The Hakki Deval
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVID STEEL,Mr Justice David Steel |
| Judgment Date | 09 November 2006 |
| Neutral Citation | [2006] EWHC 2809 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 09 November 2006 |
| Docket Number | Case No: Claim No.2004 Folio 816 |
[2006] EWHC 2809 (Comm)
IN THE HIGH COURT OF JUSTICE
COMMERCIAL & ADMIRALTY COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice David Steel
Sitting With Captain Ian Gibb And Captain Nigel Pryke
Elder Brethren Of Trinity House As Nautical Assessors
Case No: Claim No.2004 Folio 816
Mr Timothy Hill (instructed by Clyde & Co.) for the Claimant
Mr DominicHappe (instructed by E.G. Arghyrakis & Co.) for the Defendant
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.
Introduction
This action arises out of a collision between the vessels ELEFTHERIA and HAKKI DEVAL which occurred in restricted visibility on 6 June 2004 in the Mediterranean Sea about 15 miles off the Algerian Coast.
ELEFTHERIA is a bulk carrier registered at Panama. She was of 38,328 tonnes gross and 20,638 tonnes net, 209 metres in length and 32.2 metres in beam and powered by engines of 13,050 hp. At the material time she was laden with 41,265 tonnes of soya beans giving her a draft of 10.7 metres fore and aft.
HAKKI DEVAL is a bulk carrier registered in Istanbul. She was of 9,669 tonnes gross, some 136 metres in length and 21.2 metres in beam and powered by engines of 55,188 kw. At the material time she was laden with 15,350 tonnes of steel billets giving a mean draft of 8.86 metres.
ELEFTHERIA's pleaded case in summary was as follows. She had been steering a course of 082° true and, with her engines working at 110 rpm, was making about 13 knots through the water. The echo of HAKKI DEVAL was first observed at a range of about 8 miles, bearing approximately 5–10° on her starboard bow. Shortly thereafter ELEFTHERIA altered course to 070° true with a view to increasing the passing distance between the vessels. Attempts to contact HAKKI DEVAL by VHF were unsuccessful. Shortly before collision, HAKKI DEVAL was seen to be turning to starboard towards ELEFTHERIA whereupon ELEFTHERIA's engines were reduced to 90 rpm and her wheel put to port.
HAKKI DEVAL's pleaded case in summary was as follows. She had been steering a course of 252° true and was making about 8 knots through the water. The echo of ELEFTHERIA was first observed at a distance of just over 8 miles, bearing 2° on the port bow. Shortly thereafter the course of HAKKI DEVAL was altered to 266°. Contact was then made by VHF with ELEFTHERIA and oral agreement was reached to pass port to port. Thereafter HAKKI DEVAL altered course by a further 15° to starboard. This in turn was followed by her course being altered by "10° to starboard". And thereafter her engines were stopped and put full astern.
Neither vessel saw the other until moments before impact. There were accordingly some substantial issues of fact on the pleaded cases: in particular whether contact by VHF was made between the vessels and, if so, whether an agreement was reached to pass starboard to starboard.
In addition, as appears from the list of issues prepared by the parties, there were disputes as to the angle of blow, the collision position, the degree of visibility and the sounding of fog signals.
The witnesses
The Claimants in due course served witness statements. Those of their Master and Chief Officer (the officer of the watch at the material time) were dated prior to the filing of the Claimant's collision statement of case. In contrast, the statements furnished by the Defendants from their Master and 2 nd Officer (the officer of the watch) were dated after the relevant filing date.
The statement of the 2 nd Officer of HAKKI DEVAL asserted that ELEFTHERIA's initial alteration of course to port had been observed (albeit it appeared to be from 080° to 073°) at a range of about 6.8 miles and further that, following agreement to pass starboard to starboard and the second alteration of 15° to starboard by HAKKI DEVAL, ELEFTHERIA was seen to alter course to port. Thereafter HAKKI DEVAL put her "helm" 10° to starboard. When the vessels had closed to about a mile, and following a further exchange on VHF in which ELEFTHERIA stated it was altering course to starboard, she was seen in fact to alter course to port. It followed that on the basis of this statement there was a further significant issue as to whether ELEFTHERIA altered to port from 073° true on two occasions prior to the final hard to port order.
To assist the court in the resolution of these issues, various witnesses of fact were called. The Claimants called a Mr Dindo Dorupan, an able seaman, who was the helmsman of ELEFTHERIA at the time of the collision. The Defendants called both their Master, Mr Yilmaz Altan and (after a considerable break to enable him to come ashore from another vessel) their 2 nd Officer, Mr Yucal Yilmaz.
The action had come for trial with commendable promptness. Even then it took place some two years after the event. In considering the oral evidence I have very much in mind the observations of Robert Goff LJ in the Ocean Frost [1985] 1 Lloyd's Reps 1 at p.57: -
"It is frequently very difficult to tell whether a witness is telling the truth or not and where there is a conflict of evidence…. Reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities can be of great assistance to a judge in ascertaining the facts."
Expert evidence
Before turning to the issues of fact, I must touch on the question of expert evidence. Each party was given leave to instruct a surveyor on the question of speed and angle of blow at collision. There was a very substantial measure of agreement which made it unnecessary for either of them to be called.
As regards the question of the angle of blow, the parties accepted that the stem of HAKKI DEVAL struck the starboard side of ELEFTHERIA in way of her No.1 hold at an angle of about 80° leading forward.
As regards the question of speed, the experts approach was sensibly to assess the ratio between the speeds of the two vessels speed. This was accepted to be in the region of 1.7 i.e. that ELEFTHERIA was steaming at a speed 70% faster than HAKKI DEVAL. Since it was not suggested that any significant reduction of speed was made by either vessel before collision, this was consistent with the pleaded speeds of 13 knots and 8 knots respectively.
But the parties were also given leave to call expert evidence on "seamanship and breaches of the collision regulations". Since a substantial amount of such material was contained within the trial bundles and I held that it was all inadmissible, I should accordingly record the background.
I have had the benefit of the assistance of two Elder Brethren of Trinity House as assessors. This conventional arrangement was consistent with the Court's order of 8 April 2005 following on the Case Management Conference. The implications of such an order are well established: -
"It has been established by decisions of the courts, by textbook writers and by the practice of the Admiralty Court over a very long period that when the Court is assisted by nautical assessors, expert evidence on matters of navigation and seamanship may not be adduced": see e.g. The Victory [1996] 2 Lloyd's Rep 482 at 492..
This rule is subject to variation and exception in appropriate cases e.g. where the facts involve ship types or remote geographical areas which are unlikely to be familiar to the Elder Brethren or where the specific areas of expertise are outside the general competence of such assessors e.g. the fields of computer reconstruction or modelling. However, the present case does not fall into any exceptional category and, accordingly, given the objection made on behalf of the Claimant to the admissibility of such evidence, it was necessary to have regard to the circumstances in which the order giving leave was made.
I have seen the skeleton arguments that were provided to the court for the CMC. The Claimant sought leave to call an expert on the issues of the angle of blow and speed and, by reference to a draft order, sought the appointment of the assessors. The Defendant's skeleton rightly anticipated a lack of controversy as to the form of order in a case with "no unusual features". But their draft order nonetheless sought leave to call experts on "seamanship" without the appointment of assessors. The judge used the Defendant's form of order as a template. The judge accepted that it was appropriate to give leave to call such expert evidence but nonetheless also added the requirement for assessors. No-one appears to have drawn the judge's attention to the significant diversion from the usual practise that this order involved in a case which the parties regarded as straightforward.
Both parties thereafter expended substantial effort and expense on expert's reports in this field and I was thus presented with a considerable difficulty when at the opening of the trial the Claimant's challenged the admissibility of it all.
A similar situation arose in the Victory supra where Mr Geoffrey Brice QC, sitting as a deputy judge of this court, was persuaded to admit the expert evidence which was largely made up of reconstructions and comments on them.
In the present case, I took a different view. Despite the apparent agreement of the Claimant at and following the CMC, it does not seem to me that the court is bound to admit the evidence and indeed should not do so unless there are good grounds for doing so. Of course, the parties can deploy reconstructions prepared by experts as their own for illustrative purposes. It...
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