It is rare nowadays for collision cases to be argued before the English courts, but in NORDLAKE v SEAEAGLE1, the judge had to address whether the court could find fault with a vessel which was not before the court, a question that had been left open previously in the BOVENKERK2.
NORDLAKE v SEAEAGLE involved two actions arising out of a collision between the container vesselNORDLAKE and the Indian warship INS VINDHYAGIRI in the “narrow channel” approaches to Mumbai on 30 January 2011. NORDLAKE was outbound from Mumbai and agreed by VHF with the “lead warship” of a group of Indian warships, inbound to Mumbai, to pass all other inbound warships green to green, namely starboard to starboard. In breach of Rule 9 of the Regulations for Preventing Collisions at Sea (COLREGS), which requires vessels to navigate on the starboard side of the narrow channel. NORDLAKEthen proceeded along the port side of the narrow channel which brought her into a close quarters situation with SEAEAGLE, INS VINDHYAGIRI and INS GODAVARI, ultimately resulting in the collision with the INS VINDHYAGIRI which caught fire and sank.
The owners of NORDLAKE brought a claim against the owners of SEAEAGLE on the ground that the collision was caused by the negligence of SEAEAGLE and the Indian warships INS VINDHYAGIRI, INS GODAVARI and the “lead warship”. The owners of SEAEAGLE counterclaimed on the basis that the collision was caused by the negligence of NORDLAKE and the same three Indian warships.
The case was unprecedented for a number of reasons:
- Four vessels were found to be involved in the circumstances giving rise to the collision between the two vessels.
- The judge had to decide whether the court could find fault with a vessel which was not party to the proceedings. None of the Indian warships were before the English court, although the Indian government on behalf of the INS VINDHYAGIRI had commenced proceedings against NORDLAKEin the Mumbai High Court.
- Pursuant to section 187 of the Merchant Shipping Act 1995, the judge had to consider and weigh the faults of each ship individually and then to arrive at an apportionment of liability that justly reflected the relative degree of fault as between all four.
- Finally, NORDLAKE’s interests sought a general decree of limitation to limit their liability pursuant to the Merchant Shipping Act 1995.
In arriving at his decision, the judge noted that he was unable to give a binding judgment against the Indian warships as they were not party to the actions.
The judge found that, whilst SEAEAGLE’s and INS GODAVARI’s faults were not causative of the collision, they had “causative potency” in that they distracted NORDLAKE; but for those faults NORDLAKE might have seen INS VINDHYAGIRI earlier and might have avoided a collision.
The judge also held that VHF should not be used to agree on a course of navigation that conflicts with the COLREGS. The fact that NORDLAKE had informed the “lead warship” of her intention to pass all other warships green to green did not justify a departure from Rule 9.
The judge apportioned liability as follows: 60% to NORDLAKE, 20% to INS VINDHYAGIRI, 10% to INS GODAVARI and 10% to SEAEAGLE. The judge also found that the owners of NORDLAKE were entitled to limit their liability.
Notwithstanding the unprecedented decision that the court can apportion liability pursuant to section 187 of the Merchant Shipping Act 1995 against parties not appearing before the court, the case serves as a useful reminder for owners and their crews of not using VHF to agree a course of navigation contrary to the COLREGS.