Global Mariner, Owners and Bareboat Charterers of v Atlantic Crusader, Owners and Bareboat Charterers of, Court of Appeal - Admiralty Division, March 23, 2005, [2005] EWHC 380 (Admlty)

Resolution Date:March 23, 2005
Issuing Organization:Admiralty Division
Actores:Global Mariner, Owners and Bareboat Charterers of v Atlantic Crusader, Owners and Bareboat Charterers of

Neutral Citation Number: [2005] EWHC 380 (Admlty)Case No: 2002/737 IN THE HIGH COURT OF JUSTICEQUEENS BENCH DIVISIONADMIRALTY COURTRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 23 March 2005Before :THE HONOURABLE MR JUSTICE GROSSSitting with CAPTAIN COLIN STEWART & CAPTAIN IAN GIBBRNR Elder brethren of Trinity House, as Nautical Assessors- - - - - - - - - - - - - - - - - - - - -Between :| |The Owners and Bareboat Charterers of the |Claimants || |Vessel “GLOBAL MARINER” | || |- and - | || |The Owners and Bareboat Charterers of the vessel |Defendants || |“ATLANTIC CRUSADER” | |- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr N Teare QC & Mr J Turner (instructed by Barlow Lyde & Gilbert) for the ClaimantsMr L Persey QC & Mr M Davey (instructed by Hill Taylor Dickinson) for the DefendantsHearing dates : 6th & 7th October; 22nd – 14th Oct and 20th October 2004- - - - - - - - - - - - - - - - - - - - -APPROVED JUDGMENTMr Justice Gross:INTRODUCTION At about 08.28-08.29 local time on the 2nd August, 2000 (GMT-4), the Claimants’ vessel, the “GLOBAL MARINER” (“GM”) and the Defendants’ vessel, the “ATLANTIC CRUSADER” (“AC”), came into collision in the River Orinoco, between miles 194 and 195, off the port of Matanzas, Venezuela. The consequences of the collision were dramatic, in that GM sank within minutes; fortunately, there was no loss of life or significant personal injury. GM, registered in the port of London, was a geared motor cargo vessel of 12,778 GRT, 161.83m in length overall and 22.90m in beam. She was powered by an 8827 kW engine. At the time of collision she was laden with some 16,598mt of wire rods and hot and cold rolled steel coils and was on an even keel drawing 9.9m. She was in commercial service but was being used as a training vessel for deck and engineering cadets. AC, registered in the port of Limassol, was a motor cargo vessel of 7,366 GRT, 122.34m in length overall and 20m in beam. She was powered by an engine developing 6,080 BHP. At the time of collision, she was laden with a cargo of some 7,700mt of bulk ferromanganese and her drafts were 8.17m forward and 8.34m aft. GM had hitherto been berthed port side to alongside Sidor no.3 berth on an upriver heading. In broad terms, the collision occurred in the course of her undertaking a 180( starboard turn to commence her downriver passage, assisted by two tugs and under the advice of a local pilot. Another vessel, “ILLAPEL”, was anchored abeam of GM, distant some 2.5 – 3 cables off the berth, to the northern side of the navigable channel. AC had been at anchor, most recently to her starboard anchor, with 5½ shackles in the water, about astern of “ILLAPEL”, distant some 5 cables from her. As will be seen, AC’s position, the question of whether she had been dragging and, if so, the direction of her dragging were controversial; subject to AC’s substantial yawing, which was common ground, for the moment it suffices to say that her heading had been very broadly upriver. There is annexed to this judgment, a copy of a chart of the relevant area, with the simulations of both parties’ experts superimposed thereon (“Annexe I”). A number of matters were common ground:1 The time of the collision, as already recorded.2 The weather was fine and clear. The wind was immaterial, being NE of 10 knots or less, alternatively variable, about force 1. The river current, which was of significance, was setting ENE at some 4-5 knots, generally following the direction of the river (downriver).3 The current could cause AC to yaw substantially, to about 35-40( either side of her mean upriver heading.4 The angle of blow was about 60(, leading aft on GM. Contact was between the bow of AC and the port side of GM, about in way of hold 2A and, thereafter, hold 3 (both of which were penetrated).5 At the time of collision, GM was on a heading to starboard of downriver and AC was on a heading to port of upriver. Certain matters were not common ground but the differences between the parties were such as, in my judgment, to render dispute immaterial:1 Experts instructed by both parties prepared simulated tracks of GM, covering her manoeuvre from her berth to the collision position. As appears from Annexe I, there is a difference of about 50m (North/South) between the two. Given (inter alia) the fact that the GM did not have a course recorder or an engine data logger and the inevitable margins of error in such exercises, nothing turns on the difference between the two simulated tracks. I accept these simulations as providing good illustrative plots of the track of GM, subject throughout to the caution expressed by David Steel J. in The Pelopidas [1999] 2 Lloyd’s Rep. 675, esp. at p.682.2 As further appears from Annexe I, the difference between the parties’ collision positions is of the order of 70m (East/West); indeed the disagreement between expert photogrammetrists (who contributed in their reports to this debate), was of no more than 37m, within each expert’s acknowledged margin of error. Again, no practical consequences rest on such differences. I am therefore content to conclude that the collision position was about 500m from and bearing about WNW of the South Western end of Venalum pier, shown in the annexe.3 I did not understand the parties ultimately to dispute that the “ILLAPEL” was (as already noted) anchored some 2.5 – 3 cables off the Sidor berth. For completeness, the difference between 2.5 and 3 cables is wholly immaterial and I say no more of it. The principal issues in the case may conveniently be considered under the following broad headings:1 AC’s anchorage position and the control of yaw, sway and drag by AC (“Issue (I): AC at anchor”);2 The manoeuvre carried out by GM, including planning, appreciation and lookout (“Issue (II): The GM manoeuvre”);3 Causative faults, if any, on the part of each vessel (“Issue (III): Fault”);4 Apportionment of such causative faults (if any) as are found against each vessel (“Issue (IV): Apportionment”). By way of broad outline only, the rival cases were these. GM, if I may say so, somewhat boldly, contended that AC was solely to blame, alternatively should bear the preponderance of blame. AC had been anchored in an unsafe anchorage and had failed to take any or adequate steps to control her yaw, drag and sway. In its final form, GM’s case was that there probably was some but not very great dragging in a SE direction, towards Venalum berth; the greater movement was caused by yaw and sway. The duty to control yaw, drag and sway was acute, given that AC had anchored in a narrow channel in close proximity to busy berths. Control could have been achieved by the adoption of an open moor (anchoring with two anchors, to an angle of about 60(), together with use of helm and engines; had such measures been taken, AC would have been more to the North of the channel and a collision would probably have been avoided or its nature would have been less serious. For her part, GM had maintained a proper lookout before unberthing; neither “ILLAPEL” nor AC presented risks to the unberthing manoeuvre and it could not reasonably be anticipated by those on board GM that AC would yaw and sway substantially and not take steps to control such movement. The manoeuvre itself was reasonably conducted and it was AC’s intermittent movement into the middle of the narrow channel which caused or was the major cause of the collision. The notion that GM as the moving vessel should be solely to blame was in any event wrong and amounted to a resurrection of the “last opportunity rule”. AC’s case was that GM was solely to blame for the collision; very much as a fallback alternative, GM was preponderantly to blame. GM, underway, had struck a vessel at anchor. At anchor, AC, painted bright red, had been visible; her yawing was not unusual for a vessel at anchor in a river with a fast flowing current. Her anchorage was not unsafe. She was not dragging or any dragging was minimal and immaterial; she had taken reasonable measures to seek to control her yaw; an open moor had been tried; so too had use of the helm; the use of engines would likely have made matters worse. The fault here lay with the failure of those on board GM to make any appreciation prior to unberthing or to maintain a proper lookout before or after departure from the berth. There had been no adequate planning or discussion between the master and pilot. The use of her engines at full ahead for some 3 minutes (between 08.24 and 08.27) had resulted in GM proceeding further to the North than should have been the case and accelerating out of her turn; if GM had needed half or full ahead at all, only a kick with the engines was needed. Even after GM came onto a downriver heading, having made too wide a turn at an excessive speed, a collision could have been avoided if (now having her engines on full ahead) her engines had been kept at full ahead and she had gone to starboard; instead confusion prevailed on the bridge and a series of unjustifiable orders were given, resulting in GM failing to keep clear of AC. GM’s manoeuvring was such that any failure on the part of AC to control her yaw and sway was not causative of the collision; there would have been a collision in any event. While not disputing that AC’s log and record keeping had been lamentable, it would be wrong to hold AC causatively to...

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