Bow Spring (Owners) v Manzanillo II (Owners)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2004] EWCA Civ 1007 |
| Docket Number | Case No: A3/2003/2021 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2005 |
[2004] EWCA Civ 1007
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMIRALTY COURT
ADMIRALTY action in rem against:
The Ship "MANZANILLO II"
(The Hon Mr Justice David Steel)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Phillips of Worth Matravers
Lord Justice Clarke and
Lord Justice Sedley
Assisted By Captain Rodney Chew
Case No: A3/2003/2021
Mr Simon Kverndal QC (instructed by Jackson Parton) for the Claimants/Respondents
Mr Nigel Meeson QC (instructed by Hill Taylor Dickinson) for the Defendants/Appellants
Introduction
This is the judgment of the court, to which all members of the court have contributed, in an appeal from a decision of David Steel J made on 22 July 2003 in which he held that the dredger MANZANILLO II was 50 per cent to blame for the grounding of the chemical tanker BOW SPRING which occurred just outside the eastern edge of the Northern By-pass Channel of the Suez Canal at about 1800 hours on 8 July 1999. The BOW SPRING's case was that she deliberately beached herself just outside the channel in order to avoid a risk of collision with the MANZANILLO II, which appeared to be shaping to enter the channel. The judge accepted the respondents' case to that effect but held that the BOW SPRING was also 50 per cent to blame and accordingly held that the respondents were entitled to recover half the loss and damage sustained as a result of the grounding from the appellants. Although the BOW SPRING was able to refloat herself relatively easily, she lost half her rudder which in turn caused damage to her propeller.
The appeal is brought with the permission of the judge. The appellants' case is that the judge was wrong to hold that the MANZANILLO II was at fault and that he should have held that the BOW SPRING was entirely to blame for the grounding and its consequences. The principal issue in this appeal is therefore whether the judge was correct to hold that the MANZANILLO II was partly to blame for the grounding of the BOW SPRING. It was, however, further submitted on behalf of the appellants that, if the MANZANILLO II was partly at fault, the judge was wrong to apportion fault equally between the vessels but should have held that the BOW SPRING was substantially more to blame than the MANZANILLO II.
The ships and their cases
We take these details almost entirely from the judge's judgment. The BOW SPRING is a chemical tanker of 17,651 tons gross register, 170.53 metres in length and 25.33 metres in beam. She is powered by a diesel engine of about 17,000 HP. At the material time she was fully laden with flammable and explosive cargoes and was drawing 11.05 metres forward and 11.2 metres aft. The MANZANILLO II is a trailer suction hopper dredger of 115 metres in length and 19 metres in beam. She is powered by two engines totalling 4,710 kilowatts attached to controllable pitch propellers and is also fitted with bow thrusters. She is accordingly very manoeuvrable. At the material time her draught was about 3.2 metres forward and aft.
The weather was fine with good visibility and it was daylight. There was no material current. The BOW SPRING was proceeding northbound from Port Said along the dredged by-pass channel, which was dredged to a depth of 21.8 metres. As her master was fully aware, the depths outside the channel were of the order of 6 to 8 metres and were thus such that if she left the channel she would run aground. The MANZANILLO II had been dredging to the east of the channel and had proceeded some distance to the north- east to discharge her spoil. She thereafter returned towards the channel on a broadly south-westerly course. It is her actions after that, together with the BOW SPRING's reactions to them which led to the issues both at the trial and on this appeal.
The judge summarised the parties' respective cases in this way. The respondents' case was as follows. The bearing of the MANZANILLO II remained constant on the starboard bow of the BOW SPRING. Her course suggested that she was shaping to cross the by-pass channel. The MANZANILLO II was not identified as a dredger. No shapes could be seen indicating that she was engaged in dredging until she turned to port shortly before the BOW SPRING grounded. There was no response to VHF signals and sound signals had no effect. In order to avoid collision the BOW SPRING altered hard to starboard and her engines were put full astern. She then grounded.
The judge summarised the appellants' case as follows. The MANZANILLO II had been dredging and was turning slowly to port to continue dredging on a north-easterly course. She was displaying regulation shapes applicable to a vessel restricted in her ability to manoeuvre. The BOW SPRING was then seen turning to starboard in the channel and so a VHF call was made to ask her intentions. There was no reply. The BOW SPRING was then seen to leave the by-pass channel shaping to continue north- east towards MANZANILLO II's dredging area. Contact was made by VHF and it was agreed that the BOW SPRING would turn astern of the MANZANILLO II and re-enter the channel.
The dredging operations
The MANZANILLO II was engaged in dredging operations connected with the construction of a proposed new access channel to a new port comprising a new container terminal for Port Said to the east of the Suez Canal channel. The new channel ran from the existing junction of the main Suez Canal channel and the by-pass channel slowly diverging east to the new terminal area. The MANZANILLO II was engaged by the dredging contractors, who had on 14 April issued a request to the relevant Egyptian Ministry for an appropriate Notice to Mariners. The request enclosed a list of co-ordinates within which the dredging operations would take place, together with a chart extract showing the relevant area. This encompassed the entire area to the east of the new channel including the dumping or disposal site some five or six kilometres away. However, the chart extract also marked the boundaries of the new channel itself.
In the event, the relevant navigation warning issued on 20 April, which was thereafter duly promulgated by Navtex as set out below, merely gave notice of the overall area bounded by the co-ordinates and provided no information about the position of the new channel.
The judge quoted the following extracts from a statement of Mr Pierre Tison, who was the project manager for the dredging contract:
"6. It was also agreed with the Suez Canal Authority that their pilots would inform ships northbound in the by-pass channel of the dredging activities and confirm to the masters that the dredgers would not enter the by-pass channel…. Northbound ships were of particular concern since they would have dredgers on their starboard side.
7. This was monitored by the dredgers who called northbound ships by VHF radio from time to time and it was confirmed that the pilots were giving this information…."
There had been a pilot on board the BOW SPRING who had disembarked before any of the events relevant for our purposes occurred. As the judge observed, the master of the BOW SPRING said in his oral evidence, which was unchallenged in this respect, that he was given no information by the pilot about the dredging activities and no assurances as to the existence of dredgers or how they would or might be navigated. The judge further held that the master appeared to have been ignorant even of the content of the Navtex, which was in these terms:
"Arab Republic of Egypt
Navigational Warning No 66/1999
To all Ships
Medit Sea Port Said BA chart No 234
Breakwater, slope protection, dredging the access Channel and the basin of Port Said east port will be established in the area bounded by the following positions…. All ships are to take note of the above data until further notice."
Thus, although the master of the BOW SPRING had little information because he was told nothing by the pilot and had not seen the Navtex, if he had seen the Navtex, he would have known only of the overall area bounded by the co-ordinates and would have known nothing about the position of the new channel.
The MANZANILLO II dredging system
The MANZANILLO II was equipped with a survey system which was fed from two differential GPS satellite navigators. It exhibited data on a screen, which showed the position of the vessel to a high degree of accuracy against a background of a detailed chart including the new channel that was being dredged marked by gridlines. As the judge put it, a striking feature of the system was that it enabled a record to be maintained of the area dredged. The practice was to preserve a "photographic record" of the position of the vessel at the end of a dredging run and at the end of a discharge run. Thus the position of the MANZANILLO II before returning for the run during which the BOW SPRING ran aground and her position at the end of that same run were firmly established.
If the system had been operated properly, the entirety of the dredging run would have been recorded on the system. Unfortunately the operator failed to operate the system correctly on the day in question (not for the first time). The result was that the track of the MANZANILLO II before the end of her next dredging run was not recorded except for a short tail showing the last few minutes.
The witnesses
The judge heard the oral evidence of two witnesses, namely the master of the BOW SPRING, Captain...
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