Nautical Challenge Ltd v Evergreen Marine (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Nigel Teare |
| Judgment Date | 08 February 2022 |
| Neutral Citation | [2022] EWHC 206 (Admlty) |
| Docket Number | Case No: AD-2015-000131 AND AD-2016-000017 |
| Court | Queen's Bench Division (Admiralty) |
[2022] EWHC 206 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Nigel Teare Sitting as a Judge of the High Court
With Commodore Walworth and Captain Barker, Elder Brethren of Trinity House, as Nautical Assessors
Case No: AD-2015-000131 AND AD-2016-000017
Vasanti Selvaratnam QC and James Shirley (instructed by Clyde & Co LLP) for the Claimant
Simon Rainey QC and Nigel Jacobs QC (instructed by Stann Marine) for the Defendant
Hearing dates: 10 and 11 November 2021; with further written submissions on the Advice of the Assessors received between 8 and 17 December 2021 and on the Further Advice of the Assessors received between 12 and 20 January 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
| Introduction | 1 |
| Navigation of ALEXANDRA 1 and EVER SMART | 4 |
| The decision of the Supreme Court | 17 |
| Faults of ALEXANDRA 1 | 42 |
| Faults of EVER SMART | 107 |
| Apportionment | 132 |
| Causative Potency | 142 |
| Blameworthiness | 152 |
| Apportionment – the Conclusion | 175 |
| Requested alternative Apportionments | 186 |
Introduction
This collision case has had a long and unusual history. The collision between ALEXANDRA 1, a laden VLCC, and EVER SMART, a laden container vessel, occurred on 11 February 2015 just outside the dredged channel by which vessels enter and exit the port of Jebel Ali in the United Arab Emirates. Following a trial in the Admiralty Court between 16 and 19 January 2017 I determined the issues of fault and apportioned liability for the collision in a judgment dated 13 March 2017; [2017] EWHC 453 (Admlty). I held that the crossing rule did not apply and apportioned liability for the collision 80/20 in favour of ALEXANDRA 1. On 5 October 2018 the Court of Appeal dismissed an appeal from my decision; [2018] EWCA Civ 2173. On 29 January 2019 Andrew Baker J. assessed the quantum of the respective claims. The recoverable loss of ALEXANDRA 1 was US$9,308,594.71 and the recoverable loss of EVER SMART was US$2,531,373.71. Permission to appeal from the decision of the Court of Appeal was granted by the Supreme Court and by a judgment dated 19 February 2021 delivered by Lord Briggs and Lord Hamblen the Supreme Court allowed the appeal, holding that the crossing rule applied; [2021] UKSC 6. The Supreme Court said that it would be appropriate for me to re-determine all matters of apportionment. Accordingly, on 10 and 11 November 2021 the question of apportionment was argued before me a second time.
Whilst I and the Court of Appeal were of the view that the navigation of ALEXANDRA 1 was governed by the requirements of good seamanship and that the navigation of EVER SMART was governed by the narrow channel rule, the Supreme Court held that the navigation of ALEXANDRA 1 was governed by the crossing rule and that the navigation of EVER SMART was governed by both the crossing rule and the narrow channel rule.
I must therefore assess the question of the vessels' faults again, but in the light of the guidance now given by the Supreme Court as to the application of the crossing rule. I must then re-apportion liability for the damage caused by the collision. I have no doubt that the light that has been shone on the application of the crossing rule by the Supreme Court will burn brightly in the Admiralty Court for a great many years.
The navigation of ALEXANDRA 1 and EVER SMART
I recounted the circumstances of the collision and the navigation of both vessels in paragraphs 6–36 of my first judgment and made findings about the lookout on EVER SMART at paragraphs 75–83 and about the lookout on ALEXANDRA 1 at paragraphs 97–101. No challenge was made to any of those findings in the appeals from my decision. It is therefore unnecessary to repeat my findings in this judgment. In the light of the submissions which I have heard on this re-hearing of the apportionment of liability I would merely emphasise the following features of both vessels' navigation. It will be helpful for the reader to have to hand the agreed plot of the vessels' tracks leading to collision which was attached to my first judgment.
ALEXANDRA 1
On 11 February 2015 at about 2200 ALEXANDRA 1, which was inbound to Jebel Ali but at anchor, was instructed by Port Control that a pilot would board at 2315 and that ALEXANDRA 1 should be at buoys no.1 at that time. ALEXANDRA 1 was underway at 2247. At 2254 Port Control advised that the pilot was on board the outbound EVER SMART which was passing buoys no.12 and proceeding to buoys no.1. Port Control advised ALEXANDRA 1 that once EVER SMART was clear she could enter the channel. By 2315 or C-27 ALEXANDRA 1 was within the pilot boarding area and about 1.4 miles west north west of buoys no.1. The master observed EVER SMART by radar when she was at buoys no.8 and continued to monitor her movements by radar but may have failed to acquire her as an ARPA target. At 2318 or C-24 the engines of ALEXANDRA 1 were stopped (and according to the schedule of helm and engine action had been stopped since at least C-26) and her speed over the ground was 2.3 knots and falling. She was, though moving very slowly, waiting for the pilot.
It was a clear night. The audio record suggests that the master saw EVER SMART when she was approaching buoys no.6 at about C-24 (see paragraph 97 of my first judgment). It has been noted on this hearing by counsel for EVER SMART that Part 1 of ALEXANDRA 1's Statement of Case contains an admission that the lights of EVER SMART were seen at a distance of about 5.5 miles which would have been at 2320 or C-22 when EVER SMART was passing no.6 buoys. The difference probably does not matter though the audio record is probably the more reliable evidence. As a result of discussions concerning the questions to be put to the Assessors it was agreed by counsel that the vessels were in sight of each other at about 2319 or C-23. It was also common ground that from C-23 the vessels were on bearings that did not appreciably change. (The lack of an appreciable change in bearing is taken from four bearings between C-23 and C-3 in the agreed schedule of engine movements and other data. My understanding is that those bearings were measured by the authors of the schedule from an agreed plot.)
By 2327 or C-15 the speed of ALEXANDRA 1 had fallen to 1.3 knots over the ground 1 and her engines were put to dead slow ahead. Though waiting for the pilot, she was proceeding very slowly in a generally East South Easterly direction as indicated in the plot attached to my first judgment. According to ALEXANDRA 1 there was a south west setting current of about a knot. EVER SMART did not note a current.
At 2326 or C-14 the master of ALEXANDRA 1 overheard a conversation between a tug, ZAKHEER BRAVO, and Port Control. He mistakenly thought the conversation was between EVER SMART and Port Control. As a result he thought, mistakenly, that EVER SMART was to turn to port at the end of the narrow channel. Although this made no sense to him he did not seek clarification.
By 2332 or C-10 the speed of ALEXANDRA 1 was 1.8 knots over the ground and she was about 9 cables west north west of boys no.1. By 2337 or C-5 the speed of ALEXANDRA 1 was 2.1 knots. At 2338 or C-4 her engines were put to slow ahead. At about this time ALEXANDRA 1 would have turned to starboard towards the channel but did not do so because of her master's mistaken understanding of EVER SMART's intentions. Instead she continued to head across the approaches to the channel very slowly.
At about 2340 or C-2 her speed over the ground was 2.3 knots. The master of ALEXANDRA 1, who was keeping a good visual lookout, was concerned that EVER SMART was not turning to port as expected and so put the engines of ALEXANDRA 1 full astern. But this did not avoid a collision, some 5 cables west north west of buoys no.1. At collision her speed was 2.4 knots.
EVER SMART
EVER SMART was navigating along the narrow channel, outbound from Jebel Ali, having left the container terminal at 2230. The channel was slightly less than 2 cables in width. Her engines had been at full ahead (manoeuvring) but, in preparation for dropping her pilot, were reduced at C-11 to half ahead and at C-10 to slow ahead. At about C-10 EVER SMART was slightly to port of mid-channel and was passing buoys no.3. Her speed at C-9 was 12.2 knots over the ground (and falling). Before leaving the bridge the pilot advised the master that there was a vessel to port and that he should take care. At C-8 her engines were reduced to dead slow ahead. By C-6 the pilot had disembarked and was proceeding towards ALEXANDRA 1. It was or ought to have been obvious to EVER SMART that ALEXANDRA 1 was waiting for the pilot.
EVER SMART never regained the starboard side of the channel. At C-5 the speed of EVER SMART was 9.5 knots over the ground and her engines were increased to half ahead. At C-4 her speed was 9.6 knots and her engines were increased to full ahead (manoeuvring).
The radar echo of ALEXANDRA 1 was never particularly observed. Although it is more likely than not that ALEXANDRA 1 was observed by the master of EVER SMART shortly after the pilot left the bridge he did not keep her under observation. It
is likely that he assumed that the vessels would pass safely port to port. A good visual or radar lookout...To continue reading
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