'Nordlake' (The Owners and/or Demise Charterers of the Vessel) v 'Seaeagle' Now Named MV Elbella (The Owners of the Vessel), Court of Appeal - Admiralty Division, December 18, 2015, [2015] EWHC 3605 (Admlty)

Resolution Date:December 18, 2015
Issuing Organization:Admiralty Division
Actores:'Nordlake' (The Owners and/or Demise Charterers of the Vessel) v 'Seaeagle' Now Named MV Elbella (The Owners of the Vessel)
 
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Case No: 2013 Folios 121 and 134

Neutral Citation Number: [2015] EWHC 3605 (Admlty)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMIRALTY COURT

Royal Courts of Justice

Rolls Building, 7 Rolls Buildings

Fetter Lane, London EC4A 1NL

Date: 18/12/2015

Before :

MR. JUSTICE TEARE

(sitting with Commodore David Squire and Captain Stephen Gobbi as Nautical Assessors)

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Between :

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Elizabeth Blackburn QC and Henry Ellis (instructed by Ince & Co) for the Claimants

Lionel Persey QC and Andrew Carruth (instructed by Holman Fenwick Willan LLP) for the Defendants

Hearing dates: 12, 13 & 14 October 2015

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JudgmentMr. Justice Teare :

  1. On 30 January 2011 the container vessel NORDLAKE narrowly avoided a collision with the container vessel SEAEAGLE in the entrance to the port of Mumbai but very shortly thereafter collided with the Indian warship VINDHYAGIRI. No casualties were reported but at some stage after the collision a fire broke out on VINDHYAGIRI and the next day she sank at her berth in the naval dockyard. Some five months later she was salved.

  2. On 23 February 2011 a claim was brought in the Indian Courts by the Union of India, the Owners of VINDHYAGIRI, against the Owners of NORDLAKE. In that suit the claim of NORDLAKE against VINDHYAGIRI will also be decided.

  3. On 25 January 2013 the Owners of NORDLAKE brought a claim against the Owners of SEAEAGLE in this court. It is the case of the Owners of NORDLAKE that the collision was caused by the negligence of those on board SEAEAGLE and by the negligence of three Indian warships, VINDHYAGIRI, GODAVARI and a vessel described by the Claimants as the ``Lead Warship''. On 29 January 2013 the Owners of SEAEAGLE brought a claim against the Owners of NORDLAKE. It is the case of the Owners of SEAEAGLE that the collision was caused by the negligence of those on board NORDLAKE and by the negligence of those on board the same three Indian warships.

  4. This court is required to decide whether any of the allegations of navigational fault made by the Owners of NORDLAKE and SEAEAGLE have been substantiated and, if there was fault by two or more vessels, apportion liability in proportion to the degree in which each vessel was at fault; see section 187 of the Merchant Shipping Act 1995. The Union of India is not party to the proceedings in this court and so the court has received no evidence from those on board the three Indian warships. Any findings of fault and any apportionment of liability will be based on the evidence adduced by the Owners of NORDLAKE and SEAEAGLE and will not be binding on the Union of India. In the Bovenkerk [1973] 1 Lloyd's Rep. 63 leading counsel agreed (see p.70 rhc) that if three vessels were at fault and only two were party to the action liability had to be apportioned between the three vessels pursuant to section 1 of the Maritime Conventions Act 1911, the predecessor of section 187 of the Merchant Shipping Act 1995. The trial judge, Brandon J. (as he then was), held that the non-party vessel was not at fault and said (at p.71 rhc) that if it had been necessary for him to decide the point he would have wished to have heard further argument as to whether liability had to be apportioned between all three vessels even though one was not before the court. In his extra-judicial article Apportionment of Liability in British Courts under the Maritime Conventions Act 1911 (1977) 51 Tulane Law Review 1025 at pp.1035-1036 Sir Henry Brandon described the question as an ``open question of some difficulty''. In the present case leading counsel are also agreed that if a collision is caused by two or more vessels the court is required by section 187 to apportion liability in proportion to the degree in which each vessel was in fault. I shall first consider the question of fault and, if necessary, consider the question left open by Brandon J. in the Bovenkerk.

  5. There is also a counterclaim by the Owners of NORDLAKE to limit its liability (if any) to the Owners of SEAEAGLE pursuant to the Merchant Shipping Act 1995. That right has not been admitted by the Owners of SEAEAGLE but no positive case that the Owners of NORDLAKE are not entitled to limit their liability has been pleaded. Since the burden is on the person challenging a right to limit to allege and prove conduct barring the right to limit it must follow that the Owners of NORDLAKE are entitled to a declaration that they can limit their liability pursuant to the Merchant Shipping Act 1995. It is common ground that the amount of that limit is 6,680,800 Special Drawing Rights pursuant to the 1976 Limitation Convention and the 1996 Protocol.

  6. The place and time of collision are common ground. The collision occurred at 1636:49 local time in position Lat.18.53.75' N Long 72.51.43' E. It is also common ground that the weather was fine and clear and that the tide was flooding at a rate of about half a knot. The collision occurred in a dredged channel marked on Admiralty Chart No. 2624 and used by outward and inward bound vessels to enter and leave Mumbai. NORDLAKE was outward bound and SEAEAGLE was inward bound. Other merchant vessels were at anchor to either side of the dredged channel. The Indian warships were also inward bound and were making for the naval tidal basin to the west of the dredged channel. It appears that they had been part of a large fleet of naval vessels which had been out at sea on a ``family day'', when families of officers and ratings were on board the naval vessels. It is unclear how many naval vessels were involved in this activity and returning to port. There was reference in the evidence to 11, 14 and even 27 naval vessels being inbound at some stage during the day. NORDLAKE passed an anchored aircraft carrier, an anchored naval tanker and four inward bound warships (the fourth being GODAVARI) before colliding with VINDHYAGIRI. On her inward passage SEAEAGLE overtook a submarine and VINDHYAGIRI before narrowly avoiding a collision with NORDLAKE.

  7. It is to the credit of the parties to this action that, with the assistance of experts and NORDLAKE's voyage data recorder, ECDIS data from SEAEAGLE, a video film of the electronic radar record of the events kept by the Mumbai Port Vessel Traffic Management System and the engine movement records from SEAEAGLE, they have been able to agree the navigation of both NORDLAKE and SEAEAGLE and, to a lesser extent, the navigation of both VINDHYAGIRI and GODAVARI. They have also been able to agree a transcript of the Mumbai VTS voice recording and NORDLAKE's VDR voice recording. The facts are therefore agreed and have been displayed on a video from which snapshots have been taken so that the position of the vessels in relation to each other at intervals before the collision can be studied.

  8. The master of NORDLAKE was not available to give oral evidence because he was no longer employed by the Owners of NORDLAKE and they were rather late in advising him of the trial date. The master of SEAEAGLE did give oral evidence. In circumstances where the facts of each vessel's navigation were agreed there was little which oral evidence could add. However, the cross-examination of the evidence of the master of SEAEAGLE gave him the opportunity to answer the criticisms made of his navigation. Whilst he accepted much of the factual matters put to him I considered that he might not always have fully understood the question put to him and therefore care was required in assessing his evidence. Although he appeared to me to be a witness who sought to give his honest recollection and genuine opinion as to the navigation of both SEAEAGLE and NORDLAKE, his answers were sometimes difficult to follow even with the assistance of an interpreter.

    The navigation of NORDLAKE

  9. NORDLAKE, a conventional container vessel built in 1994, 179m. in length and 25.3m. in beam, 16,202 tons gross and powered by a Sulzer diesel engine of 13,300 kW, was laden with 775 containers and had just commenced a voyage from the container terminal in Mumbai to ports in the UAE. She was drawing 9.4m. forward and 9.9m. aft. Her bridge and engine room were situated aft, the bridge being some 160m. from the bow. Three cranes serving the four holds were on the centreline. At full ahead her speed was 14 knots, at half ahead 8.1 knots, at slow ahead 6.1 knots and at dead slow ahead 5.9 knots. On the bridge the helm and radars were situated on the starboard side of the wheelhouse because the view from the centreline was obscured by the cranes.

  10. NORDLAKE was outbound from Mumbai. On the bridge were the master, chief officer, helmsman and pilot. The pilot was using the outboard radar (set to one and half mile range) and the master was using the inboard radar (set to 3 mile range) though he was generally on the port side of the wheelhouse. The chief officer was operating the telegraph and noting events in the bell book. He has said in his statement that he was also monitoring the inboard radar keeping an anti-collision watch using the ARPA facility. The VHF sets were switched to channel 13 for JNPT Port Control, channel 12 for Mumbai VTMS and a listening watch was also kept on channel 16.

  11. At 1612:49 or C-24 NORDLAKE was in the main channel with her engines at half ahead and turning to port so as to proceed down the stretch of channel north east of the North Karanja Buoy which requires a heading of 236 degrees. At 1614:49 or C-22 her engines were increased to full ahead and by 1615:49 or C-21 her heading was 236 degrees. At this time her speed over the ground was 9.6 knots and increasing. By 1619:49 or C-17 her speed over the ground was 12 knots. She was a little to port of the centre line of the dredged channel.

  12. Just before C-17 (when, according to the chief officer the warship convoy was seen) her pilot called a warship by VHF and...

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