QUEEN'S BENCH DIVISION
ADMIRALTY CLAIM IN REM AGAINST THE M.V. "SNOW BUNTING"
Strand, London, WC2A 2LL
B e f o r e :
| MRS RACHEL BARNES
|- and -
|THE CHARTERERS OF THE MOTOR VESSEL "SNOW BUNTING"
M.V. "SNOW BUNTING"
James Watthey (instructed by L.A.Marine) for the Defendant
Hearing date: Thursday 13th September 2012
Crown Copyright ©
Background and common ground
The principal issues
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?
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".
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.
a) Mr. Ranshaw's evidence was adduced in two signed statements dated the 27th May 2012 and 8th 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 20th 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 7th May to 27th 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 19th 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
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.
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 8th 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 27th 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.
Conclusions on the probable events leading to the collision
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.
DATED 30th October 2012