Owners and/or demise charterers of the 'Mineral Dampier' v Owners and/or demise charterers of the 'Hanjin Madras'
| Jurisdiction | England & Wales |
| Judge | Clarke L JJ,Lord Phillips MR,Schiemann |
| Judgment Date | 31 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1278 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: QBADF 2000/0425/A3 |
| Date | 31 July 2001 |
[2001] EWCA Civ 1278
The Master Of The Rolls
Lord Justice Schiemann and
Lord Justice Clarke
Case No: QBADF 2000/0425/A3
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Admiralty action in rem against the ship HANJIN MADRAS
Mr Justice Aikens
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Timothy Brenton QC (instructed by Holman Fenwick & Willan) for the Respondents
Mr Nigel Teare QC (instructed by Ince & Co) for the Appellants
Lord Phillips MR:
Introduction
This is the judgment of the court which has been prepared by Lord Phillips MR and Clarke LJ and with which Schiemann LJ is in full agreement. The appeal is brought in a collision action. On 22 nd June 1995 two Cape size bulk carriers, the Mineral Dampier and Hanjin Madras, came into collision in the East China Sea about 100 miles south of Cheju Island, which is south of Korea. The action was tried by Aikens J who held that the Mineral Dampier was 20% to blame for the collision and that the Hanjin Madras was 80% to blame. His judgment is reported at [2000] 1 Lloyd's Rep 282. The owners of the Hanjin Madras now appeal against that decision pursuant to permission given by this court. They do not say that the Hanjin Madras was not partly to blame for the collision but they say that her share of responsibility was substantially less than 80%.
The Vessels
The Mineral Dampier was a 170,698 tonne deadweight bulk carrier built in 1986. She was 87,709 tons gross register, 209 metres in length and 45 metres in beam. She was laden with a cargo of about 166,581 tonnes of iron ore and her mean draft was about 17.4 metres. She was manned by a crew of 27 hands and was on a voyage from Brazil to Pohang in Korea. Her navigational equipment was fully operable and functioning correctly. Her turning characteristics at full speed in laden condition were these. It would take her about 2 minutes 30 seconds to turn 90° to port with an advance of about 810 metres and a transfer of about 330 metres. It would also take her about 2 minutes 30 seconds to turn 90° to starboard, but with an advance of about 820 metres and a transfer of about 355 metres.
The Hanjin Madras is a 150,977 tonnes deadweight bulk carrier built in 1990. She is 77,650 tons gross register, 274 metres in length and 45 metres in beam. She was in the course of a ballast voyage from Pohang to Singapore and on sailing her drafts were 5.94 metres forward and 8.75 aft. She had what the judge described as the usual navigational equipment including radar, ARPA and a course recorder. All her equipment was functioning correctly. Her turning characteristics at full speed in ballast condition were these. It would take her 2 minutes and 22 seconds to turn 90° to starboard with an advance of about 740 metres and a transfer for a complete 180° turn of about 768 metres.
The officer of the watch during the period leading up to the collision was Mr Kim who is a Korean. He was 25 years of age and had obtained his second officers ticket the previous year. He joined the vessel as second officer at Pohang on 6 th May 1995 just before she sailed on a round trip to Canada, which was the trip immediately before the collision voyage. It was his first appointment as second officer so that he was a comparatively young and inexperienced officer.
The Facts
This was tragic collision because the Mineral Dampier sank as a result of the collision and all 27 of her crew were lost. So too were all her ship's documents with the result that the court had no evidence from her. There was a good deal of evidence available from the Hanjin Madras but no oral evidence was called on her behalf. In spite of these disadvantages, there was little dispute of fact before the judge and no dispute of fact before us. We therefore take the facts almost entirely from the judgment.
The wind was south-westerly about force 5 and there was a current setting north-easterly at about half a knot. There was a swell of about 2 to 3 metres. Both vessels were exhibiting two white masthead lights, red and green side lights and a white stern light. The relative approaches of the two vessels are shown on a plot which is annexed to this judgment. The collision occurred at about 0330 hours between the starboard bow of the Hanjin Madras and the starboard side aft of the Mineral Dampier at an angle of about 50° leading aft on the Mineral Dampier. At collision the heading of the Hanjin Madras was about 226° true and the heading of the Mineral Dampier was about 356° true. The plot begins at 29 minutes before the collision or C-29. During the 30 minute period before the collision the visibility was never less than 3 miles and the vessels came into sight of one another at that distance. It is common ground that until the vessels were 3 miles apart, although the visibility was about 3 miles, they were navigating in restricted visibility within the meaning of rule 19 of the collision regulations.
The navigation of the Hanjin Madras was to some extent affected by the existence of a fishing fleet which she first detected by radar at about 0230. She was then on a course of 203° true and was proceeding at about 11.5 knots. Mr Kim concluded that there were about 70 or 80 radar targets in small groups of 4 or 5 distant about 10 miles. He also concluded that they represented a fleet of fishing vessels ahead of his vessel but perhaps slightly more to starboard than to port. They were hardly moving at all. He decided to manoeuvre the Hanjin Madras to the east of the fishing fleet by altering course to port and leaving the fishing vessels to starboard. The Mineral Dampier was on a course of about 029° when she also saw the fishing fleet. She came round to starboard on to a course of 065° at some time before about 0300 hours with the result that she was shaping to pass the fishing vessels to port. As the plot shows, the two vessels were thereafter approaching on crossing courses with the Mineral Dampier on the starboard bow of the Hanjin Madras and the Hanjin Madras on the port bow of the Mineral Dampier. We turn to the navigation of the vessels between C-29 and the collision which is depicted on the plot.
At about C-30 the Mineral Dampier was on a course of 065° true at a speed of about 12 knots. She maintained her course and speed until about C-3 to C-2.5 when she put her wheel hard to port. As appears below she took part in two VHF conversations with the Hanjin Madras.
The navigation of the Hanjin Madras shown on the plot was largely based on an agreed interpretation of her course record. She altered course to port in order to leave the fishing vessels to starboard at about C-34 and steadied on her new course of 150° true at about C-30. She maintained her speed of about 11.5 knots. Immediately before the alteration to port Mr Kim had detected the radar echo of the Mineral Dampier. The echo was distant about 10 miles and bearing about 3? to port. Mr Kim formed the view from his ARPA that the Mineral Dampier was proceeding on a course of 065? true at a speed of 13.5 knots, but the parties agreed that she was in fact proceeding at 12 knots.
At about C-24 the Hanjin Madras altered course to port to 140? true and at about C-20, when the vessels were about 4 to 5 miles apart, the first of two VHF conversations took place between them. Both conversations were in English. The first of them was initiated by the Mineral Dampier, which suggested that the vessels should pass "red to red". Mr Kim agreed saying "OK. Red to red passing; repeat port to port passing". The Mineral Dampier agreed. Mr Kim also said in the course of the first conversation that he would alter course to starboard and advised the Mineral Dampier to keep her present course.
The Hanjin Madras did not, however, alter course to starboard at that stage. Mr Kim's evidence was that after the VHF conversation he looked at the ARPA and observed that the Mineral Dampier was distant 5.5 miles and bearing 190? true. In fact at about C-20 the Mineral Dampier was shaping to pass ahead of the Hanjin Madras. Mr Kim said that he did not alter to starboard because of the fishing fleet. He maintained the course and speed of the Hanjin Madras until about C-16, when she altered course to port to 130? true. Having steadied on that course, she almost immediately altered course to starboard again at about C-14. It was about that time, when the vessels were about 3 miles apart that they came into sight of one another.
It was at about that time or perhaps a little later that the second VHF conversation took place. The second conversation was initiated by the Hanjin Madras. Mr Kim told the Mineral Dampier to keep her present course and speed. The Mineral Dampier replied: "understand your message". The judge held that that was the full extent of the conversation at that time. No further VHF conversations took place.
At C-13 the Hanjin Madras steadied on a course of 137.5? true but at C-12 her heading drifted back to 130? true. Between C-11 and C-5, as shown on the plot, she remained on a heading of between 130? true and 126? true. In his witness statement Mr Kim said that about C-8 "he assessed" that the Mineral Dampier would "cross ahead at a range of not less that 8 cables", although the judge said that he was not satisfied that Mr Kim did in fact make an assessment of the course, speed and closest point of approach of the Mineral Dampier at that stage. He simply assumed that her bearing was still 190° true without...
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