Nowy Sacz, The (Olympian)
| Jurisdiction | England & Wales |
| Judgment Date | 01 April 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0401-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 April 1977 |
[1977] EWCA Civ J0401-4
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On Appeal from Order of Mr. Justice Brandon:
assisted by Nautical Assessors
Captain D.A.G. Dickens and Captain J.A. Hoppe.
Lord Justice Stephenson
Lord Justice Shaw
and
Sir David Cairns
Mr. G.R.A. DARLING, Q.C., and Mr. R. J. KAY (instructed by Messrs. Holman, Fenwick & Williams) appeared on behalf of the Plaintiffs/Respondents.
Mr. B.C. SHEEN.Q.C. and Mr. N.A. PHILLIPS (instructed by Messrs. Elborne Mitchell & Co.,) appeared on behalf of the Defendants/ Appellants.
SIB DAVID CAIRNS This is an appeal from the judgment of Mr. Justice Brandon in an action arising from a collision between the Plaintiffs' ship Olympian and the Defendants' ship Nowy Sacz. The collision occurred shortly before 0400 on the 14th February, 1972, in the Atlantic Ocean some miles south of Cape St. Vincent. The night was fine and the ships had been in sight of each other for about an hour. She stem and starboard bow of the Nowy Sacz struck the port quarter of the Olympian. Both ships were damaged, but not sufficiently to prevent them from continuing their voyages.
She Olympian is a Cypriot ship, a single screw motor ship 520 feet in length. The Nowy Sacz is a Polish ship, a single screw motor ship 357 feet in length. She Olympian was on a voyage from Malta to Vest Germany and the Nowy Sacs on a voyage from Casablanca to Gdynia.
The courses of both ships were roughly in a northwesterly direction. The Olympian was at one stage well aft of the Nowy Sacz but was making a faster speed and at the time of the collision had overtaken her on her starboard side.
The main issue was whether the situation was such as to bring into play the crossing rules, as the Plaintiffs contended, or the overtaking rules, as the Defendants contended. The Judge held that the crossing rules applied and that the main blame for the collision lay upon the Nowy Sacz for failing to keep out of the way of the Olympian. However, he found that a situation arose when the Olympian should have gradually altered course to starboard away from the Nowy Sacz and that by failing to take such action at an early stage, and so becoming obliged to go hard to starboard very shortly before the collisionthe Olympian was guilty of a fault which contributed to the casualty.
The learned Judge assessed the degrees of responsibility as three-quarters against the Nowy Sacs and one-quarter against the Olympian. The defendants appeal, contending by their Notice of Appeal that the Olympian was solely to blame or alternatively that her degree of fault was more than a quarter. In argument, however, Mr. Sheen, for the Defendants, limited himself to the contention that the proportions assessed by the Judge should be reversed. She Plaintiffs by a respondents' notice supported the Judge is assessment of proportions of fault either on the facts as found by him or alternatively on the basis that he should have made a different finding re to the course of the Olympian. This latter contention was, howere only faintly relied on at the hearing.
No witnesses from the Olympian were available at the trial but signed statements from her master, chief officer, second officer, third engineer and two quartermasters were put in evidence. From the Nowy Sacs the second officer and a seaman were called and statements from the master and chief officer were put in. On each ship the second officer was at the material time the officer of the watch. The Judge found the evidence of the second officer of the Nowy Sacz to be substantially true and reliable.
The course of the Nowy Sacs at all material times was said to be 341° (True). This was not challenged and was found by the Judge to be so. The evidence from the Olympian was that her course was 290° (True). If that had been right the situation would clearly have been one to which the crossing rules applied. But the Judge found that the angle between the courses was only about 10°, i.e. that the Olympiads course was about 331° (True). He set out fully his reasons for reaching that conclusion and we cansee no ground for differing from him on It. He also found that the respective speeds until very shortly before the collision were about 14½ knots for the Olympian and about 12½ knots for the Nowy Sacs. While it is difficult to reconcile findings which he made about the bearings at different times with these speeds having been maintained without any variation, there is no doubt that the Olympian's general speed was something like 2 to 2½ knots faster than that of the Nowy Sacs. So, with the two courses converging at a narrow angle and the Olympian proceedings faster than the Nowy Sacz It looks on the face of it like an overtaking situation, The Judge, however, held that on the correct Interpretation of the Collision Regulations, in accordance with judicial authorities. it was the crossing rules and not the overtaking rules that applied.
We can summarise quite briefly the further essential findings of fact made by the learned Judge, all of which we accept. At about 0245 the second officer of the Nowy Sacs saw the masthead lights of the Olympian bearing about 25° - 30° abaft the starboard beam and distant about three miles. At that time the second officer of the Olympian had not yet seen any lights of the Nowy Sacs. At about 0300 the red light of the Olympian became visible to the second officer of the Nowy Sacz as she passed into the green sector of the Nowy Sacs (i.e. passed the bearing of two points abaft the beam). The second officer of the Olympian was then seeing the masthead and green lights of the Nowy Sacz. At about 0330 the Olympian was about abaft the beam of the Nowy Sacs and about a mile away. At about 0345 she was bearing about 30° forward of the Nowy Sacs's beam. When the Olympian was 1-2 cables away the engines of the Nowy Sacs were put half astern and then full astern. At about the same time the wheel of the Olympian was put hard tostarboard. This was only about one-and-a-half minutes before the collision. Both snips went to starboard to about the same extent, the Olympian because of her wheel action and the Nowy Sacs because of interaction or the effect of her engines having been put astern. She ships collided at about 0358.
Now, the relevant rules are in Part D of the Collision Regulations. That part is prefaced by four preliminary paragraphs, of which the first and fourth read as follows "1. In obeying and construing these Rules, any action taken should be positive, in ample time, and with due regard to the observance of good seamanship" "4. Rules 17 to 24 apply only to vessels in sight of one another.
The Rule which specifically deals with ships on crossing courses is Rule 19, which provides: "When two power-driven vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other".
The rule which specifically deals with the situation when one ship is overtaking another is Rule 24, which provides: "(a) Notwithstanding anything contained in these Rules, every vessel overtaking any other shall keep out of the way of the overtaken vessel. (b) Every vessel coming up with another vessel from any direction more than 22½ degrees (2 points) abaft her beam, i.e., in such a position, with reference to the vessel which she is overtaking, that at night she would be unable to see either of that vessel's sidelights, shall be deemed to be an overtaking vessel; and no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel within the meaning of these Rules, or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear" Paragraph (c) is not relevant.
whether the situation is one of crossing or of overtaking, Rules 21 to 23 specify the duties of the respective ships Rule 21. Where by any of these rules one of two vessels is to keep out of the way, the other shall keep her course and speed. When, from any cause, the latter vessel finds herself so close that collision cannot he avoided by the action of the giving-way vessel alone, she also shall take such action as will "beet aid to avert collision (see Rules 27 and 29).
"Rule 22. Every vessel which is directed by these Rules to keep out of the way of another vessel shall, so far as possible, take positive early action to comply with this obligation, and shall, if the circumstances of the case admit, avoid crossing ahead of the other.
"Rule 23. Every power-driven vessel which is directed by these Rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse".
All the above rules are subject to the provisions of Rules 27 which provides: "In obeying and construing these Rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances, including the limitations of the craft involved, which may render a departure from the above Rules necessary in order to avoid immediate danger".
Now the contest in this case has revolved around one question of law and one question of fact. She question of law is: Does Rule 24 operate only when the positions. courses and speeds of the ships are such as to involve a risk of collision? If that question is to he answered in the affirmative then the question of fact is: Was a risk of collision involved in this case before the Olympian had ceased to be more than two points abaft the beam of theNowy Sacz? She Judge held that the answer to the question of law was Yes and the answer to the question of fact was No, There is no doubt, because of the terms of the latter part of Rule 24(b) that if once that...
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