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

HCAJ158/2012 and HCAJ49/2013

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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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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J U D G M E N T

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I. Introduction

1.This is the trial of liability in respect of two almost simultaneous collisions near the termination of the East Lamma Channel Traffic Separation Scheme (“Lamma Scheme”), Hong Kong^[1], at around 3:37am (“1^st Collision”) and 3:40am (“2^nd Collision”) on 14 May 2011 among three container vessels viz “Xin Nan Tai 77” (“Xin Nan Tai”), “MCC Jakarta” (“Jakarta”) and “TS Singapore” (“Singapore”).  The 1^st Collision was between Xin Nan Tai and Jakarta.  This was followed by the 2^nd Collision between Jakarta and Singapore.  All three vessels suffered hull damage to various extent.  While Xin Nan Tai and Singapore did not come into physical contact, it is Singapore’s allegation that Xin Nan Tai’s negligent navigation was causative of the 2^nd Collision. 

2.In accordance with the long‑established practice in collision actions, trial of liability comes first before the Admiralty Judge, to be followed, if so required, by a reference to the Admiralty Registrar for assessment of damages: Calandra Shipping Co Ltd v Noor Maritime Ltd [2014] 2 HKLRD 242.

3.Shortly prior to the commencement of this trial, Singapore settled liability with each of Jakarta and Xin Nan Tai on inter alia the following terms:

(1)   Singapore are 5% to blame for the 2^nd Collision;

(2)   Jakarta and Xin Nan Tai are between them 95% to blame for the 2^nd Collision;

(3)   Jakarta’s and Xin Nan Tai’s individual liability (out of the 95%) is to be determined at the trial, unless agreed; and

(4)   Singapore are not to blame for and bear no liability in respect of the 1^st Collision.

4.As a result of the settlement, the core issues of the trial are the respective fault, if any, of Jakarta and Xin Nan Tai for the 1^st and 2^nd Collisions and, if both are at fault, the apportionment of their liabilities.

II.   Background / Common Ground

5.Xin Nan Tai is a container vessel of 114.3 metres in length and 16 metres in breadth.  Her gross tonnage is 4,394 tonnes.  The vessel is powered by a marine diesel engine and fitted with a conventional engine telegraph on the bridge.  The engine, if on bridge control mode, can be controlled directly from the bridge.  As far as navigational aids are concerned, the vessel is fitted with, inter alia, 2 radars, both with ARPA^[2]. Her maximum speed at the material time was 8.5 knots.

6.Jakarta is a container vessel of 207.4 metres in length and 29.87 metres in breadth.  Her tonnages are 25,407 gross and 12,733 net.  Her main engine is a Wartsila Italia S.p.a. 7RTA 72U–B oil engine giving a rated speed of 14 knots when new.  The main engine can be controlled from the bridge.  At the main control console on the bridge, there are 2 radars both fitted with ARPA.

7.Singapore is a container vessel of 208.90 metres in length and 29.80 metres in breadth.  Her tonnages are 26,358 gross and 12,990 net.  She is fitted with a single MAN B&W 6K 80ME–C two‑stroke marine diesel engine producing a maximum speed of 22 knots.  Main engine propulsion is controlled remotely from the wheelhouse and bridge wings.  The vessel is fitted with 2 radars, both with ARPA.

8.The collisions took place in the early morning of 14 May 2011.  The weather was generally fine.  There is a factual dispute as to the visibility prior to the collisions.  Xin Nan Tai’s master Hung Ying Kuen (“Captain Hung”) said it was between 2 to 3 nautical miles.  Jakarta’s master Igor Mlikota (“Captain Mlikota”) said it was up to 8 nautical miles.  The statement of Singapore’s master, at paragraph 28, supported Captain Mlikota’s testimony of 8 nautical miles.  The issue is not of critical significance to the question of fault of the two vessels. However, for good measure, this court will record its finding towards the end of this section.

9.Prior to the collisions, both Jakarta and Singapore were outbound from Hong Kong, navigating in the outbound traffic lane of the Lamma Scheme on a south‑easterly course.  Captain Mlikota said, and this court has no reason to doubt, he first spotted Singapore at or shortly after 3:00am.  At that time, Singapore was proceeding ahead of Jakarta. At around 3:20am, Captain Mlikota said he decided to overtake Singapore as the latter was slowing down.  As stated in Captain Mlikota’s supplemental statement and shown in the Plot referred to in paragraph 25 below, Jakarta began passing Singapore at about 3:33am.  At that time, Singapore was navigating on Jakarta’s port side.  Xin Nan Tai, on the other hand, was navigating along the Dangan Shuidao Traffic Separation Scheme (“Dangan Scheme”), steering a westerly course.

10.It is common ground between Jakarta and Xin Nan Tai that at some point of time prior to the 1^st Collision, they were in a “crossing situation”, with Xin Nan Tai being the “give‑way” and Jakarta being the “stand‑on” vessel.  When vessels are in a crossing situation, the appropriate actions that each should take and the responsibilities of each vessel are defined, in general terms, in the International Regulations for Preventing Collisions at Sea 1972 as amended by Resolution A464(XII) of the Inter‑governmental Maritime Consultative Organization and Resolutions A626(15), A678(16) and A736(18) of the International Maritime Organization (“COLREGS”).  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, Cap 369N. 

11.In Marsden and Gault on Collisions at Sea 14^th Ed, the learned authors describe the purpose of COLREGS at para 5–01 as follows:

“The object of the International Regulations for Preventing Collisions at Sea 1972 is to prevent collisions and to minimise their effect. The rules are made not merely for the sake of the vessel which has to observe them but for the sake of other vessels which may be approaching or manoeuvring at close quarters, and which have every right and reason to suppose the rules will be observed, and none to suppose they will be broken.”

12.While various breaches of COLREGS have been alleged by Jakarta and Xin Nan Tai against each other, at this juncture, it is sufficient for this court to set out the three rules which are directly relevant to a crossing situation:

“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.”

13.The vital importance of complying with the crossing rules has been stressed again and again and the disregard of those rules can only be regarded as a very serious fault of navigation:  The “Toni” [1973] 1 Lloyd’s Rep 79 at 85 per Brandon J.

14.In accordance with rr 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 r 17.

15.In the morning of Day 2, Mr Luxton, in answer to a query raised by Mr Chain, submitted that Xin Nan Tai was not a give‑way vessel with respect to Singapore within the meaning of COLREGS.  The reason given was that Xin Nan Tai would pass clear ahead of Singapore so that there was no risk of collision.  In the course of cross‑examination in the afternoon of Day 3, Captain Hung also said he was confident he could safely pass the bow of Singapore and did not think Xin Nan Tai was a give‑way vessel.  Nevertheless, in the morning of Day 4, this court asked and Captain Hung accepted that he considered Xin Nan Tai and Singapore were also in a crossing situation by 3:31am in which case Xin Nan Tai should also have given way to Singapore instead of trying to cross ahead of her.

16.Lastly, general visibility in the early morning of 14 May 2011.  Although this issue is not of critical significance, it does go to the credibility of Captain Hung since this court rejects his testimony in this regard and finds that, on balance of probabilities, visibility was close to 8 nautical miles.  The chief reason for rejecting Captain Hung’s testimony was that it was contradictory to Xin Nan Tai’s own deck log book which recorded that, at 2:00am, visibility was in the range of 5–11 nautical miles, while it dropped to the 2–5 nautical miles range only at 4:00 am ie after the collisions.  Captain Hung was questioned on this, in particular, on the deck log book, at the beginning of his cross‑examination. His initial response was to maintain that visibility was only between 2 and 3 nautical miles but later reluctantly accepted what was recorded in the deck log book.  Nevertheless, when it was formally put to him that visibility was about 8 nautical miles, he disagreed again.  This part of Captain Hung’s testimony does, in this court’s view, considerably dent his credibility.

III.   The Witnesses and Other Available Evidence

17.Each of Xin Nan Tai and Jakarta called one witness to testify at the trial viz Captain Hung and Captain Mlikota respectively.  Further, the witness statement of Singapore’s master was agreed to be adduced as hearsay statement. 

18.Apart from the oral and hearsay evidence of the three masters, the parties have adduced in evidence several items of “real time” evidence which are of considerable assistance to the court.

19.First, the Hong Kong Marine Department’s Vessel Traffic Services system recording of the collisions between 3:28am and 3:42am on 14 May 2011 (“VTS recording”).  The VTS recording contains radar records of the position, speed and course of each of the three vessels, together with audio records of VHF radio transmissions.  Hard‑copy screenshots of the radar records (at minute interval) from 3:28am to 3:42am have also been adduced in evidence.  The VTS recording provides very good evidence of the actions of the vessels in the minutes before the collisions.

20.Second, the Hong Kong Marine Department Data Printout from 3:28am to 3:46am on 14 May 2011 (“Track Data”).  This is a computer printout of information specifying the position, course and speed of each of the vessels at 3‑second intervals contained in the VTS recording. In the Track Data, Jakarta is described as ‘C–dMCC JK’, Singapore is described as ‘C–dTS–SGP’ and Xin Nan Tai is described as ‘505’.  It is the parties’ understanding that the Track Data is obtained from the Marine Department’s computer analysis of high definition radar images.  The Track Data also provides very good evidence of the position, speed and course of each of the three vessels, as long as its margin of difference from the actual situation, which is minor, is understood.

21.To quote from an agreed statement supplied by Xin Nan Tai and Jakarta to the court:

“Courses and speeds

The [Marine Department’s] VTC computer compares the position of a particular target echo on every radar sweep (believed to be approximately every 3 seconds or so).  From a comparison of these positions, the VTC computer calculates the course and speed of the target ship.  This is the course and speed which the target ship made good over the ground during this very short time interval.  A target ship’s course and speed over the ground takes into account the effects of current and leeway.  The ship’s actual course and speed, as in course being steered, or heading, and its speed through the water can be different.  The extent of any difference depends on the strength of any currents and/or wind conditions.”

22.Hence, for example, when a vessel alters her course, her heading has to change first before her course over the ground can start to change, then detected by the Marine Department’s radar and then analysed by its computer.  There is thus a short delay, potentially a few seconds, between the actual alteration of course by a vessel and her alteration of course shown in the Track Data. 

23.Third, the audio track of Jakarta’s VDR^[3] recording between 3:28am and 3:42am on 14 May 2011 (“Jakarta audio track”). The track recorded discussions between the Master and crew members on the bridge of Jakarta and VHF radio communications with others.  A transcript of the audio recording has been helpfully agreed by the parties.

24.Fourth, the screenshots of radar from Jakarta’s VDR recording between 3:30am and 3:36am (“Jakarta Radar Screenshots”).  They show the relative positions and plots of the three vessels and others in the vicinity during that period.  They also record the heading, speed and course of Jakarta at the times in question.

25.Last but not least, a minute‑interval collision reconstruction plot of the three vessels in question from 3:16am to 3:40am prepared by Jakarta (“Plot”).  On Day 1, the parties confirmed that the Plot was agreed to be used at the trial subject to submission, if any, by Xin Nan Tai on inter alia its accuracy.  In the end, it does not appear that Xin Nan Tai seriously disputes the accuracy of the Plot.  The Plot gives a bird’s eye view of the course taken by the three vessels during the period as well as their distances from one another.

26.This court has carefully considered the testimony of the witnesses and assessed it against the “real time” and other documentary evidence and the known and undisputed surrounding circumstances of this case.  This court has also considered the inherent probabilities or otherwise of their testimony and assessed their credibility accordingly in order to resolve, in so far as the same is necessary, the handful of factual disputes between the parties.

IV.   Navigation of Jakarta 

27.As stated earlier, prior to the collisions, Jakarta was navigating in the outbound traffic lane of the Lamma Scheme on a south‑easterly course.  The final leg of the Lamma Scheme runs south‑eastwards between LCS No 2 buoy and LCS No 1 buoy, before reaching the No 2 precautionary zone.  Singapore was navigating in the same direction ahead of Jakarta.

28.At about 3:10am, Captain Mlikota said he noticed that Singapore had started to reduce her speed.  Captain Mlikota also said a short while later, he decided to pass Singapore to starboard (so that Singapore would pass down Jakarta’s port side).

29.At around 3:20am, Jakarta started her action to overtake the Singapore by altering course slightly to starboard.

30.At about 3:29am, Jakarta slightly altered her course back to port.  At about 3:33am, 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 4.5–5 knots.

31.At around 3:34am, Jakarta entered the No 2 precautionary zone.  Her speed remained at around 12.5 knots.

32.At about 3:34:39am, Captain Mlikota ordered the helm to be put to port 10.  The Track Data shows that between 3:35:12am to 3:35:33am, Jakarta altered her course from 144 degrees to 133 degrees.

33.At about 3:35:54am, Captain Mlikota ordered the helm to be put hard to port.  The Track Data shows that between 3:36am and 3:37am ie 1^st Collision, Jakarta significantly altered her course from 124 degrees to around 70 degrees.

34.The 1^st Collision took place at about 3:37am 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.

35.After the 1^st Collision, Jakarta did not stop immediately but continued to “swing” to her port side and collided with Singapore at about 3:40am.  The Track Data shows that between 3:37:12am and 3:40:03am, Jakarta’s course moved from 70 degrees to 0 degrees while her speed dropped from 9 knots to around 5 knots.

V.   Navigation of Xin Nan Tai

36.In the morning of 14 May 2011, Xin Nan Tai was on a voyage from Taicang, Jiangsu Province bound for Guangzhou, Guangdong Province.  Upon approaching Hong Kong, Captain Hung took over navigation at 2:40am.  At that time, Xin Nan Tai was on bridge control mode, allowing the main engine to be controlled directly from the bridge via the bridge telegraph.  Prior to the 1^st Collision, Xin Nan Tai was sailing in a westerly direction in the westbound lane of the Dangan Scheme. The Dangan Scheme is to the south of the Lamma Scheme. 

37.At around 3:08am, Captain Hung ordered Xin Nan Tai’s course to be altered to starboard to steer a course of 269 degrees.  Captain Hung said he acquired both Singapore and Jakarta by radar from 3:15am (Singapore) and from 3:17am (Jakarta) and observed them both on radar (with their speed and course indicated) and visually. 

38.With respect to Singapore, Captain Hung did not consider Xin Nan Tai to be a give‑way vessel as he was confident he could safely pass her bow.  He said in his statement the ARPA indicated that Singapore’s CPA ie closest point of approach to Xin Nan Tai was around 2.5 cables and was shaping to pass astern of Xin Nan Tai.  Hence, he said Singapore did not pose any danger.  As a matter of fact, Xin Nan Tai did not alter her course to give way.

39.However, in the morning of Day 4, this court asked and Captain Hung accepted that he considered Xin Nan Tai and Singapore were in a crossing situation by 3:31am.  In that case, Xin Nan Tai should also have given way to Singapore instead of trying to cross ahead of her. She did not.

40.As far as Jakarta is concerned, Captain Hung said he acquired her on the port radar at a range of around 4 nautical miles.  According to the Plot, the two vessels were at a range of 4 nautical miles only at 3:25am, instead of 3:17am as he claimed.  Captain Hung also said the ARPA indicated that Jakarta’s CPA to Xin Nan Tai was around 1 cable ie 180 metres.  He continued to monitor Jakarta.  When Jakarta was at a distance of around 2 nautical miles, Captain Hung still maintained the course and speed of Xin Nan Tai.  According to the Plot, when the two vessels were at a distance of around 2 nautical miles, the time should be between 3:31am and 3:32am.

41.At around 3:33am/3:34am, Xin Nan Tai altered course 10 degrees to starboard — Captain Hung said this was in order for her to pass astern of Jakarta.

42.Subsequently, Captain Hung observed Jakarta was turning to port.  He ordered Xin Nan Tai to go hard to starboard at around 3:35am.  While Jakarta continued to turn to port, Xin Nan Tai continued to turn to starboard and both vessels reduced speed.  At around 3:37am, the two vessels collided.

VI.   Fault of Xin Nan Tai re 1^st Collision

43.Mr Chain, for Jakarta, submitted that there were two principal causes^[4] of the 1^st Collision.

44.First, Xin Nan Tai, as the give‑way vessel, failed to take early and substantial action to give way to Jakarta (as well as Singapore), from around 3:22am when she had entered the precautionary zone to around 3:30am at the latest.  Instead, Captain Hung decided to maintain his course and speed and to cross ahead of Singapore which Xin Nan Tai did, albeit barely so.  By deciding to cross ahead of Singapore, Xin Nan Tai was in breach of the clear terms of COLREGS r 15: The “Toni” [1973] 1 Lloyd’s Rep 79, 84 per Brandon J.

45.According to the Plot, at 3:22am, Xin Nan Tai and Jakarta were 4.9 nautical miles apart, while at 3:30am, they were still 2.5 nautical miles apart.  What Xin Nan Tai should have done was to make a large alteration of course to starboard when there was still the opportunity to avoid the 1^st Collision.  This failure, Mr Chain submitted, also involved failure on the part of Xin Nan Tai to keep a proper lookout in breach of COLREGS r 5, failure to properly evaluate the risk of collision in breach of COLREGS r 7 and failure to take avoiding action in breach of COLREGS r 8.

46.In this regard, Mr Chain invited this court to take into consideration what another vessel, the so‑called “Model Vessel”, had done.  She was navigating in the same direction as Xin Nan Tai, approaching the Jakarta and the Singapore in the same crossing situation.  At around 3:30am/3:31am, the Model Vessel made an early and substantial alteration of course to starboard and uneventfully passed clear and astern of both Singapore and Jakarta.

47.It is common ground between Jakarta and Xin Nan Tai that shortly prior to the 1^st Collision, they were in a “crossing situation”, with Xin Nan Tai being the give‑way vessel.  During cross‑examination in the afternoon of Day 3, Captain Hung said he considered the minimum distance to take give‑way action was between 2 to 3 nautical miles.  According to the Plot, 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. In other words, even on Captain Hung’s own testimony, 3:28am was the point of time when Xin Nan Tai should have taken action to give way to Jakarta while 3:31am was the latest point of time when she should have done so.

48.Second, Xin Nan Tai maintained her course and speed until around 3:33am/3:34am when she altered course of 10 degrees to starboard.  Mr Chain submitted that at that time, Xin Nan Tai was left with 2 poor choices — kept going forward to try and cross ahead of Jakarta or swung hard to starboard and try to navigate through the gap between Jakarta and Singapore.  According to paragraph 27 of Captain Hung’s witness statement, he chose the latter and shortly afterwards, at around 3:35am, made a hard alteration to starboard which ended up in the 1^st Collision.  Mr Chain submitted that such a manoeuvre was completely unexpected.  By then, Jakarta had already taken action ie turning to port in response to Xin Nan Tai’s earlier breaches of the crossing rule.  The responsive action taken by Jakarta was premised on Xin Nan Tai having demonstrated an intention to pass ahead of Jakarta.  Mr Chain submitted that Xin Nan Tai should have maintained course and speed — a hard turn to starboard at that late stage only increased the risk of collision.

49.This court asked the Nautical Assessor inter alia the following questions with regard to Xin Nan Tai’s fault regarding the 1^st Collision.  His views are these:

“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 3nm, 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 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^o so as to be readily apparent to Jakarta either visually or by radar.

The only thing the Xin Nan Tai Master had to be aware of during this alteration course to starboard was that he did not put the BBKP2[5] in a situation that required her to take action to avoid Xin Nan Tai, as required by Rule 8(f).  If this was a possibility, then he could also have considered a reduction in speed at that time.

3. Whether there were reasons to consider Xin Nan Tai was in breach of any of COLREGS in altering course of 10 degree 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^o (271^oT to 281^oT), 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^o alteration of course was enough to pass around the stern of the Jakarta, an assumption based on data received from his ARPA 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).”

50.This court fully agrees with the views of the Nautical Assessor.  

51.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.  In this regard, there were two possible scenarios.

52.If Captain Hung had kept a proper lookout and acquired on radar and/or observed Jakarta well before 3:30am but did nothing until around 3:33am/3:34am, then Xin Nan Tai would have failed to take action to avoid collision in general under r 8 of COLREGS and, in particular, failed to act as a give‑way vessel under rr 15 and 16 of COLREGS.

53.If, on the other hand, the reason why Captain Hung did not take any action until around 3:33am/3:34am was because (i) he failed to acquire on radar or observe Jakarta much earlier or (ii) if Jakarta had been acquired on radar much earlier, he failed to pay attention to her and, consequently, failed to properly assess the risk of collision with Jakarta, then Xin Nan Tai would have failed to keep a proper lookout in breach of r 5 of COLREGS and/or failed to determine if risk of collision existed in breach of r 7 of COLREGS. In this regard, the view of the Nautical Assessor, which this court accepts, is instructive.

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

Answer to Question 1

I would have expected the Master to have been plotting targets within the south bound East Lamma Channel as early as possible. According to the Xin Nan Tai Master’s statement, paragraph 23, he first observed the Jakarta on the port radar at a distance of 4nm. At the time he thought this was around 03:17. In fact, according to the distance table within the plot the actual time was 03:25. He then claimed that he acquired the target on the starboard radar. I already know from paragraph 21 of his statement that this was on the 3nm range, therefore if you refer to the distance table within the plot, the earliest time he could have commenced plotting was around 03:28.

To commence plotting of Jakarta at 03:28 was far too late and therefore the Master was not maintaining a proper lookout.”

54.Either way, Xin Nan Tai was at fault.

55.Further, Xin Nan Tai’s 10‑degree alteration of course to starboard at around 3:33am/3:34am can only be described as “too little too late”.  “Too little” because such a small alteration of course would not have been apparent to Jakarta — she should have made a bold alteration of course to starboard so as to shut out her starboard green side light and allowed her port red side light to be seen.  “Too late” is self‑explanatory.

56.Rr 15 and 16 of COLREGS have been set out earlier in this Judgment.  For ease of reference, this court also set out the terms of rr 5, 7 and 8 of COLREGS:

“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 shall be deemed 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.

(c) Assumptions shall not be made on the basis of scanty information, especially scanty radar information.

(d) In determining if risk of collision exists the following considerations shall be among those taken into account:

(i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change;

(ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.

RULE 8

Action to avoid collision

(a) Any action to avoid collision shall be taken in accordance with the rules of this Part and, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.

(b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.

(c) If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close‑quarters situation provided that it is made in good time, is substantial and does not result in another close‑quarters situation.

(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…”

57.To conclude, for the above reasons, this court has no doubt that Xin Nan Tai was at fault for failing to comply with the aforementioned rules of COLREGS and such failure was a significant cause of the 1^st Collision.

VII.   Fault of Jakarta re 1^st Collision

58.As stated in Mr Luxton’s opening submissions, it is Xin Nan Tai’s case that the primary cause of the 1^st Collision was Jakarta’s fault in that:

a.   Jakarta failed to maintain a proper lookout prior to 3:35am, so that she failed to observe Xin Nan Tai adequately or at all, including Xin Nan Tai’s alteration of course to starboard at around 3:33am/3:34am, in contravention of rr 5, 7(a), 7(b) and 10(f) of COLREGS.  This was particularly dangerous because Jakarta was approaching the end of a traffic separation scheme at a speed of 12.5 knots.

b.   Jakarta turned 10 degrees to port at around 3:35am and made a subsequent further turn hard to port, in contravention of rr 7(c), 8(c), 8(d), 17(a)(i)&(ii), 17(c) and 34(d) of COLREGS.  It was a clear breach of COLREGS for Jakarta to turn to port when Xin Nan Tai was on her port side.

59.In his closing submissions, Mr Luxton further elaborated on Jakarta’s fault:

a.   It was the obligation of Jakarta to navigate near the termination of the Lamma Scheme with particular caution: r 10(f) of COLREGS.  Jakarta breached this obligation by increasing speed to 12.5 knots at 3:30am and maintaining it.  By comparison, Singapore had taken a sensible precaution by reducing speed — between 3:28am and 3:36am, Singapore was sailing at a speed of only 4–5 knots.

b.   Jakarta had failed to keep a proper lookout — she either had not seen Xin Nan Tai at all prior to 3:34am or, even if Jakarta had acquired Xin Nan Tai on her radar, Jakarta was not paying adequate attention to her.  As a result of Jakarta’s inadequate lookout, Captain Mlikota did not see Xin Nan Tai had altered course 10 degrees to starboard between 3:33:30am and 3:34:30am, onto a course of 281 degrees.  Captain Mlikota confirmed he did not see this alteration of course visually or on the radar and it was his impression throughout that Xin Nan Tai’s course was steady and intending to cross ahead of Jakarta.

c.   Between 3:29am and 3:33am, pursuant to a series of helm orders, Jakarta gradually altered course to port.  At 3:29am, Jakarta was on a course over the ground of 163 degrees.  By 3:33am, Jakarta was on a course over the ground of 144 degrees.  Jakarta then remained on this course until 3:34:39am when Captain Mlikota ordered ‘port 10’, resulting in Jakarta turning further to port from around 3:35am.  Jakarta’s gradual alterations of course to port had put her on a collision course with Xin Nan Tai.  It would appear that Captain Mlikota had made an improper assumption about Xin Nan Tai’s intended course — he had assumed that Xin Nan Tai would not alter course to starboard to go astern of Jakarta when in fact she did at around 3:33am.  The proper course for Jakarta to take was to turn starboard at around 3:34am.

d.   Captain Mlikota ordered ‘hard to port’ at 3:35:54am while a hard turn to starboard could have been performed quickly, safely and without restriction.

60.In light of Xin Nan Tai’s elaborated complaints of Jakarta’s fault, this court invited the Nautical Assessor to express his views.

“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 1^st Collision?

Answer to Question 4

Within the Jakarta Master’s Supplementary Statement, paragraph 6, he claimed he was passing TS Singapore at around 03:33. In paragraph 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 focussed 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^o. 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 degree 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^o 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 paragraph 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^oT) to 03:33:21 Co. 140^oT). 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^o 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).”

61.This court largely accepts the views of the Nautical Assessor.

62.First, this court agrees that by 3:33am at the latest, Jakarta was sailing too fast at 12.5 knots which was full ahead manoeuvre speed.  Although r 17(a)(i) of COLREGS mandates the stand‑on vessel ie Jakarta to maintain her course and speed, there would come a point of time when it became apparent that the give‑way vessel ie Xin Nan Tai was not taking the appropriate action, in which event, the stand‑on vessel should take action to avoid collision: rr 17(a)(ii) and 17(b) of COLREGS.  One of the actions which Jakarta could easily have taken was of course to reduce her speed.  Nevertheless, for a vessel of the size of Jakarta travelling at full ahead manoeuvre speed, it would have taken time for the engine to stop then reverse in order to reduce speed.  Hence, even if Jakarta should have reduced speed at 3:33am, this failure would not have been causative of the 1^st Collision. This is the point taken by Mr Chain in his Further Submissions and will be dealt with later when apportioning liability.

63.Second, as far as proper lookout is concerned, Captain Mlikota’s evidence is conflicting as to when he first acquired or observed Xin Nan Tai.  At paragraph 19 of his first statement dated 15 May 2011, he said he was aware on the radar of a crossing vessel at a range of 3 miles which he found out later to be Xin Nan Tai.  If so, according to the Plot, the time should be around 3:28am.  He also said his attention was then focused on safely overtaking Singapore, which is perfectly understandable.  At paragraph 9 of his second statement dated 3 September 2014, he said “I had earlier acquired her [Xin Nan Tai’s] target on the ARPA at about 0325 and I recall observing her target data on the starboard radar.  This observation was at about 0330.”  Yet, on Day 2, Captain Mlikota testified in court that he first observed Xin Nan Tai and plotted her at around 3:20am ie a full 10 minutes earlier than he said in his second statement.

64.Given Captain Mlikota’s admission in court that he did not have a record and given the passage of time, it is not expected that his memory would improve while testifying in August 2016 compared to the time when he made his witness statements in 2011 and 2014.  This court therefore rejects his testimony that he first observed Xin Nan Tai and plotted her at around 3:20am.  Instead, this court finds, on balance of probabilities, Captain Mlikota only moved his focus of attention from safely overtaking Singapore to the crossing situation with Xin Nan Tai shortly after 3:33:55am.  This was the time when the ARPA collision alarm rang.  This finding of fact is consistent with Captain Mlikota’s reaction at around 3:34am after he had been notified by the Marine Department on VHF radio of the existence of Xin Nan Tai.  According to the transcript of Jakarta audio track, his reaction to the notification was “Ah, I can see her”.  If Captain Mlikota or his crew had been observing and paying attention to Xin Nan Tai as from 3:20am or even 3:30am, his reaction would have been quite different.  It would have been something like “Thank you.  We have already acquired her on radar” or “We having been watching her closely”.  This finding of fact does not depend on the Nautical Assessor’s view on the matter — this is a finding of fact by this court on its own.  In this court’s view, Jakarta’s failure to pay sufficient attention to Xin Nan Tai earlier than 3:33am was in breach of rr 5 and 7 of COLREGS.  By that time, the two vessels were only 1.4 nautical miles apart and clearly in a crossing situation.

65.Third, the gradual alterations to port by Jakarta cumulating in the “port 10” order at 3:34:39am and the “hard to port” order at around 3:35:54am.  This court agrees with the Nautical Assessor that the “Port 10” and the “Hard to Port” orders were in breach of COLREGS.

66.This court is sympathetic to Captain Mlikota in that he was faced with a very difficult crossing situation.  As he said in court, as the stand‑on vessel, Jakarta was only left with “bad choices”.  By the time of the “port 10” order, the two vessels were less than 1 nautical mile apart.  Through no fault on his part, for the reason stated by the Nautical Assessor’s answer to Question 5 which this court accepts, Captain Mlikota admittedly did not observe Xin Nan Tai’s 10‑degree alteration of course to starboard. 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.  In his Further Submissions, Mr Chain argued that as at 3:33am, Captain Mlikota was entitled to take the best action to avoid collision which he considered to be the “port 10” order.  Captain Mlikota, at paragraph 10 of his second statement, alleged, without elaboration, this was done in order to increase the CPA with Xin Nan Tai.  He therefore gave that order at 3:34:39am.  Accepting that Jakarta was entitled to take the best action to avoid collision, Mr Chain had not explained how or why turning to port would best avoid collision with Xin Nan Tai — he just asserted it.

67.Nor has Mr Chain explained to this court why the circumstances were such that Jakarta could not have turned starboard instead.  As testified by Captain Mlikota under cross‑examination, there was no physical restriction on Jakarta turning starboard at 3:34am.  According to r 17(c) of COLREGS, the stand‑on vessel shall, if the circumstances of the case admit, not alter course to port.  Furthermore, Singapore was on her port side.  In turning towards Singapore after overtaking her, Jakarta was also in breach of r 13(a) of COLREGS.  For the same reasons, the subsequent hard to port order was also in breach of rr 13(a) and 17(c) of COLREGS.

68.To conclude, this court finds that Jakarta was at fault for failing to comply with the aforementioned rules of COLREGS and such failure was also a cause of the 1^st Collision.

VIII.   Apportionment of liability for 1^st Collision

69.Since this court finds both vessels were at fault for causing the 1^st Collision, it is necessary to apportion their liability for it.

70.This court should first remind itself of the law which, for the present purpose, can be summarised into the following propositions.

71.First, the structure of COLREGS 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 such as to be readily apparent to the other ship.  The errors of navigation which are the most serious are those errors made by an officer who has time to think.  At such a time there is no excuse for failure to comply with COLREGS: The “Majola II” [1993] 1 Lloyd’s Rep 48, 50–51 (Sheen J).

72.Second, one of the most important principles underlying good seamanship and COLREGS is to avoid, so far as possible, close‑quarters situations: The “Sanwa” [1998] 1 Lloyd’s Rep 283, 299 (Clarke J).

73.Third, as a matter of law, there is no higher duty on the give‑way vessel to keep out of the way of the stand‑on vessel than there is on the part of the stand‑on vessel to maintain course and speed.  In any particular case, the need for the give‑way vessel to take helm or engine action may assume greater or less importance than the need for the stand‑on vessel not to embarrass the give‑way vessel by altering course or speed: The “Savina” [1975] 2 Lloyd’s Rep 141, 145 (Cairns LJ); affirmed on appeal [1976] 2 Lloyd’s Rep 123, 132 (Lord Simon of Glaisdale).

74.Fourth, in The “Samco Europe and MSC Prestige” [2011] 2 Lloyd’s Rep 579, the court summarised the task of apportionment of liability in this way:

“81. Apportionment of responsibility for a collision depends upon an assessment of the blameworthiness and causative potency of both vessels: see The British Aviator [1965] 1 Lloyd’s Rep 271 at page 277 per Willmer LJ. The assessment is of the relative degree of responsibility of each vessel: see The Mineral Dampier [2001] 2 Lloyd’s Rep 419 at para 39. For that reason Admiralty judges often consider, where one ship is more to blame than the other, how many more times to blame one vessel is than the other: see, for example, The Angelic Spirit [1994] 2 Lloyd’s Rep 595 at page 608 per Clarke J and The Mineral Dampier at para 52 per Lord Phillips MR.”

75.Fifth, certain broad lines of approach can be used when apportioning liability.  As stated by Teare J in The “Nordlake” and The “Seaeagle” [2016] 1 Lloyd’s Rep 656 at [149], they are:

(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.

76.Applying these principles to the findings of fault on the part of Xin Nan Tai and Jakarta, this court is of the firm view that Xin Nan Tai must bear the majority of the responsibility for the 1^st Collision.

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.

79.It seems to this court that in terms of their nature and quality, Xin Nan Tai’s faults were much more serious and much more causatively potent than Jakarta’s.  Having given the matter careful consideration, in this court’s judgment, a fair apportionment of liability should be 80:20 in favour of Jakarta and will so hold.

IX.   Apportionment of liability for 2^nd Collision

80.Mr Chain submitted nothing could have been done by Jakarta between the 1^st and 2^nd Collisions so that the appropriate apportionment of liability for the 2^nd Collision should reflect and correspond to that for the 1^st Collision.  As expected, Mr Luxton submitted otherwise.  He submitted that Jakarta’s alterations to port were in breach of r 13(a) of COLREGS and created a risk of collision with Singapore.  He further submitted that Jakarta failed to take the necessary action to stop her engines or go astern after the 1^st Collision, in order to avoid the 2^nd Collision with Singapore.  Such failure to take action was in breach of r 8(e) of COLREGS, requiring Jakarta to slacken her speed or take all way off by stopping or reversing means of propulsion, in order to avoid the 2^nd Collision. 

81.Jakarta’s faults prior to and her responsibility for the 1^st Collision are already reflected in the apportionment of 80:20 as aforesaid.  As far as her failure to further reduce speed after the 1^st Collision is concerned, the view of the Nautical Assessor is as follows.

“8. Whether there were actions which could have been taken by Jakarta after the 1^st Collision in order to avoid the 2^nd Collision?

Answer to question 8

At the time of the collision between Jakarta and Xin Nan Tai (03:37:12), Jakarta was still moving forward at a speed of 9knots (Mardep print out page 32). The speed was starting to fall away but not fast enough. At the time of the 2^nd collision the Jakarta was still moving forward at 3.5knots. Jakarta was also continuing to swing to port, towards the TS Singapore, from 073^oT to 006^oT, her heading on impact.

According to the transcript the Master stopped the engine and put it to full astern at 03:35:54. Unfortunately it will take some time before the engine is capable of going astern. It would appear that at 03:38:45 the engine finally started to go astern. The Master ordered the helm Hard to Starboard a few seconds later. These actions were too late to avoid the collision with TS Singapore.

In reality there was no further action the Jakarta Master could have done after the 1^st collision in order to avoid the 2^nd collision."

82.This court accepts the view of the Nautical Assessor.  Given the size of Jakarta and her speed prior to the 1^st Collision, it would have taken time for the engine to stop and then reverse in order to reduce speed.  On the evidence, this court is not satisfied that anything more could have been done by Jakarta to avoid the 2^nd Collision after the 1^st Collision.  This court therefore agrees that the apportionment of liability for the 2^nd Collision should reflect and correspond to that for the 1^st Collision ie 80:20 in favour of Jakarta and shall so rule.

83.In view of the agreement that Xin Nan Tai and Jakarta are between them 95% to blame for the 2^nd Collision, the parties can do the simple arithmetic themselves and come up with an agreed figure for the purpose of apportionment of liability for the 2^nd Collision.

X.   Disposition and Costs

84.In the circumstances, this court hereby makes the following determination and orders.

85.Singapore are 5% to blame for the 2^nd Collision and are not to blame for and bear no liability in respect of the 1^st Collision.

86.Xin Nan Tai’s and Jakarta’s liabilities for the 1^st Collision are as stated in paragraph 79 above.

87.Xin Nan Tai and Jakarta are between them 95% to blame for the 2^nd Collision.  Their individual liabilities out of the 95% are as stated in paragraphs 82 and 83 above.

88.In the absence of agreement on costs within 21 days, the parties shall file and serve their written submissions on costs, to be dealt with by this court on paper.  

XI.   Postcript — The Nautical Assessor

89.By Order dated 15 January 2016, this court directed the 3 actions be tried by the Admiralty Judge, assisted by a nautical assessor.  Subsequently, the parties have jointly appointed Captain Paul Walton, Director and Master Mariner in the employ of London Offshore Consultants (Hong Kong) Limited, as the Nautical Assessor.

90.This court would take the opportunity to make a number of observations on the role of nautical assessors for future reference.

91.First, the function of nautical assessors is to provide expert assistance to the court on matters within their expertise, namely, issues of navigation and seamanship.  They are not part of the court. Their advice has the status of expert evidence on all issues of fact about seamanship.  As with any other expert, their advice is not conclusive, but merely evidence which the judge may accept or reject as he sees fit: The Australia [1927] AC 145, 152; Marsden and Gault Collisions at Sea 14^th Ed para 20–188.

92.Second, the precise way of soliciting the assistance of assessors must rest in the decision of each court.  The court has a wide discretion in this regard — it depends on what fairness requires: The Australia [1927] AC 145, 152; Ahmed v Governing Body of the University of Oxford [2003] 1 WLR 995; Chevalier (Construction) Company Ltd v Tak Cheong Engineer Development Ltd [2011] 2 HKLRD 463 at [13]–[15]. 

93.Third, in admiralty practice, nautical assessors are technical advisers, albeit they can also be sources of evidence on facts: The Australia [1927] AC 145, 152.

94.Fourth, where assessors have an evidential function, the normal rule is disclosure of their evidence to the parties.  Where assessors perform a function more involved in assisting the evaluation of evidence, disclosure to the parties will not be the normal rule and will only occur if fairness demands it: Chevalier (Construction) Company Ltd v Tak Cheong Engineer Development Ltd [2011] 2 HKLRD 463 at [13]–[15].

95.Fifth, in relation to the court’s decision making process, there is no general duty to disclose what assistance the judge is obtaining in that role during the hearing: Ahmed v Governing Body of the University of Oxford, supra at [65].  Having said that, in accordance with the parties’ right to a fair and public hearing as enshrined in Art 10 of the Hong Kong Bill of Rights, the court needs to know, before it reaches a conclusion, what the parties have to say about the issues and the evidence which goes to them.  Specifically, in collision cases, because the judge is not bound to accept the advice he receives from nautical assessors: Admiralty Comrs v SS Ausonia (Owners) (1920) 2 Ll L Rep 123, 124, the parties should normally be given an opportunity to contend that the court should or should not follow the advice: Bow Spring (Owners) v Manzanillo II (Owners) [2005] 1 WLR 144 at [59]; The “Global Mariner” and “Atlantic Crusader” [2005] 1 Lloyd’s Rep 699 at [14(iv)] and [14(v)].

96.Sixth, in England, an elaborate procedure was set out by Gross J (as he then was) in The “Global Mariner” and “Atlantic Crusader”, supra at [14] and treated as “the proper practice in all collision cases” at [15].  This court considers the English Admiralty practice as valuable guidance but ultimately, the aim is to strike the right and proportionate balance between the desirable goal of transparency on the one hand and the need to curb the costs and delay inherent in the “ping pong” of post‑hearing exchanges on the other: The “Global Mariner” and “Atlantic Crusader”, supra at [16].

97.In line with its duty to actively manage cases in order to further the underlying objectives of the Rules of the High Court, the court must decide its own practice and procedure best suited to further those objectives in the local environment.  In this court’s view, the proper procedure to be adopted in a particular case should have a healthy degree of flexibility, best left to the discretion of the judge trying the case.

98.Seventh, the court should record in the judgment the advice sought by the court from the assessor together with the assessor’s answers: Ahmed v Governing Body of the University of Oxford, supra; The “Global Mariner” and “Atlantic Crusader”, supra at [14(v)].

99.In light of the above, the parties were content to accept and this court gave the following directions to them on the first day of trial:

“Subject to further directions of the court,

(a) The joint list of particulars of negligence filed on 3 August 2016 in the concurrent action ie HCAJ 48/2011 shall be the parameters of the advice to be sought by the court from the Nautical Assessor.

(b) The advice ultimately sought by the court from the Nautical Assessor and the Nautical Assessor’s advice to the court be disclosed to Counsel.

(c)   Leave to Counsel to file and serve further^[6] written submissions as to whether the advice given by the Nautical Assessor should be accepted.”

100.For the benefit of the parties of future collision actions, these directions will be the usual directions of this court.

101.This court thanks counsel for their assistance.

102.Last but not least, this court thanks Captain Walton for his helpful assistance.

Mr Christopher Chain, instructed by Ince & Co., for the plaintiffs in HCAJ 48/2011 and the 2^nd defendants in HCAJ 158/2012 and HCAJ 49/2013

Mr Nick Luxton, instructed by Howse Williams Bowers, for the defendants in HCAJ 48/2011 and the 1^st defendants in HCAJ 158/2012 and HCAJ 49/2013

Mr Jason Toms of Reed Smith Richards Butler, for the plaintiffs in HCAJ 158/2012 and HCAJ 49/2013 was excused from attendance after 19 August 2016

ANNEX

Questions FROM THE COURT TO the nautical assessor

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

Answer to Question 1

I would have expected the Master to have been plotting targets within the south bound East Lamma Channel as early as possible. According to the Xin Nan Tai Master’s statement, paragraph 23, he first observed the Jakarta on the port radar at a distance of 4nm. At the time he thought this was around 03:17. In fact, according to the distance table within the plot the actual time was 03:25. He then claimed that he acquired the target on the starboard radar. I already know from paragraph 21 of his statement that this was on the 3nm range, therefore if you refer to the distance table within the plot, the earliest time he could have commenced plotting was around 03:28.

To commence plotting of Jakarta at 03:28 was far too late and therefore the Master was not maintaining a proper lookout.

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 3nm, 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 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^o so as to be readily apparent to Jakarta either visually or by radar.

The only thing the Xin Nan Tai Master had to be aware of during this alteration course to starboard was that he did not put the BBKP2 in a situation that required her to take action to avoid Xin Nan Tai, as required by Rule 8 (f). If this was a possibility, then he could also have considered a reduction in speed at that time.

3.   Whether there were reasons to consider Xin Nan Tai was in breach of any of COLREGS in altering course of 10 degree 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^o (271^oT to 281^oT), 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^o alteration of course was enough to pass around the stern of the Jakarta, an assumption based on data received from his ARPA 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).

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 1^st Collision?

Answer to Question 4

Within the Jakarta Master’s Supplementary Statement, paragraph 6, he claimed he was passing TS Singapore at around 03:33. In paragraph 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 focussed 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^o. 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 degree 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^o 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 11.5knots. 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 paragraph 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^oT) to 03:33:21 Co. 140^oT). 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^o 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).

8.   Whether there were actions which could have been taken by Jakarta after the 1^st Collision in order to avoid the 2^nd Collision?

Answer to question 8

At the time of the collision between Jakarta and Xin Nan Tai (03:37:12), Jakarta was still moving forward at a speed of 9knots (Mardep print out page 32). The speed was starting to fall away but not fast enough. At the time of the 2^nd collision the Jakarta was still moving forward at 3.5knots. Jakarta was also continuing to swing to port, towards the TS Singapore, from 073^oT to 006^oT, her heading on impact.

According to the transcript the Master stopped the engine and put it to full astern at 03:35:54. Unfortunately it will take some time before the engine is capable of going astern. It would appear that at 03:38:45 the engine finally started to go astern. The Master ordered the helm Hard to Starboard a few seconds later. These actions were too late to avoid the collision with TS Singapore.

In reality there was no further action the Jakarta Master could have done after the 1^st collision in order to avoid the 2^nd collision.

9.   Whether there was a point of time when neither vessel could have done anything to avoid the 1^st Collision ie “the point of no return”? And if yes, when was that point of time?

Answer to Question 9

I am of the view at 03:35:54 both vessels had reached “the point of no return”.