England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th March 2006

The Hon Mr Justice Morison :

Introduction

1. In many ways this is an unfortunate case.   In a nutshell, what happened was this.   A brand new 40 foot motor yacht, worth about a quarter of a million pounds [sterling], was being driven from Chichester to Weymouth as a delivery.   The voyage started at about 5.30 pm on Sunday 19 October 2003, and the motor yacht travelled down the Solent and into the Needles Channel.   During this passage it was driven into a substantial grade 2 buoy which marked the port side of the channel for inbound vessels, and became a constructive total loss [although it had some salvage value].   The amount of the claim is agreed at £223,105.64.   The person driving the boat at that moment was the third defendant, Mr Bailey; the other person on board, who was the skipper, was the second defendant, Mr Elliott, the proprietor of the first defendant, a nautical training school which undertakes instruction of persons wishing to go sea as a hobby.  
2. For the trip, arranged by Mr Elliott, he was to receive the paltry sum of £100.   Mr Elliott had been working in the Solent area that day and the delivery was to take place during the hours of darkness.   He realised that he needed assistance, if only to be able to manage the lock at Chichester Harbour, and he telephoned two people 'on his list' but they were not available, so he telephoned Mr Bailey, whom Mr Elliott had recently instructed, and he agreed to help, for half the fee.   Neither of the two personal defendants, nor Mr Elliott's company, had any insurance to cover their liability arising out of the delivery.   Mr Elliott allowed judgment to be entered against him and his company as he had no money and such a judgment 'would make no difference to him'.
3. This is a large claim against uninsured defendants, who used to be personal friends but who, perhaps inevitably, blame each other for what happened.   Mr Bailey has issued third party proceedings against Mr Elliott.   None of the defendants was represented before me, although Mr Bailey's case had been set out in pleadings settled by counsel and solicitors.   The Claimants, the yacht owners, were represented by Mr Russell of counsel.
4. The issues

There are two issues which must be determined:

(1) was Mr Bailey negligent in the way he steered the motor vessel into the buoy and

(2) as between himself and Mr Elliott, what is proportion of blame, if any, for which each must bear responsibility.

The facts

5. Mr Bailey's experience and qualifications at the time of the accident are not in issue.   Mr Bailey kept a 'Power Logbook' designed, I think, by the RYA.   Although I am sure that Mr Bailey wanted to 'make the most' of his experience in this document, which might therefore be somewhat exaggerated, overall it represented a fair summary of what he had been doing with boats since 1999.   He enjoyed diving and belonged to the Bristol Scuba Club.   The Club owned a boat with a 70hp engine, and in 2000 and 2001 Mr Bailey used his own boat on the Club's business.   Over a period of 4 years from 1999 to 2001 he acquired over 250 hours of driving the two boats.   On 31 July 2002 he was issued an RYA National Powerboat Certificate, level 2.   As the documents show, Level 2 included instruction in keeping a look out and the ability to manage 'steering and controls and the effect of current or tidal stream'.   In March 2003 he was issued with an International Certificate for Operator of Pleasure Craft valid for coastal waters.   On May 15 2003 Mr Bailey achieved an RYA 'Advanced Powerboat Certificate'.   The Advanced Course "provides the skills and background needed by powerboat drivers operating in coastal waters, in more demanding conditions".   In June 2003 he was assessed by an RYA yachtmaster and awarded his RYA/MCA Coastal Skipper certificate, with a Power Driven Craft endorsement.   These were his qualifications before the accident.   On 23 November 2003 he was awarded a certificate qualifying him as an RYA Powerboat Instructor.   He had completed the practical side of this qualification on 27 and 28 September 2003, under Mr Elliott's tutelage.   Mr Bailey was also an emergency coxswain of the Portishead Life Boat.
6. Mr Elliott said, and I accept; he had 'employed' Mr Bailey to carry out two delivery trips for him.   He knew that Mr Bailey had a motor yacht which was 38 feet in length and was similar to, but not as grand as, the motor yacht being delivered.   He had put Mr Bailey onto his 'list' presumably because he felt he was competent to assist him from time to time.
7. Mr Bailey lives in the Portishead area and to get down to Chichester would be a drive of about 90 miles.   Mr Elliott told him on the 'phone that he had tried two other people on his list without success.   Mr Bailey says that he was pleased to be asked as the hours would count towards his experience of working a motor boat at night.   He knew Mr Elliott as an instructor who was more knowledgeable and experienced that he was.   Mr Bailey suggested that he was told he was only needed to work the ropes in the lock and that it came as a surprise to be asked to helm the vessel as it went into the Solent.   I do not accept this evidence.   Simply 'working the ropes' in the lock would not have satisfied Mr Bailey's ambition to increase his experience and that would not have tempted him into doing the job.   His pleaded defence was that he was "invited to participate in the voyage as an opportunity of obtaining further sailing experience."   They did have a conversation about whether Mr Bailey should make a navigation plan, which Mr Elliott said was unnecessary.   Mr Bailey was to receive half the money which would largely have been used in covering his travel expenses.   He was coming for 'the experience' and the pleasure of accompanying a very experienced fellow sailor.  
8. I also reject Mr Bailey's alleged surprise at being asked to take the helm at an early stage in the voyage.   He never said so in his defence, nor, apparently, to the marine surveyor investigating the incident.   It was clear to him at the start of the voyage that Mr Elliott was going to be the navigator and that left Mr Bailey at the helm, which he was pleased to do.   Whilst he may have thought that he would not be allowed to helm such a luxurious yacht, he never expressed any reservations about taking over the helm.   In my judgment, he was quite competent to do so and Mr Elliott was entitled to regard him as so.   Because Mr Bailey had arrived at the Chichester Marina well before Mr Elliott, he was able to talk to a number of sailors who were saying things such as 'you are not going out in this weather are you' and remarks such as 'rather you than me'.   In fact, Mr Elliott had checked the weather forecast which was 'wind East/South East 4/5, cyclonic later, with a sea state of slight to moderate.'   This meant that they had a following sea.   I understand that there was no 'wind against tide' issue.    There was fair night time visibility.   Mr Elliott was running late and there was a gap of about 15 minutes between his arrival and casting off.   There was no navigational briefing first and little pre-voyage checks.
9. It is common ground between the parties that, having left the lock and moved into the Solent, the sea was relatively flat.   They were able to move down the Solent, with Mr Bailey at the helm    Their speed was between 18 – 20 knots.   They were initially using a C-MAP device which links into the radar and is an electronic chart.   In fact, the cartridge in the 'C-Map box' was for demonstration purposes only and was there for demonstration purposes only.   It did not extend to the west of the Needles Channel.   Using the radar alone, it was possible to plot a course which appeared on the screen.   As they approached the Needles Channel I am satisfied on the evidence that Mr Elliott pointed out two of the lighted buoys: the Bridge buoy which guards the dangers by the Needles and the buoy with which they collided, the South West Shingles Buoy ['the Buoy'] which is about ½ mile further away [to the south west] than the Bridge.   The Bridge buoy flashes white and the South West Shingles Buoy flashes red every 2.5 seconds.   The Buoy light stands some 3.88 metres above its waterline and is of such power to be visible at four miles on a clear night.   At the stated speed the motor yacht would have taken one and a half minutes to cover the distance from the Bridge buoy to the Buoy and in that time the light would have flashed red 36 times.
10. Mr Elliott told Mr Bailey to leave the Bridge buoy to his port side and the Buoy to his starboard.   I am satisfied that Mr Bailey saw the lights and knew what he had to do.   He would have known from his training and experience how channels are buoyed: red to the port and green to the starboard on entering; the converse on leaving.    The approach to the Needles and the Needles Channel itself are well lit: the motor yacht would already have negotiated Hurst Point and passed to the right of a green buoy and to the left of two red flashing buoys.   There were only three more lit buoys: the Bridge, the Buoy and a white flashing fairway buoy much further on.
11. At the time when the two buoys were pointed out and instructions had been given, the C-Map plotter 'ran out'.    The sea becomes lumpy around the Needles Channel both because of the effect of the tidal stream, the formation of the undersea landscape and the loss of a lee shore.   I accept that at this time the motor yacht hit some troubled water and from time to time spray came over the bow and onto the windscreen, which had to be cleared by the use of the windscreen wipers.   The switches in the cockpit were not illuminated and Mr Elliott used his torch, to try and see what had happened to the C-Plan plotter, to locate the wiper switch and to try and set a course using the radar.   Mr Bailey said that he said something about the torch light affecting his night vision.   What then happened was that Mr Bailey saw the Buoy when it was directly in front of the motor yacht and he swung the wheel hard to port to try and avoid a collision and instead the vessel sustained severe damage to the front and starboard sides; water was coming in; a mayday call was made and fortunately the rescue services managed to get them both off the boat before it sank and the wreck was towed to safety, the bow submerged in the water.
12. Mr Bailey says that he was not to blame for what happened.   He said that if he had prepared a navigation plan or had access to a chart he would have become more familiar with the channels and their markers; he said that had he been in charge he would not have made the journey at all because of the weather.   He said that there was confusion in the cockpit because of the problem with the plotter and the need for the captain to provide a new course to steer on the radar and in any event the new course was directly over the Buoy 'in accordance with Mr Elliott's normal practice.'  He said that he saw the Buoy light from time to time during the one and a half minutes which elapsed between passing the Bridge Buoy and the collision. The relatively quick flashing light was obscured from time to time because of the pitch of the motor vessel and the spray on the windows which took a second or so to clear the wipers.
13. It seems to me that Mr Bailey has failed to understand his own responsibilities.   Whether he was expecting it or not, he was at the helm of a motor boat which collided into a stationary object in the water, which was lit, as described.   His failure was to keep a proper look-out and to drive the boat in accordance with his explicit instructions.   Instead, he seemed to be pre-occupied with what was going on with the C-Map plotter and what was showing on the radar.   He must have been taught that these electronic devices are navigational aids which do not excuse a navigator from keeping a proper look-out; especially where he had been given a visual course to steer.   It was his job to take the motor yacht through the gap pointed out to him and which he had acknowledged.   If, through any circumstances, he became disorientated or unsure of his position he could and should have slowed down and collected his thoughts.   In truth, the light on the Buoy was probably visible to him for most if not all of the time if he had cared to look for it.   He should have been concentrating on the visual aspect of navigation and not concerning himself with the C-Plan or the radar plotter or the changes in scale as Mr Elliott sought to lay a course on the radar.   He was not steering by compass but by sight at this time.   I find it remarkable that Mr Bailey, even with the benefit of hindsight, cannot find fault with what he did or failed to do.   It seems to me obvious that the person at the helm must take responsibility for a collision with a buoy, save in exceptional circumstances.
14. I have to say that I was not impressed with his attempt to portray himself as a relative novice and Mr Elliott as his instructor at the time of the collision.   That was not, I think, the relationship between them, although I accept that he regarded the job as a chance to acquire more sea going experience.   He was not under instruction from Mr Elliott at the time; he was not paying for being taught; he was being given a half share of the money and he and Mr Elliott were sharing the responsibility of getting the motor yacht delivered.   Mr Elliott was the captain and Mr Bailey the crewman; one was the navigator [at the time] and the other was the driver.   It was his and not Mr Elliott's job to keep a proper look-out.    If he had been uncertain as to his abilities to helm the boat generally or at this time he should have said so; instead, having lost the sense of where he was, he ploughed on and into the Buoy.   That was negligent and the advice I received from the nautical assessor, Captain Colin Stewart, which I put to Mr Bailey so that he could deal with it, confirmed this conclusion, given my findings of fact.
15. As between Mr Bailey and Mr Elliott, had I been deciding the case without the benefit of the advice from a nautical assessor, I might well have concluded that Mr Bailey was solely to blame.   However, Mr Bailey put forward a convincing case that he should not bear all the blame.   His real point was that had he been properly briefed before the voyage started and been taken through the chart and shown the route through the Needles he would not have become confused or disorientated and would have had some better idea how far he was from the Buoy.   In my judgment, Mr Elliott could be criticised for not preparing for the voyage and helping his crewman as carefully as I suspect he would have wished.   The picture from the evidence was of a late arrival at Chichester with no time allowed for a normal briefing procedure.   Whilst there is room for doubt as to whether Mr Bailey would have acted any differently if he had been better briefed I am prepared to give him the benefit of the doubt.   On my findings of fact, Captain Stewart suggested that Mr Elliott should bear 15% of the blame.    That advice I put before Mr Bailey.   A finding of 15% fault on Mr Elliott's part properly reflects the relative culpability of the two men for what was a disastrous adventure for them both.   It is a great pity that neither was insured for this accident since both men, I am sure, are basically capable and well qualified seamen.   Very expensive mistakes were made.
16. Costs must follow the event.   That means the Claimants are entitled to their costs of the action against the second defendant who is entitled to claim a proportionate part of them against Mr Elliott, in accordance with this judgment.