MV Pacific Pearl Company Ltd v NYK Orpheus Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 11 November 2022 |
| Neutral Citation | [2022] EWHC 2828 (Admlty) |
| Docket Number | Case Nos: AD-2020-000072, 000081 & 000082 |
| Court | King's Bench Division (Admiral) |
[2022] EWHC 2828 (Admlty)
Mr Justice Andrew Baker
sitting with Captain Roger Barker and Captain Aseem Hashmi, an Elder Brother and Elder Brother (designate) of Trinity House, as nautical assessors
Case Nos: AD-2020-000072, 000081 & 000082
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Timothy Hill KC and Richard Greenberg (instructed by Ince Gordon Dadds LLP) for the m.v. Panamax Alexander
James M Turner KC (instructed by BDM Law LLP) for the m.v. NYK Falcon
Benjamin Parker (instructed by Penningtons Manches Cooper LLP) for the m.v. NYK Orpheus
Hearing dates: 20, 21, 22, 23, 27, 28, 29, 30 June 2022
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
On the morning of 16 July 2018, the m.v. NYK Orpheus (“ Orpheus”) ran into the m.v. Panamax Alexander (“ Alexander”) in the Suez Canal. All times I give in this judgment are local time in the Canal (UTC + 2 hrs).
Orpheus was part of a northbound Suez Canal convoy, following the m.v. NYK Falcon (“ Falcon”). Orpheus and Falcon are both very large container ships, Falcon the larger of the two. Falcon in turn was following an Egyptian military ship, the ENS Sagam Shalateen (“ Shalateen”), which was following the m.v. Al Manamah (“ Al M”) at the head of the convoy. Al M is also a large container ship, although not as large as Orpheus.
Shalateen was very small in comparison to all the cargo ships I mention in this judgment. She was not transmitting an AIS signal, so her precise movements could not be plotted and she does not appear in the agreed plots that were used at trial. It was common ground that she was at all material times in the convoy, between Al M and Falcon. The VDR transcripts that were used at trial make some reference to her, giving a little more idea of where exactly she was or what she was doing within the convoy at certain times.
Alexander was a damaged ship following a collision the previous day: see Sakizaya Kalon, Owners of the Vessel v Panamax Alexander, Owners of the Vessel [2020] EWHC 2604 (Admlty). She was moored starboard side to, with six ship's lines made fast on bollards positioned at intervals on the west bank of the Suez Canal, a little to the south of the 151 km post, in the southern section of the Canal.
That is a particularly narrow part of the Suez Canal, it may be the narrowest. It is where the m.v. Ever Given ran aground on 23 March 2021, generating headline news. The main navigation channel there, with a maintained depth of 25 m and an actual depth on 16 July 2018 of 26.1 m, is only the central 121 m of the Canal. Either side of that flat bottom, the Canal floor slopes up on a 1 in 3 gradient so that the width of the Canal at the 9 m depth contour (10.1 m of water on 16 July 2018) is 217 m.
The plan for Alexander was to remove her under tow to the Bitter Lakes to the north. Sakizaya Kalon had been cleared away and Alexander was waiting her turn to follow.
The northbound convoy proceeded into and up the Canal while Alexander was still there, requiring it either to pass her, stationed as she was just south of the 151 km post, or to come to a halt in the Canal to wait for her to be towed away. Al M passed Alexander without incident between 08:13 hrs and 08:18 hrs, taking ‘passing’ to mean from bows alongside to sterns alongside (on a perpendicular across the Canal). Shalateen followed without incident some minutes later, but it is not possible to be more precise than that in the absence of AIS data for her.
Falcon passed Alexander between 08:40 hrs and 08:44 hrs. As Falcon's stern cleared Alexander's, the bow of Orpheus was c.0.7 nautical miles off the bow of Alexander. Orpheus was making 6.6 knots over the ground, steaming Half Ahead at a little over 9 knots through the water against a northerly current of c.2.5 knots.
After Falcon had passed, Alexander's two stern lines parted and she swung out from her moored position by the stern. She was attended by two tugs, Salam 6 and Salam 9, but they did not arrest the swing. By 08:51 hrs Alexander was diagonally full across the main navigable channel of the Canal, her stern continuing to swing towards the oncoming Orpheus. At c.08:52 hrs the bulbous bow of Orpheus ran into the port side of Alexander, puncturing her No.5 cargo hold and No.4 double bottom water ballast tank.
The collision position is shown in this agreed plot for 08:52:30 hrs:
Orpheus is aligned with the Canal, her starboard side on the edge of the main dredged channel; Alexander is diagonally across that channel. The stern of Falcon is just visible at the top of the plot, a little north of the 150 km post, and the bow of the m.v. Maersk Sarnia, the next ship in the convoy behind Orpheus, is just visible at the bottom, a little south of the 153 km post. Maersk Sarnia, another container ship, was very similar in size to Orpheus.
In the immediate run-up to the collision, Orpheus had put her main engine to Dead Slow Ahead at 08:50:03 hrs, to Stop at 08:50:25 hrs, then to Slow Astern, Full Astern and Crash Astern at 08:50:33, 08:50:45 and 08:50:50 hrs respectively. The impact and the Crash Astern engine combined to bring Orpheus to a halt and then to pull her bow back out of Alexander promptly after the collision.
This judgment follows a trial of liability and one additional issue in three Admiralty claims, Alexander v Falcon (Claim 000082), Alexander v Orpheus (Claim 000081) and Orpheus v Alexander (Claim 000072). In the proceedings as consolidated, Alexander has been treated as claimant, Falcon and Orpheus as defendants. The court is required to determine whether any, and if so which, of the three ships was at fault for the collision on 16 July 2018, and if relevant apportion blame, save that the court has not been asked by Falcon or Orpheus to deal with contribution inter se, whether in respect of the damage to Alexander or their respective liability (if any) in relation to that damage, or in respect of the damage to Orpheus.
The substance of the rival contentions as to causative fault is as follows:
(i) Alexander, it is said, was inadequately moored with only six lines when she could and should have used ten, failed to make prompt or effective use of the tugs, and gave no or insufficient warning to Orpheus that she was losing her mooring.
(ii) Falcon and Orpheus, it is said, should each not have attempted to pass Alexander, but should either have declined to enter the Canal or halted their passage up the Canal until Alexander had been cleared out of the way.
(iii) Falcon, it is said, passed at an unsafe speed, and turned back towards the centre of the channel and increased main engine speed too soon, before she had completed the pass.
(iv) Orpheus, it is said, proceeded towards Alexander at an unsafe speed and too close to Falcon, failed to react promptly to Alexander's swing towards Orpheus's path, and failed at the last to run herself aground rather than hit Alexander.
The additional issue concerns quantum in relation to the damage to Alexander. It was actively contested between Orpheus and Alexander, Falcon being aligned with Orpheus on the point but leaving it to Orpheus to make the running rather than duplicate costs. The additional issue was ordered to be tried together with the question of liability because it was thought that the liability issues would involve expert marine engineering evidence, so it would be convenient to have those experts deal with the additional issue at the same time, and because if Orpheus were correct on the additional issue, a substantial proportion of the losses claimed by Alexander would be knocked out of account come what may.
After the collision with Orpheus, there could not be any question of Alexander completing her laden voyage to Iran. Given the damage caused on 16 July 2018, her cargo needed to be, and was, transhipped, so she could proceed to dry dock for repairs (in the event, a dry dock at Duqm, Oman). Alexander claims that but for the collision on 16 July 2018, she would have completed the voyage to Iran, either following repairs afloat in the Suez Canal area or under tow. Orpheus disputes that claim and the additional issue giving rise to the potential ‘knock-out blow’ was whether repair sufficient for Alexander to be physically capable of completing her laden voyage, or the completion of that voyage under tow, was possible.
Whether such repair or such a tow, if possible, would have been undertaken is a separate matter that was not for trial at this stage. If it arises, because Alexander is correct as to what was possible, that question of what would in fact have been done will have to be judged bearing in mind all the material circumstances, including commercial considerations, the availability of appropriate repair or towage contractors, and whether necessary approvals would have been given (in relation to which, I envisage it might be necessary to consider whether there would have been a need for approval from, and if so whether approval would have been given by, the Suez Canal Authority (‘SCA’) and Alexander's Classification Society, Flag State Authority, hull insurers and/or P&I Club, it may be among others).
In the event, the marine engineering evidence was almost wholly devoted to the additional issue and when that evidence was explored there was little of substance left in dispute on that issue, properly understood. That may mean that taking the additional issue at this stage has not advanced matters as much as it had...
To continue reading
Request your trial
-
At Last: A Follow-Up To The Preliminary Act
...was on the bridge for the half hour leading to the collision? This may reflect the recent judgment in Pacific Pearl v NYK Orpheus [2022] EWHC 2828 (Admlty), in which the judge held that until very before the collision only a pilot was on the bridge of the Panamax Alexander, with no crew the......