Denver Maritime Ltd v Belpareil as

Hearing dates: 21–23, 28 November 2023

Approved Judgment

This is a reserved judgment to which CPR PD 40E has applied.

Copies of this version as handed down may be treated as authentic.

Introduction

The m.v. Belpareil and the m.v. Kiran Australia are identically proportioned, geared Supramax bulk carriers. At about 01:10 hrs on 9 November 2021, they collided in the Bay of Bengal, off Chattogram, Bangladesh. All times referred to in this judgment are local time in Bangladesh, which was UTC + 6 hrs; and in some places, in the conventional way, I give the number of minutes before the collision in the form ‘C-[no.]’. In the collision there was contact between Kiran Australia's rudder and propeller and Belpareil's port anchor cable, closely followed by hull to hull contact between Kiran Australia's starboard quarter and Belpareil's port bow.

Under the normal case management arrangements in the Admiralty Court, the Admiralty Registrar made an allocation decision and gave case management directions. Those directions assigned the case to the Admiralty Judge for a liability trial, sitting with two Elder Brethren of Trinity House as nautical assessors, and directed that any assessment of damages is to be referred to the Admiralty Registrar following determination of liability. I heard the liability trial over six days, including a reading day before the first sitting day and a reading day between evidence and closing argument.

The Elder Brethren sitting with me as nautical assessors were Commodore William Walworth and Captain Stephen Gobbi. I followed the usual proper procedure for obtaining their advice set out by Gross J (as he was then) in The Global Mariner and the Atlantic Crusader[2005] EWHC 380 (Admlty) at [12]–[17], especially [14]. Specifically:

(i) I ensured that counsel in closing made any submissions they wished to make as to the questions that might be put to the Elder Brethren, and I took those submissions into account when settling the questions I put, which I set out in a written brief submitted to the Elder Brethren on 29 November 2023;

(ii) the Elder Brethren provided their advice in response, in writing, on 15 December 2023, and my Clerk sent a copy to counsel on receipt so they could take instructions and provide observations on behalf of their respective clients, if so advised; and

(iii) taking account of counsel's resulting observations, submitted in writing on 18 January 2024, I sought clarification from the Elder Brethren on 19 January 2024 of three points in their advice.

Before I had received the Elder Brethren's clarifications, Kiran Australia sent to my Clerk, for my attention, a written submission in reply to Belpareil's observations. That was done without prior notice or accompanying request for permission to provide further argument. That should not have happened. If the view was taken that in fairness Kiran Australia ought to be allowed to provide a further written submission, that procedural point should have been raised with Belpareil first, and then with the court if agreement was not reached on it.

Belpareil objected to that reply. In response, it was intimated that the reply itself included an objection, namely that Belpareil's observations involved an attempt to recast the case it had pursued and presented at trial. I did not think it would be possible to judge that objection fairly without reading the reply, but I was anxious to avoid as far as possible a proliferation of additional post-trial submissions. I therefore adopted the following procedure:

(i) On receipt of the Elder Brethren's supplementary advice on 2 February 2024, in line with The Global Mariner at [14(v)], I considered whether to provide it to the parties before deciding the case and, therefore, before completing and circulating any draft judgment, doing so without reference to Kiran Australia's initial reply, which I did not read.

(ii) I concluded that it was desirable for the parties to have an opportunity to comment, in a final round of written submissions, and that in view of the indicated nature of Kiran Australia's initial reply, and the room there may have been for different interpretations of the elements of the Elder Brethren's main advice on which I had sought clarification, it would be appropriate to allow the parties an opportunity to reply to each other's observations.

(iii) For a sensibly managed final process, therefore, I directed that:

(a) Kiran Australia could provide, if so advised, a single, concise written submission, setting out any (i) observations on the Elder Brethren's supplementary advice, and (ii) comments in reply to Belpareil's observations on their main advice;

(b) Belpareil could provide, if so advised, a single, concise written submission, setting out any (i) observations on the Elder Brethren's supplementary advice or (ii) reply to any submission under (a) above;

(c) Kiran Australia could provide, if so advised, a very brief, final written reply to any submission under (b) above, to complete the argument in the case; and

(d) in the circumstances, I would not read (and so indeed I never read) Kiran Australia's initial reply, since any parts of it that remained pertinent could be included in a submission provided under (a) above.

Pursuant to those directions, I received: (a) on 5 February 2024, a written submission on behalf of Kiran Australia; (b) on 9 February 2024, a written submission on behalf of Belpareil; and (c) on 13 February 2024, a final reply on behalf of Kiran Australia. Neither party applied for the trial to be re-listed for additional oral argument.

I record my gratitude to counsel, and their instructing solicitors, for all their assistance, and to the Elder Brethren for their advice, which I have found most helpful even where, as appears below, I have not accepted it.

The liability determination in a simple two-ship collision involves finding whether neither ship was at fault, one ship but not the other was at fault, or both ships were at fault, and in that last case, apportioning responsibility under s.187 of the Merchant Shipping Act 1995. An apportionment under s.187 involves assessing the degree of blameworthiness and the causative potency of each ship's faults and reflecting the resulting overall respective responsibilities in numerical terms. I summarised the principles recently, very briefly, in NYK Orpheus c/w Panamax Alexander[2022] EWHC 2828 (Admlty) at [26]–[27]; Sir Nigel Teare did so at greater length in Alexandra 1 and Ever Smart (No.2)[2022] EWHC 206 (Admlty) at [132]–[140].

In this case, Kiran Australia alleged that Belpareil should be held solely responsible for the collision, and in the alternative that if there was fault on both sides Belpareil should bear far greater responsibility than Kiran Australia. Symmetrically, Belpareil alleged that Kiran Australia should be held solely responsible for the collision, and in the alternative that if there was fault on both sides Kiran Australia should bear far greater responsibility than Belpareil.

For the reasons set out below, my conclusion is that the collision resulted from faults on both sides, but Belpareil bears substantially greater responsibility such that liability should be apportioned 70:30 in favour of Kiran Australia.

Agreed Facts

The parties agreed a factual narrative for the trial, as is encouraged by Section J6.5 of the Commercial Court Guide (11 ^th Edition). I am grateful for the parties' work in achieving it; it is a good example of its kind, and I now set it out in full as the agreed factual basis upon which the trial was conducted. At two points, I have added some additional detail that was also common ground at trial, and in paragraph below I have made some minor corrections agreed after trial, all indicated by underlining.

The ships involved, as I have said already, are both geared Supramax bulk carriers. They are both 199.90 metres in length overall and they have the same main engine, a MAN B&W 5S60ME-C8.2 marine diesel engine developing a maximum power of 8,050 kW at 89 rpm.Kiran Australia is a centimetre wider than Belpareil, at 32.27m in breadth overall.Kiran Australia's gross tonnage is 35,353; Belpareil's is 36,321.Both ships have X-band and S-band ARPA-equipped radar systems, and two anchors with 12 shackles of chain on each.

On 1 November 2021, Kiran Australia arrived at Chattogram Anchorage “A”. Once Kiran Australia had anchored, lightering operations began into two barges moored to her, one on each side.

Belpareil arrived at Chattogram Anchorage “A” on 7 November 2021 and anchored about 0.5 nm distant from Kiran Australia. At this time, Kiran Australia was still carrying out discharging operations into barges of her cargo of slag.Belpareil was also laden with cargo and started discharge on the day of her arrival.

On the evening of 8 November 2021, both ships were still anchored in Chattogram Anchorage “A”.Kiran Australia had her starboard anchor down with 8 shackles in the water and Belpareil had her port anchor down with 9 shackles in the water. At the material time, the wind was blowing northerly at about Beaufort force 3 to 4 with clear visibility of more than 5 nm. Low water was at...