The Miraflores and The Abadesa; Miraflores (Owners) v George Livanos (Owners)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WINN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 13 December 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J1213-1 |
| Docket Number | Folio 218. 1963. G. No. 2111. |
| Court | Court of Appeal |
| Date | 13 December 1965 |
[1965] EWCA Civ J1213-1
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Hewson J. dated 15th July, 1965.
Revised
Lord Justice Wiiimer,
Lord Justice Danckwerts and
Lord Justice Winn.
Capt. G. P. McCraith
Capt. L. A. Hill, D. S. C., R. D., R. N. R.
(Trinity Masters).
Mr J. V. NAISBY, Q. C., and Mr BARRY C. SHEEN (instructed by Messrs Ince & Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr H. V. BRANDON, Q. C., and Mr J. FRANKLIN WILLMER (instructed by Messrs Thomas Cooper & Co.) appeared on behalf of the Respondents (First Defendants).
Mr WALDO W. PORGES, Q. C., and Mr JAMES D. H. ROCHPORD (instructed by Messrs Middleton, Newis & Co.) appeared on behalf of the Respondents (Second Defendants).
LORD JUSTICE WILIMER: In this case we have followed our usual procedure of putting questions to our assessors and taking their answers in writing. Those questions and answers will, of course, be available to the parties, and I will refer to thorn when I come to the appropriate part of my judgment.
The appeal arises out of a disastrous collision between two large laden tankers which occurred In the River Scheldt, near a place called Bat, on the afternoon of the 25th February, 1963. The vessels in collision were, first, the MIRAFLORES, a vessel of 20,776 tons gross, 661 feet long, which was bound up-river laden with a cargo of 29,600 tons of stabilised crude oil. The other vessel was the ABADESA, a vessel of 13,570 tons gross, 565 feet long, which was bound down-river laden with a cargo of 18,319 tons of fuel oil. Both these vessels were drawing over 30 feet; indeed, the maximum draught of the MIRAFLORES was as much as 34 feet.
Following the collision between the vessels a fire broke out which involved both vessels; burning oil escaped and covered the surface of the river over quite a wide area. Both vessels were, of course, very seriously damaged, and unhappily several members of the crew of the MIRAFLORES lost their lives, Including the master and chief officer.
The appellants are the owners of a third ship called the GEORGE LIVANOS, and the owners of the cargo on board that vessel. The GEORGE LIVANOS is another tanker, of 18,790 tons gross, 645 feet long, and she was laden with 28,336 tons of crude oil. The GEORGE LIVANOS also was proceeding up-river, following astern of the MIRAFLORES. Her case is that, when the collision between the MIRAFLORES and the ABADESA took place. She had to take drastic action in order to avoid running into the colliding vessels and becoming involved in the fire. As a result of this, she grounded in the river and sustained damage, as well as having to take salvage assistance in order to refloat.
The plaintiffs brought an action against both the MIRAFLORES and the ABADESA. A second action was brought by the MIRAFLORES against the ABADESA in respect of the collision damage. The two actions were tried together by agreement between the parties, the evidence given being treated as common to both actions. The trial took place before Mr Justice Hewson in July of this year, and the learned judge delivered his judgment on the 15th July. In the action between the MIRAFLORES and the ABADESA ha held both vessels to blame for the collision, the MIRAFLORES to the extent of one-third and the ABADESA to the extent of two-thirds. In the action brought by the GEORGE LIVANOS, the subject of this appeal, he held that the GEORGE LIVANOS was herself 50 per cent at fault, and consequently was entitled to recover the other 50 per cent against the MIRAFLORES and the ABADESA. He held that section 1 of the Maritime Conventions Act 1911 applied, and accordingly his judgment against the MIRAFLORES was for one-sixth of the plaintiffs' damage, and that against the ABADESA was for one-third of the damage.
There is no appeal before us in the action between the MIRAFLORES and the ABADESA. Indeed, we are informed that the order in that action has not yet been drawn up, so that the time for appealing has not even begun to run. The only matter before us is the appeal by the plaintiffs in the action brought by the GEORGE LIVANOS. In that action we are invited to say that the GEORGE LIVANOS was not to blame at all. If we came to that conclusion, it would follow that she would be entitled to recover the whole of her damage from either of the other two vessels. In the alternative, we are Invited to say that the apportionment of 50 per cent of the fault to the GEORGE LIVANOS is too high, and should be reviewed.
We have further been asked to review the apportionment as between the MIRAFLORES and the ABADESA, the contention being that a greater degree of blame should be attached to the MIRAFLORES, and a smaller degree of blame to the ABADESA. That submission is not prompted by any particular love for the ABADESA as compared with the MIRAFLORES, but by the more sordid motive that, having regard tothe question of limitation of liability, the plaintiffs' prospects of recovering their damage will be somewhat improved if the MIRAFLORES were held more to blame.
The collision happened in a place where the river takes a very sharp bend, and where the channel for ships of this size is very narrow. A vessel proceeding up-river approaches Bat on a course approximately N. E. She has then to take a bend to starboard of about 8 points, the bend being marked by buoys 73,?5 and 77 on her starboard side. She must swing to starboard on to a course of about S. E. for the next reach. In this channel approaching Bat, which la called the "Nauw van Bat", the width of navigable water between the buoys is approximately 1½ cables.
The time of the collision happened to be approximately the time of predicted high water, but It appears that on this occasion the tide was late, so that there was still a flood current running with a force of 1 to 2 knots. It is common ground that the tide in question was a spring tide. The rise of water above the chart soundings was said to be about 18 feet, which would give a depth of water in the navigable channel of not less than 40 feet, so that there was plenty of water for all the vessels concerned. The visibility at the time of the collision was found by the learned judge to be about 3 miles. The wind was light easterly, and of no great materiality. The collision occurred about 1620 hours according to the time kept by the GEORGE LIVANOS, just after 1616 hours according to the MIRAFLORES' time, and about 1621 hours according to the ABADESAS' time. Those differences of time must be borne in mind when comparing the engine-room records of the three vessels.
The place of collision, as found by the learned judge, was about abreast of buoy No.73, and It is common ground that the actual point of contact was in about mid-channel. The stem of the ABADESA struck the starboard side of the MIRAFLORES a little forward of amidships at an angle of about 60 degrees leading aft on the MIRAFLORES. It is common ground that at the time of collision the MIRAFLORES was angled very substantially to port of a normalup-channel heading; her heading was put as approximately N. and the heading of the ABADESA approximately 240 degrees.
Some 3½ cables below buoy No. 73 is buoy No. 71, and another 5 cables below that is a buoy called N. v. B S. v. N., which is also on the south side of the channel. Opposite that buoy on the north side of the channel is buoy No. 66. In this area a side channel enters the main channel from the north, from an area called the Zimmerman Polder. The evidence showed that during the last hour or so of flood, especially on spring tides, there is a heavy current from the Zimmerman Polder which sets across the main channel towards the south side. This was a phenomenon which was well-known to all the pilots concerned, and evidence about It was given at the trial in some detail by a tidal export. This cross-current, of course, adds to the hazards facing a vessel proceeding up-river on the flood tide as she is entering this narrow channel and preparing to negotiate the sharp bend in the river at Bat. It is the case of the MIRAFLORES that she was in fact seriously affected by this crosscurrent, which caused her to take a sheer first to starboard and then to port, and It is said that the collision occurred before she could recover.
There is a local rule in the River Scheldt governing navigation in narrow channels and round bends. It is Rule 42, sub-rule 1, and is in the following terms: "When vessels are meeting in a channel where a current is running, near a narrow passage, bridge, jetty or bend, the passage of which is so narrow that proceeding at the same time would be dangerous, the vessel proceeding against the current will go by mark time until the vessels proceeding with the current have passed the passage, bridge or bend, or have passed the jetty". The expression "will go by mark time" (which, of course, is a translation) means, I apprehend, "will hold back". The effect of the rule is very similar to the well-known rule which prevails in our own River Thames. This rule was much relied on by the MIRAFLORES in her case against the ABADESA.
The learned judge held that the rule was applicable in this Particular part of the river. He said: "I have discussed theapplication of this regulation with the Elder Brethren, and we are unanimously of the opinion that this rule applied in this channel on that day to these ships. It applied in full force in the Bat Narrows, and not only on the bend in the vicinity of Buoys 77 and 75, but in the narrow part of the channel. Even without such a...
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