Bow Spring, owner of the Ship v Owners of the Ship Manzanillo II

This is the judgment of the court, to which all members of the court have contributed, in an appeal from a decision of David Steel J made on 22 July 2003 in which he held that the dredger MANZANILLO II was 50 per cent to blame for the grounding of the chemical tanker BOW SPRING which occurred just outside the eastern edge of the Northern By-pass Channel of the Suez Canal at about 1800 hours on 8 July 1999. The BOW SPRING’s case was that she deliberately beached herself just outside the channel in order to avoid a risk of collision with the MANZANILLO II, which appeared to be shaping to enter the channel. The judge accepted the respondents’ case to that effect but held that the BOW SPRING was also 50 per cent to blame and accordingly held that the respondents were entitled to recover half the loss and damage sustained as a result of the grounding from the appellants. Although the BOW SPRING was able to refloat herself relatively easily, she lost half her rudder which in turn caused damage to her propeller.

The appeal is brought with the permission of the judge. The appellants’ case is that the judge was wrong to hold that the MANZANILLO II was at fault and that he should have held that the BOW SPRING was entirely to blame for the grounding and its consequences. The principal issue in this appeal is therefore whether the judge was correct to hold that the MANZANILLO II was partly to blame for the grounding of the BOW SPRING. It was, however, further submitted on behalf of the appellants that, if the MANZANILLO II was partly at fault, the judge was wrong to apportion fault equally between the vessels but should have held that the BOW SPRING was substantially more to blame than the MANZANILLO II.

We take these details almost entirely from the judge’s judgment. The BOW SPRING is a chemical tanker of 17,651 tons gross register, 170.53 metres in length and 25.33 metres in beam. She is powered by a diesel engine of about 17,000 HP. At the material time she was fully laden with flammable and explosive cargoes and was drawing 11.05 metres forward and 11.2 metres aft. The MANZANILLO II is a trailer suction hopper dredger of 115 metres in length and 19 metres in beam. She is powered by two engines totalling 4,710 kilowatts attached to controllable pitch propellers and is also fitted with bow thrusters. She is accordingly very manoeuvrable. At the material time her draught was about 3.2 metres forward and aft.

The weather was fine with good visibility and it was daylight. There was no material current. The BOW SPRING was proceeding northbound from Port Said along the dredged by-pass channel, which was dredged to a depth of 21.8 metres. As her master was fully aware, the depths outside the channel were of the order of 6 to 8 metres and were thus such that if she left the channel she would run aground. The MANZANILLO II had been dredging to the east of the channel and had proceeded some distance to the north-east to discharge her spoil. She thereafter returned towards the channel on a broadly south-westerly course. It is her actions after that, together with the BOW SPRING’s reactions to them which led to the issues both at the trial and on this appeal.

The judge summarised the parties’ respective cases in this way. The respondents’ case was as follows. The bearing of the MANZANILLO II remained constant on the starboard bow of the BOW SPRING. Her course suggested that she was shaping to cross the by-pass channel. The MANZANILLO II was not identified as a dredger. No shapes could be seen indicating that she was engaged in dredging until she turned to port shortly before the BOW SPRING grounded. There was no response to VHF signals and sound signals had no effect. In order to avoid collision the BOW SPRING altered hard to starboard and her engines were put full astern. She then grounded.

The judge summarised the appellants’ case as follows. The MANZANILLO II had been dredging and was turning slowly to port to continue dredging on a north-easterly course. She was displaying regulation shapes applicable to a vessel restricted in her ability to manoeuvre. The BOW SPRING was then seen turning to starboard in the channel and so a VHF call was made to ask her intentions. There was no reply. The BOW SPRING was then seen to leave the by-pass channel shaping to continue north-east towards MANZANILLO II’s dredging area. Contact was made by VHF and it was agreed that the BOW SPRING would turn astern of the MANZANILLO II and re-enter the channel.

The MANZANILLO II was engaged in dredging operations connected with the construction of a proposed new access channel to a new port comprising a new container terminal for Port Said to the east of the Suez Canal channel. The new channel ran from the existing junction of the main Suez Canal channel and the by-pass channel slowly diverging east to the new terminal area. The MANZANILLO II was engaged by the dredging contractors, who had on 14 April issued a request to the relevant Egyptian Ministry for an appropriate Notice to Mariners. The request enclosed a list of co-ordinates within which the dredging operations would take place, together with a chart extract showing the relevant area. This encompassed the entire area to the east of the new channel including the dumping or disposal site some five or six kilometres away. However, the chart extract also marked the boundaries of the new channel itself.

In the event, the relevant navigation warning issued on 20 April, which was thereafter duly promulgated by Navtex as set out below, merely gave notice of the overall area bounded by the co-ordinates and provided no information about the position of the new channel.

The judge quoted the following extracts from a statement of Mr Pierre Tison, who was the project manager for the dredging contract:

There had been a pilot on board the BOW SPRING who had disembarked before any of the events relevant for our purposes occurred. As the judge observed, the master of the BOW SPRING said in his oral evidence, which was unchallenged in this respect, that he was given no information by the pilot about the dredging activities and no assurances as to the existence of dredgers or how they would or might be navigated. The judge further held that the master appeared to have been ignorant even of the content of the Navtex, which was in these terms:

Thus, although the master of the BOW SPRING had little information because he was told nothing by the pilot and had not seen the Navtex, if he had seen the Navtex, he would have known only of the overall area bounded by the co-ordinates and would have known nothing about the position of the new channel.

The MANZANILLO II was equipped with a survey system which was fed from two differential GPS satellite navigators. It exhibited data on a screen, which showed the position of the vessel to a high degree of accuracy against a background of a detailed chart including the new channel that was being dredged marked by gridlines. As the judge put it, a striking feature of the system was that it enabled a record to be maintained of the area dredged. The practice was to preserve a “photographic record” of the position of the vessel at the end of a dredging run and at the end of a discharge run. Thus the position of the MANZANILLO II before returning for the run during which the BOW SPRING ran aground and her position at the end of that same run were firmly established.

If the system had been operated properly, the entirety of the dredging run would have been recorded on the system. Unfortunately the operator failed to operate the system correctly on the day in question (not for the first time). The result was that the track of the MANZANILLO II before the end of her next dredging run was not recorded except for a short tail showing the last few minutes.

The judge heard the oral evidence of two witnesses, namely the master of the BOW SPRING, Captain Loenning, and the mate of the MANZANILLO II, Mr Roels. The master of the BOW SPRING gave evidence some time before the trial but nothing turns on that. The respondents had wished to call their chief officer but in the event he was not available. The judge said that he was satisfied that they were not prejudiced by the absence of his oral evidence. As to the oral evidence of Captain Loenning and Mr Roels, the judge said that they both did their best to assist the court in recounting events of some antiquity but that, (as he put it) inevitably, where there was a conflict, he concluded that it was appropriate to rely upon the contemporary material.

The judge said that there was little controversy as to her passage and summarised it in this way. Following disembarkation of the pilot at Port Said, her engines were initially put slow ahead and then at about 1751 half ahead. She proceeded up the by-pass channel towards the open sea. Her working chart recorded the time of passing the various sets of buoys in the channel, which the judge accepted as broadly accurate. Accordingly she passed buoys HM 30 at about 1756 at a speed of about 10 knots.

The time of grounding was recorded in her deck log as 1800, which the judge again found was reasonably accurate. It was common ground before the judge that her position aground was accurately recorded on a soundings chart. The judge accepted a submission made on behalf of the appellants that the soundings chart is consistent with her having probably grounded on a heading of about 045°.

Her deck log recorded events as follows:

The judge held that those times were obviously approximate but that an alteration of about 30° to starboard prior to grounding suggested that starboard helm was indeed applied less than a minute before grounding. He accordingly accepted the record of manoeuvres in the deck log, which he said was in any event not seriously challenged. He rejected the suggestion made by the master that the engines were put full astern prior to grounding but said that he did not regard the point as significant.

One of the problems presented by the case, as it emerged during the argument before us, is that, if the BOW SPRING grounded in the position shown on the soundings chart, it is difficult to see how starboard helm could have been applied less than a minute before the grounding because the distance from the channel is too far. We will return to this point below but should first set out the judge’s findings as to the observations of the MANZANILLO II from the BOW SPRING.

They may be summarised as follows. The MANZANILLO II was first particularly observed at about 1756 when the BOW SPRING passed buoys HM 30 when she was entering the dredging zone, although it may well be that she had been observed earlier on a broadly steady bearing albeit during a period when BOW SPRING was slowly increasing speed. By 1756 the MANZANILLO II was bearing about 15° on the starboard bow of Bow Spring at a range of about 1.7 miles shaping to cross ahead at about half a mile. By 1759, when hard to starboard was ordered, the bearing would have been somewhat broader (as a result of the MANZANILLO II’s alteration to port) at a range of about 0.6 of a mile.

The judge observed that the material for reconstructing the track of the MANZANILLO II was more meagre. Her position at the dumping area following her previous run is known. So also is her position, heading and immediately preceding course line on completion of the run during which the grounding of the BOW SPRING occurred. The judge held that there was a contemporaneous record to the effect (a) that the return trip from the dumping ground to the recommencement of the dredging took about 25 minutes and (b) that dredging was then continuous for about 15 minutes up to 1810, from which it followed that if the dredger turned during this period, it did so within the dredging area and without lifting the dredging pipes.

The only relatively contemporaneous document prepared by the witnesses was a sketch made by Mr Roels, the mate, the day after the grounding. The sketch shows the MANZANILLO II entering the dredging zone on a south-westerly course at the north end of area 4, turning to port and proceeding down the middle of the new channel and into the north end of area 5. It appears to us to show the MANZANILLO II on a heading to the west of south when the BOW SPRING must have been aground.

The judge set out part of the evidence of Mr Roels from his statement as follows:

The judge accepted what he called the broad thrust of Mr Roels’ evidence. He rejected the respondents’ reconstruction of the MANZANILLO II’s track because he said that it presented a very different picture. It involved the MANZANILLO II coming into the dredging area at the northern end of area 5,continuing on her south-westerly course to the extreme western side before slowing down, swinging around to port and then commencing dredging from the southern end of area 5. He noted that the MANZANILLO II was then shown proceeding to port back across her track before turning to starboard to her known position at 1810.

He rejected the broad shape of that reconstruction for two principal reasons. The first was that it was clear from the sounding survey that dredging was taking place in the northern end and not the southern end of area 5 and the second was that it is wholly improbable that the dredging pattern would follow a figure of eight course. In any event, he saw no reason to reject the broad thrust of Mr Roels’ evidence both documentary and oral and he accordingly found that the appellants’ reconstruction was to be preferred.

That showed the MANZANILLO II returning from the dumping ground on a south-westerly course to enter section 4 of the dredging area at about its mid-length turning somewhat to port before slowing and commencing dredging down the centre line of the dredging area and then, at about the time the BOW SPRING grounded, turning to port to make her way back up to the known position at 1810. He held that, although the northbound convoy had been seen in general terms, those on board the MANZANILLO II did not particularly observe the BOW SPRING until she had commenced to swing to starboard, by which time the MANZANILLO II had come somewhat to port, slowed down and started dredging.

The judge held that the MANZANILLO II was or ought to have been aware that northbound vessels, with dredgers approaching on the starboard side, might be concerned that the dredgers would enter the by-pass channel. He said that the system of pilots giving both warnings and assurances in that regard (and the attempt to monitor the system) was prompted by this very consideration. However, there could be no assurance that appropriate warnings had been given. Further, although it could be assumed that the BOW SPRING would have become aware of the Navtex warning about dredger activity, the co-ordinates specified gave no indication of the precise area in which the dredging would occur or, indeed, the direction from which the dredgers would approach.

In those circumstances the judge sought the advice of the Elder Brethren on the following question:

He then asked himself whether that fault was a cause of the grounding of the BOW SPRING or whether the grounding was entirely attributable to the fault of the BOW SPRING. He again asked the Elder Brethren for their advice as follows:

As to apportionment, the judge said that the situation of danger was initially created by the MANZANILLO II by leaving the BOW SPRING in doubt about her intentions when the BOW SPRING could only safely navigate within the channel. However, whilst it was right to have some sympathy with those on the BOW SPRING when faced with that situation, particularly as a laden tanker, the obviously appropriate reaction was to take off way. The decision to beach the vessel was a hurried and ill-considered over-reaction, with significant consequences in terms of damage. He therefore assessed the contributory fault of the MANZANILLO II as 50 per cent.

Mr Meeson submitted on behalf of the appellants that on the facts found by the judge he ought to have held that the MANZANILLO II was free from blame and that the BOW SPRING was beached only because the master failed to keep a good lookout, that, contrary to his evidence, there was no risk of collision and that there was in any event no need to alter to starboard out of the channel when he could have done nothing or, as the judge found, stopped his engines. He further submitted that when, on the judge’s findings, the BOW SPRING applied starboard helm at about 1759, the MANZANILLO II had already reduced speed and was on a course divergent from the channel and therefore from the course of the BOW SPRING.

In order to evaluate those submissions it is appropriate to consider first the facts. Both parties put a plethora of plots before the court. These plots must be viewed with considerable caution. As David Steel J has correctly observed in a number of recent cases, the probative value of a plot is that it may sometimes enable the court to determine, not what happened but what could not possibly have happened: see eg The Pelopidas [1999] 2 Lloyd’s Rep 675 at 682 and The Sitarem [2001] 2 Lloyd’s Rep 107 at 109. In both those cases he echoed the view of Lord Reid in The Statue of Liberty [1971] 2 Lloyd’s Rep 277 and 280 that every plot contains margins of error. All plots depend for their value upon the accuracy of the assumptions on which they are drawn. In this case, as so often, the available data is not sufficiently precise to enable a plot to be drawn showing precisely what happened. It was no doubt for that reason that the judge did not append one to his judgment.

It was accepted during the argument in the course of the appeal that the judge’s findings cannot be accepted in their entirety. In the case of the BOW SPRING, as already stated, the difficulty with them is that, if she grounded at 1800 in the position strongly suggested by the soundings chart made after the grounding, she must have altered to starboard well before 1759 since plots show that it is impossible for her to reach that grounding position if she was in the channel at 1759 and aground in that position at 1800. It seems to us that the likely explanation is that she applied starboard helm somewhat earlier than 1759 and that, although she grounded at about 1800 (all times being subject to a margin of error), she did not reach the position in which she finally fetched up, which was probably that shown on the soundings plan, until some time after 1800.

The judge’s conclusions as to the navigation of the BOW SPRING must therefore be read subject to those modifications. However, the modifications do not alter his basic finding, which was that the BOW SPRING remained in the channel until she applied starboard helm because the master was sufficiently concerned that the MANZANILLO II would cross into the channel. It is true, as Mr Meeson pointed out, that it was put to the mate of the MANZANILLO II by Mr Kverndal that the reason that the BOW SPRING had to alter course to starboard was because they realized that there would be a collision if both vessels maintained their course and speed. But, as we read his judgment, the judge did not so hold.

The judge accepted the advice of the Elder Brethren that the MANZANILLO II was at fault on the assumption that if she had maintained her course and speed, she would have crossed ahead of the BOW SPRING at a distance of about half a mile. It seems to us to be clear that the judge reached his conclusions on that basis. He did not hold that if the MANZANILLO II had maintained her course and speed there would have been a collision but that there would, as the Elder Brethren said, be a close quarters situation in the sense that she would risk impeding the passage of the BOW SPRING, which was restricted by her draft.

It seems to us to be clear why the Elder Brethren used the language they did. The BOW SPRING was proceeding along a narrow channel or fairway. Rule 9(d) of the International Regulations for Preventing Collisions at Sea (“the Collision Regulations”) provides, so far as applicable to the MANZANILLO II:

The judge held that the BOW SPRING took action because of her master’s fear that the MANZANILLO II would or might cross into the channel with consequent risk to the BOW SPRING, which was fully laden with flammable and explosive cargoes. We do not think that there can be any doubt that that was indeed why the master took the action he did, even though he knew that to go hard to starboard would lead to his vessel grounding.

As stated above, the judge held that the MANZANILLO II did not particularly observe the BOW SPRING (except as part of the northbound convoy) until after the BOW SPRING had commenced to swing to starboard, by which time the judge said that the MANZANILLO II had come somewhat to port, slowed down and started dredging. He held that the MANZANILLO II started dredging while she was on a generally southerly course. It was, however, common ground during the argument before us that the MANZANILLO II did not commence dredging until she altered substantially to port and was proceeding in a generally northerly direction.

Mr Kverndal relied in this regard upon the evidence given in chief by the mate of the MANZANILLO II, Mr Roels:

That evidence is important because, if accepted, it suggests that no or no significant action was taken by the MANZANILLO II to reduce speed or to alter to port in order to begin her next dredging operation until a late stage, viz after she appreciated that the BOW SPRING had altered to starboard. It also supports the evidence of the master of the BOW SPRING that he thought that the MANZANILLO II was going to enter the channel. It does so for two reasons. The first is that that is what the master told him on the VHF at the time and the second is that the mate said that he applied about 10° of port helm in order not to enter the Suez Canal. In cross-examination Mr Roels reiterated that he slowed down after the VHF conversation.

It is right to say, as the judge observed (and as set out earlier) that that evidence is not consistent with the parts of the mate’s witness statement quoted by the judge because he there described the slowing down as occurring much earlier. The judge did not resolve the conflict, although he did say that he saw no reason to reject the broad thrust of Mr Roels’ evidence and it was on that basis that he accepted the general thrust of the appellants’ reconstruction, which showed the MANZANILLO II returning from the dumping ground on a south-westerly course to enter section 4 of the dredging area at about its mid-length turning somewhat to port before slowing and commencing dredging down the centre line of the dredging area and then, at about the time the BOW SPRING grounded, turning to port to make her way back up to the known position at 1810. The problem with that reconstruction is that it has the MANZANILLO II dredging down the central line of the dredging area, whereas she was not dredging before she turned sufficiently to port to proceed in a generally northerly direction.

As already indicated, this is not a case in which the information is sufficient to make it possible to find the facts with great precision, especially in the case of the MANZANILLO II. However, we essentially adopt the findings of the judge, with two related exceptions. The first is the finding that she was dredging at any material time before the grounding. The second is his conclusion set out above that there was a contemporaneous record to the effect that the return trip from the dumping ground took about 25 minutes and that the dredging then continued for about 15 minutes up to 18.10. It is common ground that the record is not as precise as that. For example, it is agreed that it does not show that dredging took place for 15 minutes between 1755 and 1810 but that dredging took place during at least part of that period of 15 minutes. The record is not therefore of any real assistance in determining precisely what happened.

It is sufficient, in order to resolve the issues in this appeal, to identify these aspects of the navigation of the MANZANILLO II. She was proceeding in an approximately south-westerly direction at about 10 knots until she altered course to port in order to proceed to a point where she turned in a generally northerly direction and resumed dredging. Because of the imprecision of the evidence it is not possible to say precisely where she turned or precisely when she reduced speed but it was at a comparatively late stage. Moreover, given that she did not do any dredging until she turned back towards the north, there is no reason to suppose that she was displaying any shapes from which the BOW SPRING might deduce that she was a dredger before the BOW SPRING applied starboard helm and left the channel.

As we see it, the BOW SPRING left the channel because her master feared a risk of collision with the MANZANILLO II, it being a risk that he was not prepared to take because of the danger to his vessel posed by a collision, given the nature of his cargo. That the master had such a fear is supported, not only by the evidence of the mate of the MANZANILLO II set out above, but also by the unchallenged evidence of the master that he sounded his whistle and flashed his Aldis lamp. The MANZANILLO II had been shaping to cross the channel ahead of the BOW SPRING at a distance of about half a mile and when the master made his decision to go to starboard the MANZANILLO II had either not altered to port or reduced speed at all (as Mr Roels said in chief) or had done so by such a small amount as not to be immediately apparent to the BOW SPRING.

That is essentially what the judge found to have been the position and was broadly the basis upon which the Elder Brethren were asked to and did give their advice to the judge which we have quoted above. The judge accepted that advice and we do so too. Recognizing that this is not an appeal from assessor to assessor and having no reason to doubt the validity of that advice we have not sought any advice from our own assessor, Captain Chew. We would however like to take this opportunity of thanking him for attending the appeal and being ready to advise us if necessary. We intend no disrespect to him in not seeking his advice.

It follows that we have reached the conclusion that the judge was entitled to hold, in accordance with the advice he had received, that the MANZANILLO II should have made it clear to the BOW SPRING well before she did that she was not going to cross the channel. She was at fault for not altering substantially to port to open her starboard side to the BOW SPRING. The judge was correct so to hold. It follows that we do not accept Mr Meeson’s submissions in this regard.

Was that fault causative of the beaching of the BOW SPRING? Mr Meeson submitted that the answer to that question is no because there was no risk of collision and that the sole cause of the grounding was the decision of the master of the BOW SPRING to take unnecessary and unjustifiable action which was not properly attributable to any fault on the part of the MANZANILLO II.

Mr Meeson submitted that the judge held that there was no risk of collision. However, we are unable to accept that submission. As we read the judgment, the judge held that there was a risk of collision at any rate in the sense that the master’s decision to take action was caused by the fault of the MANZANILLO II in failing to make her intentions clear in circumstances in which, if she had crossed the channel ahead of the BOW SPRING, she would have impeded her passage in breach of rule 9(d) of the Collision Regulations. On the judge’s findings, it was because of the perceived risk of being impeded and of the risk of collision that the BOW SPRING took action. In reaching his conclusion on causation the judge took account of the Elder Brethren’s advice, which he accepted, that concerns as to the MANZANILLO II’s intentions and closest point of approach were legitimate.

We have reached the clear conclusion that the judge was entitled to accept that advice and to hold that the fault of the MANZANILLO II was causative of the decision of the master of the BOW SPRING to leave the channel. In so far as our conclusions of fact are different from those of the judge, they emphasize the correctness of the conclusion. Once it is held that the MANZANILLO II had either made no or no significant alteration of course at the time the BOW SPRING’s decision was made, so that she was still shaping to cross the channel ahead of the BOW SPRING, the causal link between the fault of the MANZANILLO II and the actions of the BOW SPRING becomes clear, subject to only two points. The first is that it was submitted by Mr Meeson that the master of the BOW SPRING should have appreciated that the MANZANILLO II was a dredger and the second is that the decision to leave the channel was wholly unnecessary and was therefore the sole cause of the beaching and therefore the damage.

As to the first point, it was submitted that the BOW SPRING could and should have appreciated that the MANZANILLO II was a dredger on a number of bases. It was submitted that she should have seen the shapes displayed by the MANZANILLO II. However, that submission cannot succeed once it is accepted that the MANZANILLO II did not carry out any dredging until she altered course to port in a generally northerly direction. Given our conclusion set out above that the MANZANILLO II did no dredging until then, even if she put out the shapes before she actually started dredging, they were not put out before the master of the BOW SPRING made his decision or at any time relevant to the beaching of the BOW SPRING.

It was at one time submitted that the BOW SPRING should have appreciated that the MANZANILLO II was a dredger from the published information including the Navtex. However, as the Elder Brethren said, the Navtex was not sufficiently precise. Nor was any of the published information. In any event the question for the master of the BOW SPRING to decide was not whether the MANZANILLO II was a dredger but whether she intended to cross the channel.

Finally, it was suggested that the pilot of the BOW SPRING should have advised the master about the dredging and that the respondents were responsible for his negligent failure to do so. This point was not developed on appeal. In any event any such failure was not causative of the collision. As just stated, the question was whether the vessel shaping to cross the channel at speed would do so, regardless of whether she was a dredger.

It follows that we do not accept this first point, which makes it strictly unnecessary for us to consider a complaint made by the appellants that the judge accepted the advice of the Elder Brethren that it would have been difficult to observe shapes on the dredger’s starboard side. Mr Meeson submitted that the judge should not have accepted or relied on that advice without giving counsel an opportunity, at the very least, to make submissions about it. Although the point is not relevant to the outcome of this appeal, it is of some general interest and perhaps importance and, since both parties asked us to express a view upon it, we shall do so by way of postscript below. We should add that Mr Meeson also sought to introduce further evidence showing what dredgers look like but, given our above conclusions, we decided that it was not appropriate to receive such evidence.

As to the second point, the question is whether the sole cause of the beaching was the master’s negligent decision to put his vessel aground instead of slowing down by, say, stopping his engines. We have reached the same conclusion as the judge, namely that the answer is no. The master was put in the position of having to make a decision which he should not have had to make by the fault of the MANZANILLO II in standing on and not altering boldly to port at an early stage. We agree with the judge that his decision was a hurried and ill-considered over-reaction to the position in which he had been placed but the reason he was placed in that position was the fault of the MANZANILLO II. In these circumstances it would, in our judgment, be wrong to hold that the sole cause of the beaching and damage was the fault of the BOW SPRING.

We agree with the judge that their cause was partly the fault of the MANZANILLO II and partly the fault of the BOW SPRING. The remaining question is one of apportionment. The judge expressed his reasons for that conclusion thus:

For these reasons we conclude that the appeal should be dismissed.

The common law principles of natural justice anticipated by many years the concept of a fair trial which has been elaborated by the European Court of Human Rights under Article 6(1) of the Convention. This Article provides, among other things, that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing before an independent and impartial tribunal established by law.

Both the common law and the Convention regard fairness as including the need for the court to know, before it reaches a conclusion, what the parties have to say about the issues and the evidence which goes to them. As the Strasbourg court put it in Kr Ma v Czech Republic (35376/97; 3 March 2000, para 40):

Where the court has evidence from an expert who has not been called as a witness by either party - and CPR 61.12 makes it clear that nautical assessors are such experts - the principle needs to be adapted to the procedure. Its effect is that any consultation between the assessors and the court should take place openly as part of the assembling of evidence. Because the judge is not bound to accept the advice he receives from the assessors (see The Ansonia (1920) 2 Ll L Rep 123, 124), the parties are entitled to an opportunity to contend that he should or should not follow it. In many, perhaps most, cases the questions and advice taken together will be susceptible of little or no argument that has not already been directed to the issues which have prompted the questions. But fairness requires the opportunity to be given.

The nautical assessor is a time-honoured example of the statutory court-appointed expert. CPR 35.15(4) now provides for the disclosure and use at trial of such experts' initial reports. CPR 35PD7.4 indicates that the parties are to be sent copies of any report prepared by the assessor, but that he or she will not give oral evidence or "be open to cross-examination or questioning". This sits comfortably with the traditional role of the nautical assessor, which in the past approximated to that of a special jury: hence the practice of formulating questions and - until 1867 - taking the answers in open court. It appears from a note to the report of The Hannibal (1867) LR 2 Ad&E 53, 56, that it was at the conclusion of judgment in that case that Sir Robert Phillimore announced that

Such a practice would not, in our view, be compatible with Article 6; and it is right that, except in cases where such a discussion is unnecessary in the light of submissions made earlier, the preferable modern practice of putting questions to the assessors after discussion with counsel should be complemented by a practice of disclosing their answers to counsel, either orally or in writing - in order that any appropriate submission can be made as to whether the judge should accept their advice.

In the present case, we are told that the judge - correctly - sought counsel's assistance in formulating the questions that he put to the Elder Brethren. There was no reason, as it seems to us, why he should not also have disclosed their answers in order that either party could comment on them. His intermediate conclusion - "I accept this advice" - recognises that it was for him to make up his own mind and not simply to adopt the assessors' opinion. If so, the parties were entitled to an appropriate input.

As it happens, this case illustrates the potential benefit of such a procedure in two respects. First, part of the question put by the judge to the assessors was: "Was there a risk of collision?" No direct answer was given to this. The response of the assessors begins:

Secondly, as indicated above, the assessors gave an answer relating to the difficulty of seeing the shapes on the starboard side of the MANZANILLO II, which could with profit have been put to counsel for their comments.

This said, no application seems to have been made by either counsel to be heard on the assessors' answers, either before they gave them or when the parties received the draft judgment. While it would have been preferable for the judge to invite any submissions on them, Mr Meeson has not been able to demonstrate any consequent prejudice incapable of being remedied on this appeal. So the issue, while helpfully raised, does not advance the appellants' case or affect our determination of this appeal.