Nautical Challenge Ltd (Claimant 131 Defendant 017 "Alexandra 1 Interests") v Evergreen Marine (UK) Ltd (Defendant 131 Claimant 017 "Ever Smart Interests")
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 13 March 2017 |
| Neutral Citation | [2017] EWHC 453 (Admlty) |
| Docket Number | Case Nos: AD-2015-000131, AD-2016-000017 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 13 March 2017 |
[2017] EWHC 453 (Admlty)
Mr. Justice Teare
sitting with Captain Stephen Gobbi and Captain Nigel Hope,
Elder Brethren of Trinity House, as Nautical Assessors
Case Nos: AD-2015-000131, AD-2016-000017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Vasanti Selvaratnam QC and James Shirley (instructed by Clyde & Co LLP) for Nautical Challenge Ltd
James M Turner QC (instructed by Ince & Co LLP) for Evergreen Marine (UK) Limited
Hearing dates: 16, 18 and 19 January 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 11 February 2015 a collision occurred between a laden VLCC, ALEXANDRA 1, owned by Nautical Challenge Ltd., a company registered in the Marshall Islands, and a laden container vessel, EVER SMART, owned by Evergreen Marine (UK) Ltd., a company registered in the UK. The collision between these two large vessels occurred just outside the dredged channel by which vessels enter and exit the port of Jebel Ali in the United Arab Emirates. The collision was at night but there were clear skies and good visibility. The damage suffered by ALEXANDRA 1 (in way of her bows) is said to amount to over US$32 million. The lesser damage suffered by EVER SMART (to her port bow) is said to amount to almost US$4 million.
Both vessels carried a Voyage Data Recorder (devices which record navigational data of use in accident investigations, see Marsden and Gault, Collisions at Sea 14 th ed. Appendix 18). Accordingly the parties were required at the Case Management Conference to exercise their best endeavours to agree the track of each vessel. The parties were able to do so. In consequence the parties have also been able to agree a schedule showing the course, heading and speed of the vessels from C-26 until collision. The schedule also shows the engine orders (taken from the engine loggers of each vessel) and the helm orders issued on each vessel (taken from the audio record of what was said on the bridge of each vessel). In the result, save for one disputed helm order, there is little factual dispute concerning the navigation of either vessel (apart from issues relating to the perception of those on the bridge of one vessel of what the other vessel was doing). This is now common in collision actions; see Samco Europe and MSC Prestige [2011] 2 Lloyd's Rep. 579 at paragraph 2 and Nordlake and Seaeagle [2016] 1 Lloyd's Rep. 656 at paragraph 7. The prevalence of electronic data which records the navigation of each vessel has led the court, with the assistance of the Admiralty Bar and the Admiralty Solicitors Group, to propose (i) the early disclosure and inspection of such data so that the navigation of vessels in collision can be agreed at an early stage and (ii) in the event of there still being a dispute as to liability, the adoption of trial procedures designed to achieve a speedy and cost effective resolution of that dispute. The required changes to CPR 61 and PD 61 came into force on 28 February 2017; see the Civil Procedure (Amendment) Rules 2017 SI 95 of 2017 and the 88 th update to the Practice Directions. The effect of those changes are summarised on the court's web site and will be included in Section N of the Admiralty and Commercial Courts Guide.
In this case, notwithstanding the agreed track of each vessel, there was a substantial dispute as to liability and in particular as to the relevance and applicability of the "crossing rule", rule 15 of the Collision Regulations. At trial there were short openings and no oral evidence was called. Counsel made oral submissions as to liability over 2 days. The trial was, however, disrupted by the need for the parties to agree a transcript and, where necessary, a translation of the audio record of what was said or heard on the bridge of each vessel. This ought to have been agreed long before the start of the trial. It is important for parties to inform the court at the case management conference of what electronic records there are so that appropriate orders can be made so as to ensure that there is an agreed interpretation of all relevant records before the commencement of the trial. Audio records from the bridge of a vessel are obviously relevant and important records. In the present case some translations were not agreed and so I was given two translations. However, it was not suggested that the sense or tenor of the two translations differed.
In the light of the electronic data recording the vessel's navigation it is unnecessary to dwell upon the failure of the owners of ALEXANDRA 1 to retain her original working chart, course record trace, log or engine logger print out or upon the reasons why the owners of EVER SMART produced as their original working chart a different working chart from that which they had supplied to the MAIB. It is also unnecessary to dwell upon the account given by the master of ALEXANDRA 1 of his vessels' navigation in his Letter of Protest which was in some respects untrue (as shown by the electronic data) or upon the account given by the master of EVER SMART in his log and statements of fact which was also in some respects untrue (as shown by the electronic data).
The navigation of both vessels has been helpfully illustrated by the parties. A copy of the agreed track of each vessel is annexed to this judgment. In addition the ALEXANDRA 1 interests prepared a video of radar screen shots taken from the VDR of EVER SMART and the EVER SMART interests prepared a number of videos using the data from the VDR of each vessel showing a bird's eye view of the collision and also the view from the bridge of each vessel. Those videos, whilst interesting to view, did not contain any more information regarding the navigation of the vessels than was apparent from the agreed track and schedule of navigation.
ALEXANDRA 1
ALEXANDRA 1 is a VLCC built in 1997 of 79,779 grt and 48,796 nrt, some 269 m. in length and 46 m. in beam. She is powered by a Hyundai – B&W engine developing 15,585kW/20,900 bhp through a fixed pitch, right handed propeller. She was at the time of the collision laden with 113,915 mt of condensate and was drawing 14m. even keel. She was inbound to Jebel Ali. She has a laden full ahead speed of 13.3 knots and is equipped with a full range of modern navigational aids. Her manoeuvring speed at dead slow ahead was 5.5 knots and at slow ahead 7.2 knots. She exhibited the correct masthead, side and stern lights and in addition displayed an all-round red light showing that she was carrying a dangerous cargo.
On the bridge at the time of the collision were her Russian master, her Russian third officer as officer of the watch and her Georgian helmsman. The second officer, also Russian, joined them on the bridge shortly before the collision.
EVER SMART
EVER SMART is a container ship built in 2005 of 75,246 grt and 39,564 nrt, some 299 m. in length and 42 m. in beam. She is powered by a Mitsubishi Sulzer engine developing 54,900kW through a fixed pitch, right handed propeller. She was at the time of the collision laden with 48,564 mt of containerised general cargo and was drawing 12.7 m. even keel. She was outbound from Jebel Ali. She has a laden full ahead manoeuvring speed of 15 knots at 52 rpm. Her full sea speed was stated in her particulars to be 25 knots at 105 rpm. She is equipped with a full range of modern navigational aids. Her manoeuvring speed at half ahead was 10.7 knots, at slow ahead 9 knots and at dead slow ahead 7 knots. She exhibited the correct masthead, side and stern lights.
On the bridge at the time of the collision were her Taiwanese master, her Filipino third officer as officer of the watch and the helmsman.
The dredged channel and pilot boarding area
The dredged channel leading out from Jebel Ali lies on an axis of 315/135 degrees (true) and is about 8.5 nautical miles in length and slightly less than 2 cables in width. It is marked by lateral buoys, from buoys no. 1 at the seaward end to buoys no. 12 at the outer breakwater, and is dredged to 17 meters. At the seaward end is the designated pilot boarding area, a circular area with a 1 nautical mile radius. The limit of the circular area as shown on the chart is about 3 cables beyond buoys no.1.
There is no dispute that the dredged channel was a narrow channel for the purposes of rule 9 of the Collision Regulations.
The weather conditions
As already stated there were clear night skies and good visibility of 10–12 miles. There was a wind of force 3, said by ALEXANDRA 1 to be easterly and said by EVER SMART to be east north easterly. The parties are agreed that nothing turns on the precise direction of the wind. There was a SW setting current of about 1 knot according to ALEXANDRA 1 but no current was particularly noted by EVER SMART. The agreed track takes account of a SW setting current.
The time and place of collision
The collision occurred at 2342:22 on 11 February 2015 about 5 cables west north west of the no.1 buoys and so outside the dredged channel but within the pilot boarding area. EVER SMART had disembarked her pilot during the course of her passage along the dredged channel and ALEXANDRA 1 was waiting to embark that same pilot. The port bow of EVER SMART struck the starboard bow of ALEXANDRA 1 at an angle of about 40 degrees (on the agreed plot 42.7 degrees) leading aft on EVER SMART. At collision the speed of EVER SMART was 12.4 knots over the ground and the speed of...
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