The Owners and/or demise Charterers of the Ship Kamal XXVI & Barge Kamal XXIV v The Owners of the Ship Ariela
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVID STEEL,MR JUSTICE BURTON,Mr Justice Burton |
| Judgment Date | 10 December 2009 |
| Neutral Citation | [2007] EWHC 2434 (Comm),[2009] EWHC 3256 (Comm),[2009] EWHC 177 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 10 December 2009 |
| Docket Number | Case No: 2006 FOLIO 375,Case No: 2009 Folio 669 and 2006 Folio 375 |
[2007] EWHC 2434 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
COMMERCIAL COURT
Mr Justice David Steel
Sitting With
Captain Ian Gibb and Captain John Burton-Hall
Elder Brethren of Trinity House
As Nautical Assessors
Case No: 2006 FOLIO 375
Stewart Buckingham (instructed by Ince & Co) for the Claimants
Timothy Hill (instructed by Russell, Ridley & Co) for the Defendants
Hearing dates: 3 rd & 4 th July 2007
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.
Mr. Justice David Steel:
Introduction
This action arises out of a collision in the entrance channel to Mormugoa (Goa) at about 2012 hours (UTC + 5 1/2 hours) on 30 April 2004. The Defendants' vessel ARIELA came into contact with the Claimants' hopper barge KAMAL XXIV. KAMAL XXIV was moored alongside the Claimants' dredger KAMAL XXVI. The impact brought the barge into contact with the dredger. Although the damage to ARIELA was minimal, the dredger was heavily damaged.
The relevant particulars of the barge KAMAL XXIV are as follows: 48.7 metres in length, 12.2 metres in beam with a draft of 2.65 metres. As regards the dredger KAMAL XXVI, she was 80 metres in length, 14.8 metres in beam with a draft of 2.2 metres.
It is common ground that KAMAL XXVI was not underway. She was lying, secured by five anchors, in line with the axis of the channel (i.e. 110°/290°). It is the Claimants' case that she was on the Northern edge of the channel in the vicinity of Buoy 10. The Defendants say that she was in the channel some 100 metres south of the Northern limit thereby narrowing the gap between Buoy 10 and Buoy 9 on the Southern edge to about 200 metres.
It was also common ground that KAMAL XXVI was exhibiting 3 all round lights in a vertical line, two all round green and two all round red lights as prescribed by Rule 27 of the Collision Regulations. Her deck lights were also illuminated. In addition a flashing white light marked the position of the two anchors laid out on her portside. Prior to the trial it had been common ground that the KAMAL XXIV was unlit. However by consent the Claimants amended their collision Statement of Case to allege that search lights were being shone by KAMAL XXVI onto KAMAL XXIV and KAMAL XXIV was itself equipped with a search light and was also exhibiting port and starboard navigation lights.
ARIELA is a bulk carrier, some 235.63 metres in length and 52.22 metres in beam, some 44,985 tons gross and powered by engines of 16,500 h.p. ARIELA was in ballast with a draft of about 5.01 metres forward and about 7.61 metres aft.
ARIELA was bound to Mormugoa from Damman. She was exhibiting appropriate navigation lights. She had anchored off the port to the North of the entrance channel in the vicinity of Buoy 4. Having weighed anchor she proceeded into the channel and having been joined by a pilot she made her way inward bound in about the middle of the channel on a course of 080°.
The wind was West-North-Westerly force 4. It was dark but fine and clear. There was a tidal current flooding to the East at well under 1 knot.
The dredger was operating pursuant to an agreement between the Mormugoa Port Trust and Jaisu Shipping dated January 2004 although work had actually started in October 2003. Indeed on 14 October 2003, the Port Trust had issued a marine notice requesting pilots “to liaise with the dredger well in advance to ensure clear and safe passage.” The notice went on to say that the dredger would be moored with two anchors laid across the channel with marking buoys:—
“Shifting of anchors would require at least 30 minutes notice and pilots are requested to advise the dredger well in advance so that movements can be co-ordinated without delay.”
On 30 April 2004, the dredger initially positioned itself in the vicinity of No. 10 buoy having dropped her starboard anchor with 3 shackles in a position 150 metres North West of the buoy. The master of the dredger records in a note to his owners written on 2 May that the dredging bucket ladder was lowered in a position 50 metres southwest of the buoy. She then set about laying out her working anchors. The form in which the anchors were laid was not in issue. There were two on her starboard side, two on her port side and a further one laid out astern.
On the first day of the trial, the Defendants sought and obtained leave to amend Part 2 of their Collision Statement of Case to allege that, not only was the dredger well into the channel, but also that the available width of the channel was further reduced because the port anchors of KAMAL XXVI and their associated lights were 80 to 100 metres inside the Southern Boundary.
Dredging appears to have commenced at 1610. The master's report records (in an exchange confirmed by the record maintained in the Signal Station VHF log) that at 1615 the pilot of MEDY SYDNEY, outward bound from No. 1 berth, made a VHF request for the dredger to “remove 3 anchor buoys to secure passing loaded ship.” The master's response was that the anchor buoys were in fact outside the channel. The pilot is said to have “agreed” and certainly the vessel duly left at 1700 without any change in the anchors' position. The same pilot then brought in the AKER at 1730. Both these movements are recorded as having interrupted dredging no doubt as a result of slackening off the port side anchor cables.
At about 1800 the pilot, who was later to bring in ARIELA, was instructed to take out the TAI BAI HAI which he boarded at about 1840. As TAI BAI HAI got under way at about 1910, the pilot advised ARIELA, at this stage still anchored out in the roads, to weigh anchor and commence coming in.
At about 1940 the signal station spoke to KAMAL XXVI to report that ARIELA would be entering the channel and requested the dredger to “keep clear”. (This request is recorded in the dredger's deck log at 1950.)
In considering the lead up to the collision, I have inevitably had particular regard to the contemporary documents albeit supplemented by evidence from witness statements.
Evidence of ARIELA
The deck log of ARIELA reads as follows:
“2012 While vessel was manoeuvring at Mormugao channel towards berth No.9…passing between buoys 9 and 10, the barge tied up to dredger KAMAL 26 brushed the port side of ownship. The dredger was stationary. Its anchor was on the centre of the channel as marked by 2 white lighted buoys…Own vessel was under the advice of port pilot Capt. P. Singh at the time and was well inside the channel's centre. Pilot notified Goa port control of the dredger's anchor buoys not being in the right position.”
In addition to her deck log, other documentary evidence was put before the court by the Defendants:
i) A photocopy of her working chart recording two positions in mid-channel, the first at 2006 on an extension of a line from the harbour breakwater and the second at 2010 just short of a line joining buoys 10 and 9 and in close proximity to the position pictured for KAMAL XXVI.
ii) An engine bell book noting that the engines of ARIELA were put dead slow ahead at 1942.
iii) A letter of protest dated 30 April 2004 which contained an account similar to that contained in the deck log (and official log).
iv) A sketch of the collision on the original working chart repeating the account that at collision ARIELA was in about mid-channel (and with the anchors of KAMAL XXVI buoy well inside the channel).
As regards factual witness evidence, the Defendants tendered a number of statements including:
i) Two statements of the master of ARIELA the first dated June 2004 and the second dated February 2007.
ii) A statement of the Pilot dated January 2005.
iii) A statement of the helmsman dated June 2004.
iv) A statement of the third officer (OOW) dated June 2004.
v) A statement of the Chief Officer (who had been at forward station) dated June 2004.
The Defendants were unable to call the Pilot to give oral evidence but did call the Master.
Evidence of KAMAL XXVI
The log book of the dredger has the following entry:
“1955 Stopped dredging, shifted the dredger up to boundary of channel, in accord with DGPS coordinates 1704943.3m. North, 371257.6m. East, port side and stern wires slackened, bucket ladder fixed downward (depth 14.9m CD) to avoid drifting of the dredger. Keep alongside portside, dump barge KAMAL XXIV.
(It is common ground that this position if accurate is in the immediate vicinity of Buoy 10.)
2015 MV ARIELA (Singapore) moving with slow speed to berth No. 9. collided with dumb barge KAMAL XXIV…..”
In addition to the deck log and the dredging log, the Claimants' documentary evidence included:
i) A statement of facts prepared by the master dated 1 May 2004 and a report to owners by the master (already referred to above) dated 2 May.
ii) Attached to the report two sketches of the master purporting to show the position of KAMAL XXVI in relation to the channel and the position of the dredger's anchors.
As regards statements, the Claimants tendered:
i) A statement of the second officer dated November 2006.
ii) A statement from the Contractors Managing Director confirming the datum for operation of the vessel's positioning (DGPS) equipment.
The Claimants called no witnesses of fact to give oral evidence.
Issues
The primary issue in the case was the location of the dredger. There were also subsidiary but related issues as follows:
i) At what stage did ARIELA commence altering to starboard to come round into the next...
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