanding anything to the contrary contained elsewhere in these Byelaws the master of every vessel crossing from one side of the river to the other side . . . shall do so at a proper time having regard to other vessels navigating up and down the river, and shall give way to such vessels."

f) Byelaw 36:

(i) "When two vessels, whether power driven or manually propelled, are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision the master of each vessel shall alter course of his vessel to starboard so that each vessel shall pass on the port side of the other.

(ii) Such a situation as described in Byelaw 36(a) above shall be deemed to exist when the master of a vessel sees the vessel ahead or nearly ahead and by night he could see the masthead lights of the other vessel in a line or nearly in a line and/or both sidelights and by day the master observes the corresponding aspect of the other vessel.

(iii) When the master is in any doubt as to whether such a situation exists he shall assume that it does exist and act accordingly."

g) Byelaw 38: "The master of every vessel which is obliged to keep out of the way of another shall, so far as is possible, take early and substantial action to keep well clear".

14. Whilst the Byelaws contain the applicable regulations relating to navigation in the material part of the river nonetheless I am concerned that Byelaw 31(a) does not mirror Rule 9 of the Collision Regulations but has maintained the spirit and wording of the 1965 Collision Regulations. The latter provided that vessels should each navigate on their own starboard side of a notional centre line of the channel. The 1976 Collision Regulations were amended so that ships operating within "narrow channels" are required to keep as far to their own starboard side of the channel as is safe and practicable. The result is that it is not sufficient under Rule 9 of the present Collision Regulations for a vessel to be simply on her own starboard side of the channel. A vessel must now keep as far to the starboard side of a narrow channel as is practicable.
15. Mr. Watthey, for the Defendant, submitted that since the 1993 Byelaws apply Byelaw 31(a) can be taken at face value and the only requirement was for the "SNOW BUNTING" to be navigated to the starboard of the centre of the river. However it seems to me arguable that vessels navigating on the river should conform to the most recent version of the Collision Regulations for two reasons: (i) Rule 1(b) of the Collision Regulations provides that this should be the case and (ii) Byelaw 24(a) provides, in effect, that the master of a vessel should not neglect "the ordinary practice of seamen". Rule 9 of the International Convention in 1976 has been in force for some time and it is difficult to avoid the conclusion that the "ordinary practice of seamen" in relation to a narrow channels is set out in that rule. In my view good seamanship requires that vessels approaching one another in a narrow channel should keep as far to the starboard side as is practicable. It follows that Byelaw 31(a) should be construed so as to be consistent with Rule 9 of the Collision Regulations.

The evidence

16. For the Claimant

a) Mrs Barnes provided a written statement which exhibited explanatory photographs (taken be her husband), gave oral evidence and was carefully cross examined by Mr. Watthey.

b) In her written statement Mrs. Barnes explained that she rowed downstream in the downstream channel at the end of her training session at about 8.45 am. She said "I look over my right and left shoulder every 3-5 strokes". She was about 3½ - 4 metres from the south bank. Her statement indicates that she slowed right down when she reached a point about 200 metres south of Caversham Bridge and came to a stop. She then checked over her right shoulder and ensured "that the upstream channel was clear" which it was. She then took a look over her left shoulder towards the bank and took one stroke with her left blade (the starboard or bowside oar) which turned the scull about 45° to port towards the middle of the river at which moment she saw " . . . a barge ... . . the "SNOW BUNTING") about 8 metres away, travelling upstream but in the downstream channel". She considers that the "SNOW BUNTING" must initially have been on the starboard bow of the scull because she did not see it when she looked over her right shoulder. Mrs. Barnes states that she heard the "SNOW BUNTING" sound her horn as the scull was struck amidships on the starboard side.

c) Mrs. Barnes' statement set out the problems she has had continuing rowing. As a result of the incident she has suffered nightmares and "flashbacks" imagining the black hull of the "SNOW BUNTING" coming towards her. The flashbacks were worse when she was in a boat alone but even when her fiancée, now husband, Ross took her out on the water she felt panicky and not in control of the situation. The nightmares and flashbacks continued to about November 2010 but the anxiety continued in a boat and whilst a passenger in a car. She states that the problem was "lack of control. I felt that I was depending on others paying attention to where I was and what I was doing and this made me very panicky. I just stopped enjoying my rowing." She has now given up rowing and taken up triathlon competition.

d) In cross examination Mrs. Barnes said that she had been on the water since about 7 am and was training from about 7.30 until about 8.30. It was a normal training session. She agreed she was tired but not exhausted. Her place of work was close to the boat club and she was not in any particular hurry to get off the water. She said that she knew the river well. There is a usual 'circulation route' to return to the RUBC which is well known amongst the local rowers. (The 'route' involves reaching a position near the Southern bank about opposite the RUBC and then swinging to port in an arc across the river). She would not expect the operators of other boats such as narrow boats to be aware of the practice of turning toward the RUBC. The current was low because it was summer but could be strong at other times of the year. She said that every three to five strokes she would look over both shoulders using alternate shoulders. Initially she agreed that there was a blindspot arc of up to 45° but subsequently she demonstrated an ability to turn her head which indicated that the blindspot arc was probably somewhat less. I think that it is probably possible for a rower to look further over his or her shoulder if she is effectively or nearly stopped in the water rather than actually sculling.

e) In addition she said that on looking over her right shoulder she could see the "upstream" side of the river "up to the island" and that she could see the North West tip of Fry's (Bohemian) Island over her right shoulder. She was quite sure that she would have seen the "SNOW BUNTING" if that vessel have been on its own starboard side of the river.

f) Mr. Watthey suggested that the averment of coming to a stop was not in her collision statement and was a later invention. The Claimant denied this suggestion and insisted that she had used both blades to bring the vessel to a stop before looking over her right and left shoulders and turning the scull.

g) There were two photographic plans which were prepared by Mr. Ranshaw: Diagram "A" (which was subsequently established as having been the second to be prepared) was put to Mrs Barnes and it was suggested that it represented a true depiction of how the collision had occurred. The Claimant denied that Diagram A did represent what happened. She said that she had no knowledge of whether the "SNOW BUNTING" had turned to port on impact and said that after the collision she was taken to the South Bank which was the nearest bank. Although Mr. Watthey suggested that the Claimant's memory was impaired by the traumatic nature of the incident Mrs. Barnes denied this and said: "I know exactly where the bank was and it was the nearest bank I swam to". She said that she remembered "quite clearly". She said the "SNOW BUNTING" was about 8 metres away when first seen, that there was no time to take a stroke and that her concern was to get her feet out of the "shoes" attaching her feet to the scull.

h) The Claimant was asked about the scull's rate of advance from Caversham Bridge and the distance advanced between each time that she looked over her shoulder. She initially said that was about 10 metres. However she also said that the scull is about 4½ metres long and that each stroke would be about 5 metres apart when rowing in "steady state". As she explained that she looked over both shoulders alternately during a 3-5 stroke span the result would be that she would look over one shoulder or the other about every 10-15 metres of advance by the scull.

i) Mr. Watthey put to Mrs Barnes that there was a discrepancy between her signed statement and the Schedule included in the Statement of Case (which had also been signed by herself) as to whether her post incident anxiety had been greater when being coxed by others or when alone in the scull. She said she was better when she was in a coxless boat (by which I think she meant in a coxless boat with others) but that she had flashbacks when in a boat on her own.

j) Mr. Watthey also suggested that the "SNOW BUNTING" was in her own proper water, that the Claimant had not kept a proper lookout and that therefore the collision was her fault. Mrs. Barnes re-asserted that she was in the correct water and denied that she was at fault.

17. The evidence of Mr. Ranshaw – for the Defendant.

a) Mr. Ranshaw's evidence was adduced in two signed statements dated the 27^th May 2012 and 8^th July 2012. The latter was made for the purpose of commenting upon the Claimant's witness statement.

b) The Defendant was also allowed to put two diagrams ("A" and "B") in evidence despite the fact that no Civil Evidence Act Notices had been provided and it was doubtful whether diagram B had been provided to the Claimant before the trial. Mr. Ranshaw's diagram A was disclosed by a letter dated 20^th December 2010. Since the hearing I have been provided with information which indicates that Diagram B was apparently prepared by Mr. Ranshaw before Diagram A. I accept that this information is most probably correct.

c) In the first statement Mr. Ranshaw explains that he is an Australian citizen and that he has had "boating experience" for about 35 years. This was mainly around Sydney, Pittwater and the New South Wales coast. He had owned his own 27 foot yacht from about 1980 to 1985 and had chartered a 35 foot yacht about 5 times between 1985 and 2000. In 2004 he hired a narrow boat in the United Kingdom for 11 days. In 2007 he hired a boat in France for 2 weeks and then he hired the "SNOW BUNTING" in 2010 for the period 7^th May to 27^th May. The vessel was based at Gayton Marina in Northamptonshire. The "SNOW BUNTING" was manned by Mr. Ranshaw and his wife and Mr. Ranshaw says that he is making the statement on his own behalf and that of his wife.

d) In the first witness statement Mr.Ranshaw also says: "On 19^th May 2010, we were on the River Thames, proceeding upstream toward Caversham Bridge . . . heading towards Oxford. At that location the navigable channel was to pass through the main span of the bridge. As such, we were proceeding in the middle portion of the River as we were about to pass a local feature called Piper's Island, which is . . . just down stream of Caversham Bridge. He then says he became aware of "a single person skiff being rowed downstream to my port hand side." He says: "We manoeuvred "SNOW BUNTING" slightly further to starboard, but as we did so, the skiff cut directly across our path seemingly in an attempt to make for the Rowing Club on the starboard . . . side of the River. . . . Because the skiff cut across our path without warning we did not have time to take evasive action. We did however sound the vessel's horn and put "SNOW BUNTING" into full reverse which slowed her considerably, but not enough to avoid collision. . . The skiff was caught up in the bow of "SNOW BUNTING" so we manoeuvred our boat with Miss Willis [the incident took place before Mrs. Barnes' marriage] holding onto the skiff to the port upstream bank." With respect to his knowledge of the regulations Mr. Ranshaw has stated: "As regular boat users, we are familiar with the Rules of the Water which require operators to keep to the right and this is what we were doing as we approached Caversham Bridge."

e) In the second statement Mr. Ranshaw denies that "SNOW BUNTING" was travelling in the downstream channel. He says that after passing Bohemian Island (Fry's Island) he altered course 15-20° to starboard. Shortly afterwards he became aware of the scull rowing down the river to his port side and he changed course by a further 10-15° to starboard whilst proceeding at about 3-4 knots. Mr. Ranshaw has said:"When I first saw the Claimant in her scull, she was rowing backwards and positioned on our port side and it was clear to me that the two vessels would pass safely port to port.". He further says: "There came a time when the Claimant rapidly changed her course further to her port immediately ahead of us and directly into a collision course. I anticipated that the Claimant would correct her course when she saw us, but to afford her more room, I changed my course to starboard by a further 15°. Shortly after this, with a collision then seeming imminent, I pushed the tiller hard over to send "SNOW BUNTING" even further to starboard and at the same time put the "SNOW BUNTING" into reverse full throttle in an attempt to slow her speed . . At the same time but approximately 10 seconds pre-collision I sounded the horn. This was the first time on our trip that I had cause to use it, so it did not immediately come to mind, but I did sound it pre-impact".

f) In his second witness statement he has said: "I note from the Claimant's witness statement at paragraph 6 that she claims to have looked over her right shoulder, but she had not seen "SNOW BUNTING" and that she assumes therefore that "SNOW BUNTING" must have been positioned to her starboard as she looked behind her. My view on this is that when the Claimant looked over her shoulder, it would not have been possible further [for her] to see straight ahead (ie. directly behind her) and that when looking over one's shoulder, vision is limited to an arc of 70° - 80° of the forward position."

g) Diagram A, referred to above, indicates that the "SNOW BUNTING" was passing the upriver end of Fry's Island on a heading which, if there was no other change of course, would have her passing narrowly to the North of Piper Island. The course plotted for the rower is on a straight line which was to the North of the centreline of the river and, if extended back to the bridge, would have had the rower passing under Caversham Bridge quite close to the bridge pier immediately up river end of Piper Island which must have meant that the Claimant's scull passed under the bridge substantially to its own portside of the centre of the main or navigable span of the bridge. There is only one change of heading to starboard by "SNOW BUNTING" indicated in Diagram A. That appears to be in a position which relates to the indicated alteration to port by the scull. The diagram indicates that immediately before the alterations to port by the scull and to starboard by the "SNOW BUNTING" the two vessels were quite clearly on courses which were end on or nearly end on. Diagram A also indicates a collision position which is substantially on the Northern side of the River.

h) Diagram B was prepared by Mr. Ranshaw before Diagram A. It has a line depicting the course of the "SNOW BUNTING" which is labelled "Our boats path". This diagram places the collision position in about the middle of the River. It is probable that the upriver end of Fry's Island is indicated by the treetops which can be seen at the bottom of the photograph. It is to be noted that the course line depicted for the "SNOW BUNTING", before any alteration to starboard, is shaping to pass under the bridge to the South side of the channel under the span which is situated to South of Piper Island and on a line which is virtually end on to the course line depicted for the scull, which appears to be depicted as having passed under the bridge on her own starboard side of the bridge fairway. The diagram also appears to indicate only one alteration to starboard by the "SNOW BUNTING" very shortly before the collision.

Consideration and findings of fact

18. The most important issue is on which side of the River this collision occurred. On this point the two parties are diametrically opposed. Mrs. Barnes said it happened very close to the South bank and the case for the Defendant is that it happened to the North of the centre of the River.
19. Mr. Watthey reminded me that the burden of proving the claim remains with the Claimant. Mr. Watthey informed me that Mr. Ranshaw is not within the jurisdiction and urged me not to be over influenced by the fact that Mr. Ranshaw did not attend to give evidence or give evidence by video link. He pointed out that had not been suggested before the hearing. I accept that for Mr. Ranshaw to have travelled to the United Kingdom for the purposes of giving evidence would have been disproportionate to the size of this claim however it might have been possible for Mr. Ranshaw's evidence to have been tested orally if a video link had been established although this might have put him to some inconvenience given the time zone differences. Essentially it is for each party to decide how to present their evidence and the court must do its best with the evidence put forward.
20. Although Mr. Watthey submitted that differences and discrepancies between the Claimant's collision statement, her witness statement and her oral evidence made her story unreliable I do not accept that submission. In particular Mr. Watthey was concerned that the claim to have stopped the scull before the turn to port was a later invention which the Claimant had raised in her witness statement. In my view the fact that the stop was not mentioned in the briefly pleaded collision statement does not inexorably lead to the conclusion that it did not occur. The Claimant was consistent on this aspect both in her written statement and in her oral evidence and I do not think there is any sensible basis for rejecting her evidence. With respect to other alleged discrepancies raised I do not accept that they were of any real significance. I think that some confusion arose with respect to the questions about the speed of advance of the scull or the distance between strokes. From her demeanour I conclude that the Claimant had most probably never given this aspect considered thought and, in any event, the correct answers were bound to be tied to the amount of pressure being applied in each individual stroke or series of strokes. That aspect was connected to the number of times she looked over her shoulder. I find that she was consistent in her evidence "I look over my right and left shoulder every 3-5 strokes" and that it should be accepted. There was a submission that her evidence was inconsistent with respect to her reaction after the event and whether she was more anxious when alone in a boat or when part of a larger crew. In my view her evidence was consistent. The important feature of her evidence on this topic was that she had suffered a loss of confidence which led to anxiety and caused her to stop enjoying rowing. In my view her reaction was understandable and credible. I accept her evidence on that aspect and can find no basis for rejecting her story on that ground.
21. Having heard the Claimant give oral evidence, and in the light of all the evidence available to me, I accept that she was a witness of truth and that I should accept her testimony. In particular I have come to the following conclusions:

a) That she was an experienced rower who knew the river well;

b) That she was aware of the proper place to cross the river and was aware of her own position on the river;

c) That she brought the scull to a stop or almost to a stop before she looked round to see whether it was safe to cross the river;

d) That at that time the scull was a few yards from the South bank;

e) That she looked over her right shoulder to the extent that she could see the portion of the river which lay to the starboard side of the river for any vessel coming up stream (i.e. in the 'upriver channel'). She could probably see all the river down to the upriver end of Fry's Island although the latter was probably in her peripheral area of vision;

f) That she did not see the "SNOW BUNTING" when she looked over her right shoulder (to port of the scull);

g) That she looked towards the Southern bank. I do not think she looked as far round over her left shoulder (to starboard of the scull) as she had looked over her right shoulder. If she had done so it is possible that she might have been able to see the "SNOW BUNTING" coming up river. However she was concentrating on the area where she would expect to see an up river bound vessel;

h) That the Claimant then took a single stroke with her left hand blade which turned the scull's heading about 45° cross the river;

i) There is a question as to how far the scull would have advanced as result of this stroke. In my view it would be possible to pivot a scull roughly in its own length providing that the opposite blade is used to backwater at the same time as the forward stroke is taken. If that occurred then logically there should be no advance and the scull should remain in one place in the water (subject to any movement over the ground caused by a downstream current if any) as the strokes are taken. However if the right hand (port) blade was not used to backwater it is very probable that a stroke on the left hand (starboard) blade would impart some forward movement;

j) The Claimant did not state that she had backed water with her right (port) blade but thought that that she held her right blade in the water. If that was done it seems probable that the effect of a stroke on the left hand (starboard) blade would be to pivot the scull around the right hand blade if it was held firm in the water. Nonetheless I think that there would be some forward movement as this occurred and I think it is probable that a stroke on the left hand (starboard) blade would cause the scull to change heading to port so as to head across the river at an angle of about 45° as the Claimant has described;

k) It is difficult to be certain about the extent of the scull's forward movement but I think it probable that the scull moved forward a distance of about ½-1½ boat lengths, that would be between approximately 2½ and 7½ metres and that would have been the approximate distance the scull would have moved towards the centre of the river after the Claimant had taken the stroke;

l) Given that the scull started from a position near the Southern bank and only moved a limited distance towards mid river it follows that the collision position must have been to the south side of the centre line of the river;

m) The Claimant saw the "SNOW BUNTING" approaching at a distance of about 8-10 metres;

n) That her immediate reaction was to free her feet from their "shoes" preparatory to abandoning the vessel;

o) That there was nothing material which she could have done to avoid the collision at that stage;

p) The first and only sound signal made by the "SNOW BUNTING" was immediately or very shortly before the impact took place.

22. There are a number of other matters which support a conclusion that the collision most probably took place in a position which was closer to the Southern side of the river than the Northern side. These are:

a) After the collision the Claimant was in the water and had a clear view of the Southern Bank. It was her evidence that she was closer to the Southern Bank at that time. She knew the river well and, in my view, that evidence is likely to be correct;

b) It was common ground that after the collision the "SNOW BUNTING" was manoeuvred so as to take the Claimant to the Southern side of the river. This indicates to me that the collision was more likely to have occurred in a position closer to the Southern bank to which the Claimant was taken. It would have been very odd if Mr. Ranshaw had taken a decision not to head for the nearest bank bearing in mind that the most sensible course of action would be to assist the Claimant out of the water as quickly as possible.

c) Mr. Ranshaw's first statement indicates that the "SNOW BUNTING" was being navigated in the "middle portion of the river" in order to "pass through the main span of the bridge". That does not indicate that the he was navigating the "SNOW BUNTING" so as to keep to the starboard side of the channel or even to the starboard side of the centre of the channel. It strongly suggests that after leaving Fry's Island to starboard the heading of the "SNOW BUNTING" was set to pass through the "main span of the bridge" which was the navigable span on the South side of the river. In my view the words "middle portion of the river" indicate that Mr. Ranshaw acknowledges that the "SNOW BUNTING" was being navigated in mid river rather than to her own starboard side of the channel.

d) There is a portion of Mr. Ranshaw's first statement which contains the following "we manoeuvred our boat with Miss Willis [the Claimant] holding on to the skiff to the port upstream bank" (emphasis added). Taken literally this indicates that Mr. Ranshaw apparently thought that the bank on his port side was the upstream bank. That is obviously wrong. It is a strange slip if he was genuinely aware that it was his duty to keep to starboard. If Mr. Ranshaw thought that the bank on his left side was the "upstream" that would be consistent with the "SNOW BUNTING" being navigated to port of the river's centre line.

e) In his first statement Mr. Ranshaw says that "As regular boat users, we are familiar with the Rules of the Water which require operators to keep to the right and this is what we were doing as we approached Caversham Bridge". He does not clarify which rule or rules he is talking about. He has made no reference to any knowledge of the Byelaws. It is probable that he is referring to the Collision Regulations but he does not indicate whether he means that rule referring to vessels meeting end on or whether he is referring to Rule 9, the narrow channel, rule which requires vessels to keep as far to starboard as is safe and practicable. There is no evidence of whether he or his wife have any navigational qualification or have attended any course or courses equivalent to those organised by Royal Yachting Association. It is not clear how he had gained his knowledge of the Rules, its extent or how accurate his memory of them was. No evidence was adduced by the owners of the "SNOW BUNTING" as to whether they enquire about or require any qualifications of those operating their boats. Further no evidence was adduced which indicates that hirers are given any instruction or advice on how to operate the boats or navigate them nor that hirers' attention is directed to safe navigation or the Byelaws. In these circumstances it is probable that Mr. Ranshaw had no knowledge of the Byelaws and did not have an accurate knowledge or recollection of the Collision Regulations. Although it might be thought impracticable to require every hirer to have a Certificate of Competency nonetheless it would, in my view be sensible for the owners to take some steps to ensure that operators are made aware of the relevant rules of navigation.

f) In the supplemental statement (dated 8^th July 2012) Mr. Ranshaw states that as he "was passing to the south of Bohemian Island I navigated "SNOW BUNTING" to the starboard side of that channel going up stream . . I manoeuvred "SNOW BUNTING" approximately 15° to 20° to starboard i.e. towards the starboard side of the main channel as I continued heading upstream. It was shortly after this I became aware of the single scull rowing down the (my) port side of the river. As such I changed course by a further 10° to 15° to starboard. . . . There came a time however when the Claimant then rapidly changed her course further to port immediately ahead of us and directly into a collision course. I anticipated that the Claimant would correct her course when she saw us, but to afford her more room, I changed course to starboard by a further 15° and at the same time, put "SNOW BUNTING" into reverse.. . . . At the same time, but approximately 10 seconds pre-collision I sounded the horn". This version of events appears to be seeking to persuade the court that the "SNOW BUNTING" was being navigated to that side of the river which lay to her starboard. In my judgment this evidence must be rejected as a later invention or misrecollection by Mr. Ranshaw. There are a number of reasons why Mr. Ranshaw's evidence on this cannot be accepted:

(i) It involves the "SNOW BUNTING" in three alterations of course to starboard of between 40° to 50°. Plainly such alterations of course to starboard never occurred. If they had the "SNOW BUNTING" would have been well on her own starboard side of the river and nowhere near the scull;

(ii) The evidence of three alterations to starboard is not consistent with the description of the "SNOW BUNTING"'s manoeuvres provided by Mr. Ranshaw's first statement which had the "SNOW BUNTING" in mid river heading towards the southern span of the bridge;

(iii) The evidence of three alterations to starboard is not consistent with the description of the manoeuvres contained in the Hire Boat Incident Report made on the 27^th May 2010. That referred to only one alteration to starboard after the scull was seen by those onboard the "SNOW BUNTING";

(iv) The evidence of three alterations to starboard is not consistent with the description of the manoeuvres provided in the Defendant's Collision Statement of Case which states that the "SNOW BUNTING" "moved slightly to starboard" after the scull was first seen;

(v) The evidence of three alterations to starboard is not consistent with the description of the "SNOW BUNTING"'s manoeuvres provided in the Defendant's first photo diagram B which shows only one turn to starboard;

(vi) The evidence of three alterations to starboard is not consistent with the description of the "SNOW BUNTING"'s manoeuvres provided in the Defendant's second diagram A which shows only one turn to starboard;

(vii) Nor is the evidence consistent with photo diagram B which depicts a situation in which the "SNOW BUNTING" passed the upriver end of Fry's Island and was on a heading which, if continued, would have had her pass through the southern span of the bridge on the portside (or southern side) of the channel. The scull is depicted as being almost dead ahead of the "SNOW BUNTING" having come from under the southern end of the southern bridge span. There appears to be only one turn to starboard by the "SNOW BUNTING" which also appears to coincide with the port turn by the scull.

23. It is to also to be noted that the versions depicted in photo diagrams "A" and "B" are different. The inconsistency does not inspire confidence in any of Mr. Ranshaw's versions of the events leading up to the collision.
24. Speed of the "SNOW BUNTING" prior to the collision. I have already indicated the probable forward speed of the scull immediately at the moment of impact was low although the nature of the damage indicates that there was sufficient forward movement at the time of the collision to throw the Claimant out of the scull and do considerable damage to the scull itself.
25. I accept that Mr. Ranshaw put the engine astern before the collision and that this would have had an effect on the speed of the narrow boat but it is difficult to say the extent to which the astern movement would have reduced the initial speed of the vessel. In the Defendant's Collision Statement of Case the speed of the "SNOW BUNTING" is put at 2-3 knots. In Mr. Ranshaw's statement the speed is put at 3-4 knots. There was no evidence of the vessel's normal operating speed. It was suggested that the narrow boat was operating at approximately her top speed but I doubt the top speed is as low as either 2-3 knots or 3-4 knots. The evidence was that there was little river current at the material time but that at other times of the year the current can be swift. If the top speed of a narrow boat is only 3-4 knots then it is unlikely that it would be practical to operate one whenever there was a current of any material force. Such a situation seems inherently unlikely. The narrow boats are shallow draft and I suspect probably capable of 5-6 knots once underway.
26. The vessel's speed at 2 metres per second is equivalent to 3.88 knots and 4 metres per second is equivalent to 7.76 knots. That is just over half a metre (0.52 m) per second per knot of the vessel's speed. A vessel making 3 knots will cover 8 metres in about 5.12 seconds and 10 metres in 6.4 seconds. At 4 knots she will make 2.08 metres per second which is equivalent to 4 seconds over 8 metres and 5 seconds over 10 metres. At 5 knots she will make 2.55 metres per second which is equivalent to 3.137 seconds over 8 metres and 3.9 seconds over 10 metres. At 6 knots these times fall to 2.56 seconds over 8 metres and 3.2 seconds over 10 metres.
27. Although it is not possible to be certain at what distance the Claimant first saw the "SNOW BUNTING", her original estimate was 10 metres and in her statement she put the distance at about 8 metres. I accept her evidence that her first sighting was about 8-10 metres. The Claimant said she had time to clear her feet from the "shoes" before the collision which suggests that there was very little time between her first sighting and the impact. It is probable that the period between her seeing the vessel and the collision was about 3-4 seconds which suggests that the vessel's speed was at least 4 knots and probably nearer 5 knots.
28. Since Mr. Ranshaw claimed to have turned to starboard and put the vessel into astern when he saw the scull turn across the river it follows that the "SNOW BUNTING" was very close to the scull at that time and that Mr. Ranshaw's manoeuvres were made only very shortly before the collision. In my view it is improbable that the vessel was operating in astern for more than a very short period of time before the collision.

Conclusions on the probable events leading to the collision

29. In my view the evidence supports the following findings with regard to the navigation of the vessels:

a) The Scull came down river close to the Southern bank, stopped and turned about 45° across the line of the channel whilst moving a short distance away from the Southern Bank towards the middle of the river. The Claimant first saw the "SNOW BUNTING" bearing down on her after she had begun the turn and when the "SNOW BUNTING" was distant about 8-10 metres or perhaps a little less;

b) Mr. Ranshaw was navigating the "SNOW BUNTING" upriver with Fry's [or Bohemian] Island on her starboard side. "SNOW BUNTING" was in a position in about midstream but she may have been a little towards the starboard of mid channel at that time. From there she shaped a course to head for the Southern Bridge span over the river. At that time "SNOW BUNTING" was probably making about 5 knots through the water or perhaps a little more.

c) I do not accept the evidence of Mr. Ranshaw that the "SNOW BUNTING" was navigated to starboard as or after she passed the upriver end of Fry's Island. In my view the "SNOW BUNTING" was turned to starboard very shortly before the collision. I think it is probable that Mr. Ranshaw concentrating on the bridge and did not appreciate the necessity to navigate to the starboard side of the channel. It is noteworthy that a line taken from a position on the starboard side of mid channel near the upriver end of Fry's [or Bohemian] Island to the middle of the Southern span on the bridge passes close to the Southern Bank and very close to or even through the collision position marked by the Claimant on the photograph at p.81 of the bundle and at page 54 of the bundle which was the first page of exhibit 1 to the Claimant's witness statement. It is also to be noted that there is a left hand bend to the river as the bridge is approached from downriver which means that a vessel on a steady heading towards the bridge was bound to come closer to the southern bank as she proceeded upriver.

d) I find that, as she approached the collision position from the vicinity of Fry's Island, the "SNOW BUNTING" was being navigated on a steady heading towards the southern span of the bridge. Thus the "SNOW BUNTING" was being navigated to port of the centre of the river and she was coming closer to the southern bank as she headed towards the bridge.

e) In these circumstances the two vessels were approaching each other end on or very nearly so.

f) I do not accept the Defendant's case that Mr. Ranshaw saw the scull at a distance of about 50 metres as is stated in the Defendant's Collision Statement of Case. At 3 knots that must have been about 32 seconds before the collision and at 5 knots about 20 seconds. That was sufficient time for Mr. Ranshaw to have altered course substantially to starboard so as to take the "SNOW BUNTING" as far to her own starboard side of the river as was reasonably practical. If he had done this when he first claims to have seen the scull it is difficult to see how the collision could have taken place in a position which was to the South of the channel's centre line. Indeed if he had made any reasonable alteration to starboard at that time it should have taken the "SNOW BUNTING" well clear of the scull.

g) As the two vessels approached each other end on, or nearly so, it follows that for the collision to take place the starboard turn by the "SNOW BUNTING" did not commence until the two vessels were very close and probably only very shortly before or at about the same time that the scull was turned across the river.

h) In these circumstances I am of the view that either: (a) Mr. Ranshaw failed to see the scull until very shortly before the collision when he put the helm over, went astern and sounded a signal or (b) he had such a lack of knowledge about the need to turn to starboard to avoid an oncoming vessel which was or was nearly on a reciprocal course that he ignored the dangerous situation which had been created and was rapidly worsening.

i) Such action as was taken by Mr. Ranshaw was far too late. Whether the collision was caused by poor lookout or by a failure of his knowledge I find that the only measures taken by the "SNOW BUNTING" to avoid the collision were probably just before or as Mr. Ranshaw saw the scull turn across the river. That was only a matter of a few seconds before the collision.

j) It is significant that Mr. Ranshaw thought that he had made a sound signal at the time when he was taking avoiding action. The Claimant's evidence, which I accept, was that the sound signal and the collision were almost simultaneous. That being so it is almost certain that Mr. Ranshaw did not take any steps to avoid the collision until very shortly or almost immediately before it occurred.

Fault

30. In my view Mr. Ranshaw's navigation was in breach of the rules of navigation set out in the Byelaws and as required by good seamanship and the breaches were the major contributory factor leading to the collision.
31. The "SNOW BUNTING" was not navigated so as to keep her to the starboard side of the channel. In fact she was navigated to her own port side of the channel. This caused her to come directly into an end on position with the scull.
32. Although Mr. Ranshaw claims to have seen the scull at a distance of about 50 metres for reasons already given I doubt that this testimony is accurate. Certainly those on the "SNOW BUNTING" should have been able to see the scull from shortly after it came under the bridge. I think it unlikely that the scull was seen or its presence properly appreciated until very shortly before the collision. In these circumstances I find that there was a significant failure by those on the "SNOW BUNTING" to keep a proper lookout.
33. In addition to the fact that the "SNOW BUNTING" failed to keep further to starboard within the channel her navigation put her into an end on position to the scull which also required the "SNOW BUNTING" to be manoeuvred to starboard at an early stage. Mr. Ranshaw failed to comply with this basic rule in good time despite the fact that he appeared to be aware of the requirement.
34. All those in charge of vessels should take care to appreciate the special circumstances or needs of other vessels. Mr. Ranshaw should have appreciated that a sculler might suffer from restricted visibility as soon as he sighted the scull. Mr. Ranshaw should have taken early steps to steer the "SNOW BUNTING" substantially to starboard to ensure that the latter was in a part of the river where she was more likely to be readily visible to a person rowing with her back to approaching vessels.
35. Mr. Ranshaw's alteration of course to starboard was not taken until it was far too late to avoid the dangerous situation which had developed. If, which I do not accept, there had been earlier alterations to starboard as Mr. Ranshaw has claimed, they were certainly not substantial or made in good time so as to remove the risk of collision.
36. The situation may have arisen because of a poor lookout, a lack of knowledge of the rules or failure to apply the relevant rules. Whichever was the underlying cause a close quarters or dangerous situation was allowed to develop and, in my opinion, Mr. Ranshaw was to blame.
37. The early navigation of the Claimant was without fault. Throughout the approach the Claimant was sculling in proper water close to the southern bank and was taking proper precautions with regard to lookout. She was maintaining a lookout which was, in fact, as good or better than that recommended by the Amateur Rowing Association and contained in the Tideway Code. The fact that the Claimant did not see the "SNOW BUNTING" was, in my view, because that vessel was so far to her own port as to be nearly dead ahead of the scull.
38. Mr. Watthey submitted that the Claimant was in breach of her duty to keep a good lookout and that she had materially caused or contributed to the collision by altering course so as to cross the river in the face of the upcoming narrow boat. He submitted that the provisions of Bye-law 34: "Notwithstanding anything to the contrary contained elsewhere in these Byelaws the master of every vessel crossing from one side of the river to the other side . . . shall do so at a proper time having regard to other vessels navigating up and down the river, and shall give way to such vessels." are clear and that the Claimant, being in breach of such rule, must be held wholly to blame for the collision or alternatively very substantially at fault.
39. To turn across the river in the face of upcoming traffic is contrary to Byelaw 34 however the issue is whether the Claimant was at fault and the extent to which any such fault contributed to the collision. It is therefore necessary to consider the circumstances which led to the Claimant turning across the river when she did. The Claimant is an experienced rower and if she had seen "SNOW BUNTING" I am sure that she would have waited until the "SNOW BUNTING" had passed by and the river was clear. The fact that she did not arose from the fact that the "SNOW BUNTING" was in a position where she could not readily be seen by the Claimant when she looked over her right shoulder. In my view that arose because the "SNOW BUNTING" was not navigating to her own starboard side of the river. For that reason a very large proportion of the causative blame must fall upon Mr. Ranshaw.
40. However Byelaw 34 is an important rule which demands that vessels take proper steps to implement it. One feature of that is keeping a good lookout. I have already found that the Claimant was keeping an adequate lookout as she passed under the bridge and approached the area of the collision position; the question is whether special precautions need to be taken before making a turn across the river. After the Claimant brought her scull to a stop or almost to a stop she looked over her right shoulder and could see to or very nearly to the upriver end of Fry's Island. This means that the arc of nil visibility forward of the scull on the scull's port side was probably very narrow. The Claimant has said that she also looked to her left towards the southern bank but she did not attempt to look round as far as she had done over her right shoulder. The unobserved area on the scull's starboard side was therefore rather larger than to port.
41. The Claimant herself certainly believes that the "SNOW BUNTING" came from this unobserved area and probably from a little to starboard of the scull's initial line. I think that the Claimant's understanding is probably correct. In my view the vessels were nearly end on and therefore the "SNOW BUNTING" was difficult for the Claimant to see unless she took special precautions. Once the scull had been brought to a stop with both blades in or resting on the water it should have been sufficiently balanced for its occupant to be able to turn in his or her seat so as to see considerably further over each shoulder than if the scull was under way. In my view, when stopped most reasonably fit and lithe scullers ought to be able to see through about 360° by looking over each shoulder. If there is a blind spot dead ahead of a stopped scull I think it must be very small.
42. In my view Rule 34 requires a particularly careful lookout before a vessel turns across the river and this requires that, so far as is practicable, the vessel's operator should take an all-round view of the vicinity. The Claimant looked over her right shoulder and that was probably sufficient to satisfy part of the rule however I do not think that the Claimant looked as far over her left shoulder as she could have done before she took the stroke to turn the scull's heading across the river. If she had done so she would probably have seen the "SNOW BUNTING" if that vessel was approaching from nearly ahead or a little to starboard of the scull. In these circumstances I take the view that the Claimant failed to satisfy the requirement of keeping a proper lookout before altering the heading of the scull across the river and in that respect she was at fault. However the question still remains as to whether that fault contributed to the collision or, alternatively was sufficiently blameworthy to be weighed in the balance.
43. On the assumption that the "SNOW BUNTING" alone had made the last minute manoeuvre of altering to starboard and to full astern which she did it is very difficult to say whether the collision would have been avoided. At best I think that "SNOW BUNTING" would have passed very close to the end of the scull's portside (or strokeside) blade, which would have been much too close for comfort. I think it is much more probable that "SNOW BUNTING" would still have struck some part of the scull, her port oar or outrigger. In that event there would very probably have been injury to the Claimant and/or her craft. She would probably have been struck by the handle or loom of the oar and been thrown out of the scull in circumstances where the steering and propulsion gear at the stern of the "SNOW BUNTING" would have been swinging towards her under the influence of the late turn to starboard taken by the "SNOW BUNTING". Although she continued to suffer from the effects of shock thankfully the Claimant's long term physical condition was not impaired by the collision but it is not difficult to foresee a much more serious outcome.

Conclusion

44. Taking account of all the above features I have no doubt that a significant preponderance of the blameworthiness or fault for this collision must lie with the Defendant arising from the acts or omissions of Mr. Ranshaw. The question remains whether any fault is attributable to the Claimant so as to reduce the Defendant's liability. Although I consider that the Claimant was in error in failing to keep a better lookout immediately before taking the stroke which turned the scull I find that this error was so late in the event that it is difficult to be sure whether it had a causative effect on the outcome and therefore whether blame should be divided between the parties.
45. Although the burden of proof rests on the Claimant to establish that there was causative fault on the part of the Defendant the burden of proving causative contributory fault by the Claimant rests upon the Defendant and, as I have serious doubts as to whether the fault of the Claimant was in fact causative it follows that the Defendant has failed to achieve the necessary standard of proof. In the circumstances I hold that the proper result is that the Defendant is wholly to blame for the collision.

Ancillary

46. As both parties were unable to attend on the 30^th October 2012 the judgment has been handed down but ancillary matters such as costs have been adjourned to a subsequent hearing which will be fixed for the convenience of the parties. I would be grateful if counsels' clerks could attend upon me to fix such a hearing date. It would also be helpful if the Claimant's counsel would send me a draft order (in word format) before that hearing. It does not matter whether the order is agreed or not but it can be used as a template at the hearing.

DATED 30^th October 2012