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	England and Wales High Court (Admiralty Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Admiralty Division) Decisions >> Heather Maid, The Owner of v Urter, The Owner of [2005] EWHC B7 (Admlty) (10 June 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admlty/2005/B7.html Cite as: [2005] EWHC B7 (Admlty)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT
Admiralty action in rem against the ship "URTER"

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th June 2005

His Honour Judge Havelock-Allan QC :

1. The claim in this action is for damage to the stern gear of the motor fishing vessel Heather Maid. The claimant alleges that the damage was caused when the Heather Maid collided with an unmarked mooring buoy belonging to the motor-vessel Urter. The incident occurred on the evening of 26^th November 2001 off the coast of Northern Ireland. The defendants do not admit that there was any collision. They say that if the Heather Maid did cross their mooring, any collision was the result of negligence of the crew of the Heather Maid. The buoy was well lit and the Heather Maid failed to maintain a proper look-out. It is the defendants' case that the mooring could not have caused the alleged damage. The more likely explanation is that the damage was caused when the Heather Maid fouled her propeller on her own fishing gear.
2. The Heather Maid is a single screw, diesel-engined, fishing vessel built in 1965 and registered in the Isle of Man. She has a wooden hull with a rounded, cruiser- shaped, stern and a wheelhouse situated just forward of amidships. Her overall length is 15.15 metres and maximum beam around 5.3 metres. Her gross tonnage is 37.88 tons.
3. On Monday, 26^th November, the Heather Maid sailed from Port St. Mary in the Isle of Man to fish off the coast of Northern Ireland. There was a crew of three on board: the master and owner, Mr Alan Watterson (hereinafter "the claimant"), his brother, Mr Stephen Watterson, and Mr Christopher Williams. The Heather Maid reached the Irish coast near the port of Portavogie at around 1330 hours and began her first tow.

Scallop dredging

4. The Heather Maid is a scallop dredger. Scallop dredging involves towing a set of scallop dredges along the seabed. The Heather Maid was equipped with two identical sets of scallop dredges. Each set consisted of 8 dredges attached to a tubular dredge pole which had rubber wheels at either end. A scallop dredge comprises an "A" shaped frame, of which the pointed end is attached to the dredge pole. At the other end there is a spring-loaded steel tooth bar assembly, which digs the scallops out of the sand on the seabed, and a chain mail bag and small nylon net to collect the catch. When the gear is fully deployed the dredges lie flat on the seabed and are towed behind the dredge pole, which rolls along the seabed on its rubber wheels. The tooth bar digs into the sand, rakes out the scallops and scoops them into the chain bag. From there they fall into the nylon net attached to the other end of the chain bag. The tooth bar on the dredge is spring-loaded so that, if it fouls on a stone or rock, it will spring clear.
5. Each dredge pole is rigged with a bridle. Bridle chains are attached to the ends of the pipe and at spaced intervals in between. The bridle chains unite at a swivel and shackle assembly from which a single trawl wire runs to a trawl winch mounted awthartships on deck just aft of the wheelhouse. The dredges are used in tandem, one off the port side and one off the starboard side. The wire on the port drum of the trawl winch goes to the port set of dredges. The wire on the starboard drum goes to the starboard set of dredges. The wires are passed through rollers at the end of telescopic spreader arms mounted on the vessel's bulwark on the port and starboard side about 1.8 metres from stern. When on deck the dredge poles and dredges lie on either side of the aft deck in a fore and aft alignment. In order to deploy them over the vessel's side, the trawl wires are connected to a gilsen winch and derrick arrangement. By means of this rig, the dredge poles are lowered onto the surface of the water while the engine is out of gear.
6. At first the poles lie on the surface, parallel to the vessel, with the dredges hanging below them in the water. There are ropes hooked onto the bridle chains to enable the crew to control the position of the dredge poles and alter their orientation to the side of the vessel. The next step is for the engine to be placed in gear and slow ahead. At the same time the crew pull on the ropes attached to the inboard bridle chain in such a fashion that the forward motion of the vessel causes an angle to open up between the forward end of the dredge poles and the vessel's side and the poles to pivot outwards until they lie perpendicular to the vessel. As the vessel gathers forward momentum, the poles begin to stream just aft of the stern. It is usual for the starboard gear to stream just aft of the port gear. The wire to the starboard gear is run out so that the dredge pole on the starboard side streams about 3 metres from the stern. The dredge pole on the port side streams between half to one metre from the stern. With the gear streamed in this manner, the vessel proceeds at up to 6 knots.
7. When the vessel is in position to begin fishing, the trawl wires are run out and the engine is slowed until the gear has touched the seabed. The gear is then towed over the seabed at a speed of about 2.5 knots. When the tow is completed, the dredges are recovered. The vessel remains in gear until the dredges have been hauled to a distance of about 20 metres from the stern. The distance is determined by markings on the trawl wires. The engine is then placed in neutral and the dredges are retrieved until the poles reach the surface. They are swung parallel to the vessel's sides and lifted on board by the gilsen rig in a reverse of the process by which they were initially deployed.
8. The Heather Maid's first tow off Portavogie lasted about one hour. She then moved up the coast to a position just South of the Copeland Islands. Between about 1600 and 1700 hours she fished to the South East of the main island. Whilst doing so, the claimant learned by mobile phone from other fishing vessels that the fishing was good to the North of the Isle of Muck, so he decided to head in that direction. The Isle of Muck is a small island situated close to the coast about 9 miles North of Black Head lighthouse and 5 miles South of the port of Larne. It lies no more than 750 metres from the mainland, and the channel between the island and the mainland is shallow and barely navigable. The Heather Maid hauled her gear and proceeded North from the Copeland Islands, across the mouth of Belfast Lough, towards Black Head lighthouse. According to the claimant, the Heather Maid arrived off Black Head lighthouse at about 1730 hours and shot her gear. She fished her way slowly up the coast, on a heading of approximately 340 degrees (T) and in a straight line for the Southern tip of the Isle of Muck. As the Heather Maid rounded a section of the coast known as The Gobbins, the claimant spotted the lights of the Urter. Although still some 3 miles away, he described her as "lit up like a town".
9. The Urter is a Norwegian vessel of 620 gross tons, a maximum beam of 11.21 metres and an overall length of 48.2 metres. Her owners, Haugaland Shipping A.S., are Norwegian and her home port is Haugesund. In appearance she resembles an ocean-going tug. Her bridge and accommodation are located well forward. The boat deck extends no further than amidships. The main deck has no superstructure from amidships to the stern. When the Heather Maid encountered her, she was moored about 200 metres from the mainland just South of the Isle of Muck, at map reference 5450.6 North 00543.1 West. The Urter had arrived and moored in that position early on 23^rd November. She was on time charter to a company of civil and marine contractors called Mika S.A., which had a contract to carry out works to two submarine electric cables which had recently been laid for Northern Ireland Electricity (NIE) as part of the Moyle Interconnector Project. The cables ran across the Irish Sea from a point on the mainland almost opposite the southern tip of the Isle of Muck. The Urter was acting as a standby vessel for underwater operations which involved the use of divers to install protection around the cables on the sea-bed. This was the Urter's first visit to the site. Another vessel under charter to Mika had worked on the cables at the same spot in the early summer of 2001.
10. On board the Urter was her master, Captain Johny Jøsang, Mika's Operations Manager, Mr John Berthelsen, and Mika's Head of Diving Operations, Mr Kent Klokset. Mr Berthelsen and Mr Klokset had been involved in the work on the cables at the Isle of Muck the previous summer.

The Urter's moorings

11. The Urter was moored with her bow pointing about 330 degrees (T) towards the shore and her stern facing the open sea. She was held in position by four mooring lines. The port bow line ran to the mainland and the starboard bow line ran to the Isle of Muck. They were each approximately 450 metres in length. The port stern line also ran to the mainland and was approximately 300 metres in length. These shore lines were attached to bolts which had been fixed in rocky ground on the shore during operations the previous summer.
12. The starboard stern line extended out to seaward. It comprised a section of steel mooring wire running from a winch on the aft deck of the Urter to a shackle on the underside of a small buoy ("the inner buoy") and a longer section of fibre rope which ran from the same shackle to another shackle on the underside of a yellow mooring buoy ("the yellow buoy"). The yellow buoy was connected by a steel multi-stranded anchor wire to a collection of 3 concrete blocks on the seabed. The concrete blocks weighed about 3 tonnes each and had been positioned on the seabed by the Urter on her arrival.
13. Although there were conflicting reports of the exact length of this seaward mooring line, most of the evidence suggests that its overall length was as much as 550 metres, including that part of the mooring wire which lay on the drum of the winch. The total length of the mooring wire was about 200 metres and the total length of the mooring rope was between 250 and 350 metres. There were also differing recollections as to the depth of the concrete blocks. Mika produced a report on 13^th December 2001 ("the Unwanted Incident Report") suggesting that they lay at a depth of 60 metres. But the evidence of the soundings on the bathymetric survey commissioned for the Moyle Interconnector Project shows that the depth could not have been more than 30 metres, and may have been a few metres less than that. The anchor wire which ran from the concrete blocks to the shackle on the underside of the yellow buoy was 100 metres long. So, as tension was applied to the mooring line, the yellow buoy would have been pulled in the direction of the Urter and the anchor wire would have run at a shallow angle between the concrete blocks and the underside of the yellow buoy. Even so, the yellow buoy would have been some 450 to 500 metres from the stern of the Urter when the seaward mooring line was taut.
14. The yellow buoy was barrel-shaped. It was approximately 150 cms long, 70 cms in diameter and 500 litres in volume. The skin was made of moulded polyethylene and the centre filled with expanded polystyrene. It weighed around 20 kilograms and was designed to sit upright in the water. A galvanised steel rod ran vertically through the centre of the buoy. At the top end the rod was attached to a steel plate mounted with a large rigid steel eye. At the bottom, the rod was attached to a smaller steel ring to which two shackles were connected, one linked to the mooring rope and the other to the anchor wire. Together the shackles hung about 30 to 45 cms below the buoy.
15. A third buoy ("the buddy buoy"), which was made of soft red or orange plastic and was about the size of a football, was attached to the yellow buoy by a 12 mm polypropylene rope of about 7-8 metres in length. A disputed issue was whether, on the evening of 26^th November, the yellow buoy had become submerged by the effect of the sea and the current. Whether or not it had become submerged on that particular evening, it appears to have been capable of being submerged by a combination of the tension on the mooring line and the prevailing sea conditions. The only explanation for the fitting of the buddy buoy was that it should mark the approximate location of the yellow buoy in the event that the yellow buoy became submerged.
16. A further contested issue was whether the yellow buoy was lit. I find that it was fitted with a regular Ocean Light manufactured by Treasea lndustries Inc. in Taiwan. Mika's mooring plan, prepared the previous summer, envisaged that lights would be attached to the mooring buoys and it was the evidence of Captain Jøsang and Mr Klokset that a light of this type was attached to the yellow buoy. It was attached to the rigid steel eye on the top of the buoy by means of plastic cable ties and/or duck tape. In the Unwanted Incident Report it was suggested that there was a light on the inner buoy as well: but I am satisfied that there was not.
17. The Ocean Light on the yellow buoy was tubular in shape, rather like a torch. It was battery-operated and about 8 inches long. The battery compartment was made of red plastic. On top of the battery compartment was a dome-headed clear plastic lens, which was about 3 inches long. Contact with the batteries would be made only when the lens was fully screwed home. The light was fitted with a photocell or light sensor so that the bulb would automatically begin to flash as dusk fell and would cease to flash at dawn. The flashing interval was about 1.5 seconds. I will return later in this judgment to the question whether the light was fully operational and was flashing as the Heather Maid approached the Urter on the evening of 26^th November. According to Treasea Industries, the range of visibility of their regular Ocean Light is between 3 and 5 kilometres in calm conditions. A set of standard batteries will last about 2 weeks. The light is water resistant but not waterproof.

The claimant's version of events

18. As the Heather Maid approached the Urter she met up with three other scallop-fishing vessels from Northern Ireland, the Onward, the Silver Chord and the Sea Harvester. The master of the Onward was Mr Geoffrey Chambers. The master of the Silver Chord was his brother, Mr David Chambers.
19. The claimant's recollection was that the Heather Maid stopped fishing and began hauling her dredging gear when she was about 600 metres to the South of the Urter. The visibility was good but daylight had begun to fade. In order to haul the gear, the engine was placed in neutral. The current was setting north, at an estimated speed of 2 knots. The wind was coming off the shore from West South West at around force 5-6. The combination of wind and current caused the Heather Maid to drift in the general direction of the Urter but to seaward of her. It also caused the bow of the Heather Maid to swing round to starboard onto an Easterly heading with her stern towards the Urter and the shore.
20. According to the claimant, in the time it took to haul the dredging gear and empty the catch from the dredges, the Heather Maid drifted past the Urter and towards the East coast of the Isle of Muck. The dredging gear was lowered to the surface, the engine was engaged ahead, at first slowly and then up to about 1,700 RPM, and the dredging gear was streamed behind the vessel. The Heather Maid was heading North East once again. When she was roughly abreast and to seaward of the Isle of Muck, the claimant turned the Heather Maid 180 degrees to starboard in order to position her for another tow in a South Westerly direction, i.e. back in the direction she had come.
21. The claimant's case is that, as the Heather Maid passed to starboard of the Urter, with her dredging gear still streaming on the surface, there was a loud bang in the way of the hull and the Heather Maid shuddered violently. The time was about 1900 hours. The claimant immediately knocked the engine out of gear and reported by VHF to the Onward that the Heather Maid had either hit something or fouled her gear on the propeller. Going aft, there appeared to be no sign that the dredging gear was fouled. Less than a minute later, the claimant saw bits of red plastic on the surface of the water and a large yellow buoy bobbed up from the underside of the Heather Maid. Now that the vessel was in neutral she again laid to and her head swung round to face North East.
22. A few minutes later, a tender put out from the Urter with two men in it. It came along the port side of the Heather Maid. The claimant's evidence was that he told the people in the tender (who were in fact Mr Klokset and another member of the crew of the Urter) that the Heather Maid had just hit something. They replied that she had fouled one of their mooring buoys. The claimant asked why the buoy was not lit, to which there was no answer. The tender went over to the yellow buoy which now lay behind and to the South West of the Heather Maid. The tender remained by the buoy and, after a few moments, a white light began flashing on top of the buoy. The tender then returned to the Urter.
23. It is not clear whether the dredging gear was hauled on board or left in the water. However, once the claimant was satisfied that the dredging gear was undamaged, it was streamed again. The Heather Maid proceeded to conduct one more tow in a South Easterly direction for about an hour before putting into the port of Bangor for the night. The claimant said that as soon as he engaged the engine ahead, there was noticeable vibration. The claimant suspected that there was damage to one or more of the propeller blades.
24. This account of the sequence of events was supported by the other two members of the crew of the Heather Maid, although it must be remembered that they were busy on the aft deck and would have had less cause than the claimant to observe the vessel's position and her heading at any particular time. The manoeuvres of the Heather Maid were also broadly corroborated by the Chambers brothers. However the reliability of their evidence is reduced by the fact that they are friends of the claimant, and the claimant admitted discussing with Mr David Chambers, before the trial, his version of what happened.
25. The evidence of the masters of the Onward and the Silver Chord was that their vessels, sailing North, had passed the Heather Maid before she made her 180 degree turn. They had then turned off the Isle of Muck and had overtaken the Heather Maid which was by now, like them, heading South West towards Black Head. The Onward overtook the Heather Maid about 100 metres to seaward, and the Silver Chord about 200 metres to seaward and slightly behind the Onward. The Onward was doing about 8 knots with her dredging gear out of the water. The Heather Maid was going more slowly with her gear streamed astern. The Urter was about ½ mile from the Onward and the Silver Chord at that point. Having overtaken the Heather Maid, the Onward stopped about 200 metres ahead of her. It was at that point that the claimant called the Onward on the VHF to report that the Heather Maid had hit something or fouled his dredging gear. When he heard the report the master of the Silver Chord was about 400-450 metres ahead of the Heather Maid. Neither of the Chambers brothers noticed any light on a buoy when heading North, or when heading South, until a tender came out from the Urter just after the Heather Maid's VHF call. Neither saw what the people in the tender were doing: but after they left there was a flashing light in the water quite close to the Heather Maid.
26. At 1957 hours the Northern Ireland Coastguard radio station at Belfast logged the following conversation: "Sitrep Passed Fm Onward – Int Intentions/Pulled Gear Together Ahead and Astern OK – Hell of Bang – Cable Not Lit – Has Put Boat Out Now//Rgr VMT – Have Noted this – Int Intentions//Rtn Bangor Finished Fishing//Rgr VMT". The initial contact was on VHF channel 16, which the Coastguard then switched to channel 67. The conversation lasted 6 minutes. According to the Coastguard, it was a conversation between the radio station and the claimant (although it may have been duplicated by a report from the Onward as well). The Coastguard understood the claimant to be reporting as follows: "Pulled gear on unlit anchor cable, made one hell of a bang. Gear recovered and everything seems OK. Put the boat ahead and then astern and all went OK. Finished fishing and returned to Bangor". This does not explain the logged record: "Has Put Boat Out Now". I find this must be a reference to the launching of the Urter's tender.

The defendants' version of events

27. Captain Jøsang was on deck, and Mr Klokset and Mr Berthelsen were on the bridge, when they saw several fishing vessels approaching the Urter from the South at dusk. The vessels were a few kilometres away when they were first spotted. One was proceeding very slowly, hugging the coastline, and heading directly towards the Urter. This must have been the Heather Maid, who was fishing her way North. Captain Jøsang went up to the bridge and tried warning the fishing vessels on various VHF channels. He then trained the searchlight on the yellow buoy and on the Heather Maid. Still the Heather Maid came closer. After about half an hour, when the Heather Maid had approached to within about 100 metres of the Urter's seaward mooring, it was decided to despatch the Urter's tender to warn her off. It took between 10 and 20 minutes to launch the tender, manned by Mr Klokset and another crew member.
28. The tender went over to the Heather Maid. By the time it reached her, she was very close to the Urter's seaward mooring. Captain Jøsang recalled that the bow of the Heather Maid had swung North East so that her port side was facing the Urter. He had not seen the Heather Maid proceed past the Urter, turn starboard through 180 degrees and head South again. As the tender approached, the crew of the Heather Maid were gathered at the stern. Mr Klokset saw the yellow buoy in the water nearby. The tender came alongside the Heather Maid on her port side. Mr Klokset told her crew about the proximity of the mooring. He said it was plain that they were aware of it by now. The crew told him that they had fouled their propeller on something. Mr Klokset suspected that they had fouled on the Urter's mooring. He probably replied that they had fouled their propeller on the Urter's equipment. Captain Jøsang had particularly wanted to know what VHF channel the fishing vessels were using. Mr Klokset asked how the Urter could contact the Heather Maid by radio and whether the Heather Maid needed any help. It is not clear what reply he received about the radio channel (although Captain Jøsang said that the report he received on the tender's return was that the Heather Maid was using channel 77): but the crew of the Heather Maid said that they did not need help. The tender moved away and the Heather Maid departed soon afterwards.
29. Mr Klokset had a radio or mobile phone with him in the tender. Mr Berthelsen contacted him and asked him to check the yellow buoy for damage, but not specifically the light on the buoy. The tender moved over to the yellow buoy. Mr Klokset checked the visible parts of the yellow buoy above the surface and the light. According to him there was no obvious damage to the buoy and the light was flashing normally. He did not check the buddy buoy.
30. At 2130 hours that evening, the Urter left her mooring and sailed into Larne for the night because there was a forecast of bad weather. She returned to the Isle of Muck the following morning. There is a confusion in the evidence at this point. Captain Jøsang, in a report dated 26^th September 2002, stated that that the work was finished on 27^th November and the moorings, wires and buoy were removed. No damage was noticed to the equipment except that the buddy buoy was missing. Mr Klokset gave evidence that the crew checked the yellow buoy on 27^th November and found that the lens of the Ocean Light was broken. He said nothing about the buddy buoy being missing. Mr Berthelsen agreed that the lens was damaged but said that it was cracked rather than smashed. Yet the Urter's deck log states that between 0800 and 1130 on 27^th November, the Urter tried without success to moor at the Isle of Muck but had to abort the attempt due to strong current and wind. She returned to Larne and did not moor again at the Isle of Muck until 28^th November. To further complicate the picture, the Unwanted Incident Report produced by Mika on 13^th December 2001 stated that the buddy buoy and its rope were found to be missing but that the bulb and glass of the light on the yellow buoy were "intact and working". This report was prepared from information supplied by Mr Berthelsen.
31. These inconsistencies reflect poor record keeping on board the Urter. No log was kept of events on the evening of 26^th November. The launching of the tender was not recorded in the deck log and no one wrote down what Mr Klokset had heard and observed when he went out to the Heather Maid and inspected the buoy. No written record was made of what was found by the crew when they inspected the mooring in daylight. Whether that inspection took place on 27^th or on 28^th November, it is plain (1) that the buddy buoy and its rope were missing, and (2) that the lens of the Ocean light on the yellow buoy was damaged.

The damage to the Heather Maid

32. When the Heather Maid berthed at Bangor, the claimant noticed leakage in the way of the packing gland to the propeller shaft. It was not so serious to prevent the Heather Maid fishing inshore off the coast of Northern Ireland on 27^th and 28^th November. The claimant considered that the weather in the Irish Sea was too poor for crossing back to the Isle of Man. Whilst fishing on 27^th and 28^th the vibration in the engine room machinery was still evident.
33. The Heather Maid returned to the Isle of Man on 29^th November. She arrived at Port St Mary around 1930 hours. On the return passage the claimant noticed that the forward plummer block bearing at the intermediate tailshaft was overheating severely. The claimant instructed the repair yard of Booth W. Kelly Ltd in Ramsey to attend the vessel and begin repairs. The yard inspected the Heather Maid in a drying out berth at Port St Mary on 30^th November and ascertained that the propeller shaft was deflected and the propeller damaged. The vessel was towed to the Booth Kelly repair yard at Ramsey. She was placed on a slipway and the propeller shaft and intermediate shaft were drawn. They were placed separately in a lathe in the workshop and were found by measurement with a clock gauge to be deflected beyond acceptable tolerances. The intermediate shaft was 4 inches in diameter and 8 feet 2 inches in length and was made of mild steel. It was found to be deflected by 75 thousandths of an inch, or just under 2 millimetres, in way of the forward support bearing location. It also appeared to be twisted over its entire length in a corkscrew fashion. The propeller shaft, which was made of bronze, was 4.5 inches in diameter and 10 feet 1 inch in length. It was deflected by 10 millimetres just forward of the propeller taper.
34. The Heather Maid's propeller was a bronze fixed pitch 4 blade propeller. It was found to have sustained fractures one inch long on the tips of three of the blades and the pitch of the damaged blades was disturbed. The cutlass rubber outer propeller shaft bearing was torn in places around the aft end, with some of the rubber splayed out from the aft end of the bearing shell in a manner consistent with the deflection of the propeller shaft. It required replacing, as did the upper and lower forward and aft intermediate shaft support bearings which were badly scored. There was also a fresh crescent-shaped marking and a slight indentation on the bronze external circumference of the rope guard positioned around the propeller shaft immediately forward of the propeller. But this did not require remedial action. No damage was found to the gearbox or main engine.
35. On 18^th December 2001 the Heather Maid was inspected at the Booth Kelly Yard by Mr Edward Hunt of John MacIlwaine & Son on behalf of hull underwriters. Mr Hunt gave evidence as the claimant's expert at the trial. By the time of his survey, the damaged shafts and propeller had been despatched to a firm in Hull. It had been decided by the claimant and the yard that the new shafts should be made of stainless steel. The old shafts had been despatched as templates and had been sent at once so that work on the order could begin before the Christmas and New Year holiday.
36. Despite the initial urgency, the Heather Maid was out of commission from 30^th November 2001 to 2^nd February 2002. The cost of the repairs was £13,889.77. Her net loss of earnings over the period of lay-up is alleged to have been £45,925.97.

Did the Heather Maid collide with the Urter's mooring?

37. I am in no doubt that the Heather Maid crossed the Urter's seaward mooring on the evening of 26^th November and that, in doing so, she (1) ran over the yellow buoy and the buddy buoy and depressed them under her hull, and (2) damaged the buddy buoy and broke the rope attaching it to the yellow buoy. I also find that it is probable that the lens on the Ocean Light was cracked at the same time.
38. The claimant and his crew all said in evidence that the yellow buoy they saw bob up behind the stern of the Heather Maid was more conical shaped than the yellow buoy used by the Urter. But I am satisfied that this was a trick of the light. The claimant's recollection of seeing bits of red plastic in the water is consistent with mechanical damage having been caused to the soft plastic of the buddy buoy by the Heather Maid's propeller. It is also consistent with Mika's Unwanted Incident Report which purported to record the impression gained by Mr Berthelsen or Mr Klokset at the time that the Heather Maid had fouled the buddy buoy around her propeller. That Report is an acknowledgment that the Heather Maid crossed the Urter's mooring and that the buddy buoy was lost in the process.
39. The fact that no damage was reported to the yellow buoy is not surprising. It was of a much more robust construction than the buddy buoy. Unless hit by the propeller of the Heather Maid it would have sustained no more than scuff marks. The photographs of the yellow buoys produced by the defendant showed that they had all been in service and had suffered wear and tear to a greater or lesser extent. There were four of them on board the Urter at the time of the incident. By the date of the trial, one had been destroyed off the West coast of Denmark in the summer 2004. It was not known whether that particular buoy was the one deployed as the mooring buoy on 26^th November. So the photographs of the remainder were no guide as to the extent to which, if at all, the yellow buoy was damaged by the Heather Maid

Did the collision cause the damage?

40. The parties are agreed that there are only two possible scenarios. Either the damage was caused by the dredging gear catching the propeller, as the defendants contend, or it was caused by the propeller fouling the anchor wire from the yellow buoy to the concrete blocks, which is the claimant's case. It is common ground that the Heather Maid's encounter with the Urter's mooring line did not cause the dredging gear to foul the propeller.
41. The claimant's scenario was supported by Mr Hunt. The defendants' scenario was supported by Mr Nicholas Chell of London Offshore Consultants Ltd, who appeared as the defendants' expert witness. Much of the expert evidence was devoted to establishing whether it was physically possible for the anchor wire to the buoy or for the port side dredge pole to foul the propeller and, if it was, to do so in a manner consistent with the damage to the propeller blades and the deflection of the shafts. I approach this evidence bearing in mind that the burden of proof rests on the claimant. If the conclusion is that both scenarios were possible but neither was probable, the claimant will have failed to prove his case (cf. Rhesa Shipping Co. SA v Edmunds, The "Popi M" [1985] 1 WLR 948).
42. I am in little doubt that both scenarios were possible. It was possible for the dredging gear to have come into contact with the propeller and it was possible for the anchor wire attached to the shackles on the underside of the yellow buoy to have come into contact with the propeller. Neither expert suggested the contrary. I am, however, satisfied that of the two possibilities, contact with the anchor wire was the probable cause of the damage.
43. Both experts modified their opinion as the case progressed. Mr Hunt had the advantage, which Mr Chell did not, of having sailed on scallop dredgers like the Heather Maid and having seen the dredging gear deployed. However, in his initial survey report, Mr Hunt was concerned that the extent of the deflection and torque damage to the shafts was not consistent with the limited extent of the damage to the propeller. He was also sceptical that an anchor chain was heavy enough to have caused the damage observed. Later, when he realised that the yellow buoy was anchored by a steel wire rather than a chain, he was satisfied that collision with such a wire was consistent with the damage. On the evidence that the concrete blocks were positioned at a depth of no more than 30 metres and that the anchor wire was 100 metres in length, Mr Hunt calculated that the tension on the anchor wire would have been such that it lay at an angle as shallow as 17.5 deg. to the surface of the water. If the Heather Maid crossed the mooring no more than about 7.5 metres from the yellow buoy, the result would have been to depress the anchor wire to an angle between the surface and the keel or the skeg of the vessel of about 49.5 degrees. At such an angle it was possible for the wire to have interfered with tips of the propeller provided that the Heather Maid crossed the mooring at an angle of 45 degrees or less.
44. The force of Mr Chell's evidence was somewhat diminished by the fact that he wrote his first report having no clear idea of how the dredging gear on a scallop dredger was deployed. Having read a description of the process provided by the claimant's solicitors, the case which was put to the claimant in cross-examination was that the end of the port dredge pole swung inboard and came into contact with the propeller as the Heather Maid was turning to starboard and was rolling because she was beam on to the wind and current. By the time Mr Chell himself gave evidence his preferred view was that the starboard dredge pole was the culprit because the effect of the propeller turning clockwise would be such as to draw the end of the pole into the propeller if it got too close. By contrast the effect of the propeller on the port dredge pole would be to push it away as soon as contact was made.
45. Mr Chell acknowledged that it was unlikely that either dredge pole came close to the propeller once the gear was streamed and the vessel was proceeding at the usual speed for streaming of 1,700 RPM. If the gear interfered with the propeller it had to have been at the critical stage of the initial deployment when the engine was engaged ahead and the forward ends of the poles were pivoted outwards from the vessel's side while the aft ends were pulled into the stern by the ropes attached to the inward bridle chains.
46. There was much argument over whether the crew used one rope or two ropes (one on the inner and one on the outer bridle chain) on each side when carrying out this procedure. My understanding of the evidence is that only one rope was used> It was used to pull inwards on the inner bridle chain, while the forward momentum of the vessel opened up an increasing angle between the forward end of the dredge pole and the vessel's side. When first engaged ahead the engine would be turning at 600 RPM and the propeller at 120 RPM, which would be sufficient power for significant damage to result if the dredge pole got in the way of the propeller.
47. In favour of Mr Chell's hypothesis was photographic evidence of mechanical damage which had been caused at other times to scratching plates fitted to the hull of the Heather Maid just forward of the propeller. The claimant explained this damage as having been caused by the chain bags during hauling of the gear. Whether caused by the chain bags or the dredge poles themselves, this damage demonstrated that on occasion the dredging gear could come "dangerously close to the propeller", as Mr Hunt put it in a report of a later incident. The later incident occurred on 1^st May 2002 when the Heather Maid was fishing off the South West coast of Scotland. At the time the claimant was not on board. The Heather Maid was under the command of a Mr Brian Creer. He reported hearing a noise in the main engine gearbox. Mr Hunt was asked to conduct a survey when the vessel returned to port. The only damage found was that the bearings to the shafts had overheated. Mr Hunt attributed this to the fact that the stern gear had been touched by the fishing gear. How much significance can be attached to this finding is far from clear because the claimant gave evidence that he was on board the Onward, only 50-60 yards to starboard of the Heather Maid, and that (as Mr Hunt's survey report itself suggests) the fishing gear was on deck at the time the noise in the gearbox was heard.
48. Some further support for Mr Chell is to be found in the claimant's reaction to the incident. The claimant told the Onward that he had either hit something or fouled his own fishing gear. He was clearly alive to the possibility.
49. However, against the defendants' explanation are ranged a number of factors. The first is that, aside from the incident in May 2002, there was no evidence that the Heather Maid had ever before fouled her gear on the propeller. Mr Hunt could not recollect any other case of a scallop dredger having done so. I reject the defendants' submission that the Heather Maid was susceptible to the risk because she had a cruiser-shaped stern rather than a flat transom. The evidence was that she was designed for scallop dredging. I think it improbable that she would have been designed and fitted out for scallop dredging in such a way that there was a significant risk she could foul her propeller on her own gear.
50. Second, there was no evidence of any damage found to either dredge pole. One would have expected visible and appreciable damage to the pole or to the rubber wheel at the inboard end of it, if either pole had fouled the propeller. It is true that no damage was reported to the wire anchoring the yellow buoy to the concrete blocks. But Captain Jøsang's evidence was that he did not check the anchor wire. He only checked the buoy itself, the shackles and the mooring rope.
51. The third factor is that each dredge pole weighed about 2.5 tons. Even if it only swung gently into the propeller rather than with force as if it was a battering ram, I find the likelihood is that it would have done rather more substantial damage to the propeller blades than was in fact found. At one point Mr Chell suggested that the propeller damage could have been of long-standing. I find this difficult to reconcile with either dredge pole having interfered with the propeller blades when they would have been turning at a minimum of 120 RPM.
52. The fourth factor is the evidence given on behalf of the claimant as to the point at which the incident occurred. The evidence of the crew was that the loud bang was heard when the gear was streaming behind the Heather Maid. The masters of the Onward and the Silver Chord confirmed that the Heather Maid was streaming her gear just before the incident was reported. I was invited to reject this evidence as self-serving and unreliable. I am not prepared to do so even though I accept that there was a degree of collusion between the claimant and the Chambers brothers about their evidence. Whether the Heather Maid had turned and was heading South (as the claimant says) or had not yet turned (which is the defendants' case), she crossed the Urter's mooring in such a fashion as to submerge the yellow buoy and separate the buddy buoy which was attached to it. The breaking of the rope to the buddy buoy (aside from the evidence that the buddy buoy was damaged because the claimant said that he saw bits of red plastic in the water) is more consistent with the Heather Maid's engine being in forward gear and her propeller turning at the moment she crossed the mooring. Mr Chell's hypothesis supposes that the Heather Maid fouled her gear on the propeller in the act of deploying the gear. She did so as she lay beam on to the wind and current. She drifted over the Urter's mooring as the crew of Heather Maid were investigating the "loud bang". But as soon as the loud bang was heard the engine was knocked out of gear, so the propeller would have been idle. Moreover, on Mr Chell's hypothesis, the risk of the Heather Maid fouling one of the dredges on the mooring rope or the yellow buoy or the anchor wire was far greater than if she crossed the mooring at around 6 knots with the gear streaming behind her on the surface of the water.
53. I did not understand Mr Chell to dispute that if the propeller had been checked by the anchor wire intervening momentarily between one or more of the blades of the propeller a sufficient loading could have been applied to the shafts to cause the damage to them. The difference between the experts lay in whether the wire could have caused the damage to the propeller. I accept Mr Hunt's evidence that it could, bearing in mind that on the claimant's case the propeller would have been turning at about 340 RPM.
54. It is of some significance to Mr Hunt's theory of the cause of the damage whether the yellow buoy was submerged on the evening in question. I deal with that question in the next section of this judgment but can foreshadow here my conclusion that the buoy was not submerged. This increases the likelihood that the propeller came into contact with the anchor wire when the mooring was crossed.
55. A remaining puzzle are the markings and impact damage on the rope guard. The markings were reported to be fresh at the time of survey. Mr Hunt was initially prepared to attribute these to contact between the rope guard and the shackles attached to the underside of the yellow buoy. Whilst no doubt the shackles or even the anchor wire could have caused such damage, it is difficult to envisage how either could have reached the rope guard, given the protection afforded to it by the skeg. This led Mr Hunt to concede that the damage to the rope guard could have been caused on another recent occasion, although he did not explain how. The defendants submitted that this damage was more readily explicable as damage caused by one of the dredge poles. But I find it equally difficult to envisage how the end of the dredge pole could have swung so far inwards as to contact the rope guard, and if it did, how it managed to do so without the bridle chain and/or the inboard dredge fouling the propeller more comprehensively than the single "loud bang" would suggest. Another possibility is that the markings on the rope guard were caused by a shackle or metal eye on the buddy buoy, the rope to which could well have been drawn into the propeller before it parted. This was not explored with the experts and I make no finding about it. The precise causation of the damage to the rope guard does not lead me to alter my conclusion that the damage to the Heather Maid was caused by the Urter's mooring.

Who was to blame for the collision?

56. The parties blame each other. The claimant alleges that he received no warning of the hazard by radio or otherwise and that the yellow buoy was not lit, or if it was lit, the light was not visible because the buoy was submerged. All these claims are denied by the defendants who say that if the Heather Maid did not hear the warnings, it was because her crew were not listening to the radio. The yellow buoy was lit and was not submerged.
57. In addition both sides say that the other failed to observe certain of the Rules contained in the International Regulations for Prevention of Collisions at Sea 1972, as then amended. They each accuse each other of failing to observe Rules 5, 7(a), 8(a) and 8(d). The claimant also accuses the defendants of not observing Rules 20(b) and 36, whilst the defendants accuse the claimant of not observing Rules 7(b), 8(e), 16 and 18(c)(ii). The relevant Rules provide as follows:

Rule 5 (Look-out): "Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision."

Rule 7 (Risk of Collision): (a) "Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk must be determined to exist. (b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects."

Rule 8 (Action to avoid collision): (a) "Any action to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship." … (d) "Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear. (e) If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion."

Rule 16 (Action by give-way vessel): "Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear."

Rule 18 (Responsibilities between vessels): (c) "A vessel engaged in fishing when underway shall, so far as possible, keep out of the way of; … (ii) a vessel restricted in her ability to manoeuvre."

Rule 20 (Lights and Shapes, Application): (b)"The Rules concerning lights shall be complied with from sunset to sunrise, and during such times no other lights shall be exhibited, except such lights as cannot be mistaken for the lights specified in these Rules or do not impair their visibility or distinctive character, or interfere with the keeping of a proper look-out."

Rule 36 (Sound and Light Signals, Signals to attract attention): "If necessary to attract the attention of another vessel any vessel may make light or sound signals that cannot be mistaken for any signal authorized elsewhere in these Rules, or may direct the beam of her searchlight in the direction of the danger, in such a way as not to embarrass any vessel. Any light to attract the attention of another vessel shall be such that it cannot be mistaken for any aid to navigation. For the purpose of this rule the use of high intensity intermittent or revolving lights, such as strobe lights, shall be avoided."

58. The Urter did notify the Northern Ireland Coastguard of where the Urter was moored and of her intended underwater operations. She did so on 23^rd November, after she had established her moorings at the Isle of Muck. She requested the Coastguard to broadcast a warning message to local shipping about her presence. According to the Coastguard's Log, the information which the Urter gave included the following: "Have a lot of ropes ashore to island and to shore and they are afloat". There was no mention of the mooring line from the stern to seaward or of the yellow mooring buoy and the concrete blocks on the seabed. On receipt of this information the Coastguard agreed to broadcast a warning to shipping at four hour intervals beginning at 0305 hours in each period of twenty-four hours. The broadcasts were made at five minutes past the hour on VHF channels 10, 73 and 84. Advance notice of the broadcasts was given shortly beforehand on channel 16.
59. The master of the Onward said that he heard one of the first two broadcasts on 26^th November. The master of the Silver Chord said that he did not hear any of them. The claimant said that he did not hear any of them either. The last message broadcast by the Coastguard before the Heather Maid collided with the Urter's mooring was the message at 1505 hours on 26^th November. At that time, the Heather Maid would have been fishing off Portavogie or proceeding from Portavogie to just South of the Copeland Islands. The Watch Manager of the Northern Ireland Coastguard, Mr Alan Pritchard, who at the time was based in Belfast, gave evidence that there were three radio masts which had the potential to cover that area, one was at West Tor, one was at Orlock Head and one was at Black Mountain. The closest to the Heather Maid would have been the mast at Orlock Head. Orlock Head is situated just to the West of the largest of the Copeland Islands. However the radio mast is only 48 metres above sea level. The West Tor mast is about 300 metres above sea level but is situated to the North of the port of Larne, which is itself 16 miles North of Orlock Head. The Black Mountain mast was about 62 miles to the South of Orlock Head. The Heather Maid ought to have heard the Coastguard's warning about the Urter at 1505 hours, whether she was at Portavogie, off the Copeland Islands or somewhere between the two. But Mr Pritchard accepted that close to shore in the vicinity of the Copeland Islands there are blind spots where VHF broadcasts from the Coastguard may not be received. He also said that atmospheric pressure could adversely affect radio reception from time to time.
60. The only other explanation, and in my judgment the more probable explanation, is that the Heather Maid was in a position to receive the Coastguard's broadcast at 1505 hours, but was not listening. The Heather Maid was equipped with two VHF transmitters. One was switched to channel 16, the other was switched to channel 77, which was the channel used by the scallop dredgers. She would only have received notice of the Coastguard broadcast on channel 16. To hear the full broadcast she would have needed to switch over to channel 10, 73 or 84. The claimant admitted that when hauling or shooting the dredging gear he was in the habit of turning down the volume of the VHF transmitters. Initially he said that this was in order to avoid exchanges between the crew of the Heather Maid being picked up and broadcast. Later he admitted that this could not be right. In order to broadcast messages the transmitters have to be switched from receive to transmit. The claimant's eventual and more plausible explanation was that he turned down the volume of reception so that it did not interfere with his communications with the crew while they were working the gear. Whether or not this made sense from the claimant's perspective, it was a practice which his colleagues on the Onward and the Silver Chord did not subscribe to. Mr David Chambers was of the view that the VHF should never be turned down when in the vicinity of a potential hazard.
61. Although the claimant would not have learned about the Urter's seaward mooring line if he had heard the Coastguard's message, Mr Geoffrey Chambers said that he told the claimant on the radio that the Urter was working on underwater cables. So she was a potential hazard and it was especially important to keep a radio watch whilst the Urter was in sight.
62. The claimant's practice of turning down the volume on the VHF almost certainly explains why he did not hear any of the radio messages sent by Captain Jøsang and Mr Berthelsen as the Heather Maid approached the Urter. They both said that the Urter tried contacting the Heather Maid on channels 8, 10, 14, 15 and 16 to warn her to stay clear. Whilst the Urter failed to keep a GMDSS radio log of these communications, as is required by the Merchant Shipping (Radio Installation) Regulations 1998, I accept that the attempts were made. Captain Jøsang also said that he contacted the port of Larne harbourmaster in order to reach the Heather Maid. There is support for this part of his evidence in the fact that the Coastguard later logged a message from Larne Harbour Radio at 2003 hours on 26^th November in which they stated that they had been trying without success to contact the Heather Maid on channels 14, 16 and 18.
63. I turn at this point to consider the lights and signals which were displayed by the Urter, and in particular whether the yellow buoy was lit, and if it was lit, whether the light was visible. It was not in dispute that the Urter should have been displaying on board the appropriate lights to indicate (a) that she was at anchor and (b) that she was conducting underwater operations and other vessels should stay clear. Captain Jøsang's evidence was that, in addition to the required mooring lights, the Urter displayed from her masthead three all-round lights (red, white, red) to signify that she was conducting underwater operations and was restricted in manoeuvring, and the International Code flag "A", which was illuminated after dark by a searchlight. There was no log record of these signals: but I am satisfied that they were displayed. They met the requirements of Rule 27 of the Collision Regulations, and the contrary was not argued.
64. As for the yellow buoy, the Urter was moored in accordance with a mooring plan which had been drawn up by Mika for the vessel which had visited the site the previous summer. That plan envisaged that any mooring buoys would be lit. The evidence for the claimant is that no light was observed on the buoy by the crew of the Heather Maid, or the masters of the Onward or the Silver Chord until after the tender had been over to look at the buoy shortly after the Heather Maid had collided with it. None of the claimant's witnesses can say that they saw Mr Klokset attach a light to the buoy. Mr Klokset denied that he did so and I accept his evidence on this point. It would have been difficult to attach a light to the buoy after dark and in open water. It would have taken longer than the couple of minutes that the tender was observed by the Heather Maid to be inspecting the buoy. The probability is that the light was fixed to the buoy when it was first deployed.
65. So the claimant's case is that on the evening in question the light on the buoy was not flashing until Mr Klokset (or his companion in the tender) did something to fix it. The difficulty I have with this suggestion is that, unless the batteries needed changing, there was nothing which would be likely to have caused the light to malfunction unless the light was not working from the start. It is most unlikely that the lens cap worked loose. It is also improbable that the crew of the Urter did not check that the light was working at the outset or that, between 23^rd and 26^th November, no one on board the Urter noticed that the light was not working. I do not think that Mr Klokset changed the batteries on the light. It was apparent from his evidence that he did not know enough about the light to be able to do so. I think that he did no more than check that the light was still in place and that it was still functional. Since the claimant said that he saw the light flashing as soon as the tender moved away from the yellow buoy, it is plain that the light was still functional.
66. My conclusion is that the light on the buoy was functional and was functioning before the collision took place.
67. A good deal of expert evidence was devoted to considering whether the yellow buoy was wholly or partly submerged. The Heather Maid crossed the Urter's mooring about one hour before high tide. The anchor wire between the underside of the yellow buoy and the concrete blocks was more than three times longer than the depth of the blocks themselves, so the mooring line would have had to have been under considerable strain to pull the yellow buoy below the surface. Captain Jøsang and Mr Berthelsen said that it could not happen unless the Urter was shifting her position. I do not believe they had sufficient experience to be able to tell. The effect of tension on the mooring line is only one component. Of equal importance is the strength and set of the current in relation to the direction of the mooring line. There was local evidence that the current in the vicinity of the Isle of Muck can run up to one knot faster than noted in the Irish Coast Pilot Book. Even so, I am not persuaded that the experts had sufficiently accurate data to be able to make a reliable calculation of whether the buoy might have been submerged on the evening in question. I prefer to rest my conclusion on the evidence of what was observed. The claimant described how the yellow buoy bobbed up from under the stern of the Heather Maid after she had collided with the mooring. He was able to see the top of the yellow buoy about one metre clear of the surface of the water. No one suggested that the tender had any difficulty spotting the yellow buoy on the surface and going over to inspect it. To my mind this demonstrates that the buoy was floating and that a good deal of it was above the surface, even if it was sitting lower in the water than it would have been if it had not been constrained by the mooring line and the anchor wire. I therefore reject the theory that the light could not be seen because the buoy was submerged.
68. Even if the buoy was not submerged, the light could have been obscured from view by the action of the waves. It was Captain Jøsang's practice only to record the sea state in the Urter's deck log when she was under way. No record of sea or weather was kept when she was moored. Captain Jøsang's recollection was that the sea was calm and the wave height less than 0.5 metres. This was in conflict with the claimant's evidence that the wind was blowing from the West South West at about force 5-6. The meteorological evidence obtained by Mr Chell tends to support the claimant. According to the Meteorological Office, between 1800 and 2000 hours on 26^th November the wind in the vicinity of the Isle of Muck was blowing from South South West at force 4, producing a swell and a significant wave height of around one metre. To some extent the yellow buoy would have risen and fallen with the swell and with the waves: but at times, especially when viewed from a distance, the light on the buoy would have been hidden by the waves. Nevertheless the flashing of the light should have been visible to those on board the Heather Maid by the time she had approached to within 300 metres of the yellow buoy.
69. It remains for me to mention the other preventive measures which could have been taken and how the evidence stands in respect of each of them. The Urter was equipped with a searchlight. All of the witnesses who were on board her say that this searchlight was used as the Heather Maid drew closer. It was trained on the buoy and was flashed backward and forward in the direction of the Heather Maid. I accept this evidence. The Urter was also equipped with an electrically-powered horn. It is common ground that this was not used. Captain Jøsang said that the Heather Maid would not have heard it because of the distance of the yellow buoy from the Urter, the direction of the wind and the fact that the Urter was facing the shore.
70. The claimant submitted that the Urter should have posted a guard ship to warn fishing vessels to stay clear. No guard ship had been used when Mika worked at the site the previous summer. However the Northern Ireland Fish Producers' Organisation Ltd requested a guard ship or the appointment of a fishery liaison officer when it was notified of the work to be done by the Urter. The notification appears to have come from NIE. The requests were turned down. The Organisation notified local fisheries' interests in Northern Ireland about the Urter's deployment but did not notify fishing vessel owners in the Isle of Man.
71. Mr Berthelsen said that someone in Mika's office would have been in touch with the port of Larne harbourmaster before the Urter's arrival: but there was no direct evidence that this was done.
72. As for the Heather Maid, it appears that when hauling and streaming the dredging gear and when emptying the dredging gear of catch, no watch or only an intermittent watch was kept on the VHF or the radar. Also at these times the visual look-out was not as keen as it should have been.

Questions to the nautical assessor

73. In the light of the above findings, I have put a number of questions to my nautical assessor on matters of navigation and seamanship.
74. The questions, and the answers given to them, are as follows:

1. Should the Master of the Heather Maid have kept listening to channel 16 on the VHF at all times whilst he was at sea on 26^th November 2001?

Answer: Yes. A continuous watch on channel 16 should have been kept.

2. Ought the yellow buoy to have been lit?

Answer: Yes. The yellow buoy should have been lit.

3. Assuming that the yellow buoy was lit, was the lighting described in the evidence adequate to mark the buoy in all the circumstances? If not, what kind of lighting or other marks should have been used?

Answer: A light to draw attention to the buoy's position would have been sufficient.

4. Should the master of the Urter have included in his request to the N.I. Coastguard for a warning broadcast, the fact that there was a mooring line from the stern of the vessel to seaward? If so, should he have informed the Coastguard (i) of the length of the mooring line, (ii) of the fact that the mooring line was marked by an inner buoy and a mooring buoy, (iii) whether any of the buoys was lit.

Answer: The request for a warning broadcast notified the Coastguard about the mooring lines to the shore and to Muck Island but not the mooring line to seaward. The Coastguard should have been told about the mooring line to the yellow buoy, its approximate length and direction and whether the buoy was lit.

5. Should the owners of the Urter have notified any other organisations in Northern Ireland, such as the harbourmasters at Larne and/or Bangor and/or Belfast of the proposed underwater cable work and how/where it was proposed that the Urter should be moored?

Answer: No. Larne, Bangor and Belfast harbourmasters have no jurisdiction outside their districts. The Isle of Muck lies outside the jurisdiction of the Larne harbourmaster.

6. Was there anything else which the Urter could and should have done to warn the Heather Maid to stay clear of her moorings? In particular should the Urter (i) have hailed the Heather Maid by VHF, (ii) played her searchlight on her, (iii) sounded her horn or whistle, (iv) maintained a guard ship, and/or (v) despatched her tender sooner? (In relation to (iii) please have regard to the evidence as to the Urter's heading, the distance from the Urter of the Heather Maid, and the direction and force of the wind in considering whether an audible warning would have been heard or noticed on board the Heather Maid).

Answer: In view of the fishing vessels working in the area, a better look-out should have been kept by Urter. As to particular steps:

(i) Urter should have tried to contact the Heather Maid by VHF. There was evidence that she tried to do so on more than one channel, including channel 16.

(ii) Urter was not at fault if she failed to train her searchlight on the buoy when that could have affected the photocell in the light on the buoy and caused it to cease flashing. The Urter was not at fault if she failed to train her searchlight on the Heather Maid because that could have been confusing and could have obscured Heather Maid's view of the lights displayed at Urter's masthead. However there was evidence that Urter used her searchlight for both purposes.

(iii) Urter should have sounded her horn or whistle as Heather Maid approached, either using the morse signal for "standing in to danger" (dot dot dash) or in such a manner as to alert Heather Maid to stay clear. In the prevailing conditions it is probable that Urter's horn would have been heard by Heather Maid when she was up to 1,000 metres away.

(iv) There was evidence that Mika gave advance notice to the Northern Ireland Fish Producers' Organisation Ltd of Urter's intended operations off the Isle of Muck and that, when the notice was received, the Organisation requested that a guard ship be posted or a Fishery Liaison Officer be appointed. Both requests are said to have been turned down, presumably by Mika or those acting on behalf of Urter. Given the practice of scallop dredging vessels to fish close inshore in the area of the Isle of Muck, the Organisation's request was not unreasonable. Urter should have agreed to provide either a guard ship or a Fishery Liaison Officer.

(v) Urter should have launched the tender sooner than she did and in time to reach Heather Maid before Heather Maid approached to within 100 metres of the yellow buoy.

7. Did the Heather Maid fail to maintain a proper visual lookout?

Answer: Yes. In the evidence given, the wheelhouse was unmanned during hauling and streaming of the gear and the crew's attention was focussed on the aft deck.

8. Did the Heather Maid sail too close to the Urter in any event?

Answer: Scallop fisherman work in very confined areas. Heather Maid's intended track was too close to Urter only if Heather Maid had reason to know in advance that Urter had a mooring line extending several hundred metres to seaward.

9. In the light of your answers to the above questions, did either vessel in your opinion fail properly to observe any of the International Regulations for Prevention of Collisions at Sea 1972? In particular, did the Heather Maid fail to observe Rules 5, 7(a), 7(b), 8(a), 8(d), 8(e), 16 and/or 18(c)(ii)? Did the Urter fail to observe Rules 5, 7(a), 8(a), 8(d), 20(b) and/or 36?

Answer: Heather Maid failed to observe Rule 5 for the reasons given in the answers to 1 and 7 above. Heather Maid also failed to observe Rule 5 if the buoy was lit.

Urter failed to observe Rule 7(a) because she saw Heather Maid approaching too close and failed to determine that a risk of collision existed until too late. Heather Maid failed to observe Rule 7(a) if the buoy was lit. Heather Maid failed to observe Rule 7(b) for the reasons given in the answer to 7 above, but use of radar equipment would not have assisted in this case to avoid a collision with the yellow buoy.

Urter failed to observe Rule 8(a) for the reason given in the answer to 6(v) above. Urter also failed to observe Rule 8(d) for the reason given in the answer to 4 above and by failing to monitor Heather Maid's position so that she remained well clear of the yellow buoy. Heather Maid did not fail to observe Rule 8(e). Her speed is not an issue in this case.

Heather Maid failed to observe Rule 16 because she was in breach of Rule 5 and did not hear Urter's radio warnings to stay clear.

Heather Maid did not fail to observe Rule 18 for the reason given in the answer to 8 above. If it had not been for the mooring line to the yellow buoy, a safe distance from Urter would have been about 200 metres.

If the yellow buoy was lit, Urter did not fail to observe Rule 20. The evidence also was that she was displaying on board the correct shapes by day and lights by night.

Urter did not fail to observe Rule 36 in the use of her searchlight. Rule 36 is permissive as to the use of signals. There was no breach of the Rule by failing to use the horn.

75. I accept the advice of the assessor, with the following qualifications. The provisions of the Collision Regulations required that the Urter's horn should have an audible range of 1 nautical mile on its forward axis, and half that range in any other direction, in conditions of still air and average background noise. Given the heading of the Urter and the ambient conditions on the evening of 26^th November, it is perhaps optimistic to suppose that the horn would have been heard 1,000 metres to the stern. But I am persuaded that it would probably have been audible by the Heather Maid when she was at least 200 metres from the yellow buoy.
76. In accordance with the Practice Note of the Court of Appeal in Owners of the "Bow Spring" v Owners of the Manzanillo II [2005] 1 WLR 144, counsel for both parties were consulted as to the formulation of the questions put to the assessor. They both also had an opportunity to comment in writing on the answers given by the assessor. As to those submissions, I reject the defendants' contention that the crew of the Heather Maid would have been bound to have ignored the horn of the Urter if it had been used. I also reject the defendants' assertion that the role of a guard ship or fishery liaison officer would have been confined to protecting the underwater cables and the diving operations. Common sense dictates that they would also have sought to protect any moorings placed in navigable areas in order to enable the work to be carried out.
77. The two sides sought to take advantage of each other's failure (the claimant in not listening with sufficient care to the VHF and the defendants in not informing the Coastguard about the seaward mooring line) to say that the warning broadcast by the Coastguard was causatively irrelevant. I do not think that that is correct so far as the failure to notify the Coastguard of the seaward mooring is concerned, because the Onward did hear one of the Coastguard broadcasts on 26^th November and if the broadcast had included information about the seaward mooring it is possible that Mr Geoffrey Chambers would have passed on that information to the other fishing vessels and that the Heather Maid might have picked it up at a time when the volume of the VHF was not turned down. Even if that is wrong and the broadcast should be treated as irrelevant to causation, the failures on both sides are not irrelevant to liability. The fact that the Heather Maid did not maintain a careful watch on the VHF (which is the probable explanation of why she did not receive the Coastguard's broadcasts and explains why she did not receive the radio warnings from the Urter) is symptomatic of her failure to keep a good look-out. The fact that the Urter did not tell the Coastguard about the seaward mooring line illustrates that the defendants did not appreciate its significance as a hazard to shipping.
78. In the context of the assessor's answer to question 8, the defendants referred to advice in Olsen's Fisherman's Almanac that fishing vessels should keep at least a quarter of a mile (460 metres) away from buoys showing the position of cables being laid or repaired. It was submitted that a fishing vessel should keep the same distance away from a vessel engaged in such work. Even if that is right, I have found that the yellow buoy was located between 450 and 500 metres from the stern of the Urter. It is therefore possible that the Heather Maid crossed the Urter's mooring without contravening the advice given in Olsen's Almanac

Apportionment of blame

79. The opinion of the assessor reinforces the view I have formed of the responsibility for the collision. In my judgment the greater part of the blame lies with the Heather Maid. Her crew did not maintain an adequate look-out as she approached the Urter. They ought to have seen the light on the yellow buoy. Their failure to do so is mitigated by the fact that they had no reason to expect that the Urter had placed a mooring so far to seaward: but is compounded by the fact that a proper watch was not kept on VHF channel 16. The Urter must bear some of the blame because the seaward warning was a significant hazard. The light on the buoy was only designed to draw attention to the presence of buoy. It was not designed to warn other vessels to stay clear of the mooring. Not enough was done to advertise the fact of the mooring and to ensure that vessels stayed well clear of it. In agreement with the assessor, I am of the opinion that the Urter reacted to the approach of the Heather Maid by doing too little too late. In my judgment the appropriate division of responsibility for the collision is that the Heather Maid was two-thirds to blame and the Urter one-third.

Quantum

80. The quantum of the physical damage is agreed at £13,889.77. The claim for loss of earnings (£45,925.97) is controversial in 3 respects: (1) as to the proportion of sales plus Government subsidy which would have been represented by overhead costs if the Heather Maid had continued fishing during the repair period; (2) as to whether part of the period taken up by the repairs (65 days between 30^th November 2001 to 2^nd February 2002) would have been unfishable due to bad weather, and (3) whether the claimant must give credit for the unemployment benefit he received during the repair period. There is now no dispute that the repairs were unduly prolonged or that the decision to replace the intermediate shaft and the propeller shaft with stainless steel was unreasonable or constituted a betterment.
81. The answer to the third point must be affirmative. The claimant would not have received unemployment benefit of £40 per week if the Heather Maid had been operational but unable to go fishing due to bad weather. The damages for loss of use must be reduced by £371 on this account.
82. The claimant's evidence was that he might expect to lose two weeks' fishing due to bad weather in any average 65 day period of the winter. He said that in a bad year one would not want to be losing more than 3 weeks. His brother accepted that two weeks was possible: more would be exceptional. I consider that 12 days should be deducted from the period of 65 days to allow for the inevitable impact of bad weather.
83. The claim for loss of net earnings was based on settling sheets for the 4 week period immediately prior to the collision. During that time the Heather Maid had been engaged exclusively in scallop fishing. According to the claimant, scallop fishing is more profitable than other forms of fishing because the vessel spends less time at sea. In other words a valuable catch can be achieved in a shorter space of time. This was the claimant's explanation of why the recent settling sheets showed that the cost of stores and fuel amounted to only 6% of sales plus the 15% Government subsidy on sales to which the vessel was entitled, whereas examination of the Heather Maid's profit and loss accounts for the years ended 3^rd June 1999-2003 showed that stores and fuel represented between 10% and 20% of annual sales plus subsidy.
84. For the defendant it was submitted that the claimant had refused to disclose settling sheets for previous years, so his explanation of the differing margin for costs could not be tested. In a letter dated 13^th October 2004 the claimant's solicitors made it clear that the claimant rested his case, for better or for worse, on the settling sheets for the immediately preceding 4 weeks. If not an outright refusal, there was a strong reluctance to give wider disclosure. However the loss which the claimant is entitled to claim is loss of the net profit the Heather Maid would have earned in the period 30^th November 2001 to 2^nd February 2002. If she would have been scallop fishing in that period in precisely the same way she had done in the 4 weeks prior to the incident, the most recent settling sheets are the best evidence of her likely net profit. Annual figures take into account other factors which there was no reason to suppose would have impinged on that 65 day period. In my judgment the claimant's margin of 6% is closer to the actual than the annual averages and should be accepted.

Conclusion

85. The claim succeeds to the extent of one-third of £13,889.77 plus £37,076.33, and interest.