British Aviator The
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE WILLMER,LORD JUSTICE WINN |
| Judgment Date | 03 March 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0303-1 |
| Docket Number | Folio 226 1961 C. No. 3916 |
| Court | Court of Appeal |
| Date | 03 March 1965 |
[1965] EWCA Civ J0303-1
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Cairns)
Lord Justice Sellers
Lord Justice Willmer and
Lord Justice Winn
Mr. H. V. BRANDON, Q. C. and Mr. R. F. STONE (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Appellants (Defendants).
Mr. WALDO FORGES, Q. C. and Mr. MICHAEL THOMAS (instructed by Messrs. Ince., Roscoe, Wilson & Griggs) appeared on behalf of the Respondents (Plaintiffs).
I will ask Lord Justice Willmer to deliver the first judgment.
This appeal arises out of a disastrous collision, between two large, well-found ships, which occurred in dense fog in the English Channel. Owing to the speed at which both ships were travelling very great damage was caused, I think particularly to the "Crystal Jewel". There was some loss of life, and personal injury. It was a collision which never ought to have happened at all; and one can confidently say that it would not have happened if the ships had not been equipped with radar; for on the courses which were originally steered it is demonstrable that the vessels would have passed each other well clear in perfect safety. The collision was in the main caused by faulty manoeuvres undertaken by both vessels on the strength of defective radar observations — manoeuvres which, as I have said, would never have been undertaken at all if the vessels had not been equipped with radar.
I make these preliminary observations in the hope that any publicity which this case may attract will be the means of drawing attention to what I think must be regarded as a very real and urgent problem. This is by no means the first time that this court, and the Admiralty Court, have had to deal with disastrous collisions which would not have happened but for the misuse of radar. These cases show that, where radar is misused, instead of being a valuable aid to navigation, as it should be, it becomes a positive source of danger. Perhaps I may be permitted to express the hope that the lessons of this case, and of the earlier cases, will not be lost on those concerned with shipping, and in that phrase I include both the shipowning community and the organisations representing masters and navigating officers.
Let me come now to the facts of the case. I would say at once that there has never been any real dispute as to the fact that both these vessels were seriously to blame. Mr. JusticeCairns, who dealt with the case in the court below, in fact apportioned the blame as to two-fifths to the "Crystal Jewel" and as to three-fifths to the "British Aviator". The owners of the "British Aviator" now appeal to this court. They do not ask for anything more favourable to themselves than a finding of both being equally to blame, Even this seemingly trivial alteration in proportions, however, is said to make a difference of something like £60,000, so great was the damage caused by the collision.
The learned judge in his judgment has already set out in detail the particulars of the two vessels concerned, and I need not repeat them. The collision occurred about 08.51 (British Summer Time) on the 23rd September, 1961, in a position about 6 or 7 miles to the southward and eastward of the Royal Sovereign Light Vessel. The exact position is of no materiality. As I have already indicated, the weather at the time was dense fog, visibility being of the order of 300 to 400 feet. There was no material wind. The tide, it was agreed, was flood, setting up the Channel to the eastward at the rate of about knots. The "Crystal Jewel" is said to have been originally on a course of 060 true, and the "British Aviator" on a course of 229 true: that is to say, the ships were within 11 of opposite courses. They came into collision approximately at right-angles, the stem of the "British Aviator" striking the port side of the "Crystal Jewel" in the way of the bridge.
On the learned judge's findings it appears that at the time of the collision the "Crystal Jewel" must have been heading somewhere about east, and the "British Aviator" somewhere about south, or perhaps a little west of south. This means that prior to the collision the "Crystal Jewel" had altered her heading about 3 points to starboard, and the "British Aviator" had altered her heading about 4 points to port. Both vessels were at all material times sounding their whistle long blasts for fog, at proper intervals; and as they drew closer to each other each vessel heard the signals of the other. Both vessels were atall material times proceeding with their engines working at half speed ahead, which meant for the "Crystal Jewel" a speed of about 7 to 8 knots and for the "British Aviator" a speed of about knots. At the very last moment both vessels attempted to get their engines working full speed astern, but, on the learned judge's findings, it seems doubtful whether these orders ever became effective with either vessel so as to make any material difference to their respective speeds.
Each of the two vessels was using her radar, and in each case the echo of the other vessel was observed more or less at extreme range — that is to say about 10 miles. At the speed at which they were travelling, 10 miles would represent in time something rather more than half an hour, during which period the vessels had notice of each other's presence. The case for the "British Aviator" was that the echo of the "Crystal Jewel" was first picked up about 9 on the starboard bow; no alteration of course was made and, according to the "British Aviator's" evidence, the bearing of the "Crystal Jewel" gradually broadened on the starboard bow, showing that the vessels were shaping to pass all clear starboard-to-starboard. It is said that eventually the bearing got as broad as 45 on the bow, at a time when the vessels had got within about three-quarters of a mile of each other. By this time the "British Aviator" was already hearing the whistle signals of the "Crystal Jewel", and these appeared to be very broad on the starboard bow and getting menacingly nearer. In that situation the wheel of the "British Aviator" was put hard aport and was kept so until the collision. The deck log of the "British Aviator" appears to show that the "hard aport" order was given about three minutes before the collision. The learned judge however, took the view (which I am quite prepared to accept) that the period of port wheel action was probably more like two minutes and that, as it seems to me, would be about the period required to turn the vessel on to a heading of approximately south. I make that observation in the light of evidence given as to a subsequent turning experiment carried out by the "British Aviator".
The case for the "Crystal Jewel" was that the echo of the "British Aviator" was first picked up about 10 on the port bow according to the master; or 20 on the port bow according to the third officer. No action was taken at once, but after some minutes, when the vessels had approached to within about 7 miles of each other, it appeared that the bearing was remaining about the same, and accordingly the course of the "Crystal Jewel" was altered to starboard on to 065. As the result of that manoeuvre the bearing of the echo of the "British Aviator" of course broadened; but thereafter it started to close again, until it got back to the original bearing. By this time the vessels were within about 5 or 5 miles of each other, and a further alteration of to starboard was made, bringing the vessel on to a heading of 070. This action had the immediate effect of broadening the bearing of the echo of the other vessel; but once again, after the initial broadening, it began to close until again it came back to something like the original bearing. By this time the vessels had got within 3 or 3 miles of each other. Another alteration of course of 5 was made, bringing the "Crystal Jewel" on to a heading of 075. The same result followed: the bearing first broadened and then started to narrow again. After that the course was again altered — it is not very clear whether in one bite or two bites — until the vessel was on a heading of 085. That made a total alteration of course of 25 from the original 060.
Somewhere about this time, and for a reason which never appears to have been explained, the echo of the "British Aviator' faded from the "Crystal Jewel's" radar screen and never appeared again. The learned judge was inclined to the view that that was due to some mechanical defect, and not merely to the "British Aviator" getting into the "Crystal Jewel's" "blind spot". The case for the "Crystal Jewel", however, is that up to the moment when the echo was last seen on the screen it was still on about the same bearing. It might be thought that, when the echo faded from the radar screen at a time when the vessels were alreadydrawing within measurable distance of each other, this imposed an imperative duty on the "Crystal Jewel" to take off her way. But she took no steps to that end; nor did she when she actually began hearing the whistle signals from the "British Aviator", which appeared to be approaching on her port bow. It is her case that eventually the whistle of the "British Aviator" was heard very close and very broad, apparently nearly on the port beam. In that situation the wheel of the "Crystal Jewel" was put hard astarboard; but immediately afterwards the "British Aviator" came into view out of the fog and, having regard to the length of visibility, I think it must be obvious that the collision must have followed within a matter of seconds. The master of the "Crystal Jewel" thought that his hard astarboard wheel could not have altered his...
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