Case No: 2007 FOLIO 237
Neutral Citation Number: [2010] EWHC 1949 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/07/2010

Before :

MR JUSTICE DAVID STEEL
sitting with
Captain Derek Richards
Elder Brother of Trinity House
As Nautical Assessor
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Between :

	THE OWNERS OF THE CARGO LATELY LADEN ON BOARD THE M.V.SUN CROSS	Claimants	
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	THE OWNERS AND/OR DEMISE CHARTERERS OF THE M.V.RICKMERS GENOA (renamed THE RICKMERS DALIAN)	Defendants	

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MR PETER FERRER 
(instructed by JACKSON PARTON SOLICITORS) for the CLAIMANTS
MR CHRISTOPHER SMITH QC 
(instructed by HOLMAN FENWICK WILLAN SOLICITORS) for the DEFENDANTS

Hearing date: 9 JUNE 2010
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Judgment
MR JUSTICE DAVID STEEL : 
1.	The court is concerned with the issue of liability arising out of a collision which took place in the early hours of 8 March 2005 in the Yellow Sea between the vessels SUN CROSS and RICKMERS GENOA.  The claimants were the owners of cargo laden on board SUN CROSS.  SUN CROSS sank within minutes of the collision, sadly taking with her all but two of the crew.  The defendants are the owners of RICKMERS GENOA.  It is accepted that the defendants are only liable for such percentage of the claimant’s loss and damage as equals the proportion of fault attributable to those on board RICKMERS GENOA.  
2.	SUN CROSS was a general cargo vessel of 3,785 gross tonnes, 103.43 metres in length and 16.32 metres in beam.  She had been built in 1984 and was equipped with diesel engines of 3,300 brake horsepower.  Her maximum speed was in the region 11 to 12 knots.  She was manned by a crew of 15 hands.  Although equipped with radar, SUN CROSS was not equipped with ARPA.  At the time of the collision, SUN CROSS was laden with 4,877 metric tonnes of pig iron.  She was in the course of a voyage from Lanshan, China, to Yawata, Japan.  
3.	The RICKMERS GENOA is a container vessel of 23,119 tonnes gross, some 192.9 metres in length, 27.8 metres in beam.  She was built in 2004 and was powered by diesel engines of 19,314 brake horsepower.  Her maximum speed was about 20 knots.  Her radars were ARPA equipped.  At the material time, RICKMERS GENOA was operating a liner service and was laden with 134 containers and 41 units of general cargo weighing a total of 12,421 tonnes.  RICKMERS GENOA was on passage from Shanghai to Qingdao.  
4.	There is little or no dispute about the course and speed of either vessel in the run up to the collision.  SUN CROSS was making full ahead at 11.5 knots on a course of 100 degrees true.  She maintained that course and speed until altering to starboard shortly before the collision.  
5.	The evidence from SUN CROSS was inevitably very limited given the fact that so few survived the collision.  The only person to survive from those on her bridge was her bosun, a Mr Ba Yi, from whom a statement had been taken.  Her second officer was the officer of the watch, but he did not survive.  Likewise, the second officer of RICKMERS GENOA was on watch, together with an able seaman.  He also provided a statement.
6.	SUN CROSS was exhibiting the usual navigation and side lights.  Her port radar was switched off.  The starboard radar was on.  The bosun was not permitted to use the radar but asserted that it had a poor picture quality.  The second officer was seen to look at the radar from time to time, although obviously there is no record of any radar observations.
7.	At some stage prior to any lights of RICKMERS GENOA being observed, the bosun recalls hearing a VHF call directed at SUN CROSS by name.  The Second Officer was heard to respond but the terms of response have not been remembered.
8.	Shortly thereafter (the bosun’s estimate was two or three minutes later), the bosun saw a single white light bearing about 25 degrees to 30 degrees on SUN CROSS’s starboard bow at a range of about 2 miles.  On his reporting the light to the Second Officer, the latter was seen to look at the radar and then ordered the bosun to switch to manual steering.
9.	The Second Officer then ordered “starboard 10” followed immediately by “hard-a-starboard”.  SUN CROSS came rapidly to starboard.  During the turn the bosun saw a green light about 45 degrees on the port bow.  The collision occurred at about 0300 hours.
10.	RICKMERS GENOA was exhibiting the usual navigation lights.  She was on a course of 316 degrees true.  Indeed she had been on that course since about 0015.  Her speed was her full ahead speed of 20 knots.
11.	The Second Officer of RICKMERS GENOA was on watch.  In his statement he records that the radar echo of SUN CROSS was first observed at a range of about 9 miles bearing about one point on the port bow.  The ARPA system identified SUN CROSS as a dangerous target shaping to pass within the CPA limit.  The alarm was activated and the echo flashed red on the screen.
12.	This then prompted the Second Officer to try and contact SUN CROSS by VHF on Channel 16.  The message was: “Vessel on my port bow nine miles away bearing [not recalled] this is RICKMERS GENOA please come in”.  SUN CROSS continued to close.  The Second Officer noted from the AIS display the name of the vessel and further unsuccessful attempts at VHF contact were made identifying SUN CROSS by name.  These further calls probably started at a range of about six miles.
13.	The white masthead lights and green side light of SUN CROSS then came into view at a range of about 1.5 miles.  Although described as “dead ahead” she was probably fine on the port bow.  Since she “was passing ahead”, the Second Officer tapped the steering joystick to port to “give her a little more room”.  
14.	The course recorder trace reveals that the alteration to port began at C-3 (i.e. at a range of about 1.5 miles).  The trace suggests that the initial porting must have been followed quickly by the Second Officer’s order to engage hand steering and go hard-a-port.
15.	A VHF call was then heard on RICKMERS GENOA to the effect “keep your course and speed” whereafter the lookout on RICKMERS GENOA reported that SUN CROSS was “turning red”.  The heading of RICKMERS GENOA continued to swing to port.  The collision occurred when she reached a heading of about 270 degrees.
Angle of blow
16.	There was a dispute about the angle of blow, the only significance of which was the extent to which SUN CROSS came to starboard.  The heading of RICKMERS GENOA was not in issue.  The claimant contended that the angle of blow was about 60 degrees leading aft on SUN CROSS (that is to say that SUN CROSS had come some 50 degrees to starboard onto a heading of about 150 degrees).  The defendant contended that the angle blow was about 60 degrees leading forward on SUN CROSS (that is to say that SUN CROSS had come about 100 degrees to starboard on to a heading of about 210 degrees).
17.	I am not sure that resolution of this issue takes matters very far but, although the impact damage shown in the photographs is consistent with an angle leading forward, for what it is worth, I prefer the Defendant’s case on this topic:
a)	SUN CROSS saw RICKMERS GENOA at a range of about 1.5 miles.  This must have occurred about three minutes before collision.  Her alteration to starboard began very shortly thereafter.  Accordingly, she was under starboard helm for over two minutes.  My assessor advises me that on that basis an alteration of 90 degrees or so was highly probable.
b)	The Second Officer estimated the angle as 60 degrees leading forward in his statement dated 13 May 2005.  Indeed the diagram prepared in his interview before the Marine Accident Investigation shows an angle of “45 degrees to 60 degrees” leading forward.
The only and marginal relevance of this conclusion is that SUN CROSS probably began altering to starboard shortly before RICKMERS GENOA began her alteration to port.
Visibility
18.	There was some dispute about the degree of visibility.  No doubt it was somewhat patchy.  But it is, in effect, common ground that visibility in the vicinity of the collision was about 1.5 miles.  Whilst the visibility may have been somewhat better from time to time over the previous 20 minutes, I conclude that it was generally restricted to less than 3 miles throughout.  The vessels had a joint speed of over 30 knots.  It follows that the evidence of having come into sight of each other at C-3 is broadly correct.
CPA
19.	Since neither vessel made any alteration of course or speed prior to visual sighting, any reconstruction demonstrates that the CPA had been less than ½ mile.  The ARPA radar of RICKMERS GENOA correctly identified SUN CROSS in these circumstances as a dangerous echo.
Lookout
20.	The echo of SUN CROSS was seen at nine miles.  Although without the benefit of ARPA, the echo of RICKMERS GENOA should have been noted by those on SUN CROSS at the same range, whether it was in fact or not.  I have asked my assessor at what range each vessel should have treated the circumstances as giving rise to the risk of collision.  His advice was:-
“The relative bearing of each echo having remained steady, it should have been clear at a range of about six miles (C-12) that a close quarters situation was developing rapidly”.
21.	Even if it can be shown by subsequent careful analysis that SUN CROSS would have passed ahead of RICKMERS GENOA if both vessels had maintained course and speed, it was probably at a range of 3 cables at most.  Given the margins of error involved and the joint speed of 30 knots, in my judgment this affords no assistance to RICKMERS GENOA in analysing fault.
VHF
22.	The vigorous attempts by RICKMERS GENOA to make contact with SUN CROSS by VHF are worthy of mention.  No explanation is given by the Second Officer of RICKMERS GENOA as to what he would have said if SUN CROSS had responded to his earlier calls.  It is true that the AIS system gave him the advantage of knowing not only SUN CROSS’s course and speed but also her name.  It is therefore perhaps surprising that her name was not used in the first message.
23.	That said the persistent and unsuccessful attempts to make contact whilst in the meantime making no alteration of course and speed is strongly suggestive of a reliance on VHF contact as the method of first resort in collision avoidance.  This is to be deplored as enhancing the risks rather than limiting them: see The Mineral Dampier [2001] 2 Lloyd’s Rep 419
Rule 19
24.	The conduct of vessels in restricted visibility is governed by Rule 19.  It was nonetheless suggested by counsel for RICKMERS GENOA that, in assessing the action to be taken under Rule 19, it was appropriate to have regard to the obligations that would arise under Section II of the regulations on the basis of their relative approach on the assumption that they were to all intents and purposes in sight of each other or at least would in due course become in sight of one another at the limit of visibility.  The significance of this point was of course said to be that the vessels were in fact crossing in circumstances where, under Section II, RICKMERS GENOA was the stand on vessel and SUN CROSS the give way vessel.
25.	This argument is based on a complete misconception of the rules.  Vessels are only in sight of one another when they can visually observe each other: Rule 3(k).  The whole purpose of the rules is to ensure that risks of collision are determined and eliminated at an early stage and not left to be dealt with at the limit of visibility: Rule 8.  By the time RICKMERS GENOA and SUN CROSS could see (or even be expected to see) each other visually, the risk of collision was imminent.  At a range of 1.5 miles, with a joint speed of 30 knots and a CPA of probably two or three ship’s lengths at best, it is wholly unrealistic to assess responsibility by reference to Section II.  
26.	My assessor advised me nonetheless that there was a tendency amongst mariners in having regard to radar observations, to treat the sighting of an echo as in some respects as equivalent to sighting the vessel regardless of the prevailing visibility.  I confess that this was not a practice with which I was familiar.  If it has developed, I suspect that it has been encouraged by the emergence of AIS which furnishes fairly accurate data of the range, bearing, course, speed, CPA and TCPA of echoes together with the identity of the vessels concerned.  This in turn has encouraged the use of VHF as a collision avoidance device leading to the formation of “private” arrangements as already explained.
27.	Of course, if visibility is good, a mariner can use his radar look-out to anticipate his obligations under say the crossing rules or the overtaking rules.  But, if visibility is restricted so that a risk of collision arises before the vessels are in sight of one another, it would be quite contrary to the scheme of the regulations to act in some undefined way in compliance with both Section III and Section II.  In particular, the concept of a vessel in restricted visibility acting in some way as the contingent stand-on vessel would be highly dangerous.
28.	Rule 19 reads, so far as material, as follows:-
“(a) 	This Rule applies to vessels not in sight of one another when navigating in or near an area of restricted visibility.
(b) 	Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility.  A power-driven vessel shall have her engines ready for immediate manoeuvre.
(c) 	Every vessel shall have due regard to the prevailing circumstances and conditions of restricted visibility when complying with the Rules of Section I of this Part.
(d) 	A vessel which detects by radar alone the presence of another vessel shall determine if a close-quarters situation is developing and/or risk of collision exists.  If so, she shall take avoiding action in ample time, provided that when such action consists of an alteration of course, so far as possible the following shall be avoided:
(i)	an alteration of course to port for a vessel forward of the beam, other than for a vessel being overtaken;
(ii) 	an alteration of course towards a vessel abeam or abaft the beam.”
29.	I sought my assessor’s advice in the respect of the navigation of each vessel in the context of Rule 19.  As regards SUN CROSS, he advised as follows:
i)	She was proceeding at a safe speed.
ii)	She ought to have detected the risk of collision at or about C-18 and having closed to about 6 miles (C-12) should have altered substantially to starboard to put RICKMERS GENOA broad on the port bow.  In no circumstances should this action have been left later than C-6.
iii)	In the alternative (albeit a less satisfactory course of action given that the risk of collision would still exist) she should initially have reduced speed to half ahead.  This would not have been readily visible but would have afforded more opportunity to take additional helm or engine action.
iv)	The actual alteration to starboard was far too late and indicative of poor radar look-out.  If such a late response was required, a better reaction to sighting RICKMERS GENOA would have been to maintain course but to reduce speed substantially.
30.	As regards RICKMERS GENOA, he advised as follows:
i)	 Having detected the risk of collision at or about C-18 and having closed to about 6 miles, her first and preferred option was to have altered course substantially to starboard.
ii)	Failing an alteration of course, at that stage, speed should have been reduced to manoeuvring full ahead (say about 12 knots) and the helm thereafter put to starboard no later than about C-6.
iii)	In the alternative there should have been a further reduction to stop engines.
iv)	The alteration to port from about C-3 or C-2 was unseamanlike.  It must have begun while SUN CROSS was not just ahead of the beam but still fine on the port bow.
31.	I accept all that advice.  In doing so I have not forgotten that it was contended by RICKMERS GENOA that she was inhibited from altering to starboard by fishing vessels in the vicinity.  It is not established that any such difficulty prevailed in the period from C-18 to C-6.  Indeed the evidence suggested that such hindrance, if it was real, was the justification for altering to port at or about C-3.  In any event, my assessor advised that wending a route through fishing vessels is always a practical proposition, particularly if speed is reduced.
Apportionment
32.	Given the mutual obligations under Rule 19, it is commonplace for liability in a “fog” case to be apportioned equally.  But here RICKMERS GENOA must clearly carry the preponderance of blame.  She continued at 20 knots into a close quarters situation which she was using only her VHF to avoid.  Having seen SUN CROSS at close range fine to port she selected the wholly improper option of coming to port.  
33.	In my judgment, a proper and fair apportionment is SUN CROSS 30% and RICKMERS GENOA 70% to blame.  Thus the claimant is entitled to recover 70% of its loss from the defendant.