Western Neptune (owners, demise charterers and time charterers) and Others v Philadelphia Express (owners and demise charterers)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVID STEEL,Mr Justice David Steel,Mr JUSTICE DAVID STEEL |
| Judgment Date | 26 June 2009 |
| Neutral Citation | [2009] EWHC 1274 (Admlty),[2009] EWHC 1522 (Admlty) |
| Court | Queen's Bench Division (Admiralty) |
| Docket Number | Case No: 2007 FOLIO 1463 |
| Date | 26 June 2009 |
[2009] EWHC 1274 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
MR Justice David Steel
Sitting With Commodore Peter Melson and Captain Nigel Pryke Elder Brethren of Trinity House as Nautical Assessors
Case No: 2007 FOLIO 1463
Jeremy Russell Q.C. & Gemma Morgan (instructed by Holman Fenwick Willan) for the Claimants
Nigel Cooper (instructed by Swinnerton Moore Solicitors) for the Defendants
Hearing dates: 9—11 & 16—17 March 2009
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 :
This action arises out of a collision which occurred in September 2007 in the Gulf of Mexico. The losses sustained by the claimants are very substantial, said to be in the region of $25 million. Further it raises some interesting and novel issues. These issues have emerged despite the fact that there is a photographic record of the radar picture (including AIS data) on one of the vessels and there is an audio recording on the bridge of that vessel which includes all the VHF exchanges with the other vessels in the vicinity.
WESTERN NEPTUNE
WESTERN NEPTUNE is a seismic survey vessel. Her principal dimensions are 92.5 metres in length and 23 metres in beam. She is some 8,369 tons gross and 2,511 tons net. She is registered in Panama. She is powered by two Bergen diesel engines developing a total of 10,810 b.h.p. She is manned by a crew of 57 hands all told, most of whom worked in the survey departments. It is of passing interest that the crew was made up of 22 nationalities with English as a common language.
Her navigational aids include:
i) A gyro-compass on the bridge and a further gyro compass in the seismic instrument and control room on B deck.
ii) 3 radars with ARPA, all interfaced with the gyro and speed log.
iii) An electronic chart display and information system (ECDIS).
iv) An automatic identification system (AIS) which was also interfaced with the main radar and with ECDIS.
WESTERN NEPTUNE is capable of towing up to 16 streamers and ten gun arrays. Surveying is carried out by sending sound waves generated by compressed air released from the arrays and recorded by the hydrophones in the streamers. At the time of the collision WESTERN NEPTUNE was carrying out a wide azimuth survey of the Green Canyon in the Gulf of Mexico about 150 miles south of New Orleans.
For this purpose she was towing a spread of ten streamers and six gun arrays (“the array”). Each streamer extended for about 8,030 metres (4.34 miles) astern of the vessel. With each of the streamers maintained about 120 metres apart the total width of the spread was some 1,080 metres. They were being towed at a depth of 12 metres. Almost the entirety of this array was cut in two or otherwise damaged when the defendants' vessel ST LOUIS EXPRESS crossed about 4 miles astern of WESTERN NEPTUNE, giving rise to this substantial claim.
The lines of the survey were planned on courses of 045 °-225°and were some 60—70 miles long. At the material time WESTERN NEPTUNE was on a South Westerly leg. The survey speed was maintained at about 4 to 5 knots. WESTERN NEPTUNE was supported by three other vessels. Two, OCEAN ODESSEY and GECO TAU, were also towing gun arrays and were positioned off the port side of WESTERN NEPTUNE, the three vessels being interspaced by 1200m and proceeding on the same course and speed. 1
The third vessel was positioned between one and three miles ahead of WESTERN NEPTUNE. It was a 'chase' boat called FURORE. Its main function was to “chase” vessels such as fishing craft which presented a potential hazard ahead of the seismic convoy. It also acted as a “guard” vessel for the convoy by contacting approaching vessels on VHF channel 16 on behalf of WESTERN NEPTUNE.
FURORE was an offshore support vessel (converted from a fishing vessel) of 235 tons gross and 70 tons net, some 34.7 metres in length and 7.5 metres in beam. She was powered by diesel engines of 1,235 bhp giving a maximum speed of 12 knots. She was equipped with three VHF units, an electronic chart display and two radars interfaced with AIS. FURORE was usually accompanied by a second chase or guard boat TORSVIK. However, on the day of the collision TORSVIK was unavailable as she was effecting a crew change ashore. For reasons which were not revealed, she was not replaced.
So far as lights were concerned the position was as follows. WESTERN NEPTUNE was exhibiting normal navigation lights and a towing light above the stern light. However she was restricted in her ability to manoeuvre. Indeed she could scarcely make any material alteration in course or speed. For instance an alteration of course of 180 deg whilst maintaining the array would take several hours. Any material increase in speed would risk damaging the array: a significant reduction would risk the sinking of the array. Thus, in accord with Rule 27(b) of the Collision Regulations, she was exhibiting three all round lights, the highest and lowest being red and the middle white.
So far as the array was concerned there were buoys at the aft end of every streamer and at the forward end of the outer six streamers. Each such buoy was fitted with a high intensity blue strobe light and a radar reflector 2. That apart there were no lights between the stern of WESTERN NEPTUNE and the end of the streamers over 4 miles astern
The nature of WESTERN NEPTUNE's employment was the subject of a local notice to mariners issued by the United States Coast Guard (“USCG”). 3 This read:
“LA—GULF OF MEXICO—Seismic surveys
Continuing until further notice, the m/v WESTERN NEPTUNE.…will be conducting seismic survey in an area [the co-ordinates are then set out]. The m/v WESTERN NEPTUNE ….will be towing 10-cables that are 5 nautical miles long. All vessels are requested to keep clear a minimum of 3 nautical miles forward and 6 nautical miles astern. The m/v WESTERN
NEPTUNE …. will be monitoring VHF FM Channels 13 or 16.” 4
In addition, the details of WESTERN NEPTUNE available (if selected) on AIS included the following:
i) Status: 3. Restricted manoeuvrability
ii) Type: 32: Vessel towing and length of the to…
iii) Destination: TOWING 5NM LONG CABLE
AIS also carried details of the other three vessels in the convoy:
OCEAN ODYSSEY
i) Status and Type: [as above]
ii) Destination: GULF OF MEXICO
GECO TAU
iii) Status and Type: [as above]
iv) Destination: GREEN CANYON
FURORE
v) Status: 0: Underway using engine
vi) Type: 51: Search and rescue vessels
vii) Destination: GUARD WESTERN NEPTUNE
The collision occurred during the watch of the Second Officer of WESTERN NEPTUNE, Mr Eidsvik (the “OOW”). He had shadowed the newly-joined Third Officer from 2200 to midnight on 22 September and took over his watch proper at 0000 on 23 September. It was his recollection and that of the Master of WESTERN NEPTUNE that the weather was overcast but clear with a SSE'ly wind force 5 and moderate seas.
ST LOUIS EXPRESS
ST. LOUIS EXPRESS is a motor container vessel of 40,146 mt gross and 18,097 mt. net, some 243 metres in length and 32 metres in beam. She was powered by MAN diesel engines of 35,280 hp. She was registered under the U.S. flag at St. Louis. She was equipped with two ARPA radars and with AIS.
She was engaged on a regular liner service between Europe and the U.S. At the relevant time she was in the Gulf of Mexico inward bound to Houston, Texas with a cargo of 11,224 mt. of containerised cargo. Her sailing draught had been 7.10 metres forward and 9.10 metres aft. She was exhibiting normal navigation lights.
Her navigation officer was the Third Officer who had held a third mate's ticket for about 2 years and had only joined the vessel a few days earlier. 5 The weather was recorded as fair with good visibility save that “heavy rain was experienced on the Northern sector of the radar picture prior to the collision.” The wind was assessed as Easterly force 3. ST LOUIS EXPRESS was on a course of 292° true at a speed of about 20 knots.
An important feature of the equipment onboard of ST LOUIS EXPRESS was the presence of a Voyage Data Recorder (“VDR”). This furnished a recorded picture of the radar screen and the AIS display every 15 seconds. 6 In addition there was a record of the conversation from the two VHF radios and from six microphones paced at various locations on the bridge. 7
Approach of the two vessels
From this material it was possible to reconstruct the passage of the two vessels with considerable accuracy.
As regards the navigation prior to C-18 the position as derived from the VDR is as follows. As already noted WESTERN NEPTUNE was on a course of 225° true making about 4 1/2 knots through the water. With a Westerly current of about 1/2 knot the AIS readout gave her course over the ground as between 224° to 227° and her speed over the ground as between 4.4 to 5.1 knots.
At about 0000 on 24 September 2007 WESTERN NEPTUNE was in position lat. 27° 21.1'N Long. 090° 28'E. Having made a slight alteration of course to port WESTERN NEPTUNE was in the course of passing a rig called HOLSTEIN SPAR. At about 0050 the rig was abeam to starboard at a range of 1.2 miles. She resumed her original track at about 0130. Thereafter she made no material alteration of course or speed.
At 0000 on 24 September, ST LOUIS EXPRESS was in position Lat. 26°48' N, Long. 89°39.7' W. She was on course of 292° at a speed of...
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