The Owners of the “X-Press Mahanada” v The Owners of the “Burgan”

Hearing date: 29, 30 October 2024

Questions to Assessors 18 November 2024

Responses of Assessors 10 January 2025

Parties' Comments to Assessors: 22 January 2025

APPROVED JUDGMENT

This judgment was handed down remotely by the judge and circulated to the parties' representatives by email. The date and time for hand-down is deemed to be Wednesday 26 March 2025 at 09:30am

INTRODUCTION

At about 08:17:35 local time on Friday 14 June 2019 a collision occurred between the Claimants' container vessel “X-PRESS MAHANADA” (“XPM”) and the Defendants' product tanker (“BURGAN”). It was very nearly a head on collision. It occurred at the Gupta Crossing which is a significant bend in the Karnaphuli River (“the River”) in the approaches to the Bangladeshi port of Chattogram. Both vessels were under pilotage – XPM incoming, and BURGAN outgoing.

The collision took place very close to the northern edge of the navigable channel at the Gupta bend. This is a narrow channel to which Rule 9(a) of the Collision Regulations applies: namely that each vessel should keep as near to the outer limit of the channel or fairway on her starboard side as is safe and practicable.

It is not in issue that at the time of the collision BURGAN was in her wrong water – this location was, for her, close to the outer limit of the channel on her port side. BURGAN's defence to this claim is all about how she got there. She contends that she was where she was due to the fault of a third vessel, the “SHAKTI SANCHAR” (“SS”), an amphibious warfare ship operated by the Bangladeshi army. That vessel, which is not a party to this action, entered into the channel navigating broadly east to west between the two vessels fairly shortly before the collision occurred.

The Vessels

XPM is a container vessel 182.52m loa and 25.20m in beam. She was built in 2007. She was owned by Mackenzie Shipping Pte Ltd. of Singapore and flew the Singapore flag. She is of 18,017 GRT and 23896DWT and is powered by a MAN B&W 9L 58/64 diesel engine developing 12,600 kW at 428RPM. Her main engine drives a right hand turning, 4 bladed, controllable pitch propellor. That controllable pitch propeller gives greater control over her speed than a fixed pitch propeller so she is not bound to specific speeds e.g half ahead, slow ahead.

At the material time, XPM was partially laden with about 20,000 tons of containerized general cargo. Her drafts were 9.3m forward and 9.5m aft. She had the following manoeuvring speeds:

BURGAN is a product tanker, of 185.99m loa and 32.20m in beam. She was built in 2014. She is owned by Kuwait Oil Tanker Company S.A.K. and flies the Kuwaiti flag. She is of 46,330DWT, 31,445 GRT, 12,436 NRT and is powered by a 7RT-FLEX 50-D slow speed diesel engine manufactured by Hyundai-Wartsila, developing 11,936 BHP. She had completed discharge operations on the previous evening and was proceeding outbound in ballast. Her drafts were 6.3m forward and 8.0m aft.

She had the following manoeuvring speeds:

SS was not represented at the trial and there is limited information available about her. What there is discloses that she is a Landing Craft Tank (“LCT”), built in 2012, of 65.70m loa, 12 m in beam and has the capacity to carry 1 helicopter, 9 tanks and 150 troops.

THE FACTS

Until very late in the day the factual evidence base was essentially entirely agreed; and the evidence both as to the navigation of the vessels at the time and as to what was said at the time remained uncontentious. The account which follows reflects that uncontentious evidence, except where differences are highlighted explicitly.

The main sources of this evidence are:

1) The Avenca MADAS Replay. This is a video plot of the navigation of all vessels in the River from 0747:35 until 0822:35 on 14 June 2019 prepared by Avenca on behalf of both parties using the data available to them from the AIS and the information held by the vessels' Voyage Data Recorders (“VDRs”). This was supplemented by a number of stills, extracts from which are referred to below and details of which are embedded in this judgment;

2) The Agreed Combined VDR Transcript from both vessels. All conversations on the bridge of each vessel are recorded by the VDR. The Agreed Transcript sets out everything that was said, and heard, on the bridge of both vessels;

3) An ECDIS video replay and some images from the radar screens. This material was of less utility as it was agreed that neither vessel was consulting its radar at the time;

4) There was also the Admiralty chart and a number of “what if” reconstructions positing certain alternative courses of action.

Another type of document to which much reference was made were the passage plan. I asked the Assessors to assist as to the purpose and significance of passage plans and they responded thus:

“A formal Passage Plan (berth to berth) is a requirement of SOLAS Chapter V Regulation 34, in addition to the direction provided to the vessel by Sea Consortium PTE. Ltd (Marine Department Document — Revision No 0 (01st Jan, 2018)) and for BURGAN, the Kuwait Oil Tanker Company S.A.K. – Passage Route Plan Document Rev 02 Dated 23 Jan 2019. Both flag states of XPM, BURGAN and the State of Bangladesh are signatories to the SOLAS Convention.

A Passage Plan has four stages: Appraisal, Planning, Execution and Monitoring. It is vital for safety in respect of identifying hazards and preventing accidents, but also contributes towards efficiency, regulatory compliance, environmental protection and enhanced maritime security.

Local knowledge of the Pilot coupled with movements of vessels and other circumstances on the day may result in a deviation from the Ship's Plan in terms of precise timing and execution. The Master/Pilot Exchange provides a means of establishing not only the specific characteristics of the vessel, but also any differences between the ship's plan and the pilot's intentions.”

I had the benefit of passage plans for both BURGAN and XPM. They were rather different documents, with BURGAN's being more detailed than XPM's. BURGAN's indicated a 10 knot speed, and XPM's an 8 knot speed. I sought assistance from the nautical assessors as to whether these represented speeds over the ground (“SOG”) or speeds through the water, following some debate between the parties and a suggestion for XPM that they were speeds through the water. Their response was:

“It would be logical that these speeds should be speed over the ground as they form part of the EXECUTION phase of a Passage Plan and are often intended to relate to maintaining a safe schedule for the passage, ensuring that the ship achieves the required times for passing or arriving at key points. This is a ship produced plan however, and the Pilot's plan for the passage may differ.”

Ultimately the answer is that there is no clear answer as to whether both were on the basis of SOG or one was, and not the other. XPM suggested that her passage plan was through the water (because otherwise her speed, after allowance was made for tide, would be dead slow), while BURGAN's was SOG. I conclude that given that the plan is a ship produced document and yields to the pilot's plan the plans are of limited utility. It is therefore not appropriate to conclude that XPM's exceeding of her passage plan speed (if that plan were indeed based on SOG, which is by no means clear) was inappropriate.

XPM was engaged on the Upper Bay of Bengal line service between Columbo in Sri Lanka and Chittagong. She was under the command of Captain Pranjul Prasad. XPM arrived off Chittagong on 7 June 2019 and dropped anchor pending berth availability. On 13 June 2019 she received a call from Chittagong Port Control, advising that the Pilot would board at 0800 the following morning.

The weather at around 0536 when Captain Prasad took over control of the XPM's navigation on 14 June 2019 was cloudy with good visibility. The wind was from the South East, Bf 3, and high tide was predicted at Chittagong for 1123, with a height of tide of 4.4m above chart datum. Her bridge was manned by the Chief Officer, Third Officer, the duty AB and the Master. The AB was at the helm and was hand steering.

The bridge equipment at this time, and at the time of the collision, was set up as follows. The X-band ARPA radar was operating in North-up display, in relative motion and on the 1.5 NM range scale, although the range scale was increased at regular intervals. The radar sweep was centred and the ARPA was set up to display true target vectors of length 20 minutes and true trails of length of 30 seconds. The S-band ARPA radar was operating in North-up display, in relative motion and on the 0.75 NM range scale. The radar sweep was off-centred and the ARPA was set up to display true target vectors of length 12 minutes. The two ARPA radars had the charted course overlaid onto...