FMG Hong Kong Shipping Ltd, the Demise Charterers of FMG SYDNEY v Owners of the MSC APOLLO  EWHC 328 (Admlty)
At 2232:15 on 29 August 2020 SYDNEY, a very large ore carrier, collided with APOLLO, a container ship, in the approaches to Tianjin, Northern China. Sir Nigel Teare held that APOLLO was 100% to blame for the collision. The Court of Appeal granted permission to appeal on a discrete point in relation to the application of the Head-on Rule (Rule 14). The Judge, on the other hand, decided that the Crossing Rule applied (Rules 15-17) and rejected the application of Rule 14. The Court of Appeal dismissed the more general application for permission to appeal against the Judge's findings and the apportionment itself.
The Judge held that APOLLO was solely to blame for the collision. In particular, from C-12 the Crossing Rules applied. APOLLO was the give-way vessel and failed to take early and substantial action. At that stage APOLLO was shaping to pass astern of SYDNEY, SYDNEY was fine on the starboard bow of APOLLO and the CPA was less than 0.5nms. Not only did APOLLO fail to take early and substantial action but instead incrementally altered course to port to cross ahead of SYDNEY (in breach of Rule 15). APOLLO also made inappropriate use of her VHF. In accordance with the approach set out in Mineral Dampier v. Hanjin Madras  EWCA Civ 1278 the Judge deprecated the use of VHF as a means of collision avoidance, especially in circumstances when such action was in conflict with the Collision Regulations. APOLLO's speed was excessive and visual and aural lookout were poor.
For her part SYDNEY took appropriate action at the correct time under Rules 17(a)(ii) and/or 17(b). Although her speed over the ground increased between C-10 (10 knots) and C-2 (11.4 knots), this was not a breach of Rule 17(a)(i) because there was no change in her engine speed from C-13:  and The "Cederic" (1924) Ll.List L.R. 391 at 393.
For present purposes and in the light of the prospective appeal, the Judge's reasons for the non-application of Rule 14 are perhaps of most interest: see  – . APOLLO submitted that Rule 14(b) was in effect a stand-alone provision which created ("deemed") a head-on situation in circumstances in which at C-12 SYDNEY saw both sidelights of APOLLO. For various reasons APOLLO's arguments were decisively rejected by the Judge.
First, it is clear from Rule 14(a) that "a head-on situation is one where two vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision .... "  & . However these vessels were not on reciprocal courses: the difference in headings and courses made good was in the order of 17°. Rule 14(b) cannot construed in a vacuum divorced from the reciprocity requirement in Rule 14(a).
Second, if APOLLO's submission was correct, Rule 14 would apply where vessels were crossing .
Third, the previous iteration(s) of the Collision Regulations (1960, 1954 & 1910) referred to the "End-on" Rule in which "each vessel is in such a position as to see both sidelights of the other". There was no reason to suggest any intention to alter the fundamental nature of a head-on or end-on situation "to cases where the vessels were crossing and not meeting on reciprocal or nearly reciprocal courses" . The author would add that further post-hearing research in relation to the travaux preparatoires supported the Judge's conclusion
Finally, the first requirement of Rule 14(b) is that Rule 14(b) applies "when a vessel sees the other ahead or nearly ahead". In the present case, APOLLO was about 17° off SYDNEY's port bow.
Nigel Jacobs KC acted for FMG Hong Kong Shipping Ltd, the Demise Charterers of FMG SYDNEY instructed by Ian Teare & Peter Thornton CBE of Hill Dickinson.
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