Denver Maritime Limited v Belpareil AS (The "Kiran Australia" and "Belpareil")
DMC/SandT/24/15
England
Denver Maritime Limited v Belpareil AS (The “Kiran Australia” and “Belpareil”)
English Admiralty Court: Andrew Baker J: [2024] EWHC 362 (Admlty): 26 February 2024
Judgment available on BAILII @ https://www.bailii.org/ew/cases/EWHC/Admlty/2024/362.html
James M Turner KC (instructed by Campbell Johnston Clark Ltd) for the Claimants (Owners of “Kiran Australia”)
Lionel Persey KC (instructed by Penningtons Manches Cooper LLP) for the Defendants (Owners of “Belpareil”)
ADMIRALTY: COLLISION: VESSEL DRAGGING ANCHOR: FALSIFIED RECORDS: RELIANCE ON OBJECTIVE EVIDENCE: NEGLIGENT MANOEUVERING BY BOTH VESSELS: SLOW-MOTION COLLISION: CAUSATIVE FAULT: APPORTIONMENT OF LIABILITY FOR COLLISION
(N.B. permission to appeal was refused following applications to and an oral hearing before Males LJ in the Court of Appeal on 19 April 2024.)
DMC Classification: Confirmed
Summary
In apportioning fault for the collision 70/30 in favour of the Owners of “Kiran Australia”, the High Court held that:
(1) both vessels were at fault, all faults on both sides were effective, and all faults acted in combination to cause the collision;
(2) “Belpareil” was substantially more blameworthy and responsible for bringing the ships into a potentially dangerous situation in the first place, because of the lack of early warning given to “Kiran Australia” at a time when she could have safely shifted elsewhere;
(3) “Belpareil” was at fault again, albeit less so than “Kiran Australia”, in her actions within three minutes of the collision occurring, which ultimately brought the ships into contact causing physical damage.
Case note contributed by Captain Amarinder Singh Brar, Master Mariner, LLM (Maritime Law), Marine Manager with MFB Solicitors, and International Contributor to DMC’s CaseNotes
Background
The geared Supermax bulk carriers “Belpareil” (the “BP”) and “Kiran Australia” (the “KA”) were anchored in Chittagong anchorage, with the former arriving nearly a week after the latter. They were nearly identical in length and breadth and both had the same make and model of main engine (the “ME”) for propulsion.
On 1 November 2021, KA arrived and anchored at Chattogram anchorage with 8 shackles of her starboard anchor in the water. KA commenced discharging cargo into two barges, one each moored to her port and starboard sides.
Six days later, on 7 November 2021, BP arrived and anchored some 0.5 NM ahead of KA. BP paid out 9 shackles of her port anchor in the water. Similar to KA, BP commenced discharging cargo into barges soon after arrival.
Both vessels discharged cargo by lightering into barges.
On 8 November 2021 in the evening, the wind blew Northerly at about Beaufort Force 3 to 4. Visibility was clear. KA was lightered to about 6 meters forward and about 9.9 meters aft at this time. BP was close to about 11 meters on even keel.
At about 2300 hours (C-130) [being a reference to the number of minutes before the collision occurred], the crew of BP noticed that their vessel was dragging her anchor. The tidal currents were setting nearly NW’ly (340° to be exact) at about 3-4 knots at this time, meaning that the vessels were heading approximately 160°.
At 2306 hours, BP put her ME on Dead Slow Ahead. Between 2309 and 2317 hours, BP’s ME was increased to Slow Ahead followed by Full Ahead a few minutes later. BP’s ME remained at Full Ahead for most of the following hour. However, the engine’s RPM did not increase past 50-55 during most of this period.
Early on 9 November 2021, KA called BP on VHF radio. BP responded to KA at 0015 hours, confirming that her anchor was dragging, and that she was having issues with her ME.
KA attempted to contact the Port Control, which did not respond. BP was dragging towards KA at a speed over ground of about 1 knot, occasionally increasing to 2 knots. Meanwhile, KA had stopped her cargo operations at midnight and cast off the barge on her starboard side by C-55.
At C-51, KA and BP had another VHF communication. BP repeated that her ME was out of order. KA confirmed that she had sent her crew to anchor stations but feared it might already be too late. BP recommended to KA that she [KA] better drag towards her stern. KA acknowledged and reminded BP to try to use her ME as well.
By C-44, the Closest Point of Approach (“CPA”) between the vessels was 0.027nm in about 9.3 minutes. BP requested KA to move as the vessels were closing. KA acknowledged and said that they were turning to port in an attempt to keep clear of BP.
At C-38, C-28 BP requested Tug Assistance from Port Control without success.
At C-33, both vessels were abeam and about 30-50 meters apart. Both vessels had undertaken various manoeuvres. BP updated KA that she [BP] had her engine and requested KA to maintain her course. KA responded, requesting BP to first keep clear of KA. Between C-28 and C-19, BP started to pull away from KA. By C-19, BP was 100 meters ahead and clear of KA.
At C-7, the Port Control hailed KA requesting her to keep clear of BP. KA responded that they were trying to do that, but BP was falling back rapidly.
By C-6, BP had dragged her position almost astern of KA.
Between C-3 and C-1, KA requested BP to allow herself [BP] to drag a bit clear from KA. BP responded that she had her ME again. She intended to go hard a starboard and requested KA to maintain her position. KA responded that her anchor was aweigh and that she was falling astern. BP asked KA to stop because BP wanted to veer to starboard on her engine and rudder. KA responded by requesting BP to stop her ME.
At 0110 hours (C-0), BP’s port bow contacted KA’s starboard quarter. Both ships were heading about 180° at this time. KA still had a lightering barge on her port side at this time. Later, the vessels separated on their own.
Both the Masters were found to be properly qualified, appropriately experienced and generally competent to command the respective vessels. However, both had falsified their respective logbooks and casualty reports. The VDR (Vessel Data Recorder) data, the jointly agreed MADAS reconstruction (software that creates 2D reconstructions of collisions) and radar images from both vessels also revealed the true factual matrix.
Judgment
Having dealt with the background, the agreed facts, allegations of fault, the facts via MADAS reconstruction, and the Masters’ fictions, the Judge addressed causative facts and found and held as follows:
(1) Belpareil 1 – Dragging Anchor
The Judge found that there was authority for the proposition that a ship dragging her anchor is prima facie evidence of negligence, but that the vessel can rebut this by showing that this was not in fact due to negligence, by proving that the dragging could not have been prevented by the exercise of reasonable skill and care.
However, BP did not plead that dragging her anchor occurred without fault on her part. In consequence, the presumption at law that ships do not drag anchor without fault was not rebutted, and so BP was found to be at fault for dragging her anchor.
(2) Belpareil 2 – Delay in Warning
Reviewing the facts, the VHF communications and relying on advice from the Elder Brethren (who acted as nautical advisers to the Judge), the Judge held that had KA been informed that BP was dragging her anchor and was facing engine troubles, a competent mariner would have considered weighing anchor and clearing away promptly.
The Judge also held that, had BP warned KA by 2340 hours (C-90) latest, there would have been enough space and time for KA to have weighed anchor and cleared away.
The Judge opined that it was more probable than not that with such prompt notification of BP’s difficulty, KA would have weighed anchor and moved away.
(3) Belpareil 3 – Delay in Calling for Tugs
The Judge, having reviewed the VHF communications, held that BP was at fault for not calling tug assistance by C-90, as she was for not warning other ships of the danger posed by her. That said, he found that the lack of promptness in calling for tugs was not causative of the collision, because the evidence suggested that an earlier call would not have led to tug assistance being provided in time to prevent the collision.
(4) Belpareil 4 – Failure to Drop Starboard Anchor
Considering the facts, VDR audio records and relying on nautical advice from the Elder Brethren, the Judge found that BP should have dropped her starboard anchor at or prior to 0005 hours (C-65), which would have given KA ample opportunity to weigh anchor and get clear without BA ever getting dangerously close to her.
The Judge thus held that BP was at fault for failing to drop her starboard anchor when she realised that she could not rely on her ME to arrest or control her dragging.
(5) Both Ships – Negligent Final Manoeuvering
The Judge accepted the Elder Brethren’s advice that they would have have “expected [competently run ships] to agree a course of action and regularly exchange information of their progress until the risk of collision no longer existed. The conversations between KA and BP were more in the nature of statements and requests to the other to take certain actions.”
The Judge did not accept the Elder Brethren’s supplementary advice, which was that KA was not to be criticised for deciding to take way off her ME. The Judge, instead, held that KA’s actions from C-3 were without proper thought to the situation. KA was held to be at fault for having allowed herself to fall astern and to starboard so as to collide with BP. KA ought to have increased her engine speed to avoid collision.
The Judge further found that BP was at fault for maintaining full ahead from C-2 onwards. Instead of taking action to avoid collision, BP was in fact driving into the collision. BP could and should have used reduced engine speed after C-2 to avoid the imminent risk and the reality of the collision that eventually occurred.
(6) Causation
The Judge held that the lengthy period involved and the slow speeds did not mean that this was other than a single, continuous episode. Both vessels were in the grip of a perilous situation created by BP’s negligence.
The Judge held that all the faults found by him had contributed to bringing about the collision.
(7) Apportionment & Conclusion
The Judge held that both vessels were at fault and that all faults from both sides were effective causes of the collision, always acting in combination. However, BP was more blameworthy for bringing the vessels into a potentially dangerous situation in the first place until C-3. After C-3, BP was less at fault than KA for having brought the ships into contact.
Accordingly, the Judge apportioned liability 70% to BP and 30% to KA, respectively.
Comment
It is interesting to note from this judgment that the dissimilarity in the vessels’ respective deadweight was not highlighted as a causative factor by counsel for BP. KA had discharged for 6 days before the incident but BP was nearly fully laden as she had arrived earlier the same day as the incident.
Both vessels anchored in similar depths of more than 10 meters but less than 13 meters (based on data obtained from the MADAS reconstruction figures in the judgment), but BP, having just arrived fully loaded with a draught of 9 meters, would have been affected more than KA (then drawing a mean draught of 7.5 meters) by shallow water effects (“SWE”), due to the current passing between the vessel’s keel and the seabed.
Mariners know that SWE can affect vessels when they enter waters less than 1.5x vessel draught and SWE becomes pronounced at depths less than 1.2x vessel draught. It was, in the writer’s view, definitely a factor in play in this case; BA was encountering severe SWE, whereas KA was encountering moderate SWE.
One feature of SWE is the additional stress on the vessel’s anchor. These stresses become pronounced when currents increase, such as at change of tides. Both of these led to the higher likelihood of dragging anchor which, in the writer’s opinion, was the root cause of BP not holding her anchor position at the material time.
Another feature of SWE is the loss of RPM for ME in such depths. The crew of BP did not know the reason for the lack of RPM increase. The writer believes that this was the technical reason for BP’s ME RPM not increasing beyond 50-55, despite no alarms being triggered on the telegraph control system.
Another common best practice is to change the seawater inlet from low sea chest, located under the vessel’s hull, to high sea chest, located on the side of the hull, when vessel enters shallow waters. The muddy delta waters of Chattogram would have definitely warranted this. BP never stated that this change had been made, nor did KA ever assert that it had not been made. Had BP been operating her seawater intake from low sea chest, for various domestic purposes including ME cooling, the muddy waters may have affected machinery performance or even led to machinery failure. The ‘technical failure’ of ME is not detailed in the judgment but the writer believes that this was what caused it.
It is also common seamanship knowledge amongst mariners that anchor holding is a function of weight placed on seabed and the friction between the anchor chain and the seabed. There is no assertion anywhere that BP attempted to hold position by paying out 1 or 2 shackles more on her anchor chain. This would have allowed her to fall back by another 50 meters, each shackle being some 27.5 meters long, but not enough to have covered the 0.8NM distance between the BP and KA. This action does not appear to have been contemplated by BP. That inaction by BP also does not appear to have been pleaded by KA.
