UK: Clyde & Co Shipping Newsletter – March 2016

Written by legal experts, Clyde & Co’s Shipping Newsletter reviews recent legal developments within the marine sector and related areas of interest.

"NORDLAKE"/"SEAEAGLE" - Collision case leads to rare decision

By Andrew Gray

In a potentially unique English Admiralty case1, Mr Justice Teare recently apportioned liability between four vessels involved in the collision between the container ship "NORDLAKE" and the Indian Navy warship "VINDHYAGIRI" off Mumbai.

In doing so, he re-iterated the principles set out by Sir Henry Brandon in his extra-juridical article Apportionment of Liability in British Courts under the Maritime Conventions Act 19112. In this action, claims were brought by the owners and/or demise charterers of "NORDLAKE" and the owners of the container ship "SEAEAGLE". The other two vessels involved, the warships "GODAVARI" and "VINDHYAGIRI", were not parties to the action. Teare J also considered the issue of whether liability could be apportioned between four ships when only two were parties to the action, and no evidence had been provided by those who were not parties.

Facts

On 31 January 2011, Nordlake was proceeding outbound from the port of Mumbai in the dredged channel. At C-24, she was brought onto a heading of 236 degrees. On completing this turn, she was slightly to port of the centre line of the channel. At C-17, "NORDLAKE" agreed on VHF with one of a line of three inbound Indian Navy warships heading towards her in the channel that she would pass "all the warships...green to green" or starboard to starboard.

Astern of these three vessels were two more inbound warships, "GODAVARI" and "VINDHYAGIRI", followed by "SEAEAGLE". At C-15, "NORDLAKE" turned to port onto a heading of about 211degrees, and reduced speed to nine knots. She was then substantially to port of the centre line of the channel.

Rule 9(a) of the Colregs provides that "A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable".

All the inbound vessels were on their starboard side of the channel, in the correct water, while "NORDLAKE" was navigating towards them on her port side of the channel, in the wrong water. By C-8, "NORDLAKE" had passed clear of the first three inbound warships. At C-6, "NORDLAKE" and "SEAEAGLE" agreed on VHF to pass starboard to starboard. Shortly after this, "SEAEAGLE" overtook "VINDHYAGIRI" on her starboard side.

"NORDLAKE" and "GODAVARI" then agreed on VHF to pass port to port. At C-3.5, "SEAEAGLE" was fine off the port bow of "NORDLAKE" at about five cables. These two vessels confirmed on VHF that they would to pass starboard to starboard.

At C-2, "GODAVARI" passed clear to port of "NORDLAKE". However, a close quarters situation then developed between "NORDLAKE" and "SEAEAGLE". At C-1, following the intervention of Mumbai VTIS, both ships manoeuvred hard to starboard and passed port to port, narrowly avoiding a collision.

As "NORDLAKE" manoeuvred clear, "VINDHYAGIRI" was off her port bow at less than 1.5 cables. "VINDHYAGIRI" was shaping to cross ahead of "NORDLAKE". The master of "NORDLAKE" ordered hard to starboard. With "NORDLAKE" turning to starboard and "VINDHYAGIRI" turning to port, the bow of "NORDLAKE" collided with the starboard side of "VINDHYAGIRI".

Apportionment of liability

In apportioning liability, Teare J applied and commended to others the principles set out by Sir Henry Brandon within the general proposition that both culpability and causative potency should be taken into account when assessing liability:

  • First, the nature and quality rather than number of a ship's faults should be taken into account
  • Secondly, breaches of certain defined situations under the Colregs would usually be seriously culpable, ie a breach of Rule 9 of the Colregs concerning narrow channels
  • Thirdly, causative potency comprises both the extent to which the fault contributed to the fact that the collision occurred and the extent to which the fault contributed to the damage resulting from the casualty
  • Fourthly, in most cases it would be "right to treat the fault of a ship that creates a situation of difficulty or danger as greater than that of a ship that fails to react properly to such a situation after it has been created"
  • Fifthly, a fault consisting of a deliberate act or omission might, in certain circumstances, be more culpable than a fault consisting of omission only

Teare J also tackled an issue which Sir Henry Brandon had indicated was an "open question of some difficulty", as to whether liability could be apportioned between multiple vessels when only some of them were parties to the action. Section 187 of the Merchant Shipping Act 1995 provides that "Where, by the fault of one or more ships, damage or loss is caused to one or more of those ships...the liability to make good the damage or loss shall be in proportion to the degree in which each ship was in fault".

The electronic evidence, including VDR and ECDIS data and VTIS radar and audio recordings had enabled the parties to agree on the navigation of all the ships involved.

Teare J held that pursuant to section 187, he must take account of the causative faults of all the vessels involved and apportion liability, even if some were not parties to the action before the court, and his decision would therefore not be binding on those parties. He found that all four ships were to blame for the collision, and that there had been a number of breaches of the Colregs.

He particularly criticised "NORDLAKE" for her breach of Rule 9 which, in terms of causative potency, was the primary fault which gave rise to the dangerous situation. Her presence in the wrong water was a deliberate decision to breach a rule which was designed to avoid a close quarters situation. He also criticised the use of VHF to agree navigational manoeuvres in conflict with the Colregs. Teare J found that from C-8 onwards, a series of causative faults on the part of all four vessels led to the collision. He held that liability should be apportioned as follows: "NORDLAKE" (60%), "SEAEAGLE" (20%), "GODAVARI" (10%) and "VINDHYAGIRI" (10%).

Footnotes

1 Owners &/or demise charterers of the vessel "NORDLAKE" v Owners of the vessel "SEAEAGLE" (Now named MV "ELBELLA") (2015)

2 Apportionment of Liability in British Courts under the Maritime Conventions Act 1911 (1977) 51 Tulane Law Review 1025

"OCEAN VIRGO" - Speed and performance: is this "good weather" period long enough?

By Peter Ward

The High Court recently held1 that, in relation to an owners' performance warranty for speed and consumption in good weather, the favourable weather conditions need not have lasted for a minimum of 24 hours from noon to noon, at any one time, to be admissible. It also confirmed that, should a period, or periods, of "good weather" be found admissible, then a breach established during those periods should be applied to the whole of the charter period, but excluding any periods of slow steaming ordered by the charterers.

Background

The proceedings were a Section 692 appeal from an arbitration award. They concerned a speed and consumption claim by the appellant Charterers, Polaris, arising out a of a time charterparty agreed with the respondent Owners, Sinoriches, on the NYPE form. Polaris took delivery of the "OCEAN VIRGO" on 14 December 2013, and performed a ballast voyage from China to Canada, and a laden voyage in the opposite direction. The ballast voyage was split into two legs, the Master being directed to steam at a different speed on each. The vessel was redelivered on 22 February 2014.

Owners had given various speed and consumption warranties on the basis of "good weather/smooth sea, up to a max BF SC 4/Douglas sea state 3, no adverse currents, no negative influence of swell." Charterers alleged that the vessel had not met the speed and consumption warranties in good weather, as defined, and claimed US$263,832 in damages. The matter was referred to arbitration.

The Arbitration Award

The arbitrator's position was that for a period to be considered "good weather", it must constitute a period of 24 consecutive hours, running from noon to noon. The charterers' weather analysts had set out the periods which they considered constituted "good weather".

The arbitrator decided that none of them constituted an admissible "good weather" period. He held the first and third periods of the ballast voyage (at 14 and 8 hours respectively) too short to be admissible, whereas the second and fourth periods did not qualify as they unfolded during bad weather. Regarding the laden voyage, he found that there was no "good weather" on one of the relevant periods, and that the other was again too short to be admissible.

In addition, the arbitrator noted that any speed and consumption analysis was a sampling exercise and that the "sample size must be sufficiently large as to be representative of the voyage in its entirety." With this in mind, he found that the potential "good weather" periods during the second leg of the ballast voyage constituted only 5.51% of the journey, which could not be taken as representative of the journey in its entirety. Therefore, there was, in the arbitrator's opinion, no satisfactory "good weather" analysis for that second leg. A similar finding could be inferred in relation to the laden voyage in its entirety, the "good weather" periods amounting to just 5.336% of the total voyage.

Footnotes

1 Polaris Shipping Co Ltd v Sinoriches Enterprises Co Ltd [2015]

2 Arbitration Act 1996

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Clyde & Co Shipping Newsletter – March 2016

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