The Owners of the Vessel Sakizaya Kalon v The Owners of the Vessel Panamax Alexander
| Jurisdiction | England & Wales |
| Judge | Mr Justice Teare,Mr. Justice Teare |
| Judgment Date | 05 October 2020 |
| Neutral Citation | [2020] EWHC 2604 (Admlty) |
| Date | 05 October 2020 |
| Docket Number | Cases No: AD 2018 000124,149 & 150 |
| Court | Queen's Bench Division (Admiralty) |
[2020] EWHC 2604 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Teare
(sitting with Captain Nigel Hope and Commodore William Walworth, Elder Brethren of Trinity House, as Nautical Assessors)
Cases No: AD 2018 000124,149 & 150
James Turner QC (instructed by Reed Smith LLP) for the Owners of OSIOS DAVID
Chirag Karia QC (instructed by HFW LLP) for the Owners of SAKIZAYA KALON
Robert Thomas QC and Ruth Hosking (instructed by Ince Gordon Dadds LLP) for the Owners of PANAMAX ALEXANDER
Collisions in the Suez Canal, 15 July 2018
Hearing dates: July 16 and 20–23, 2020, with written submissions on the advice of the Assessors completed on 25 September 2020
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 | 1 |
| The three vessels | 8 |
| The three masters | 13 |
| The location of the collision | 18 |
| The environmental conditions | 22 |
| Tugs | 23 |
| Local rules of navigation | 24 |
| AENEAS and the other vessels | 29 |
| The early navigation of the vessels from 1750 to 1930 | 46 |
| OSIOS DAVID | 48 |
| SAKIZAYA KALON | 63 |
| PANAMAX ALEXANDER | 103 |
| The collision at 1948 between PANAMAX ALEXANDER and SAKIZAYA KALON PANAMAX ALEXANDER | 132 |
| SAKIZAYA KALON | 142 |
| OSIOS DAVID | 152 |
| The later collisions between all three vessels | 155 |
| Fault | 176 |
| PANAMAX ALEXANDER | |
| Look-out and speed | 181 |
| Failure to moor before KM 149 | 202 |
| Failure to drop anchor before C-6 | 225 |
| Summary of PA's faults | 230 |
| OSIOS DAVID | |
| Failure to advise of intention to moor | 234 |
| Location of OD's mooring | 238 |
| Other mooring criticisms | 253 |
| Actions after 1930 | 256 |
| SAKIZAYA KALON | |
| Failure to advise of intention to moor | 271 |
| Failure to advise of mooring by anchor and without tugs | 275 |
| Failure to moor on west bank | 276 |
| Failure to move ahead past OD | 279 |
| Heaving anchors at C-2 | 285 |
| Failing to prevent the collisions with OD | 286 |
| Conclusion as to fault | 292 |
| Causation with regard to the later collisions | 296 |
| Last word | 304 |
Introduction
On the evening of 15 July 2018 a southbound convoy of eight vessels was proceeding through the southern section of the Suez Canal. At about 1750 the vessel at the head of the convoy, AENEAS, a container vessel, had an engine problem and, by about 1820, was anchored. Thereafter, the other vessels astern of her either took steps to moor or prepared to moor. Not all were successful. At about 1948 the eighth (and last) vessel, PANAMAX ALEXANDER, a laden bulk carrier, collided with the seventh vessel in the convoy, SAKIZAYA KALON, another laden bulk carrier, which was at anchor. (There is a dispute as to whether she was also moored to the bank of the canal.) After PANAMAX ALEXANDER had collided with SAKIZAYA KALON, those two vessels, at about 2002, collided with OSIOS DAVID, another laden bulk carrier which was anchored and moored. The three vessels ended up in such positions that they formed, remarkably, a triangle across the Canal, with SAKIZAYA KALON heading towards the east bank, PANAMAX ALEXANDER heading towards the west bank and OSIOS DAVID heading down the Canal. The bows of PANAMAX ALEXANDER and OSIOS DAVID were in contact with each other, the stern of SAKIZAYA KALON was in contact with the stern of OSIOS DAVID and the bows of SAKIZAYA KALON were in contact with the stern of PANAMAX ALEXANDER. There was evidence of further contact between the vessels at 2013–2014 (though there is a dispute as to whether PANAMAX ALEXANDER struck OSIOS DAVID for a second time). By about 2015 the three vessels had separated. But, again remarkably, PANAMAX ALEXANDER and SAKIZAYA KALON ended up alongside each other on reciprocal headings. There was further contact between them at about 2018.
The collisions between these three vessels have generated claims totalling some US$18 million. Three actions claiming damages were commenced in the Admiralty Court. The Owners of OSIOS DAVID sued the Owners of PANAMAX ALEXANDER in one action and sued the Owners of SAKIZAYA KALON in a second action. In the third action the Owners of SAKIZAYA KALON sued the owners of PANAMAX ALEXANDER. PANAMAX ALEXANDER has counterclaims against the other vessels. The three actions were heard together. None of the vessels accept any liability for the collisions. OSIOS DAVID and SAKIZAYA KALON say that the collisions were caused by the fault of PANAMAX ALEXANDER. PANAMAX ALEXANDER says that the collisions were caused by both OSIOS DAVID and SAKIZAYYA KALON.
In circumstances where OSIOS DAVID had been at anchor and moored to the west bank of the Canal for at least 18 minutes before the first collision and where SAKIZAYA KALON had been held by her anchors off the east bank of the Canal for about the same period there may well be those who wonder why it is not obvious that PANAMAX ALEXANDER, the final vessel in the convoy, was not wholly to blame for the collisions, having collided first with SAKIZAYA KALON and second with OSIOS DAVID. But the admitted duty of vessels in the convoy to inform those astern of their intention to moor, the presence of submarine cables which impeded the use of anchors to assist with mooring and the challenge of mooring in a following current enabled PANAMAX ALEXANDER to submit that that superficial view was wrong.
Each vessel carried a Voyage Data Recorder. In accordance with what is now standard practice in collision cases in this court, buttressed by appropriate rule changes to CPR 61 and PD 61 (see The Alexandra 1 and Ever Smart [2017] 1 Lloyd's Reports 666 at paragraph 2), the parties were able, with the assistance of appropriate experts who interrogated the VDRs, to agree a schedule showing the heading, course and speed of the three vessels. That schedule was of considerable assistance to the court. A “reconstruction animation video” of the VDR data produced by Collins Marine Consultants using MADAS software (Marine Accident Data Analysis Suite) shows the progress of the three vessels through the Canal. MADAS was developed under a project jointly funded by the UK Marine Accident Investigation Branch and the US National Transportation Safety Board to create a methodology for the analysis and visualisation of time dependent VDR data for use in accident investigations. MADAS can incorporate data from other sources including AIS (Automatic Identification System) and ECDIS (Electronic Chart Display and Information System). It is subject to error (for example small timing and positional errors and errors resulting from inherent GPS error) as explained in a report prepared by Collins Marine Consultants for the court. But the video was nevertheless of considerable assistance in understanding the progress of each vessel through the Canal leading up to the collisions. For example, it shows where each vessel was in relation to the submarine cables lying across the canal (which impeded the freedom of a vessel to anchor) and at the same time displays the underlying navigational data of each vessel (course, speed and so forth) on screen. I had not previously been persuaded that a “reconstruction animation video”, as opposed to a static plot of the vessels' navigation, served any real purpose; see The Alexandra 1 and Ever Smart at paragraph 5. However, in this case where it was necessary to know where each of the vessels was in relation to the submarine cables at different times, the video, which the viewer could pause and restart at will, was of considerable assistance. None of the parties suggested that the margin of error to which MADAS is subject was such as to make it inappropriate to rely upon it for the purposes of the resolving the issues in this case, save that counsel for PA suggested, perhaps with justification, that it could not be relied upon to show the nature and extent of the contact between the vessels.
The VDRs also recorded what was said and heard on the bridge of each vessel. These audio records are now commonplace in collision actions but an agreed transcript and translation often requires very considerable work by the parties. That was certainly so in the present case where the languages involved included Arabic, Mandarin, Tagalog and English and the audio records for over two hours from 1750 (when AENEAS had her engine problem) until 2035 (about 20 minutes after the last of the collisions) had to be listened to with great care. The importance of the audio record was illustrated in the present case by the considerable reliance placed on it by counsel, not only to show what information was given (or not given) by one vessel to another but also to show when certain actions not otherwise recorded were taken, for example, attempts to moor or the dropping of an anchor. The audio record can also enable inferences to be drawn as to the quality of a vessel's look out.
The shape of a collision action in the Admiralty Court is now very different from what it was before the advent of VDRs. In the past a trial was required to establish the navigation of each vessel. There...
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