Savina, The (Forest Hill)
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Hailsham of St. Marylebone,Lord Simon of Glaisdale |
| Judgment Date | 19 May 1976 |
| Judgment citation (vLex) | [1976] UKHL J0519-2 |
| Date | 19 May 1976 |
| Court | House of Lords |
[1976] UKHL J0519-2
House of Lords
Lord Diplock
Lord Morris of Borth-y-Gest
Viscount Dilhorne
Lord Hailsham of St. Marylebone
Lord Simon of Glaisdale
Upon Report from the Appellate Committee, to whom was referred the Cause Owners of the Motor Tanker "Forest Hill" against Owners of the Steam Tanker "Savina" (The "Savina"), That the Committee had heard Counsel, as well on Monday the 22d, Tuesday the 23d and Wednesday the 24th, days of March last (Captain D. T. Goodhugh, CBE, RN, (Rtd.) and Captain J. A. N. Bezant, DSC, RD, RNR, (Rtd.), an Elder Brother of the Trinity Corporation, being present as Nautical Assessors), upon the Petition and Appeal of the Owners of the Steam Tanker "Savina" of Apartado 850, Panama, Republic of Panama, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 17th of April 1975, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of the Owners of the Motor Tanker "Forest Hill", lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 17th day of April 1975, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Order of the Honourable Mr. Justice Brandon of the 6th day of February 1974, thereby varied, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
I agree with the speech of my noble and learned friend Lord Simon of Glaisdale. For the reasons that he gives I would allow the appeal and restore the judgment of Brandon J.
Where both are to blame, as is generally the case in collisions between moving ships, the assessment of the degree of fault attributable to each vessel is a matter on which the opinions of individual judges may well differ as is shown by the judgments in the instant case, not excluding speeches in this House itself. Before the Maritime Conventions Act 1911, there was no room for different judicial views on apportionment; the half-and-half rule was applicable. Your Lordships would be doing a disservice to the shipping community if this House were to weaken the rule of practice laid down in The Macgregor [1943] A.C. 197 that it is only in very exceptional circumstances that an appellate court which accepts the judge's view of the law and findings of fact should interfere with his apportionment of blame. The costs of both sides in settling or litigating claims arising out of collisions are borne by the hull and P & I insurers of the vessels involved. They have to be recovered in the market rates of premiums charged to shipowners who in turn must make provision for their costs of insurance in the freight rates charged to shippers.
My noble and learned friend has drawn attention to the advantages which a trial judge has over an appellate court in assessing the comparative degree of fault of witnesses on either side who have given oral evidence before him. To this may be added the advantage that under the English judicial system collision cases are now tried by a specialist judge whose experience in cases about faults of navigation is much greater than that of most of those who compose the membership of appellate courts. This should give to the Admiralty judge's apportionments a greater predictability than those of appellate courts if their members treated themselves as uninhibited in substituting their own views of the respective degrees of blame for those of the trial judge.
My Lords, predictability of apportionment is conducive to settlement and the consequent avoidance of the very heavy costs of going to trial and the managerial inconvenience to both shipowners which this involves; but such predictability is destroyed and the incurring of additional costs of appealing encouraged if it is thought appellate courts can lightly interfere with the apportionment made by the trial judge. To facilitate settlement in collision claims without recourse to litigation whether at first instance or on appeal should have the effect of reducing the overall cost of hull and P & I insurance to the shipping community as a whole.
My Lords,
I have had the advantage of reading and considering the speech of my noble and learned friend, Lord Simon of Glaisdale. I confess that, were it not for the reasoning in and the compelling authority of The Macgregor [1943] A.C. 197 (which approved earlier decisions and which has so recently been re-affirmed in this House), I might have been tempted to indulge in a measured re-assessment of the degrees of fault. On a full acceptance both of the findings of the learned judge and of the answers of the Elder Brethren it would appear that had the requirements of good seamanship been observed Savina ought to have stopped her engines at about C-10. On that accepted basis I began to consider whether the fault of the Savina ought not to have been regarded as greater than the fault of the Forest Hill. But to be tempted along the path of such reflections in a case such as the present in which both vessels were seriously at fault would be to ignore the warnings of experience and the guidance of authority. It would be to venture to form a conclusion without possessing the many and obvious advantages which were at the command of the trial judge. I therefore agree with my noble and learned friend that the appeal should be allowed.
My Lords,
I have had the advantage of reading the speech of my noble and learned friend, Lord Simon of Glaisdale, and I agree that for the reasons he gives this appeal should be allowed.
I only desire to add a few observations. The principle stated in The Macgregor [1943] A.C. 197 and endorsed by this House in The Koningin Juliana [1974] 2 Lloyd's Rep. 353 is one that should normally be applied. The apportionment of liability will often depend on the determination of difficult questions of fact and seldom, if ever, of questions of law. The trial judge, as has often been said, is in a better position than judges on appeal to decide the correct apportionment as he has seen and heard the witnesses.
I do not myself think that Brandon J. made his apportionment on the ground that the error of the Savina was one of omission and that of the Forest Hill of a positive character. I read his judgment as saying that he held the Forest Hill more at fault than the Savina not because one error was positive and the other one of omission, but because of the conduct of the Forest Hill. I agree with him, and would if it had lain with me have made the same apportionment.
At about C-10 to C-8 the Forest Hill sent the first VHF message to the Savina. She can only have done so because she realised that there was a possibility of a close quarter situation arising. The Savina did not alter her course and did not alter her speed until C-6. The Forest Hill when she had steadied on 350 degrees went half speed ahead, increasing her speed from 3-4 knots to 7-8 knots. This happened at C-8. I agree with Brandon J. in thinking that this positive action, when the Savina could be seen to be under way on a course at right angles to that of the Forest Hill was a more serious fault than the failure of the Savina to take earlier action than she did due to bad look out.
My Lords,
In my opinion the result of this case is to be decided in the light of the decision of this House in The Macgregor [1943] A.C. 197 re-affirmed and followed as recently as last year in The Koningin Juliana [1975] 2 Lloyd's Rep. 111.
The proceedings arose as the result of a collision in the roadstead at Ras Tanurah in the Persian Gulf. The vessels concerned were the Savina, Greek registered, 21,000 tons odd and turbine driven, and the Forest Hill, Dutch registered, 12,000 odd tons and diesel powered. Both were tankers with single screws. They collided on the night of the 24th May 1970. The night was clear, and the weather conditions give rise to no comment. The two vessels were at all material times clearly visible to each other. Both carried the regulation mast head and navigation lights. The Forest Hill was going to sea after manoeuvring from her anchorage and when the collision occurred and for eight minutes previously was on a course of 350°. The Savina was moving from the South Pier and was on a course to find an anchorage preparatory to moving the following day to take up more cargo at the North Pier. At the time of the collision and from the time the pilot launch left her she was on a course of 80° which, owing to the direction of the tide, meant that she was moving through the water on a bearing of 65°. Both vessels were in touch with one another by radio. The courses of the two vessels crossed at about 1·25 miles due East of the T-head of the North Pier, when the Savina...
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