In a potentially unique English Admiralty case1, Mr Justice Teare recently apportioned liability between four vessels involved in the collision between the container ship “NORDLAKE” and the Indian Navy warship “VINDHYAGIRI” off Mumbai.
In doing so, he re-iterated the principles set out by Sir Henry Brandon in his extra-juridical article Apportionment of Liability in British Courts under the Maritime Conventions Act 19112. In this action, claims were brought by the owners and/or demise charterers of “NORDLAKE” and the owners of the container ship “SEAEAGLE”. The other two vessels involved, the warships “GODAVARI” and “VINDHYAGIRI”, were not parties to the action. Teare J also considered the issue of whether liability could be apportioned between four ships when only two were parties to the action, and no evidence had been provided by those who were not parties.
On 31 January 2011, Nordlake was proceeding outbound from the port of Mumbai in the dredged channel. At C-24, she was brought onto a heading of 236 degrees. On completing this turn, she was slightly to port of the centre line of the channel. At C-17, “NORDLAKE” agreed on VHF with one of a line of three inbound Indian Navy warships heading towards her in the channel that she would pass “all the warships…green to green” or starboard to starboard.
Astern of these three vessels were two more inbound warships, “GODAVARI” and “VINDHYAGIRI”, followed by “SEAEAGLE”. At C-15, “NORDLAKE” turned to port onto a heading of about 211 degrees, and reduced speed to nine knots. She was then substantially to port of the centre line of the channel.
Rule 9(a) of the Colregs provides that “A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable”.
All the inbound vessels were on their starboard side of the channel, in the correct water, while “NORDLAKE” was navigating towards them on her port side of the channel, in the wrong water. By C-8, “NORDLAKE” had passed clear of the first three inbound warships. At C-6, “NORDLAKE” and “SEAEAGLE” agreed on VHF to pass starboard to starboard. Shortly after this, “SEAEAGLE” overtook “VINDHYAGIRI” on her starboard side.
“NORDLAKE” and “GODAVARI” then agreed on VHF to pass port to port. At C-3.5, “SEAEAGLE” was fine off the port bow of “NORDLAKE” at about five cables. These two vessels confirmed on VHF that they would to pass starboard to starboard.
At C-2, “GODAVARI” passed clear to port of “NORDLAKE”. However, a close quarters situation then developed between “NORDLAKE” and “SEAEAGLE”. At C-1, following the intervention of Mumbai VTIS, both ships manoeuvred hard to starboard and passed port to port, narrowly avoiding a collision.
As “NORDLAKE” manoeuvred clear, “VINDHYAGIRI” was off her port bow at less than 1.5 cables. “VINDHYAGIRI” was shaping to cross ahead of “NORDLAKE”. The master of “NORDLAKE” ordered hard to starboard. With “NORDLAKE” turning to starboard and “VINDHYAGIRI” turning to port, the bow of “NORDLAKE” collided with the starboard side of “VINDHYAGIRI”.
Apportionment of liability
In apportioning liability, Teare J applied and commended to others the principles set out by Sir Henry Brandon within the general proposition that both culpability and causative potency should be taken into account when assessing liability:
- First, the nature and quality rather than number of a ship’s faults should be taken into account
- Secondly, breaches of certain defined situations under the Colregs would usually be seriously culpable, ie a breach of Rule 9 of the Colregs concerning narrow channels
- Thirdly, causative potency comprises both the extent to which the fault contributed to the fact that the collision occurred and the extent to which the fault contributed to the damage resulting from the casualty
- Fourthly, in most cases it would be “right to treat the fault of a ship that creates a situation of difficulty or danger as greater than that of a ship that fails to react properly to such a situation after it has been created”
- Fifthly, a fault consisting of a deliberate act or omission might, in certain circumstances, be more culpable than a fault consisting of omission only
Teare J also tackled an issue which Sir Henry Brandon had indicated was an “open question of some difficulty”, as to whether liability could be apportioned between multiple vessels when only some of them were parties to the action. Section 187 of the Merchant Shipping Act 1995 provides that “Where, by the fault of one or more ships, damage or loss is caused to one or more of those ships…the liability to make good the damage or loss shall be in proportion to the degree in which each ship was in fault”.
The electronic evidence, including VDR and ECDIS data and VTIS radar and audio recordings had enabled the parties to agree on the navigation of all the ships involved.
Teare J held that pursuant to section 187, he must take account of the causative faults of all the vessels involved and apportion liability, even if some were not parties to the action before the court, and his decision would therefore not be binding on those parties. He found that all four ships were to blame for the collision, and that there had been a number of breaches of the Colregs.
He particularly criticised “NORDLAKE” for her breach of Rule 9 which, in terms of causative potency, was the primary fault which gave rise to the dangerous situation. Her presence in the wrong water was a deliberate decision to breach a rule which was designed to avoid a close quarters situation. He also criticised the use of VHF to agree navigational manoeuvres in conflict with the Colregs. Teare J found that from C-8 onwards, a series of causative faults on the part of all four vessels led to the collision.He held that liability should be apportioned as follows: “NORDLAKE” (60%), “SEAEAGLE” (20%), “GODAVARI” (10%) and “VINDHYAGIRI” (10%).