England and Wales High Court (Commercial Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/01/2007

Mr Justice David Steel :

Introduction

1. This action arises out of a collision between Bulk Atalanta and Forest Pioneer in the approaches to Gibraltar on 27 November 2003.
2. Bulk Atalanta ("BA") is a cape size bulk carrier of 77,096 tons gross and 47,175 tons net, some 270 metres in length and 43 metres in beam and powered by diesel engines of 12,430 kw. At the material time she was inward bound to Gibraltar for bunkers en route to Sepetiba in Brazil. She was in ballast.
3. Forest Pioneer ("FP") is a bulk carrier of 39,548 tons gross and 21,646 tons net, some 218.47 metres in length and 32.2 metres in beam and powered by diesel engines of 15,600 b.h.p. At the material time she was outbound from Gibraltar having bunkered, en route to Savannah. She was also in ballast.
4. The collision occurred at 05.27. It was accordingly dark and both ships were exhibiting the usual navigation lights. There was a strong south westerly wind with intermittent heavy rain showers.
5. Both parties presented evidence in the form of statements from their respective masters who had the con of the vessels and their deck officers. In addition there was a short statement from the pilot who had boarded BA very shortly before the collision.
6. Copies of their working charts were also available. Of even greater value were the course recorder traces and engine movement printouts from each vessel. This enabled experts retained by each side to prepare an agreed reconstruction of the track of the two vessels with particular emphasis on the last 10 minutes before collision.

Navigation of BA

7. The navigation of BA can be set out briefly. At 0435 BA had been some 3 miles off Europa Point. She gave an ETA to Gibraltar Port Control for 0530 at the pilot station. The normal pilot station was about 1 mile west of Europa Point with the bad weather station about ¾ mile further to the north.
8. At 0452, BA reduced to half ahead (9 knots). At about 0510 she was brought around slowly to starboard into Gibraltar Bay and speed was further reduced to slow ahead (6 knots) at 0512 (C-14).
9. Shortly thereafter (C-12) the pilot boat was seen approaching on the starboard bow. BA continued to come slowly to starboard onto a heading of about 315° to afford a lee. Engine speed was further reduced to dead slow ahead (5 knots). The chief officer went forward to his anchor station and the second officer left the bridge to receive the pilot, leaving the master with the con and an AB at the wheel.
10. At 0520 (C-7), the master noticed a red navigation light of another vessel 5° or 10° off the port bow at a range of about 1 mile. (If this was FP, the observation had to be inaccurate as FP was broad on the starboard bow of BA throughout). In any event, the master contacted Gibraltar Port Control again on VHF Channel 12 requesting that contact should be made with the other vessel advising her "to keep clear of my vessel as I was picking up a Pilot". Gibraltar Port Control apparently sought to do as requested, albeit there is no transcript of the VHF Channel 12 traffic available.
11. By now (C-6) the pilot boat was alongside and the engines of BA were stopped. Shortly afterwards the red side light of FP was seen fine on the starboard bow at a range of 3 or 4 cables. The master was under the impression that she had "drifted across" BA's bow. He accordingly ordered dead slow ahead and hard-a-starboard.
12. The pilot boarded and using the 2^nd officer's radio immediately called the bridge of BA and ordered full astern. The master had, in fact, put the engines half astern (C-4) and, in accordance with the pilot's advice, the engines were put full astern (C-3). In the meantime, the master had called Gibraltar Port Control yet again repeating his request that the FP keep clear as he was picking up a pilot.

Navigation of FP

13. The navigation of FP can also be described briefly. FP had been lying at anchor about 5½ cables west of the northern end of the South Mole of Gibraltar harbour. Bunkering was complete at about 0450. The VLCC Millennium Maersk was at anchor about 5 cables south west of her. There were also 2 smaller vessels south east of her, close to the South Mole.
14. FP commenced weighing anchor. At about 0506 (C-21) her anchor was "up and down". In the process of weighing her anchor her head had come round from about 250° to 165°.
15. Her anchor was aweigh at about 0610 (C-17). In the meantime the master had contacted Gibraltar Port Control who gave permission for FP to leave port but "warned that there was a vessel inbound that would be manoeuvring to pick up a pilot".
16. The engines were put dead slow ahead at 0512 (C-15) and slow ahead at 0513 (C-14). The master's plan was to proceed out to the south, passing to leeward of the VLCC. However, as she proceeded on a south easterly heading, the master became concerned that as a result of leeway in the strong wind, the vessel was being carried too close to the ships anchored off the South Mole. Accordingly at 0515 (C-12) the engines of FP were put half ahead and her helm put to starboard to bring her around to 210° true.
17. Shortly thereafter at 0518 (C-9), having steadied on 210°, the echo of BA was noted at a range of 1.7 miles, bearing 175°. The ARPA gave BA's course and speed (accurately) as 320° 7 knots. Vectors demonstrated that the vessels were on collision courses.
18. In the rain no lights of BA could be identified. The master, however, made the assumption that "sooner or later BA would turn to starboard onto a northerly heading in order to meet with the pilot".
19. With BA continuing on her north westerly heading, FP sounded a warning signal of rapid blasts. (These were not heard on BA). The master then ordered dead slow ahead and starboard helm at 0521 (C-6). The vessel's head came round to about 220°.
20. By then the master had appreciated that taking a turn to starboard would put the vessel at risk of collision with the VLCC. Accordingly at 0522 (C-5), he ordered hard-a-port.
21. The vessel's head came round to about 200°, whereupon the master overheard on the VHF an apparent order of "hard to starboard". Thinking that BA was altering to starboard he ordered the helm of FP hard-a-starboard and her engines to slow ahead. When BA came into view on the port bow at a range of about a ship's length, the engines were put full ahead.

The agreed tracks

22. As already indicated, it has proved possible to reconstruct the track of the two vessels with some accuracy given the course recorder traces and the engine movement printouts.
23. The general picture of BA's track is clear enough. As from 0512 (C-12) she was on a heading of about 315° with her head canting to port as from C-4 to 294° at collision. Throughout this passage she was slowly reducing from half ahead (9 knots). Whilst the experts were unable to agree precise speeds the broad picture was clear enough: -

1. C-10 8 to 8.5 knots

2. C-8 7.½ knots

3. C-6 6½ knots

4. C-4 5½ knots

5. C-2 4.½ knots

6. C 3 knots

24. As regards FP, her heading came round slowly from 165° at C-15 to 210° at C-9. Thereafter, subject to small changes of heading to starboard and port, the vessels head finally came round to starboard to 219° at C-3 and to 280° at collision.
25. Her speed as she came away from the anchorage is more difficult to assess but the broad picture is as follows: -

7. C-11 6 knots

8. C-9 6½ knots

9. C-7 8 knots

10. C-5 7½ knots

11. C-3 6 knots

12. C-1 7½ knots

26. The collision occurred between the starboard bow of BA and the portside mid-ships of FP at an angle of about 15° leading forward. BA suffered substantial damage whilst FP was almost unscathed.

Visibility

27. Before turning to consider the allegations of fault, I must deal with the one remaining issue of fact. Ironically, the Defendants who alleged in their pleading the breach of Rule 19 by BA, now contend that the vessels were not navigating in restricted visibility whilst the Claimants who alleged breach by FP of the rules relating to the conduct of vessels in sight of one another, now contend Rule 19 applies.
28. Whilst accepting that visibility was reduced by rain squalls, in my judgment this is not a restricted visibility case. Whilst the conditions called for a careful radar lookout, I am not persuaded that the failure of each vessel to see the other until very close, is attributable to poor visibility.
29. Indeed, it seems to be accepted that visibility was only restricted intermittently. It is not appropriate that the Rule 19 regime should apply intermittently. Obviously the fact of variable visibility is a factor which is relevant to the dictates of good seamanship but the overall weather conditions called for compliance, in my judgment, with sections I and II of the Collision Regulations. I am satisfied that it did not call, for instance, for sound signals as prescribed by Rule 35. I have asked my assessors for their views on this topic and they agree with me.
30. In this regard, I particularly note the following: -

i) The Met Office report that at the relevant time it was raining with visibility of 9km.

ii) The master of FP states that it was only at 0518 (C-11) that it had began to rain.

iii) The Claimants have pleaded (and thus admitted: see para. N.5.7 of the Commercial Court Guide) that "visibility was good but restricted by occasional rain squalls."

Faults of FP

Initial Course

31. It was BA's case that it would be imprudent for FP to fail to come out into the Bay to the north of the VLCC. It was submitted that a broadly southerly course towards the pilot stations was unsatisfactory – the more so when FP knew that there was an inbound vessel due to pick up a pilot.
32. This issue was essentially one of seamanship and, accordingly I asked the Elder Brethren this question: -

Q. Assuming that in the course of weighing anchor FP swung on onto about 165° before making headway, was it seamanlike to continue in a southerly direction towards the pilot stations or ought FP to have been brought round north of the VLCC and out into the Bay.

A. Given the prevailing weather conditions and the proximity of other anchored vessels, it was entirely appropriate for FP to come away to the south from the anchorage position so long as a sharp look out was maintained for inward bound vessels – particularly any that were in the process of picking up a pilot.

33. I accept that advice.

Alteration to 210°

34. The master of FP soon became concerned about his vessel being set to port while proceeding at slow speed toward the vessels at anchor off the South Mole. He chose accordingly to alter some 45° to starboard to 210° and to put the engines half ahead. Both these manoeuvres were alleged by BA to be negligent.
35. These manoeuvres occurred at about C-12, the helm order having been given slightly earlier together with slow ahead. With FP on her heading 165°, BA was distant at this time about 2 miles bearing about 15° on the starboard bow. Thus, even if it was desirable to give greater sea room to the anchored vessels, an alteration of say 15° onto 180° would have been entirely safe with the vessels shaping to pass at about half a mile starboard to starboard (and even further if the engines had been maintained at dead slow or slow ahead).
36. The lights of BA were said not to have been visible at this time. However, FP was aware of BA's imminent arrival and her intention to pick up a pilot. There is no reason whatsoever why a proper radar lookout (all the more necessary if visibility was restricted by rain) should not have identified her echo prior to this manoeuvre. The effect of the alteration to 210° was to put BA some 30 to 35° on the port bow of FP. Almost immediately thereafter, the echo of BA was identified at a range of 1.7 miles bearing 175°. The ARPA vectors duly revealed that the vessels were on collision courses.
37. FP sought to contend that since the vessels were crossing with risk of collision, BA was the give way vessel and ought (as the master of FP claims he anticipated) to have come to starboard.
38. The first thing that might be said, is that even if this was a situation to which the crossing rules were applicable, it is manifest that FP failed to maintain her course and speed. In particular, in the period from C-14 to C-5, she increased speed progressively from near stationery to 8 knots.
39. That said, I am quite unable to accept that the situation attracted the application of Rules 15, 16 and 17: -

a) The alteration to 210° was made without any heed to (or even awareness of) BA. The consequence was to place the vessels on collision courses. Yet, if FP had been aware of the presence of BA, she was not hindered from adopting a safe course to the south or a south westerly course at slow speed.

b) This state of affairs finds something of a parallel with the Tojo Maru [1968] 1 Lloyd's Rep 365. On the facts of that case, there had been an appreciable period during which the Fina Italia had been approaching Tojo Maru with Tojo Maru's red light on her starboard bow:

"… I think it is necessary to look also at the conduct of the Tojo Maru and consider whether she was justified as a matter of seamanship in setting the course which she did. It seems to me that no vessel is entitled, in the face of another vessel seen to be approaching, to put herself deliberately on a crossing course in the position of a stand-on vessel so as to force the other vessel to keep out of the way": Per Willmer LJ at p.377

c) Of course, FP had not seen BA. But she cannot, in my judgment, pray her poor look-out in aid in circumstances where the effect of her alteration was to create a risk of collision which did not exist before but nonetheless claim the status of the stand-on vessel. I also recognise that the manoeuvre was not deliberate in the sense of being performed for the very purpose of establishing a crossing situation. But it was deliberate in the sense of not being necessitated by external circumstances (e.g. the proximity of shallows). It was, in short, an intentional adjustment of course and speed.

d) As already observed, it was or should have been apparent to FP that BA was shaping to pick up a pilot. BA was accordingly constrained both in terms of course and speed.

e) As regards BA's speed it is obvious that she would be reducing speed so as to allow a pilot boat to come along side. This would, in due course, severely limit her steerage way.

f) Furthermore, given the prevailing weather conditions, BA needed to afford a lee to the pilot board. This in turn required maintenance of a course of about 320. This was something which the master of the FP was fully aware of since on his arrival the previous day, his pilot had requested that very heading for shelter purposes, something which the master recollected when he gave his statement 3 weeks later.

g) In this connection, the Claimants prayed in aid The Sestriere [1976] 1 Lloyd's Rep 125 as support for the proposition that as a matter of good seamanship, a vessel should take timely action to keep clear of another which was performing the operation of dropping her pilot.

40. This aspect of the case is a paradigm example of the need for and value of my assessors. I have asked them the following question: -

Q. Having regard to the agreed reconstruction of the tracks of the two vessels, was the alteration of course and speed by FP at about C-12 seamanlike?

A. In terms of both course (210°) and speed (half ahead) it was grossly misjudged. It transformed a situation of comparative safety into one of imminent risk of collision. The presence of two vessels at anchor to the east did not inhibit FP from making a safe exit from the Bay to the south. By coming 45° to starboard and accelerating up to half ahead, a risk of collision was created with BA which was known to be picking up a pilot and was thus constrained in its manoeuvring.

41. I accept that advice.

Lookout

42. The presence of BA was only discerned after the alteration had been made. This is only consistent with a failure to keep a good lookout even if the lights of BA were not easy to discern in the rain. The echo of BA must have been apparent throughout the exercise of weighing anchor and thereafter.
43. Despite thereafter discerning that the vessels were on collision courses, FP broadly maintained her south-westerly course. This was based on the assumption that BA would come to starboard. This assumption was unwarranted given the prevailing weather and the proximity of the pilot boat to the BA.
44. There ensued helm action by FP first to starboard and then to port. Apart from the sense of indecision and confusion on board FP that this evidences, these manoeuvres were of no great causative significance. The appropriate course of action to take was vigorous steps to reduce headway. An order of dead slow ahead was wholly inadequate.
45. The final helm order was hard-a-starboard at C-4 together with slow ahead. This seems to have been prompted by a call for "hard-a-starboard" overheard on the VHF. Quite what the source of that call was and the purpose of it remains obscure. In any event, it was wholly inadequate material for FP to rely and act upon. The appropriate action was stop and full astern.

Faults of BA

46. The principal complaints that are made as regards the navigation of BA is first in regard to her lookout, second in the alleged failure come to starboard at about C-6 and third, failure to take off way as from C-6.

Lookout

47. The pleaded case as regards the lookout on BA was to the effect that the echo of FP was never particularly observed but that the lights of FP were observed at a range of about 3-4 cables off the starboard bow.
48. It is possible that for a period visibility was restricted to that extent by reason of a squall of rain (bearing in mind that FP did not observe BA until much closer). But it has to be borne in mind that the master of BA was able to see the lights of various vessels anchored in the Bay (as well as the background lights of Gibraltar itself).
49. Furthermore, as the pilot boat was drawing alongside, he noted the red light of another vessel at a range of about 1 mile and thereupon sought the assistance of the Port Control to request that vessel to keep out of his way. The master suggested that the red light was on his port bow. This is wholly improbable. The only vessel underway within a range of about 1 mile was likely to have been FP which was broad in fact on her starboard bow. In any event, the observation of a red light on the port bow would probably not have provoked a call for avoiding action.
50. All that said, there is no legitimate explanation as to why the echo of FP was not identified from C- 8 onwards. I have no hesitation in concluding that the lookout on board BA was inadequate.

Causation

51. But was the fault causative? This leads to the other complaints namely the failure to take off way more vigorously or alternatively to alter to starboard.
52. As regards altering to starboard, by C-6 the pilot boat must have been close to starboard in the lee of BA. In my judgment an alteration to starboard at that stage would have been foolhardy. My assessors agree.
53. As regards her speed, BA was making somewhere in the region of 6 knots with her engines stopped. She was slowing down to pick up the pilot but remained with steerage way. On sighting FP her engines were put dead slow ahead. It was thereafter that half astern action was taken at C-4 followed by full astern at C-3.
54. The fact that the reaction to sighting FP was nonetheless a modest increase in speed in the form of what was seen as a last ditch attempt to avoid collision gives rise to the inference that a substantial reduction in speed would and should have been made earlier if the lookout had been sharper. This perception is enhanced by the immediate reaction of the pilot as he boarded that BA should be going full astern.
55. In my judgment BA ought to have taken off further way as from C- 5 by which time FP had closed to a range of about ½ mile still on a collision course. The collision would thereby have been avoided or at least the damage reduced. Again this is a topic on which I have the advice of my assessors and they agree with me.

Apportionment

56. I have no doubt that FP must bear by far the greater preponderance of blame. She created the situation of danger by a blind alteration of course and speed putting the BA in a very unhappy predicament. In my judgment a fair apportionment is 85/15.