Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE GROSS
Sitting with Captain C.M.C. Stewart Elder Brother of Trinity House as a Nautical Assessor
Between :
The Owners of the ship “Pearl” | Claimants |
- and - | |
The Owners of the ship “Jahre Venture” | Defendants |
Charles Macdonald QC (instructed by Holmes Hardingham Walser Johnston Winter) for the Claimants
Timothy Brenton QC (instructed by Hill Taylor Dickinson) for the Defendants
Hearing dates : 14-15 January 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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THE HON MR JUSTICE GROSS
Mr Justice Gross :
INTRODUCTION
At about 09.07/09.10 (GMT + 4), on the 3rd March, 2000, the Claimants’ Suezmax motor tanker, the “PEARL” and the Defendants’ ULCC, the “JAHRE VENTURE”, collided in the Fujairah “B” anchorage, in the Gulf of Oman.
The “PEARL” was registered in Valletta; she was 270 metres in length and 43 metres in breadth. At the material time, her drafts were 6.9 metres forward and 8.3 metres aft. She was in ballast, lying to her starboard anchor, with 10 shackles in the water. When the “PEARL” came to anchor, at or about 01.00 on the 3rd March, the “JAHRE VENTURE” was already at anchor in the same anchorage.
The “JAHRE VENTURE”, a steam turbine vessel, was registered in Sandefjord; she was about 370 metres in length and 64 metres in breadth. At the material time, she too was in ballast and her drafts were about 5.6 metres forward and 11.20 metres aft. She was lying to her port anchor, with 10 shackles in the water.
Accordingly, before the series of events culminating in the collision, both ships, together, it should be noted, with certain others, including a bunker barge, “MARKIZA” (of which, more later), had been at anchor. While, for reasons which will become apparent, the initial anchorage position of “PEARL” was in dispute, the following broad picture is clear:
The ships were about 8 cables to 1 mile apart.
“JAHRE VENTURE” was lying generally to the West or South South West of “PEARL”. For the present, this general description will suffice; there was, however, some dispute, to which I must return later, as to whether “JAHRE VENTURE” was lying to the West or South South West of “PEARL”.
Bad weather blew up broadly from the West in the early hours of the 3rd March, 2000, ultimately to Westerly or Westerly to West North Westerly, Force 8-9.
The visibility remained good throughout.
There was no material tidal or other current.
After the weather had blown up and shortly prior to the events directly concerning the collision, both vessels were yawing, if rather differently; “JAHRE VENTURE” was yawing over about 100, between about 235(T) and 330(T); for her part, “PEARL” was yawing over about 20, said to have been between about (an estimated) 310(T) and 330(T), though it may well have been somewhat more “westerly” than that.
At some point, as is common ground, “JAHRE VENTURE” began to drag her anchor in a generally Easterly direction.
The collision position was not or not seriously in dispute; it was about 25 12.15’N 056 32.73’ E.
There was very limited dispute as to the headings of the ships and the approximate angle of blow at the moment of contact. As was common ground, the collision occurred between the bow or forward starboard side of the “JAHRE VENTURE” and the port side forward of “PEARL”, at a broad angle leading forward on “PEARL”. At this time, as established by her course recorder, “JAHRE VENTURE” was heading about 010 (T); the angle of blow was about 70 to 80 leading forward on “PEARL”; accordingly, “PEARL’s” heading at the time of collision was about 290 to 300 (T).
Further contacts followed the initial collision, all of which are alleged to have done damage to “PEARL”.
It is convenient to note at this stage that neither party advanced any criticism of the other’s initial anchorage position. Further, although each party alleged that the other was dragging her anchor (and it was common ground that “JAHRE VENTURE” had been dragging), neither party criticised the other in respect of the mere fact of dragging in the prevailing conditions.
The master of the “PEARL”, Captain Agarwal, attended the trial and gave oral evidence. He was an engaging witness and, I am satisfied, was truthfully attempting to assist the Court. Whether his evidence was correct or not on significant aspects of the case is another matter, to which I shall come, later. Save for Captain Agarwal, all evidence was in statement form, including the important evidence of the chief officer of “PEARL” and the master of “JAHRE VENTURE”. In this latter regard, Mr. Brenton QC, who appeared for “JAHRE VENTURE”, underlined that the master was no longer employed by the Defendants; he submitted that no adverse inferences should be drawn from the master’s non-attendance. For my part, I shall not draw any adverse inferences from the Defendants’ failure to call the master of “JAHRE VENTURE” and I shall of course weigh his evidence together with all the evidence; that said, when it comes to the weight to be given to evidence, the fact that the witness has not been tested by cross-examination is a relevant consideration which I should and will take into account.
For completeness, I record that on the first morning of the trial, I made various procedural rulings, including permitting each party to amend its Preliminary Act (“PA”). Insofar as Mr. Macdonald QC, for “PEARL”, sought and obtained leave to amend Article VIII of Part I of the “PEARL” PA, I granted permission after careful consideration and in the light of the principles, essentially as now set out in The “IRAPUA” [2003] EWHC 320 (Admlty.), at [13] and which do not require repetition here.
THE RIVAL CASES IN OUTLINE
I turn next to the rival cases in outline. For “PEARL”, Mr. Macdonald QC’s primary case was that “JAHRE VENTURE” was 100% to blame for the collision. “JAHRE VENTURE” had dragged down onto “PEARL”. “JAHRE VENTURE” had failed to prepare or use her engines in due time or at all to keep clear of “PEARL”; even after C-5, a collision could have been avoided by “JAHRE VENTURE” going full astern, which she failed to do. As a ship at anchor, “PEARL” was neither entitled nor bound to alter her position or heading until it became apparent to her that “JAHRE VENTURE”, as a ship under way, could not, by her own unaided action, avoid a collision: The Viper [1926] P 37; that stage was not reached until C-5 or even later. If that be wrong, the reason “PEARL” could not raise anchor was a defect affecting her steam line but “PEARL” was not negligent in that regard; the severe weather had arisen unexpectedly, the defect was not apparent until the time when “PEARL” sought to raise her anchor and, as soon as the defect was detected, it was repaired. Finally, no proper criticism could be made of Captain Agarwal’s last minute actions. If wrong on his primary case that “PEARL” had not herself dragged her anchor, then Mr. Macdonald submitted that, even so, “JAHRE VENTURE” should bear a preponderance of the blame.
“JAHRE VENTURE’s” primary case, as developed by Mr. Brenton QC, was that “PEARL” was 100% to blame for the collision. Any criticisms of “JAHRE VENTURE” in respect of not raising her anchor prior to 06.45 on the 3rd March, were made with hindsight and unjustified; thereafter, no fault attached to “JAHRE VENTURE” for not manoeuvring clear, in that she was hampered in her ability to do so by the presence of “MARKIZA”. It was comparatively easy for “PEARL” to come clear but she failed to appreciate that she was dragging her anchor and, in any event, she could not recover her anchor because of the defect in her steam line. As to questions of legal duty, “PEARL’s” case was misplaced; “PEARL” was not a ship at anchor, given that she was dragging; “JAHRE VENTURE” was not a ship under way until her anchor came free from the sea bed, which was not until about C-5. With regard to the defect in her steam line, “PEARL’s” case of latent defect or due diligence was not made out. The actions of Captain Agarwal in moving ahead at the last were clearly negligent; he should instead have gone astern. If wrong in his primary case, then Mr. Brenton submitted that “PEARL” was in any event largely to blame for the collision; she had failed to appreciate that she was dragging her anchor, she was downwind and the smaller ship and the defect in her steam line disclosed fault as to maintenance.
THE PRINCIPAL ISSUES OF FACT
Against this background, the facts are best recorded and considered in terms of the principal issues of fact, which were as follows:
Did “PEARL” drag her anchor ?
Were the main engines of “JAHRE VENTURE” ready for use ?
Was “JAHRE VENTURE” hampered in her ability to raise her anchor and/or keep clear of “PEARL” by reason of the presence of the bunker barge, “MARKIZA” ?
What was the content of and what, if any, significance attaches to such VHF communications as took place between “PEARL” and “JAHRE VENTURE” ?
Insofar as the ability of “PEARL” to raise her anchor was hampered by a defect in her steam line, how long had such defect been present, what was its cause and why had it not been repaired ?
When did “JAHRE VENTURE’s” anchor come free from the sea bed ?
What astern movements were ordered and made by “JAHRE VENTURE” after C-5 ?
Was “PEARL” moving ahead at the time of collision?
I proceed next to address each of these issues in turn.
Issue (I): Did “PEARL” drag her anchor ? Given that the collision position, as has been noted, was not or not seriously in dispute, the key to this inquiry is the initial anchorage position of “PEARL”. Plainly if “PEARL’s” initial anchorage position and the collision position are significantly apart and absent some other tenable explanation, the conclusion will be inescapable that “PEARL” dragged her anchor.
I start with the available contemporaneous documentary material concerning “PEARL”:
The deck log book records that at 00.48 (all entries relate to the 3rd March, 2000), “PEARL” commenced lowering her starboard anchor. The log book entry for 01.00 states that the vessel anchored in a position where she was bearing 077 (T) and distant 9.1 miles from Fujairah breakwater. The remarks column adds that anchor bearings were checked frequently and that the vessel maintained her (above) position.
The bridge bell book records the above position, describes it as the anchorage position and gives coordinates as follows: “GPS: 25 12.5’N, 056 31.9E”. If the bell book entry is accurate, it follows that the anchorage position was (1) fixed by radar, in all probability from the racon beacon shown (on BA chart 3521) on the breakwater; and (2) obtained by GPS.
The remarks column in the deck log book contains an entry for 03.00, which records that the vessel’s position was checked by radar and GPS and that she was holding her position. There is a similar entry for 06.00.
At 07.00, the deck log entry records that “PEARL’s” position was checked by “GPS/radar”. Although the entry goes on to state that the vessel maintained her anchorage position, “PEARL’s” position is now said to be “brg 079 (T) x 9.3’” from the breakwater, a position apparently some 2-3 cables distant from her 01.00 position.
To place these positions in context, the collision position involves “PEARL” bearing about 080 (T), distant about 9.75 miles from the breakwater. As compared with the 01.00 position and relative to the breakwater, this involves a change in distance of some 0.5 of a mile and an alteration of bearing of some 2.5. If these positions are right, “PEARL’s” distance and track over the period 01.00 to collision (09.07/ 09.10) and ignoring intermediate position fixes, were 0.68’ x 117.5.
I turn next to Captain Agarwal’s oral evidence. He said this:
The position referred to in the deck log book and the bell book as the anchorage position reflected the 00.48 position marked on the working chart. That, however, was not the anchorage position. At 00.48, “PEARL” had not been brought up to her anchor; she was instead still under way astern.
As to the subsequent statements in the log that the anchorage position was maintained, this was true; he had himself checked the range and bearing and other vessels in the vicinity – but not the position recorded in the log book.
Given that “PEARL” was still moving astern at 00.48, Captain Agarwal denied that there was any dragging between 00.48 and 07.00. Likewise, the 07.00 position recorded in the log book corresponded closely to the 08.00 position marked on the working chart; again, there was no dragging; the difference between these two positions was less than the vessel’s turning circle.
Finally, for his part, the collision position was, he thought, somewhere near to the 06.00 position shown on the chart, that is, to the West of the 08.00 position, rather than a little to the South and East of it; in this regard, however, he had told another officer to plot the collision position and assumed that he had done so.
Against this background, Mr. Brenton’s case was simplicity itself. The contemporaneous records spoke for themselves. The master was mistaken or untruthful. The “PEARL” had dragged her anchor; those on board had failed to appreciate that fact.
Understandably in the circumstances, Mr. Macdonald’s response was more complex. It proceeded as follows:
Captain Agarwal was an impressive witness; he had attended the trial and submitted to cross-examination; more than that, on the evidence, he had been on the bridge of “PEARL” from about 02.00 on the 3rd March, 2000; his conduct was to be favourably contrasted with that of the master of “JAHRE VENTURE”, whose statement did not suggest that he was on the bridge of his vessel until after 06.00. At all events, during those hours when Captain Agarwal had been on the bridge of “PEARL”, he was personally monitoring “PEARL’s” anchorage position and he was firmly and genuinely of the view that “PEARL” had not dragged.
The evidence from those on the bridge of “PEARL” was to be explained on the basis that they were more interested in their relative position, both to the breakwater and to other ships, than in their absolute position. Bearing in mind the length of cable out (10 shackles), the distance from bow to bridge on “PEARL” (some 220 metres) and hence the arc of swing of “PEARL” of some 1.5 – 2 cables, together with the fact that positions fixed by radar are highly sensitive to bearing errors, it was not unreasonable to postulate that the anchorage position was close to that marked 08.00 on the working chart. This was all the more likely if the prevailing wind had a Northerly component. Moreover, the “PEARL” working chart could not be taken literally; if it was, there was no good explanation for the 06.00 position, to the West of the 08.00 position. Accordingly, allowing for “PEARL” swinging to her anchor and allowing a sensible margin of error, the case of dragging against “PEARL” was not made out.
Turning to the evidence of “JAHRE VENTURE”, her GPS position fixes were to be accepted. It followed that “JAHRE VENTURE” had dragged broadly in an Easterly direction and a little North of East. “PEARL” and “JAHRE VENTURE” were both very large ships, anchored on the same holding ground, subject to the same wind, lying to a single anchor, trimmed by the stern, in ballast and with their accommodation aft. However, if “PEARL” had dragged, she must have dragged broadly in a South-Easterly direction, on a track some 45 (or 4 points) different to that followed by “JAHRE VENTURE”; that was a difference of a scale which could not be attributable to the fact that “JAHRE VENTURE” was lying to her port anchor and “PEARL” to her starboard anchor.
Further, the statement evidence of the master, second officer and third officer of “JAHRE VENTURE”, all referred to “PEARL” being off the starboard quarter and, hence, to the East of “JAHRE VENTURE”; if, however, “PEARL” had anchored in or about the 00.48/01.00 positions and was dragging in a South Easterly direction, then she would have been North East of “JAHRE VENTURE” and forward of her beam, rather than on her starboard quarter. Still further, whereas the “JAHRE VENTURE” deck log had spoken of “MARKIZA” dragging onto them, there was no reference to “PEARL” having dragged at all.
It was to be recollected that “JAHRE VENTURE’s” allegation of dragging had been raised by amendment (at the beginning of the trial) and her new case was to be viewed with circumspection. On all the evidence, the correct conclusion was that “PEARL” had remained in her original anchorage position and had not dragged her anchor.
Notwithstanding Mr. Macdonald’s valiant efforts, I am amply satisfied that “PEARL” was dragging her anchor. My reasons are these:
The “PEARL” was in ballast, lying to a single anchor with 10 shackles in the water, in a water depth of some 110 – 120 metres. The wind got up to a W or WNW force 8-9. It is known that both “JAHRE VENTURE” and “MARKIZA” dragged their anchors. I asked my Assessor this question and received his answer as follows:
Q1: In these circumstances, given the amount of anchor cable veered and the water depth in question, can an opinion be expressed as to the likelihood of “PEARL” dragging her anchor ?
A: Every likelihood. A commonly accepted Admiralty formula used in calculating optimum length of cable for calm weather conditions with a maximum tidal stream of 5 knots is: 39 x D, where D is the depth of water in metres. Applying the formula here, assuming a depth of water of 110 - 120 metres, “PEARL” would have needed a minimum of some 14.9 - 15.6 shackles in the water, to be confident of not dragging. With 10 shackles in the water, there was every likelihood of “PEARL” dragging, in the prevailing wind conditions.
I accept this advice. There was, accordingly, an inherent likelihood that “PEARL” would drag her anchor. Plainly, this advice does not conclude the matter; but it does furnish an informed perspective against which to consider the evidence.
I am wholly unable to accept that the contemporaneously recorded positions, set out in the “PEARL” deck log and bell books are in error, as the Claimants themselves now seek to suggest. As is apparent from the summary set out above, those positions were not simply single radar fixes; instead, the positions in question were checked by GPS and, insofar as radar was relied upon, the fix was (very likely) taken from a racon beacon. Moreover, in order to reject the pre-collision position fixes of “PEARL”, it would be necessary to conclude that not only were they the subject of errors as to bearing but also as to distance; in this latter regard, the margin of error would be at least 0.5 of a mile. I regard that as improbable. Further, I am not persuaded that Captain Agarwal rested content with a position fixed at 00.48 (while still anchoring) and never took steps to obtain a fix of “PEARL’s” initial anchorage position; that would be both unlikely and imprudent. Still further, insofar as “PEARL’s” concern did lie with the relative position of other vessels and “JAHRE VENTURE” in particular, it is noteworthy that “JAHRE VENTURE” was described by Captain Agarwal in his night orders and in a telex of 3rd March, as having been 9-9.5 cables distant from “PEARL”; that distance is broadly consistent with “PEARL” having anchored in accordance with her contemporaneous records but is inconsistent with an anchorage position approximating to her 08.00 position shown on her working chart – which would involve a distance of some 1.2 miles. Finally here, I do not regard the 06.00 position shown on “PEARL’s” working chart as casting doubt on the reliability of her contemporaneous fixes; to my mind, this position, to the south of her 01.00 position, is to be explained having regard to her likely yawing at the time; alternatively, at worst, this single allegedly inconsistent position, is outweighed by the pattern disclosed by the remaining position fixes.
Turning to the evidence and documentary material originating from “JAHRE VENTURE”, in my judgment the Claimants sought to place more weight on it than it could properly bear. The witness statements from those on “JAHRE VENTURE” are too approximate for the Claimants’ purposes and must, in any event, be read having regard to the fact that “JAHRE VENTURE” was herself yawing over nearly 100 at the time. Once this consideration is taken into account, if “PEARL” was seen off the starboard quarter, it is perfectly possible for her to have been in a position to the North of East of “JAHRE VENTURE” and, hence, in a position consistent with “PEARL’s” recorded 07.00 position. As to the fact that those on “JAHRE VENTURE” detected that “MARKIZA” was dragging down on her but said nothing of “PEARL” dragging, for my part, I do not regard this as surprising. “MARKIZA” was upwind of “JAHRE VENTURE” and closing on her; “PEARL” was downwind and those on “JAHRE VENTURE” may well have assumed that that the distance was closing because, as, at the time in question, they knew, “JAHRE VENTURE” was herself dragging.
At first blush, the argument raised by the Claimants as to the vessels dragging along two significantly different tracks if “JAHRE VENTURE” is right, does give rise to an apparent curiosity. On analysis, however, there was rather less in this point than initially met the eye. First, there is no doubt that “JAHRE VENTURE” did drag in an Easterly direction and a little North of East. There was, as has been seen, no dispute as to her GPS position fixes. If that is curious (as to which, see below), it is neither here nor there. Secondly, by contrast, “PEARL” dragged broadly downwind. Assuming a wind of 280, this is markedly so if “PEARL’s” 07.00 position is taken as the starting point. It is admittedly somewhat less so if “PEARL’s” 01.00 position is taken as the starting point; however, on this footing, not only was “PEARL” dragging in a broadly ESE rather than SE direction but also it cannot be said that “PEARL” was dragging any further off the wind than “JAHRE VENTURE”. Thirdly, it is important to keep in mind that “PEARL” was lying to her starboard anchor and “JAHRE ENTURE” to her port anchor. In this regard, I consulted my Assessor and received his advice as follows:
Q2: Assuming a wind of 270 - 280, in which direction would it be anticipated that a vessel (1) lying to her starboard anchor and (2) lying to her port anchor, would drag ?
A: A vessel’s “natural sheer” is to lie with the cable fine on the bow, i.e., making an angle of approximately 20 between the cable and the fore and aft line of the vessel with the vessel lying slightly across wind and tide. The natural sheer would mean that when a vessel starts to drag in the listed circumstances, the vessel lying to her starboard anchor would drag in a broadly ESE direction while the vessel lying to her port anchor would be expected to drag in a broadly ENE direction.
I accept this advice. I do not regard the fact that if “PEARL” dragged she dragged in a broadly ESE direction, as casting doubt on the contemporaneous evidence strongly supporting the case that she did indeed drag her anchor.
In all this I have given Captain Agarwal’s evidence anxious consideration. As already foreshadowed, I acquit him of a deliberate attempt to conceal the truth. I am, however, satisfied that his impression that “PEARL” was not dragging her anchor was wrong. It may be that he has persuaded himself, after the event, that “PEARL” did not drag. At all events, in my judgment, there was a failure of appreciation on the part of those on board “PEARL” as to her true situation and the fact that she was dragging.
I accordingly conclude that the case is made out that “PEARL” dragged her anchor. Insofar as it matters, although this case was formally introduced by a late amendment, it had been “flagged” some considerable time before the trial. In any event, to my mind, this conclusion is inescapable, whether regard is had to the 00.48/01.00 logged position, the 06.00 charted position, or the 07.00 logged position. For the reasons already given, it is apparent that those on “PEARL” failed to appreciate that such was the case.
Issue (II): Were the main engines of “JAHRE VENTURE” ready for use ? According to the “JAHRE VENTURE” engine room bell book, as corrected, the master called for her engines to be made ready for use at 06.45 on the 3rd March, 2000. Again as corrected, the engine room bell book records that the engines were ready for use at 06.55. At the trial, Mr. Macdonald sought to develop the argument that “JAHRE VENTURE’s” main engines had not been ready for use at (about) 06.55. This submission, unsupported by evidence, was that the steam turbine required two hours to be ready for use.
This Issue can be taken shortly. First, the submission that two hours were required for “JAHRE VENTURE’s” engines to be ready, was, as noted, advanced by counsel but without supporting evidence. The submission is plainly not self-evidently correct and I am unable to accept it; a case of this nature cannot persuasively be advanced in such a fashion. To the contrary, I accept the (inevitably) late evidence of the “JAHRE VENTURE’s” Chief Engineer, in answer to this late case, as explaining that the engines were ready for use. I accept that the entry in the engine room log, “turning gear off”, is to be understood as meaning disengaging the turning gear and commencing rolling (or turning) the main engine by steam, the normal sea condition. I further accept that the engine was ready for use in accordance with the corrected times set out in the engine room bell book. Secondly, the fact that “JAHRE VENTURE’s” main engines were used at 07.50 was not, or not seriously in dispute. By itself this fact undermines the “two hour” point. Conversely, the fact that the engines were not used until 07.50 could be attributable to a variety of reasons and does not, without more, advance the argument that they were not ready for use at 06.55. Thirdly, insofar as Mr. Macdonald sought to rely on a VHF conversation in support of this submission, for reasons to which I shall come, I do not think it does so. Fourthly, while the corrections to the timing of the entries in the engine room bell book remains a puzzle – and the chief engineer’s explanation as to the engine room clock being 15 minutes in error is, with respect, less than satisfying – a leap from this puzzle to the conclusion that the main engines were not ready for use would be impermissible.
Accordingly, I conclude that “JAHRE VENTURE’s” main engines were ready for use from about 06.55.
Issue (III): Was “JAHRE VENTURE” hampered in her ability to raise her anchor and/or keep clear of “PEARL” by reason of the presence of the bunker barge, “MARKIZA” ? Putting to one side for the moment the question of whether “JAHRE VENTURE” ought to have taken steps to raise her anchor and keep clear of “PEARL” prior to 06.45 on the 3rd March, 2000, the factual question which arises here is whether she was, thereafter, hampered in her ability to do so by the presence of “MARKIZA”. There is no dispute that at about this time (say 07.00 and thereafter), “JAHRE VENTURE”, at least suspecting that she was dragging, wished and ought (as the upwind vessel) to have recovered her anchor and steamed out to sea. The only explanation advanced for failing to do so is the presence of “MARKIZA”; that explanation must now be scrutinised.
The evidence from those on “JAHRE VENTURE” may be summarised as follows. In his statement, the master described how at 06.45 he suspected that “JAHRE VENTURE” might be dragging or might start dragging in the strong wind. He decided it would be desirable to heave anchor and leave. He accordingly ordered the main engines to be made ready, as already discussed. At about 07.10, it was reported to him that “MARKIZA” was dragging towards “JAHRE VENTURE” and had crossed her ARPA guard circle; “MARKIZA” was then estimated to be distant about 7 cables from the bridge of “JAHRE VENTURE”. It is said by the master that he contacted “MARKIZA” on the VHF and told her to keep clear; that item of evidence is supported by the entry in the bell book. The master further says in his statement that “MARKIZA” told him that she was aware that she was dragging and was in the process of picking up her anchor and moving away; that piece of evidence does not appear to be supported by any contemporaneous record. According to the master’s statement, he became concerned that with 10 shackles of anchor cable out and with “JAHRE VENTURE” yawing as she was, it was too risky to heave anchor before “MARKIZA” (laden as she was) had moved away; a contact with “MARKIZA” could entail a pollution incident. At 07.30, the master says that it was clear that “MARKIZA” was dragging and that the distance between “MARKIZA” and “JAHRE VENTURE” had reduced to approximately 6 cables; again the master says that he contacted “MARKIZA” by VHF and told her to keep clear (a matter supported by the contemporaneous records) and that “MARKIZA” confirmed that she was in the process of heaving up her anchor and shifting but that she was experiencing difficulties due to the strong winds (a matter which appears to be unsupported by the contemporaneous records, save for a fax of the 3rd March, after the collision, to agents or managers). By 07.40 the master says that it was clear that “JAHRE VENTURE” was herself dragging and shortly thereafter another shackle of chain was let go. Subsequent details matter rather less and may be taken more briefly; suffice to say that the master of “JAHRE VENTURE” states that “MARKIZA” continued to drag towards “JAHRE VENTURE” coming to about 3 cables and then 0.26 miles from “JAHRE VENTURE’s” bridge, before, finally, at about 08.30 a tug arrived and began to pull “MARKIZA” clear; at this time, the master says that “MARKIZA” was on “JAHRE VENTURE’s” starboard bow. At 08.40, the master was satisfied that “MARKIZA” was sufficiently clear to permit “JAHRE VENTURE” to commence heaving anchor.
The “JAHRE VENTURE” second officer’s account of events is broadly supportive of the master’s and makes it clear that he personally made some of the VHF contacts (in particular that at 07.30), though again, his statement is unsupported at least in part by any contemporaneous record (at least apart from the 3rd March fax already referred to). According to the second officer, at some time between 07.10 and 07.40, those on “JAHRE VENTURE” became aware that she was dragging her anchor.
The third officer of “JAHRE VENTURE” states that he arrived on the bridge at about 07.00. At this time, “MARKIZA” was approximately 0.7 of a mile distant, “off our starboard bow roughly Northwards of us”.
The chief officer of “JAHRE VENTURE” states that as “JAHRE VENTURE” was yawing heavily, “MARKIZA” was sometimes on “JAHRE VENTURE’s” port side and sometimes on her starboard side; she was “off our bow”.
On this evidence, Mr. Brenton’s submission was that after about 07.00, “MARKIZA” was hampering “JAHRE VENTURE” in her ability to raise her anchor and, thereby, keep clear of “PEARL”. Given “JAHRE VENTURE’s” yawing, “MARKIZA” was not consistently off her starboard bow; it could not therefore be said that “JAHRE VENTURE” could simply proceed to recover her port anchor (to which she was lying) without difficulty. The master had taken a reasonable decision to await “MARKIZA’s” expected departure, not least given the risk of a pollution incident; that decision should not now be second-guessed with the benefit of hindsight.
Save that I accept the submission that “MARKIZA” was not consistently off “JAHRE VENTURE’s” starboard bow, I am unable to accept Mr. Brenton’s arguments on this Issue. My reasons can be shortly stated:
Testing the matter at 07.30 - distances between the two vessels would have been greater before then – “MARKIZA” is described as being about 6 cables distant from the bridge of “JAHRE VENTURE”. There were 10 shackles out on “JAHRE VENTURE’s” anchor; a water depth of about 118 metres would account for 4 of those; allowing for 1 shackle between keel and deck, some 5 shackles would likely have been on the bottom, equal to about 3/4 of a cable. The distance between “JAHRE VENTURE’s” bow to bridge is about 1.67 cables. It follows that the total distance between “JAHRE VENTURE’s” bridge and her anchor was of the order of 2.42 cables, say 2.5 cables. It follows further that if “JAHRE VENTURE” steamed up to her anchor (assuming no dragging over this period), she would still be some 3.5 cables, or 1/3 of a mile, distant from “MARKIZA”, whatever “MARKIZA’s” bearing at the time.
In these circumstances, as it seemed to me, even if the statement evidence of “JAHRE VENTURE” was accepted to the effect that she was anticipating “MARKIZA’s” departure (a matter as to which I entertain some considerable scepticism given the bell book entries as a whole), the notion that “MARKIZA” was hampering “JAHRE VENTURE” in her ability to recover her anchor, seemed, on the face of it, unlikely. Moreover, as it struck me, it could not readily be assumed that the only movement of “JAHRE VENTURE” would be a movement ahead as she steamed up to her anchor; in the time taken to recover her anchor, there would be less cable on the bottom and hence there could well be compensating astern movement in the prevailing wind.
Against this background, I consulted my Assessor and received his advice as follows:
Q3: In the prevailing conditions, was “JAHRE VENTURE” hampered by “MARKIZA” from seeking to recover her anchor at a time when “MARKIZA” was about 6 cables distant from the bridge of “JAHRE VENTURE” ?
A: The action of weighing anchor by definition reduces the amount of cable paid out from the ship and by so doing increases the drag action. This, to a degree, can be compensated for by going ahead on the engines to both reduce the weight on the cable and thereby facilitate its retrieval and also to hold the vessel stationary over the ground or reduce its down wind movement. It follows that the action of weighing anchor with or without engine assistance would not have reduced the distance between “JAHRE VENTURE” and “MARKIZA” (at the relevant time, over half a mile); instead, the distance between the two vessels would probably have increased. Even, however, if “JAHRE VENTURE” had steamed up to the position of her anchor and maintained that position, “MARKIZA” would still have been distant some 3.5 cables and therefore no threat.
I accept this advice. My answer on this Issue is that “JAHRE VENTURE” was not hampered in her ability to raise her anchor and/or keep clear of “PEARL” by reason of the presence of “MARKIZA”, at about 07.30 on the 3rd March or at any time prior thereto.
Issue (IV): What was the content of and what, if any, significance attaches to such VHF communications as took place between “PEARL” and “JAHRE VENTURE” ? Much time could be taken on these communications but I think it would be unproductive to do so. As it seems to me, the VHF communications would only matter (1) if they were destructive of the credibility of one or other party in a material respect and/or (2) if, in consequence of these exchanges, one or other ship was led to take some step or was lulled into a false sense of security. As to (1), I was not persuaded that disagreements between the parties as to the contents of such discussions had sinister overtones; they are more likely attributable to confusion at a time of stress and error in writing up the records thereafter. As to (2), to the extent that it was pursued, no serious suggestion to such effect is tenable. In the circumstances, I do not regard any real significance as attaching to these exchanges and propose to deal with them summarily.
My conclusions as to the principal exchanges, taken chronologically, are as follows:
I was not persuaded that at about 07.30 those on “JAHRE VENTURE” told those on “PEARL” that their engines were not ready for use. I need say no more than that the most contemporaneous records of “PEARL” do not contain any reference to such a statement. For completeness, I have in any event already concluded that the main engines of “JAHRE VENTURE” were ready for use from about 06.55.
Those on “JAHRE VENTURE” alleged that shortly after 08.00, Captain Agarwal told them (1) that “PEARL” had (or continued to have) a problem with her steam line and (2) that that problem had been discovered when “PEARL” anchored on the night of 2nd/3rd March. Item (1) was common ground; item (2) was denied by Captain Agarwal in the course of giving evidence. I am amply satisfied that Captain Agarwal first learnt of the defect in the steam line when an attempt was made to recover “PEARL’s” anchor shortly before 08.00 on the 3rd March and that he had not been informed of any defect in the steam line at the time when “PEARL” came to anchor; were it otherwise, it would make a nonsense of the hours he spent on the bridge checking on her anchorage position without doing anything about it. Further, for reasons to which I shall come, I do not in any event accept that this defect was a “latent” defect for which “PEARL” cannot be criticised. In the circumstances, save as to Captain Agarwal’s credibility, no importance whatever attaches to anything which he might have said as to when the defect in the steam line was first discovered (by others). For my part, having seen and heard Captain Agarwal when he gave evidence, I am unwilling to conclude, on the basis of documentary material alone, that his denial in evidence of this aspect of the conversation was either untrue or mistaken (even if, in fact, the defect first came to the attention of others at the time “PEARL” anchored). How the entry came to be made in “JAHRE VENTURE’s” records must remain a puzzle but, fortunately, not one to which any significance attaches.
Those on “PEARL” allege that they were told at about 08.25 that “JAHRE VENTURE” was picking up her anchor and would keep clear of “PEARL”. As already remarked, no reliance was placed by “PEARL” on this statement, if it was made, so the debate is somewhat academic in any event. On this conversation, I am satisfied that “PEARL’s” records are in error; at this time, “JAHRE VENTURE” had not yet begun to heave anchor and, in all the circumstances, the giving of the suggested reassurance (that she would keep clear of “PEARL”) is inherently improbable.
At about 08.40, those on “JAHRE VENTURE” allege that they asked “PEARL” to heave up her anchor and “sail out due to safety of both ships”. I am not sure that this topic remained controversial because, in cross examination, Captain Agarwal accepted that this was the case. That said, nothing whatsoever turns on this conversation, save, tangentially at best, with regard to one criticism made of “PEARL”, to which I shall come in due course. For completeness, Captain Agarwal in any event appreciated the need or desirability to heave up “PEARL’s” anchor and move away but could not do so because of the defect in the steam line.
At about 08.50, those on “PEARL” allege that they were told by those on “JAHRE VENTURE” that her anchor was up and she was going astern. In my judgment, this evidence from “PEARL” is mistaken. As will be seen in due course, I do not think that “JAHRE VENTURE’s” anchor was free from the sea bed until about C-5; it is therefore inherently unlikely that those on “JAHRE VENTURE” said anything of the sort at C-17/C-20. With respect to Mr. Brenton’s submissions to the contrary, the most likely cause for this error is innocent confusion between whether “JAHRE VENTURE” was “heaving” or had “heaved” up her anchor.
Issue (V): Insofar as the ability of “PEARL” to raise her anchor was hampered by a defect in her steam line, how long had such defect been present, what was its cause and why had it not been repaired ? It was plain on Captain Agarwal’s evidence that but for the problem with the steam line, he would have heaved up “PEARL’s” anchor and left the anchorage. Leaving to one side questions of fault, I must now deal with what is known factually about this defect.
In the event, such facts as are available may be summarised as follows:
So far as the manifestation of the defect is concerned, two flanges are said to have leaked. On the face of it, this entails two separate leaks. The consequence of these steam leaks was that the windlass could not be operated and the anchor could not be recovered, until the defect was repaired.
The leaks took some 80 minutes to repair (from about 07.40 until about 09.00).
The cause of the defect remains unknown. Such maintenance records as were produced by “PEARL” (the day before the trial commenced), while purporting to show that no problems were encountered with the windlass, are wholly lacking in detail. No evidence was called from those who conducted the inspections. Captain Agarwal, who had only joined “PEARL” on about the 12th February, 2000, plainly could not speak to any inspections carried out before then; subsequently, as I understood his evidence, he did not himself see the defect and his signature on the maintenance documents signified no more than that he had seen the report(s) in question.
Mr. Macdonald sought to place considerable reliance on “PEARL” having (1) raised her anchor on departing Kalamata, Greece at the start of the voyage in question, (2) transited the Suez Canal and (3) anchored at Fujairah, all successfully. These alleged facts were disputed by “JAHRE VENTURE”; in particular, as already noted, “JAHRE VENTURE” alleged that the defect had manifested itself when “PEARL” anchored on the night of 2nd/3rd March, a submission which does not depend on Captain Agarwal having then been informed of the defect; it is not implausible to suggest, as Mr. Brenton did, that a defect might then have been discovered but those in charge of anchoring decided to leave it until the morning before proposing to deal with it. Other than concluding that Captain Agarwal was not personally made aware of any defect at the time the vessel anchored (see above), I reach no firm conclusion in this regard. As it seems to me, even assuming that facts (1) – (3) are established, too little is known of the defect to assist “PEARL” in the submission that the defect was not and could not reasonably have been discovered until about 07.40 on the morning of the 3rd March, 2000. Plainly as an elderly vessel – “PEARL” was built in 1975 – regular and thorough maintenance was needed. Many of the gaps in this area of the case could no doubt have been explored further with “PEARL’s” chief officer had he attended the trial to give oral evidence (as was apparently anticipated) but he did not do so. Not least, the Chief Officer was in charge the focscle party when “PEARL” came to anchor at Fujairah.
I return to consider the ramifications of these factual conclusions when addressing the question of fault on the part of “PEARL”.
Issue (VI): When did “JAHRE VENTURE’s” anchor come free from the sea bed ? Insofar as this Issue remained in dispute, it can be very shortly dealt with. The records of “JAHRE VENTURE”, in particular her course recorder trace and bridge bell book, support the conclusion that her anchor came clear of the sea bed at about C-5. I accept this evidence.
Issue (VII):What astern movements were ordered and made by “JAHRE VENTURE” after C-5 ? By 09.05, “JAHRE VENTURE” was free to use her engines to go astern, in an attempt to keep clear of “PEARL”, then some 2-2.5 cables distant. It is plain from “JAHRE VENTURE’s” bridge and engine room bell books that: (1) at 09.05 (C-5), her engine was ordered half astern; (2) at 09.06 (C-4), her engine was put slow and then half astern; and (3) at 09.10 (the time of collision), full astern was ordered.
Curiously, the master’s statement includes the following, in respect of 09.05: “ I gave an engine order for half astern and then contacted the Engine Room by ship’s phone and instructed them to give maximum RPM verbally for full astern.” The bridge bell book contains an entry to like effect. I reject this evidence. Full astern was not ordered until 09.10; had full astern been wanted at 09.05, it would have been rung and there would have been an entry to such effect in the engine room bell book. I return later to the significance, if any, of this curiosity.
Issue (VIII): Was “PEARL” moving ahead at the time of collision? Here, there was some debate as to whether, at the last, “PEARL” moved ahead and to starboard, into the “JAHRE VENTURE”. The short answer is that I do not think she did. It is correct that “PEARL” commenced heaving in her anchor at about C-7; it is further correct that “PEARL’s” engines were ordered and put to dead slow ahead at about C-1 or a little less, to assist in the recovery of her anchor. I am not, however, persuaded that this engine movement, with her anchor still down, imparted any or any appreciable ahead movement through the water before the collision. To the extent that those on “JAHRE VENTURE” thought that they detected forward movement on the part of “PEARL”, they were, in my judgment, mistaking “PEARL” moving into “JAHRE VENTURE” for “JAHRE VENTURE” swinging into “PEARL”.
ALLEGED FAULTS
In the light of my conclusions of fact, I turn to consider the faults alleged in respect of each of the two ships.
(I) “JAHRE VENTURE”: As will be recollected, the principal faults alleged against “JAHRE VENTURE” were (1) that she had failed to prepare or use her engines in due time or at all to keep clear of “PEARL”; (2) that after C-5, she was at fault in failing to go full astern. Each of these faults was said to be causative of the collision. As to (1), the charge of failing to prepare her engines must fail, given the conclusion on factual Issue (II), set out above. I do, however, regard the allegation against “JAHRE VENTURE” of failure to use her engines in due time to keep clear of “PEARL” as well-founded and causative of the collision. As to (2), I am not persuaded that in failing to go full astern after C-5, “JAHRE VENTURE” was at fault, nor that such failure was causative of the collision. My reasons follow.
(1) Failure to use her engines in due time: The debate here fell into two parts: the first, though later in time, essentially concerned the question of whether after about 07.00, “JAHRE VENTURE” had been hampered by “MARKIZA”; the second, concerned the question of whether “JAHRE VENTURE” should have taken action earlier and before, on any view, she could have been hampered by “MARKIZA”. I shall follow this order in considering this allegation.
As already established, “JAHRE VENTURE’s” main engines were ready for use by 06.55. There is, however, no recorded engine movement until 07.50; thereafter, in the approximately one hour and twenty minutes before collision, there were in total less than 25 minutes of engine movement ahead, of which only one two minute period involved a slow ahead movement, the remainder all being dead slow ahead. In the circumstances and unless excused, this was, as Mr. Macdonald put it, “culpable timidity”. The only explanation advanced was that “JAHRE VENTURE” was hampered by reason of the proximity of “MARKIZA”. For reasons already given (see factual Issue (III) above), that excuse or explanation lacks substance, at least at about 07.30 or at any time prior thereto. It follows that “JAHRE VENTURE”, which was dragging her anchor, had no good reason whatsoever, at least between about 06.55 and 07.30 for not using her engines to keep clear of “PEARL”; this charge is accordingly made good. Plainly it was at least a cause of the collision. It is not strictly necessary to go further but, for completeness, I turn to consider whether “JAHRE VENTURE” should have taken action earlier.
In this regard, it has been common ground that “JAHRE VENTURE’s” GPS position fixes are accurate. From those fixes, it is apparent that between 04.00 and 06.30, “JAHRE VENTURE” had moved (broadly) East by some 2.5 cables. The master says that at 06.45, he suspected that “JAHRE VENTURE” might be dragging her anchor; he had not been called to the bridge until after 06.00; had those on “JAHRE VENTURE” kept a good anchor watch, they ought to have appreciated by about 06.00 that she was dragging her anchor. Had there been such appreciation, “JAHRE VENTURE” could and should have recovered her anchor and steamed clear prior to 07.00 and prior to any need even to consider the presence of “MARKIZA”. In short, approached in this fashion, it can fairly be said that “JAHRE VENTURE” failed to appreciate that she was dragging in due time and hence failed to use her engine in due time to keep clear of “PEARL”. On this ground as well, the present allegation is well-founded.
(2) Failure to go full astern after C-5: As already indicated, I do not regard this charge as made good. Given the conclusion that “JAHRE VENTURE’s” anchor only came free from the sea bed at about C-5, this criticism necessarily relates to those last few minutes prior to collision. While with hindsight it could be said that had “JAHRE VENTURE” at once gone full astern (immediately her anchor came free), such a manoeuvre might have prevented collision, I would not fault the master for not having done so. First, it is by no means apparent that the difference between full astern and half astern (which was ordered) would have prevented a collision. Secondly, given the plain likelihood (if not inevitability) of a collision at C-5, with the vessels then no more than some 2 – 2.5 cables apart, any concern on the part of the master to avoid increasing the velocity at which a collision would or might take place, cannot be regarded as unreasonable. Thirdly, it would be unduly harsh to criticise the master in respect of the action he took in the final minutes before collision. For completeness, while the implausible suggestion (noted in connection with factual Issue (VII)) that the master did in fact order full astern at about C-5 reflects an attempt (untruthfully) to bolster “JAHRE VENTURE’s” case and does the master no credit, it is to be explained in the light of hindsight concerns that he should have ordered full astern and does not serve to undermine the conclusions already outlined.
(II) “PEARL”: Criticism of “PEARL” focused on three alleged faults. First, that she had dragged and failed to appreciate it. Secondly, that the defect in her steam line disclosed a prima facie case of negligence which the Claimants had failed to displace. Thirdly, that from C-7 Captain Agarwal was wrong to seek to raise her anchor, thereby moving ahead and reducing the gap between the two vessels; he should instead have let out two shackles of cable and given a kick astern on the engine. In my judgment, the first two faults are established; the third is not. I turn to my reasons.
(1) Dragging and failing to appreciate it: This conclusion is inevitable in the light of my conclusions on factual Issue (I). On any view, “PEARL” ought to have appreciated that she was dragging her anchor by 07.00 (as alleged by “JAHRE VENTURE”), very likely (had any such case been pursued) sooner. In the event, an anchor party was not sent forward to the focscle until about 07.40. Had “PEARL” sought to raise her anchor at about 07.00/ 07.10, then even assuming that the same problems were encountered with the steam line (factual Issue (V) above), there would probably have been time to rectify those problems, retrieve her anchor and move away from the anchorage. This fault was accordingly causative of the collision.
(2) The defect in “PEARL’s” steam line: Here, I accept Mr. Brenton’s submission as to the relevant analysis: the defect in “PEARL’s” steam line disclosed a prima facie case, or presumption, of negligence; the onus was then on the Claimants to rebut or displace this presumption, which they could do by showing either that the defect was latent or that reasonable care had been taken to send “PEARL” to sea in an efficient state (i.e., due diligence had been exercised): see, Marsden, Collisions at Sea (12th ed.), at paras. 4.08, 4.21 and 4.22.
Again, the conclusion here is inevitable in the light of the determination of factual Issue (V). As has been seen, “PEARL’s” evidence comes nowhere near explaining or excusing the defect in the steam line. Manifestly, this fault was causative of the collision.
(3) Movement ahead instead of a kick astern: I would reject this criticism of Captain Agarwal. First, I do not think there was any or any appreciable movement ahead: factual Issue (VIII) above. Secondly, even if Captain Agarwal was mistaken in seeking to raise his anchor, it was an understandable attempt to make and, not least, one that “JAHRE VENTURE” had been urging upon him (factual Issue (IV) above, the 08.40 conversation); a conclusion that Captain Agarwal was negligent in this regard would be unduly harsh. Thirdly, as to the (late) suggestion, deployed at the trial, that “PEARL” should have let go two shackles and given a kick astern, I accept Captain Agarwal’s evidence that this would have taken some 6-7 minutes and there was simply no time to do so; I would not in any event have regarded a failure to do so, at the last, as amounting to negligence. Fourthly, I was not satisfied that any of the failures here alleged were causative of the collision; by this stage, the probability was that a collision would have occurred in any event.
Miscellaneous matters: Before turning to apportionment, it is convenient to pause, to note certain miscellaneous matters. First, given the conclusions to which I have come, it is unnecessary to consider The Viper (supra), in any more detail; in short, as “PEARL” was dragging, she was not a ship at anchor; if (which I doubt) it is necessary to go further, as “JAHRE VENTURE’s” anchor was not free of the sea bed until about C-5, prior thereto she was probably not a ship “under way”: see Rule 3(i) of the Collision Regulations 1972, discussed in Marsden, at para. 6-42.
Secondly, I remarked earlier that Captain Agarwal was an engaging witness if, unfortunately, seriously mistaken on a variety of important matters. Attractively and frankly in his evidence, he accepted, inter alia, the following: (1) that if he had been aware by 07.00 that “PEARL” was dragging, he would have taken a precautionary measure (say letting out another shackle) and if that had proved ineffective, he would have sought to heave up the anchor and leave the anchorage; (2) that it would have been sensible to leave the anchorage and he tried to do so; (3) that had there been no problem with the steam line, he would have heaved up the anchor and gone; (4) that if the leak in the steam line had been present and appreciated at the time when “PEARL” came to anchor, she should not have anchored without repairing the defect. As will be appreciated, my conclusions adverse to “PEARL” have not turned on these answers; but they are reinforced by Captain Agarwal’s sensible and ready acceptance of the realities of the situation on the morning in question.
APPORTIONMENT
In the event, I have found serious faults in respect of each vessel, causative of the collision. Each vessel dragged her anchor without appreciating it and failed to take appropriate action even after such dragging came to be appreciated; in the case of “JAHRE VENTURE”, the subsequent failure was due to indecision or culpable timidity; in the case of “PEARL”, it was due to a defect in the steam line for which she is answerable and not excused. While it is correct to say that, as the downwind and smaller vessel, it was going to be relatively easier for “PEARL” to move and also that she was at fault with regard to the maintenance of her steam line, I do not regard these factors as warranting a distinction being drawn between the two ships; the extended period of indecision of those on “JAHRE VENTURE’” even after coming to appreciate that she had been dragging her anchor was, on any view, unforced by “MARKIZA” and inexplicable. In all the circumstances, having regard to causative potency and blameworthiness of the conduct in question, both ships were equally to blame for this eminently avoidable collision. Accordingly, in my judgment a fair apportionment is 50/50.