The Owners and/or Demise Charterers of the Ship or Vessel “TS Singapore” v. The Owners and/or Demise Charterers of the Ship or Vessel “Xin Nan Tai 77” AND ANOTHER

CACV 144/2017

[2018] HKCA 299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 144 OF 2017

(ON APPEAL FROM HCAJ NOS 158 OF 2012, 49 OF 2013 AND 48 OF 2011)

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HCAJ 158/2012 and HCAJ 49/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NOS 158 OF 2012 AND 49 OF 2013)

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Admiralty action in rem against: the ship or vessel “Xin Nan Tai 77” and

Admiralty action in rem against: the ship or vessel “Med” (formerly “MCC Jakarta”)

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(Consolidated by Order of the Honourable Mr Justice Ng dated 30 June 2015)

HCAJ 48/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 48 OF 2011)

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Admiralty action in rem against: the ship or vessel “Xin Nan Tai 77”

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J U D G M E N T

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Hon Lam VP:

1.  I respectfully agree with the judgment of Kwan JA.

Hon Yuen JA:

2.  I agree with the judgment of Kwan JA.

Hon Kwan JA:

3.  On 2 June 2017, Ng J sitting with a nautical assessor handed down his judgment ([2017] 3 HKLRD 387) after a five-day trial in August and September 2016, in which he apportioned liability in respect of three container vessels in two almost simultaneous collisions, as between “Xin Nan Tai 77” (“Xin Nan Tai”) and “MCC Jakarta” (“Jakarta”) (“the 1^st Collision”), and as between Jakarta and “TS Singapore” (“Singapore”) (“the 2^nd Collision”).  Singapore settled liability with Jakarta and Xin Nan Tai prior to the trial.  It was agreed that Singapore is not liable in respect of the 1^st Collision and in relation to the 2^nd Collision, Singapore is 5% to blame and Xin Nan Tai and Jakarta are between them 95% to blame.  The judge apportioned liability for the 1^st Collision at Xin Nan Tai 80% and Jakarta 20%, and apportioned liability for the 2^nd Collision in the same proportions, taking into account the agreed 5% liability of Singapore, resulting in Xin Nan Tai 76%, Jakarta 19% and Singapore 5%.

4.  This is the appeal of Xin Nan Tai against the apportionment of liability.  Xin Nan Tai sought an order that the apportionment of liability for the 1^st Collision should be one-third to Xin Nan Tai and two-thirds to Jakarta, and in relation to the 2^nd Collision, the 95% liability as between them should likewise be apportioned one-third to Xin Nan Tai and two-thirds to Jakarta, resulting in Xin Nan Tai 31.66%, Jakarta 63.33% and Singapore 5%.  Xin Nan Tai contended at the very least liability as between the two should be apportioned equally.

The approach of the appellate court

5.  Mr Manzoni, SC[1], who appeared for Xin Nan Tai, accepted that it is exceptional for an appellate court to interfere with a trial judge’s apportionment.  Mr Manzoni and Mr Sussex, SC[2], who appeared for Jakarta, referred the court to relevant extracts in various authorities:

“I apprehend that, if a number of different reasons were given why one ship is to blame, but the Court of Appeal, on examination, found some of those reasons not to be valid, that might have the effect of altering the distribution of the burden. If the trial judge, when distributing blame, could be shown to have misapprehended a vital fact bearing on the matter, that, I think would be a reason for considering whether a change in the distribution should be made on appeal. But, subject to rare exceptions, I submit to the House that, when findings of fact are not disputed and the conclusion that both vessels are to blame stands, the cases in which an appellate tribunal will undertake to revise the distribution of blame will be rare.” (The Macgregor [1943] AC 197 at 199, per Viscount Simon LC)

“… it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge’s apportionment.” (The Macgregor, at 201, per Lord Wright)

“31. When apportioning responsibility in an accident case where there has been negligence and contributory negligence, a trial judge is concerned with blameworthiness and causative potency. He is engaged in a weighing and balancing exercise involving issues of fact and degree. And he conducts this exercise with the important advantage of having received the evidence at first-hand as it unfolded before him. The product of such an exercise is to be equated with the product of an exercise of discretion. …

32. Like any exercise of discretion or anything equivalent to an exercise of discretion, an apportionment of responsibility for the damage is not lightly to be disturbed on appeal. This point was made in the decision of this Court in Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289. … Sir Thomas Eichelbaum NPJ, in a judgment with which all the other members of the Court agreed, said (at p 298A-B) that “this Court should not interfere unless the result is outside the limits reasonably available to the Court below.” ” (Poon Hau Kei v Hsin Chong Construction Co Ltd (2004) 7 HKCFAR 148, per Bokhary PJ)

6.  Xin Nan Tai’s appeal against apportionment was brought on the basis that the judge had misapprehended vital facts and gave reasons for apportionment of blame that are invalid.

7.  I will first relate the relevant facts and the judge’s findings.

The background

8.  The collisions occurred near the termination of the East Lamma Channel Traffic Separation Scheme (“Lamma Scheme”), Hong Kong, on 14 May 2011.  The 1^st Collision was at around 3:37 am and the 2^nd Collision at around 3:40 am.

9.  Both Jakarta and Singapore were outbound from Hong Kong, navigating in the outbound traffic lane of the Lamma Scheme on a south-easterly course.  At the end of the Lamma Scheme is No 2 precautionary zone, where Jakarta intended to alter course to port to continue her voyage to Yantian, China. Shortly after 3:00 am, Singapore was proceeding ahead of Jakarta.  At around 3:20 am, Jakarta’s master, Igor Mlikota (“Captain Mlikota”), decided to overtake Singapore as the latter was slowing down.  Jakarta began passing Singapore at about 3:33 am and at that time Singapore was navigating on Jakarta’s port side.

10.  Xin Nan Tai was on a voyage from Taicang, Jiangsu Province bound for Guangzhou, Guangdong Province.  Prior to the 1^st Collision, she was sailing in a westerly direction in the westbound lane of the Dangan Shuidao Traffic Separation Scheme (“Dangan Scheme”).  The Dangan Scheme is to the south of the Lamma Scheme and intersects with the Lamma Scheme at the No 2 precautionary zone.

11.  It is common ground that at some point of time prior to the 1^st Collision, Jakarta and Xin Nan Tai were in a “crossing situation”, with Xin Nan Tai being the “give-way” vessel and Jakarta the “stand-on” vessel.

12.  Xin Nan Tai’s master, Hung Ying Kuen (“Captain Hung”), accepted in his testimony[3] that Xin Nan Tai and Singapore were also in a crossing situation by 3:31 am, with Xin Nan Tai being the “give-way” vessel.

13.  Three rules in the international Collision Regulations (“COLREGS”)[4] are directly relevant to a crossing situation.  COLREGS are incorporated into Hong Kong law and set out in the Schedule to the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) Regulations.  The relevant rules are Rule 15, 16 and 17 and they read as follows:

“RULE 15

Crossing situation

When 2 power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.

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 17

Action by stand-on vessel

(a) (i) Where one of 2 vessels is to keep out of the way the other shall keep her course and speed.

(ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.

(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.

(c) A power-driven vessel which takes action in a crossing situation in accordance with paragraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.

(d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way.”

The navigation of Jakarta

14.  At around 3:20 am (17 minutes before the 1^st Collision, “C-17”), Jakarta started her action to overtake Singapore by altering course slightly to starboard.  After such starboard alteration, at 03:28:42, Jakarta was on a course of 164°[5].

15.  At around 3:28 am (C-9), Captain Mlikota gave orders to begin altering course back to port.  By a series of seven separate orders between 3:28 am and 3:32 am,[6] Jakarta adjusted its course first to 155°, then gradually onwards to 140°.  At 03:33:18, Jakarta was on a course of 144°.

16.  At about 3:28 am, Jakarta increased speed to overtake Singapore more quickly.  At about 3:33 am, Jakarta began passing Singapore.  At that time, Jakarta’s speed was around 12.5 knots, which was full ahead manoeuvring speed, while Singapore’s was around 4.5 to 5 knots.

17.  At 03:34:16 (C-3), Mardep informed Jakarta, “The vessel on your port bow, no information, please keep an eye on her.”  The vessel was Xin Nan Tai. At 03:34:26, Captain Mlikota said, “Ah, I can see her.” At 03:34:39, he ordered the helm to be put to port 10.  At 03:34:42, he stated with respect to Xin Nan Tai, “Un-f***ing believable, okay … What they say, no information?”  Between 03:35:12 to 03:35:33, Jakarta altered her course from 144° to 133°.  At 03:35:33, Captain Mlikota ordered “midship”, the effect of which was that Jakarta’s rudder returned to the centre line, in order for Jakarta’s turn to port to slow and eventually to stop and for her to steady on a course.

18.  At 03:35:54, Captain Mlikota ordered the helm to be put hard to port.  Between 03:36:09 and 03:37:12 (the time of the 1^st Collision), Jakarta significantly altered her course from 124° to around 70°.

19.  The 1^st Collision took place at about 3:37 am when the port bow of Xin Nan Tai collided with Jakarta’s starboard bow. At that time, Singapore was on Jakarta’s port side at a distance of about 0.3 nautical mile.

20.  After the 1^st Collision, Jakarta did not stop immediately but continued to “swing” to her port side and collided with Singapore at about 3:40 am.

The navigation of Xin Nan Tai

21.  At around 3:08 am (C-29), Captain Hung ordered Xin Nan Tai’s course to be altered to starboard to steer a course of 269°.  Xin Nan Tai maintained a course of 269° to 272° at a speed of 10.5 to 11 knots until 03:33 am (C-4)[7].

22.  Captain Hung considered Xin Nan Tai and Singapore were in a crossing situation by 3:31 am.  Xin Nan Tai did not give way.  At about 3:33 am, she crossed ahead of Singapore.

23.  At 03:33:20 to 03:34:30, Xin Nan Tai altered course 10 degrees to starboard, so as to pass astern of Jakarta.  Subsequently, Captain Hung observed Jakarta was turning to port.  He ordered Xin Nan Tai to go hard to starboard at around 3:35 am (C-2).  While Jakarta continued to turn to port, Xin Nan Tai continued to turn to starboard and both vessels reduced speed.  The two vessels collided at around 3:37 am.

24.  In contrast to the navigation of Xin Nan Tai, another vessel, BBKP2 (referred to as the “Model Vessel” at trial), was navigating in the same direction as Xin Nan Tai and approaching Singapore and Jakarta in the same crossing situation.  At around 3:30 am / 3:31 am, the Model Vessel made an early and substantial alteration of course to starboard and uneventfully passed clear and astern of both Singapore and Jakarta[8].

The judge’s findings of blame and apportionment

25.  In accordance with Rules 15 and 16, Xin Nan Tai, as the give-way vessel, was obliged to take early and substantial action to keep well clear of Jakarta while Jakarta should keep her course and speed in accordance with Rule 17.

26.  The judge fully agreed[9] with the views of the nautical assessor in answer to questions 2 and 3:

“2. Given that Xin Nan Tai was the give-way vessel in a “crossing situation” with the Jakarta, what action should Xin Nan Tai have taken to avoid the 1^st Collision with Jakarta and when such action should have been taken?

Answer to Question 2

During the cross-examination the Xin Nan Tai Master stated he considered the minimum distance to give way was 2 or 3 nm[10], this is a distance I would agree with considering the available sea room. Yet he allowed a situation to arise where he would be created (sic) a close quarters situation which resulted in a collision with Jakarta.

The Xin Nan Tai Master should have altered his course to starboard at around 03:30 (latest) to pass around the stern of the Jakarta. Such an alteration of her course to starboard should be a minimum of 30° so as to be readily apparent to Jakarta either visually or by radar. …”

“3. Whether there were reasons to consider Xin Nan Tai was in breach of any of COLREGS in altering course of 10 degrees to starboard at around 03:34?

Answer to Question 3

At 03:33:20 to 03:34:30 the Xin Nan Tai Master altered course to starboard by 10° (271°T to 281°T), by 03:34:30 Jakarta was only 0.88nm from Xin Nan Tai. I am of the view that the Xin Nan Tai Master believed the 10° alteration of course was enough to pass around the stern of the Jakarta, an assumption based on data received from his ARPA[11] radar only. Such a small alteration of course would not have been readily apparent visually or by radar aboard the Jakarta and therefore the Xin Nan Tai Master was in breach of Rule 8 (Action to avoid collision) (a) to (f)(i) and (ii), Rule 15 (Crossing Situation) and Rule 16 (Action by give way vessel).”

27.  The judge held there was no excuse for Xin Nan Tai not to take early and substantial action to keep well clear of Jakarta[12].  And Xin Nan Tai’s 10-degree alteration of course to starboard at around 3:33 / 3:34 am can only be described as “too little too late”[13].

28.  There is no challenge on appeal to the judge’s findings of fault with regard to Xin Nan Tai.

29.  As for Jakarta’s fault, the judge “largely accepts”[14] the views of the nautical assessor in answer to questions 4 to 7:

“4. Whether there were reasons to consider Jakarta was not maintaining a proper lookout, specifically in failing to acquire or observe Xin Nan Tai in good time prior to the 1st Collision?

Answer to Question 4

Within the Jakarta Master’s Supplementary Statement, para.6, he claimed he was passing TS Singapore at around 03:33. In para.19 of his 1^st Statement he stated “he was also aware now on radar of a crossing vessel moving westwards through the westbound lane of the Traffic Separation Scheme, although I cannot recall her exact speed and heading as my attention was presently focused on safely overtaking the TS Singapore at this time”. At this time Jakarta was 1.4nm from the Xin Nan Tai.

Within the transcript of the Jakarta VDR recording MARDEP informed the Jakarta at 03:34:16 “the vessel on your port bow, no information, please keep an eye on her”. Such a comment must be based on the VTC screen showing a potential collision between the 2 vessels (vectors had gone from white to red). At 03:34:26 the Master states “Ah, I can see her” (XNT), at 03:34:39 the Master orders port 10°. At 03:34:42 he then states “Un-f*****g believable, okay … What they say, no information?” I am therefore of the view it was at this time the Master moved his focus of attention from TS Singapore to Xin Nan Tai. This late assessment of the situation is in breach of Rule 5 (Lookout) and Rule 7 (Risk of collision) (a), (b) and (d)(i).

5. Whether there were reasons to consider Jakarta had failed to observe Xin Nan Tai’s change of course of 10 degrees to starboard (from 271° to 281°) between 03:33 and 03:34?

Answer to Question 5

Jakarta Master did fail to observe Xin Nan Tai 10° alteration of course to starboard, however this was not his fault. Such an alteration was not large enough to be readily apparent to Jakarta observing visually or by radar.

6. Whether there were reasons to consider Jakarta was sailing at an unsafe speed at any time before or after it had left the East Lamma Traffic Separation Scheme and entered the precautionary zone?

Answer to Question 6

At 03:16, calculated from the plot, Jakarta was steaming at around 11.5 knots. The Master had full control of his engine and therefore could reduce speed according to the prevailing circumstances and conditions. Within Jakarta’s Passage plan the speed considered for this part was 8 knots. I have assumed this speed would be dependent on weather conditions, visibility and traffic. The Passage plan is a guidance document which must allow for amendments and contingences etc.

In para.9 of the Master’s Supplementary Statement he states that he acquired the Xin Nan Tai on the ARPA at 03:25. However at that time he was focusing on overtaking TS Singapore and not Xin Nan Tai. It was only at 03:33 when the Jakarta Master focused on Xin Nan Tai who was only 1.4nm. At this point the Jakarta Master realised the Xin Nan Tai had failed to alter course to starboard as required by Xin Nan Tai as the “give way” vessel. I am therefore of the view that at 03:33 Jakarta was now steaming at an unsafe speed. The Jakarta Master should have reduced the speed as much as possible whilst still maintaining steerage.

7. Whether there were reasons to consider Jakarta was in breach of any of COLREGS (i) in gradually altering course to port prior to 03:34 (ii) by the ‘port 10’ order at around 03:34:39; and (iii) by the “hard to port” order at around 03:35:54?

Answer to Question 7

(i) - According to the transcript the Jakarta Master started to adjust his course to port gradually commencing at 03:28:25 (Co. 155°T) to 03:33:21 Co. 140°T). This gradual alteration would not have been apparent visually or by radar to the Xin Nan Tai. These small alterations of course were navigational and not considered for collision avoidance by the Master. On completion of these course adjustments Xin Nan Tai was around 3nm away. The Jakarta Master at this time was not fully aware of the developing situation. Therefore, the Master was in breach of Rule 5 (Look-out), Rule 7 (Risk of collision) (a) and (b).

(ii) - By 03:34 the Jakarta was starting to draw past TS Singapore and Xin Nan Tai bearing around 25° to port at a distance of 1.1nm. The Jakarta Master at this time believed Xin Nan Tai had made no alteration of course or speed and therefore at 03:34:39 orders Port 10, instead of going to starboard. This is in breach of Rule 17 (Action by stand-on vessel) (c), Rule 8 (Action to avoid collision) (a) to (e) and Rule 10 (Traffic Separation Schemes) (f). He is also at the same time overtaking TS Singapore and therefore by altering course to port, towards the TS Singapore, he is in breach of Rule 13 (Overtaking) (a) and (d).

(iii) - At 03:35:54 both vessels were only 0.4nm apart. TS Singapore was 0.3nm from Jakarta and 0.5nm from Xin Nan Tai. The Master said under cross-examination the collision was inevitable at this time. However, the order Hard to Port was in breach of Rule 17 (Action by stand-on vessel) (c), Rule 8 (Action to avoid collision) (a) to (e) and Rule 10 (Traffic Separation Schemes) (f). The Master was further in breach of Rule 13 (Overtaking) (a) and (d).”

30.  Whilst the judge agreed with the nautical assessor in the answer to Question 6, and Jakarta should have reduced speed at 3:33 am, he held that this failure would not have been causative of the 1^st Collision[15].

31.  As for proper lookout, the judge considered the conflicting evidence of Captain Mlikota and made a finding of fact, which does not depend on the nautical assessor’s view in the answer to Question 4, that Jakarta’s failure to pay sufficient attention to Xin Nan Tai earlier than 3:33 am was in breach of Rules 5 and 7 of COLREGS[16].

32.  On the nautical assessor’s answer to Question 7, the judge agreed with him only in respect of (ii) (the “port 10” order) and (iii) (the “hard to port” order) that these orders were in breach of COLREGS.  He did not express agreement in respect of (i) (the gradual alterations to port) that this was in breach of COLREGS[17].

33.  The judge was sympathetic to Captain Mlikota “in that he was faced with a very difficult crossing situation” and “as the stand-on vessel, Jakarta was only left with “bad choices” ”.  Through no fault on his part, he did not observe Xin Nan Tai’s 10-degree alteration of course to starboard (nautical assessor’s answer to Question 5, which the judge accepted).  Nevertheless, it is difficult to see what good it would have done for Jakarta to turn to port, whether by 10 degrees or hard to port and there was no physical restriction on Jakarta turning to starboard at 3:34 am, away from Xin Nan Tai and Singapore.  The judge found Jakarta in breach of Rules 17(c) (the stand-on vessel shall, if the circumstances of the case admit, not alter course to port) and 13(a) (keeping out of the way of an overtaken vessel)[18].

34.  In apportioning blame for the 1^st Collision, the judge had regard to this guidance of Sheen J in The Majola II [1993] 1 Lloyd’s Rep 48 at 50 to 51[19]:

“The structure of the Collision Regulations is designed to ensure that, whenever possible, ships will not reach a close-quarters situation in which there is risk of collision and in which decisions have to be taken without time for proper thought. Manoeuvres taken to avoid a close-quarters situation should be taken at a time when the responsible officer does not have to make a quick decision or a decision based on inadequate information. Those manoeuvres should be such as to be readily apparent to the other ship. The errors of navigation which I regard as the most serious are those errors which are made by an officer who has time to think. At such a time there is no excuse for failure to comply with the Collision Regulations.”

35.  He bore in mind these broad lines of approach stated by Teare J in The Nordlake and the Seaeagle [2016] 1 Lloyd’s Rep 656 at §149[20]:

“(i) The number of faults on one side or the other is not decisive. It is the nature and quality of a ship’s faults, rather than their number, that matter.

(ii) Breaches of the obligations imposed on ships in certain defined situations by the Collision Regulations will usually be regarded as seriously culpable …

(iii) Causative potency has two aspects. The first is the extent to which the fault contributed to the fact that the collision occurred. The second is the extent to which the fault contributed to the damage resulting from the casualty.

(iv) In most cases though not all it will be right to treat the fault of a ship that creates a situation of difficulty or danger as greater than that of the ship that fails to react properly to such situation after it has been created.

(v) The fact that a fault consists of a deliberate act or omission may in certain circumstances justify the court in treating it as more culpable than a fault which consists of omission only.”

36.  Applying the above principles, the judge reached the firm view that Xin Nan Tai must bear the majority of the responsibility for the 1^st Collision, as in terms of their nature and quality, Xin Nan Tai’s faults were much more serious and much more causatively potent than Jakarta’s.  He held that a fair apportionment of liability should be 80:20 in favour of Jakarta[21]. His detailed reasons were as follows:

“77. To start with, it was Xin Nan Tai which created the danger and difficulty inherent in a close-quarters situation. Had she taken early and substantial action to give way, while Jakarta was maintaining her course and speed, there would not have been the 1^st Collision at all. Jakarta, while technically in breach of COLREGS for sailing too fast and for failing to pay adequate attention to Xin Nan Tai as opined by the Nautical Assessor and as found by this Court, did not create the close-quarters situation. Even if Jakarta had reduced speed at 3:33am, her failure would not have been causative of the 1^st Collision.

78. Captain Mlikota’s “port 10” and “hard to port” orders were made in response to the close-quarters situation created by Xin Nan Tai. These orders were made at a time when he had little or no time to think and when he was left with only “bad choices”. Xin Nan Tai, on the other hand, had plenty of time to give way: the two vessels were at a distance of 3.1 nautical miles at around 3:28am, and at a distance of 2.1 nautical miles at around 3:31am. During those few minutes, Xin Nan Tai could easily have made a large alteration of course to starboard to avoid both Singapore and Jakarta, just like the Model Vessel.”

This appeal

37.  In this appeal, Mr Manzoni challenged the judge’s findings in §§77 and 78, contending that the judge had misapprehended vital facts and as a result gave invalid reasons for the apportionment of blame.  He submitted there were two key errors.

38.  Firstly, the judge was wrong to find that “it was Xin Nan Tai which created the danger and difficulty inherent in a close-quarters situation”, when it was the constantly curving course of Jakarta from 164° at 3:28 am to 144° at 3:33 am which largely created the close-quarters situation.  Related to this is that the judge’s failure to find that at the time when Xin Nan Tai should have turned to starboard (3:28 am to 3:30 am), Jakarta was not maintaining course and speed.  The judge had suggested to the contrary that Jakarta was maintaining course and speed when directing himself on the facts for the apportionment of liability.

39.  Secondly, the judge was wrong to hold that the “port 10” and “hard to port” orders of Captain Mlikota were made at a time when he had “little or no time to think and when he was left with only “bad choices” ”.  It was wrong to conclude that the breaches of COLREGS in respect of the “port 10” and “hard to port” orders were not as serious as the breaches of Xin Nan Tai.

Creating close-quarters situation and maintaining course and speed

40.  Mr Manzoni submitted that on the undisputed “real time” evidence, from 3:28 am to 3:33 am Jakarta was on a curving course constantly changing to port instead of a clearly defined course and increasing speed from 11 knots to 12.5 knots.  The judge should have held that Jakarta was not maintaining course and speed.  And if there was a crossing situation as at 3:28 am, as appears to have been assumed, it should have been held that Jakarta was in breach of Rule 17(a)(i) (the stand-on vessel in a crossing situation is required to keep her course and speed).  He cited Marsden and Gault on Collisions at Sea (14^th ed) §5-403 and The Alcoa Rambler [1949] AC 236 in support of his contention.

41.  I do not agree with his submissions.  The obligation of the stand-on vessel in a crossing situation to keep her course and speed does not preclude alterations of course and speed in the ordinary course of navigation, as is made clear in Marsden at §5-403 and the cases there cited, including Owners of the Topaz v Owners of the Irapua [2003] 2 CLC 708 at 727 §37, in which Gross J stated as follows:

“As is well-established, Rule 17(a)(i), is subject to the qualification that the obligation of the stand-on vessel to ‘keep her course and speed’ does not preclude, broadly and neutrally, alterations of course and speed in the ordinary course of navigation. In short, the ‘course and speed’ are the course and speed that the stand-on vessel was going to take for the object she had in view, not the course and speed at any particular moment: see, The Aracelio Iglesias [1968] 2 Ll Rep 7, esp. at pp. 11-12, together with the other authorities referred to there. …”

42.  As further explained in Marsden at §5-403:

“Rule 17 does not require the stand-on vessel must maintain either a constant heading or a constant speed. A vessel reducing speed to pick up a pilot, a vessel (with her engines put to full speed) which was increasing her speed up to full speed, a vessel which was continually altering her heading across a tide, a vessel reducing her speed to run off her way to maintain her course preparatory to anchoring and a tug manoeuvring to pick up her tow, have been held not in breach of this rule.”

43.  Here, the gradual alterations of course and speed of Jakarta from 3:28 am to 3:33 am were made in the ordinary course of navigation, for overtaking Singapore, as the judge has found[22].  I reject the contention that Jakarta was in breach of Rule 17(a)(i).  I note also that the nautical assessor did not form the view that Jakarta had failed to maintain course and speed, or was not on a defined course.

44.  As for The Alcoa Rambler, I agree with Mr Sussex that this case does not stand for the proposition that any and every alteration of course and speed means that a vessel is not maintaining course and speed.  The Privy Council held at 249 that the test whether a vessel is on a course is: “was what was being done open and notorious to a seaman on the other ship in the ordinary course of navigation. … The ordinary idea of a course is a sufficiently constant direction of a ship on the same line or heading.  This will enable a navigator when he sees the other vessel to know if she is on a crossing course”.  In that case, “there was no obvious or ordinary manoeuvre which would give knowledge to the Rambler [the give-way vessel], so that quite apart from the difficulty inherent in a curved course, the case could not be held to be a case of crossing vessels because the necessary knowledge of the situation could not be ascribed to the Rambler” (at 250).  The fact situation in present case is very different.  It is common ground that “at some point of time prior to the 1^st Collision, [Jakarta and Xin Nan Tai] were in a crossing situation”[23] and “even on Captain Hung’s own testimony, 3:28 am was the point of time when Xin Nan Tai should have taken action to give way to Jakarta while 3:31 am was the latest point of time when she should have done so”[24].  The Alcoa Rambler is of no assistance to Mr Manzoni.

45.  Mr Manzoni submitted it was Jakarta’s gradual alterations to port at 3:28 am to 3:33 am that “substantially contributed to the creation of a close-quarters situation”, as the effect of the alterations of course and speed was to place Jakarta and Xin Nan Tai on a collision course. He argued that by 3:34 am Jakarta had increased speed and gradually altered course to port in a manner that would not have been apparent to Xin Nan Tai so as to put the two vessels on a collision course.

46.  He pointed to two hypothetical plots produced at trial by the solicitors on each side.  Jakarta’s plot showed that the vessels would have collided if they had both maintained course and speed from 3:33 am onwards, after Jakarta’s gradual alterations to port.  He argued from there that the vessels would not have collided had Jakarta not gradually altered course to port.  Xin Nan Tai’s plot showed that Xin Nan Tai would have passed clear astern of Jakarta, and the collision would have been avoided, had Jakarta maintained course and speed at 3:29 am, and not made gradual alterations to port.  He also pointed to the fact that it was after Jakarta had completed the gradual alterations to port at 3:33 am that Jakarta’s ARPA alarm sounded and Mardep issued its radio warning to Jakarta, suggesting that risk of collision only arose after Jakarta’s gradual alterations to port.

47.  These arguments were raised in the court below[25] and did not find favour with the judge.

48.  It is common ground that Xin Nan Tai was the “give-way” vessel and Jakarta the “stand-on” vessel in a crossing situation[26].  The crossing situation had existed for quite some time.  As the judge has found, “Xin Nan Tai … had plenty of time to give way: the two vessels were at a distance of 3.1 nautical miles at around 3:28am, and at a distance of 2.1 nautical miles at around 3:31 am.  During those few minutes, Xin Nan Tai could easily have made a large alteration of course to starboard to avoid both Singapore and Jakarta, just like the Model Vessel.”[27]  And yet Xin Nan Tai took no action to keep out of the way and avoid crossing ahead of the stand-on vessel. At 3:33 am, she crossed ahead of Singapore, notwithstanding she was the give-way vessel to Singapore. At around 3:33 am / 3:34 am, she altered course 10 degrees to starboard, so as to pass astern of Jakarta.  Essentially, she was trying to navigate in between Singapore and Jakarta when these vessels were uncomfortably close.  That was clearly a wrongful manoeuvre.  The judge was fully in agreement with the nautical assessor that the master of Xin Nan Tai “allowed a situation to arise where he would be created (sic) a close quarters situation which resulted in a collision with Jakarta”.

49.  To argue in these circumstances it was the gradual alterations to port of Jakarta that “substantially contributed to the creation of a close-quarters situation” is quite simply unrealistic.

50.  Mr Manzoni sought to bolster his submission that the judge had failed to appreciate that Jakarta was seriously at fault in gradually altering course to port by quoting extracts from The British Aviator [1965] 1 Lloyd’s Rep 271 at 278, 279 and 281.  Those statements were made in a wholly different factual situation.  The two vessels there were proceeding at an excessive speed in fog, and the main fault on each side lay in their proceeding at an immoderate speed especially after each became aware of the presence of the other (at 275).  There was no dispute that both vessels were seriously at fault, and it was only on the basis of the helm action that any differentiation between the degrees of fault of the two vessels could be made (at 276).  The statements relied on by Mr Manzoni cannot be applied to the present situation and are of no avail.

51.  As for the argument based on the hypothetical plots, it is pertinent to bear in mind that COLREGS are designed to avoid close-quarters situations in order to avoid the risk of collision.  I agree with Mr Sussex it does not assist Xin Nan Tai, when her master had “allowed a situation to arise where he would be created (sic) a close quarters situation”, to say that there could have been a “close pass” of the vessels.  I reject also the suggestion that the risk of collision arose only after 3:33 am with the completion of the gradual alterations to port of Jakarta.  As stated by Lord Simon in The Statue of Liberty [1971] 2 Lloyd’s Rep 277 at 288:

“Your Lordships are concerned with those Rules of the Collision Regulations that relate to vessels which are crossing so as to avoid a risk of collision. This arises if the vessels in question are on courses which if maintained, will intersect, and which, if maintained, will involve a risk of collision – not necessarily the probability of collision, but its possibility, having regard, among other things, to the normal hazards of navigation, including faulty seamanship by another vessel …”

52.  In deciding that it was Xin Nan Tai which “created the danger and difficulty inherent in a close-quarters situation”, it was not the judge’s holding that the close-quarters situation was caused solely by Xin Nan Tai.  The judge had fully taken into account Jakarta’s faults.  He took the view that Xin Nan Tai had contributed more to creating the close-quarters situation, as reflected in his conclusion that Jakarta was 20% to blame.  His decision was premised on the fact that the duty of Xin Nan Tai as the give-way vessel was to take “early and substantial action to keep well clear” as required by Rule 16, and her failure to take proper action had greater causative potency towards creating a close-quarters situation leading to the 1^st Collision.  As the judge has stated, “given Captain Hung himself also accepted Xin Nan Tai was the give-way vessel, there was really no excuse for him not to take early and substantial action to keep well clear of Jakarta”[28].

53.  There is no misapprehension of any vital fact, and the judge’s reasoning cannot be faulted.

Jakarta’s “port 10” and “hard to port” orders

54.  Mr Manzoni submitted the judge erred in concluding that the master of Jakarta’s breaches of COLREGS in issuing the “port 10” and “hard to port” orders were not as serious as those of Xin Nan Tai, because they were made “at a time when he had little or no time to think and when he was left with only “bad choices” ”.  He contended that Jakarta was not left with only “bad choices” at 3:34 am, because as the judge has held, there was no physical restriction and she could have turned to starboard[29]. The only bad choice was for Jakarta to turn to port, which was in clear breach of Rule 17(c).  A decision of the stand-on vessel to turn to port in a crossing situation is particularly dangerous, because it involves the stand-on vessel turning in the direction of the give-way vessel rather than away.  It was “contrary to every instinct of a mariner” (The Sanshin Victory [1980] 2 Lloyd’s Rep 359 at 365).  In contrast, the decision of the master of Xin Nan Tai to turn 10 degrees to starboard at around 3:33 / 3:34 am, although inadequate, was in principle proper action in accordance with COLREGS.

55.  It was further contended that Jakarta’s master had adequate time to make proper decisions, had he maintained a proper lookout. The judge agreed with the nautical assessor that Jakarta was in breach of various rules in COLREGS in respect of the “port 10” and “hard to port” orders. Breaches of the obligations imposed on ships in certain defined situations by COLREGS will usually be regarded as seriously culpable (The Nordlake and the Seaeagle at §149(ii)).  Even if Jakarta’s master had little or no time to make decisions, this was because of his own breaches.  “Where a crisis arises wholly or partly from a person’s negligence, he cannot rely on the crisis as excusing or mitigating further errors on his part” (The Salaverry [1968] 1 Lloyd’s Rep 53 at 63).

56.  Mr Manzoni also cited The Estrella [1977] 1 Lloyd’s Rep 525, in which the stand-on vessel was held five-eighths to blame for making successive turns to port prior to the collision, as “reminiscent” of the present fact situation.

57.  The above arguments were fully canvassed before the judge[30] , who had taken into account Jakarta’s breaches of COLREGS and weighed the different considerations in assessing causative potency[31].  Through no fault on his part, Captain Mlikota failed to observe Xin Nan Tai’s 10 degree alteration to starboard.  When he issued the “port 10” order instead of going to starboard, he at that time believed Xin Nan Tai had made no alteration of course or speed[32].  His “port 10” and “hard to port” orders were made in response to the close-quarters situation created by Xin Nan Tai[33].  In contrast, Xin Nan Tai’s 10-degree alteration to starboard at around 3:33 / 3:34 am was “too little too late”[34].  Subsequently, Captain Hung observed Jakarta was turning to port and ordered Xin Nan Tai to go hard to starboard at around 3:35 am[35].

58.  In these circumstances, the judge is right to have regard to the approach that “in most cases though not all it will be right to treat the fault of a ship that creates a situation of difficulty or danger as greater than that of the ship that fails to react properly to such situation after it has been created” (The Nordlake and the Seaeagle at §149(iv)).

59.  The cases cited by Mr Manzoni emphasising that a turn to port is wrong and in breach of COLREGS are consistent with the judge’s finding that Jakarta was in breach of Rules 17(c) and 13(a).  As to causative potency and apportionment of liability, each case must turn on its own facts.

Conclusion

60.  The judge did not misapprehend any vital fact.  His conclusion in the weighing and balancing exercise of apportioning liability is well within the scope of decision that a reasonable judge could reach.  There is no basis to interfere with his apportionment.  This appeal must be dismissed.

61.  There is no reason why costs should not follow the event.  I would order Xin Nan Tai to pay Jakarta’s costs of this appeal, with a certificate for two counsel.