The R D (No 1& 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE BELDAM,Lord Justice Purchas,LORD JUSTICE NOLAN,Lord Justice Beldam |
| Judgment Date | 18 December 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1218-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/1275 |
| Date | 18 December 1991 |
[1991] EWCA Civ J1218-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
MR. JUSTICE SHEEN
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Beldam
and
Lord Justice Nolan
91/1275
MR. R. STONE Q.C. and MR. N. SAUNDERS (instructed by Messrs Stephenson Harwood) appeared on behalf of the Appellants (Plaintiffs).
MR. N. TEARE Q.C. and MISS P.A. MELWANI (instructed by Messrs Lloyd & Co.) appeared on behalf of the Respondents (Defendants).
This is an appeal by the owners of the ship "IRAN NABUVAT" from a judgment of Mr. Justice Sheen on 8th June 1990 in which he held that they were wholly liable for a collision between that ship and the "REGINA D" which occurred at 04.43 on the morning of 1st December 1987 in the River Scheldt. Mr. Justice Sheen had the assistance of Assessors Captain B.J. Cloke and Captain N.W.C. Rutherford. There is a second appeal from a further judgment delivered by Mr. Justice Sheen on 4th June 1991, again holding that the "IRAN NABUVAT" was wholly responsible, by virtue of its responsibility for the collision, for the subsequent grounding of the "REGINA D" and that the latter event was in no way attributable to negligent navigation on the part of the pilot of the "REGINA D" immediately after the collision. We have heard argument relating to both judgments. This judgment deals with both appeals.
The "IRAN NABUVAT" had shortly before the collision left the lock at the exit from Antwerp Harbour and was proceeding down river towards the estuary. The "REGINA D" had entered the estuary where she picked up the pilot, Oscar van Laeken, in Flushing Roads and was proceeding up river intending to enter the lock into Antwerp Harbour. The "IRAN NABUVAT" had taken a pilot on board when leaving Antwerp Harbour. The place where the collision occurred was at a point where the Scheldt is extremely broad but where the navigable channel is comparatively narrow, closely buoyed, and is called the Zuidergat. More precisely, the collision appears to have occurred between starboardhand buoy 57A and porthand buoy 48A. These buoys are situated on either side of the navigable channel in the immediate vicinity of Walsoorden.
Having picked up her pilot, the "REGINA D" proceeded up river in clear weather and without incident until shortly before the collision. This brought the "REGINA D" to a long right-hand bend in the river opposite Hansweert. At this point the river is wide, the narrowest part being more than one mile in width. However, much of the river is very shallow and it dries as the water level falls. The Zuidergat, which is about three miles further upstream, represents narrows where the channel becomes as narrow as 400 metres. The distance between buoys 57A and 48A was measured by radar at 420 metres.
The collision took place in dense fog which, at the time, lay upstream of a point opposite the Oude Hoofd tide gauge, about two-thirds of a mile downstream of buoy 57A. The "IRAN NABUVAT" had been in fog more or less since her departure from Antwerp. Her passage downstream was uneventful until she reached a position between two and three miles short of the collision.
For radar and navigational purposes the river is divided into two halves, separated by a radar line which appears only on the radar screens and does not necessarily represent the mid-point of the channel. It shows the points at which changes of course have to be made so as to keep approximately parallel to the sides of the channel. Thus although it is not precisely a mid-way line, it approximates thereto. Vessels proceeding upstream should keep a course in the green side which is to the side delineated by the starboardhand buoys. Vessels proceeding downstream should keep to the red side, which is the side of the stream next to the line of the porthand buoys. Unless overtaking or carrying out some special manoeuvre, vessels should normally navigate in a position safely within their appropriate halves of the channel. For this purpose the navigable channel is divided into three parts, thus a vessel proceeding upstream should navigate a course "one-third green" whilst a vessel navigating downstream should navigate on a line "one-third red". Thus a third of the channel is kept between the two opposing courses.
The collision occurred about one hour before low water. This has a particular significance since the Zuidergat presents peculiar problems. It is described in the Dover Strait Pilot (1985 Edition) as "difficult for long deep-draught ships". Both the ships involved in this collision fall within this category. The learned judge accepted a description of these problems given by van Laeken, who was "a very experienced pilot".
"In the vicinity of Oude Hoofd (which is a tide gauge about 1/2 a mile down river from buoy 57A) when a strong ebb tide is running, there are a series of eddy currents which may be present just upstream of Oude Hoofd which may make steerage control difficult to maintain. Between Oude Hoofd and Walsoorden and beyond to buoy 61, the ebb current again sets strongly to the green side of the fairway i.e. toward and on to the western bank. As stated above, this is usually at a rate of about 2.1/2 knots. In clear visibility, the rate of set of the current can be quickly checked and the effects on the ship quickly observed. In bad visibility where navigation is by radar alone, this set or drift of the ship towards the western bank cannot be observed as quickly. Thus, it is not prudent to pass too close by buoy 57 (especially when at reduced speed). Passing too close to buoy 57 would in those circumstances expose a vessel to the risk of being set down onto buoy 57A".
The judge found that at the time of the collision the ebb stream probably had a force of about 2 knots. Those who navigate ships on the Scheldt must comply with the regulations for shipping on the western Scheldt.
Radar control is provided in this area of the river by the Waarde radar station whose transmitter mast is positioned on the northeast bank of the river, some 4,000 metres removed from buoy 57A to the northeast. Upstream of the point of collision by about 3,000 metres or a little more, and approximately 4,000–5,000 metres more or less due south of the Waarde radio transmitter mast, there is an important navigation light, the Baalhoek Beacon. Where evidence is given by the radar witnesses, of distances and bearings, from the Baalhoek Beacon, these are still related to signals obtained on the Waarde radar transmitter through their aerial, merely by measuring on the radar screen between the point of collision and the point at which the Baalhoek Beacon appears on that same screen. I think it was commonly accepted by the parties that the latter bearings and distances are accordingly less reliable than those directly obtained from the transmitter itself.
The "IRAN NABUVAT" relied upon rule 6, paragraph 4(a) of the Western Scheldt Regulations. This provided:
"When in a channel where a current or stream is flowing, two vessels are approaching one another on reciprocal courses at a narrow point, bend or landing stage, where the channel is so narrow that their simultaneous passage may involve risk of collision, the vessel proceeding against the current or stream shall hold back until the vessel proceeding with the current or stream has passed through the narrow point or bend…"
Before Mr. Justice Sheen the "IRAN NABUVAT" relied upon this, asserting that the "REGINA D" should have held back until the "IRAN NABUVAT" had safely passed through the Zuidergat. Mr. Justice Sheen posed a question based upon rule 6 of the regulations to his assessors, the question and answer were as follows:
"Q. Taking account of all the factors referred to in rule 6 of the Regulations, was "REGINA D" proceeding at a safe speed? A. Yes. The navigation of all the ships in the vicinity was being watched by the local radar station. Warning would be given of any dangerous situation developing. In view of the strong currents and eddies in this area we would not expect a pilot to proceed up river at a slower speed".
The "IRAN NABUVAT" has accepted part responsibility for the collision admitting that she was navigating downstream at an excessive speed, and that at the time of the collision she was to some degree on the green side. This notwithstanding she alleged relying upon rule 6 paragraph 4(a) and other provisions of the Regulations, that the negligent navigation of the "REGINA D" also contributed to the collision.
Whilst he has persisted with the other allegations on appeal, Mr. Stone, who has appeared for the "IRAN NABUVAT", has abandoned the ground of appeal based upon a breach of rule 6(4)(a).
The inquiry therefore has in this court been mainly concentrated on an attack upon the trial judge's finding that the navigation of the "REGINA D" was in no way responsible for the collision. It is, however, necessary to record some of the navigational incidents of the "IRAN NABUVAT's" passage after passing buoy 52 and when entering the Zuidergat. From the findings of the judge, which have not been challenged on appeal, the relevant incidents were that after passing buoy 54 the pilot brought the "IRAN NABUVAT" on a course of 285 degrees. He then wished to use his radar to have a look at ships proceeding upstream,...
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