FMG Hong Kong Shipping Ltd, The Demise Charterers of FMG Sydney v The Owners of the MSC Apollo

Hearing dates: 29 and 30 November and 01 December 2022

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Sir Nigel Teare SITTING AS A JUDGE OF THE HIGH COURT

This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Friday 17 February 2023 at 10:00am.

At about 2232:15 (local time) on 29 August 2020 “FMG SYDNEY” (“SYDNEY”) collided with “MSC APOLLO” (“APOLLO”) in the approaches to Tianjin, China, in a position about 38° 50.3N, 118° 16.4E. Tianjin is one of the leading ports in Northern China and is the nearest port to Beijing some 80 miles away. The collision occurred in conditions of good visibility, light winds from East South East and slight seas. Both vessels were in ballast. SYDNEY was outbound and APOLLO was inbound.

Both vessels suffered damage and exchanged security in the combined amount of US$13.5 million.

These proceedings were issued in November 2021. Electronic track data was exchanged in December 2021. Collision Statements of Case were exchanged in February 2022. Disclosure reports were exchanged in March 2022. The CMC took place in April 2022. At that CMC disclosure was ordered to be given, witness statements were ordered to be exchanged, and plots of the vessels' tracks, an accompanying schedule of navigational data, and a transcript of the vessels' audio records were ordered to be agreed. All of these steps were to be taken on dates between May and July 2022. In addition, “what if” plots, that is, alternative scenarios upon which the parties intended to rely at the trial showing what might have happened if either vessel had been navigated differently, were ordered to be exchanged by August 2022.

The trial took place on 29, 30 November and 1 December 2022. Unsurprisingly, given the agreed navigation of the vessels, the parties dispensed with the need for witnesses to give oral evidence. Their written statements were in evidence. The Assessors' advice was received on 7 January 2023 and counsel's written comments on that advice were completed on 7 February 2023.

The Vessels

SYDNEY is a very large ore carrier, having been built in China in 2017. She is 327m in length and 57m in beam, of 134,840 grt and 262,088.5 mt deadweight. She has five cargo holds which are served by nine hatches. Motive power is delivered by a MAN B&W 6G80ME-C9 diesel engine which drives a single, right hand, fixed pitch propeller. She had departed Tianjin at about 2000 on 29 August 2020 and was proceeding eastbound in ballast to Port Hedland, Western Australia. Her drafts were 11.62m (aft), 10.56m (m) and 9.68m (fwd).

At the material time her bridge team consisted of the master (Captain Sharma from India), the third officer as lookout and a duty able seaman as helmsman.

SYDNEY was operating two Furuno VR-7000 radar sets: X-Band located on the starboard side of the bridge console and S-Band on the port side. Navigation was conducted entirely on electronic charts with No.1 ECDIS on the port side next to the S-Band radar and No.2 ECDIS on the starboard side adjacent to the X-Band radar. The master was (mainly) on the starboard side of the console and the third officer was stationed on the port side.

APOLLO is a container ship, having been built in Japan in 2002. She is 299.90m in length and 40m in breadth, of 75,484 grt and 81,171 mt deadweight. The vessel is powered by a Diesel United Sulzer main engine which drives a single right-handed fixed-pitch propeller. She was proceeding in ballast to an anchorage area to the south of the Channel entrance in order to disembark service engineers after completion of sea trials following a dry docking. Her drafts were 9.45m (aft) and 4.75m (fwd).

At the time of the collision the master (Captain Eradio from the Philippines) was on the bridge together with the chief officer, third officer, lookout and helmsman. The master has explained that he wanted the chief officer on the bridge because he was entering “heavily congested waters”.

Her bridge is equipped with a wide range of modern navigation equipment, including two ARPA radar (X and S band), AIS, two segregated ECDIS systems, speed log, GPS, echo sounder and course recorder. She is also fitted with the standard rate of turn indicator, rudder angle indictor and propeller revolution indicator.

The tracks of the Vessels leading to collision

With the assistance of the VDRs on both vessels the parties were able to agree the tracks of the vessels leading to collision. I have appended to this judgment two plots showing those tracks. One is from C-18 and the other is from C-6.

The parties also agreed a schedule of navigational data upon which the plots were based. Included in this data are calculations of the vessels' Closest Point of Approach (“CPA”). In some cases these are a little different from the distances predicted by the vessels' radars. However, the technical experts who produced the agreed tracks and schedule are agreed that the CPA calculations produced by radar systems have a margin of error of the order of 0.3 nm. I shall note the agreed CPAs (and other distances) in this judgment but shall also note the radar distance because that was the distance available to the master navigating the vessel.

With the assistance of the agreed plots and schedule, the agreed audio transcript and the radar and ECDIS “screenshots” from SYDNEY together with radar screenshots from APOLLO I shall summarise the navigation of each vessel. Immense detail is available but a summary of the most relevant matters will suffice in circumstances where the detail is agreed as between the parties. However, whilst the navigation is agreed, the quality of the lookout on each vessel is in dispute and the conclusions to be drawn from the agreed navigation as to when the crossing rule applied are not agreed.

The navigation of SYDNEY

SYDNEY, having discharged her cargo, was leaving the port of Tianjin. She disembarked her pilot at 2112 and proceeded with her engines on slow ahead. Between 2214 and 2216 (C-18 to C-16) she was on a course of about 120 degrees. At about C-16 she advised Tianjin VTS that she was crossing the outbound reporting line (which was almost at the end of the buoyed channel from the port) and thereafter she commenced to alter course to port to make for the eastbound lane of the Caofeidian traffic separation scheme. The audio transcript records that the helmsman had been ordered to steer 105 degrees at about C-15. By 2218 (C-14) the engines of SYDNEY were increased to half ahead (40 rpm) and at 2219 (C-13) they were increased to full ahead manoeuvring (46 rpm). By this time SYDNEY's heading and course were 105° and 105°. The vessel's speed over the ground was 8.73 knots (but would increase since her engines had just been put to full ahead).

On the bridge of SYDNEY were her master, third officer and an able seaman who acted as helmsman. It was suggested just before the trial commenced that there ought also to have been a dedicated lookout. Because this suggestion was raised at a very late stage it was not appropriate to seek further information concerning the requirements set out in SYDNEY's Safety Management System. However, this did not prevent APOLLO from investigating the quality of the lookout on board SYDNEY and whether there had been a breach of Rule 5 of the Collision Regulations.

SYDNEY was one of several vessels leaving the port. In particular CHANG FA LONG was on her starboard quarter and HAI YANG SHI YOU 633 was on her port bow.

At 2220:30 (or about C-11.75) the helmsman was ordered to steer 106 degrees.

At 2220:45 (or C-11.5) APOLLO triggered the AIS alarm on SYDNEY's X band radar which had been set at 0.5 nm within 12 minutes. The agreed reconstruction shows that at this time APOLLO was bearing 17 degrees on the port bow of SYDNEY and was distant about 4.8 nautical miles. Both red and green sidelights of APOLLO could be seen from SYDNEY. The master endeavoured to see the lights of the vessel by binoculars but could not. He asked the third officer to monitor the vessel's movements. The third officer was able to see the red and green sidelights and masthead lights of APOLLO. The master and third officer concluded that APOLLO would pass astern of SYDNEY. It is agreed that the vessels were shaping to pass port to port with a closest point of approach (as calculated by the VDR experts) of 0.37 nm and that APOLLO would thereafter cross the stern of SYDNEY at a distance of over 2 miles.

The master stated in his witness statement that he was not concerned as the vessel was going to pass astern. Consistently with that evidence the audio transcript does not reveal any discussion on the bridge about this alarm.

At 2222.51 (or about C-9.5) the master asked for the speed of the vessel on his starboard quarter, CHANG FA LONG, and was told by the officer of the watch that it was 12.5 knots. At this time SYDNEY's speed was about 10.4 knots and just after C-9 the helmsman was ordered to steady on 106 degrees.

At about C-9 only the green light of APOLLO was...