Western Neptune (Owners, Demise Charters and Time Charterers of) v Owners and Demise Charterers of the Philadelphia Express

This action arises out of a collision which occurred in September 2007 in the Gulf of Mexico. The losses sustained by the claimants are very substantial, said to be in the region of $25 million. Further it raises some interesting and novel issues. These issues have emerged despite the fact that there is a photographic record of the radar picture (including AIS data) on one of the vessels and there is an audio recording on the bridge of that vessel which includes all the VHF exchanges with the other vessels in the vicinity.

WESTERN NEPTUNE is a seismic survey vessel. Her principal dimensions are 92.5 metres in length and 23 metres in beam. She is some 8,369 tons gross and 2,511 tons net. She is registered in Panama. She is powered by two Bergen diesel engines developing a total of 10,810 b.h.p. She is manned by a crew of 57 hands all told, most of whom worked in the survey departments. It is of passing interest that the crew was made up of 22 nationalities with English as a common language.

Her navigational aids include:

WESTERN NEPTUNE is capable of towing up to 16 streamers and ten gun arrays. Surveying is carried out by sending sound waves generated by compressed air released from the arrays and recorded by the hydrophones in the streamers. At the time of the collision WESTERN NEPTUNE was carrying out a wide azimuth survey of the Green Canyon in the Gulf of Mexico about 150 miles south of New Orleans.

For this purpose she was towing a spread of ten streamers and six gun arrays (“the array”). Each streamer extended for about 8,030 metres (4.34 miles) astern of the vessel. With each of the streamers maintained about 120 metres apart the total width of the spread was some 1,080 metres. They were being towed at a depth of 12 metres. Almost the entirety of this array was cut in two or otherwise damaged when the defendants’ vessel ST LOUIS EXPRESS crossed about 4 miles astern of WESTERN NEPTUNE, giving rise to this substantial claim.

The lines of the survey were planned on courses of 045°-225° and were some 60 - 70 miles long. At the material time WESTERN NEPTUNE was on a South Westerly leg. The survey speed was maintained at about 4 to 5 knots. WESTERN NEPTUNE was supported by three other vessels. Two, OCEAN ODESSEY and GECO TAU, were also towing gun arrays and were positioned off the port side of WESTERN NEPTUNE, the three vessels being interspaced by 1200m and proceeding on the same course and speed. (Footnote: ¹)

The third vessel was positioned between one and three miles ahead of WESTERN NEPTUNE. It was a ‘chase’ boat called FURORE. Its main function was to “chase” vessels such as fishing craft which presented a potential hazard ahead of the seismic convoy. It also acted as a “guard” vessel for the convoy by contacting approaching vessels on VHF channel 16 on behalf of WESTERN NEPTUNE.

FURORE was an offshore support vessel (converted from a fishing vessel) of 235 tons gross and 70 tons net, some 34.7 metres in length and 7.5 metres in beam. She was powered by diesel engines of 1,235 bhp giving a maximum speed of 12 knots. She was equipped with three VHF units, an electronic chart display and two radars interfaced with AIS. FURORE was usually accompanied by a second chase or guard boat TORSVIK. However, on the day of the collision TORSVIK was unavailable as she was effecting a crew change ashore. For reasons which were not revealed, she was not replaced.

So far as lights were concerned the position was as follows. WESTERN NEPTUNE was exhibiting normal navigation lights and a towing light above the stern light. However she was restricted in her ability to manoeuvre. Indeed she could scarcely make any material alteration in course or speed. For instance an alteration of course of 180 deg whilst maintaining the array would take several hours. Any material increase in speed would risk damaging the array: a significant reduction would risk the sinking of the array. Thus, in accord with Rule 27(b) of the Collision Regulations, she was exhibiting three all round lights, the highest and lowest being red and the middle white.

So far as the array was concerned there were buoys at the aft end of every streamer and at the forward end of the outer six streamers. Each such buoy was fitted with a high intensity blue strobe light and a radar reflector (Footnote: ²). That apart there were no lights between the stern of WESTERN NEPTUNE and the end of the streamers over 4 miles astern

The nature of WESTERN NEPTUNE’s employment was the subject of a local notice to mariners issued by the United States Coast Guard (“USCG”). (Footnote: ³) This read:

“LA - GULF OF MEXICO - Seismic surveys

Continuing until further notice, the m/v WESTERN NEPTUNE .…will be conducting seismic survey in an area [the co-ordinates are then set out]. The m/v WESTERN NEPTUNE ….will be towing 10-cables that are 5 nautical miles long. All vessels are requested to keep clear a minimum of 3 nautical miles forward and 6 nautical miles astern. The m/v WESTERN NEPTUNE …. will be monitoring VHF FM Channels 13 or 16.” (Footnote: ⁴)

In addition, the details of WESTERN NEPTUNE available (if selected) on AIS included the following:

AIS also carried details of the other three vessels in the convoy:

The collision occurred during the watch of the Second Officer of WESTERN NEPTUNE, Mr Eidsvik (the “OOW”). He had shadowed the newly-joined Third Officer from 2200 to midnight on 22 September and took over his watch proper at 0000 on 23 September. It was his recollection and that of the Master of WESTERN NEPTUNE that the weather was overcast but clear with a SSE’ly wind force 5 and moderate seas.

ST. LOUIS EXPRESS is a motor container vessel of 40,146 mt gross and 18,097 mt. net, some 243 metres in length and 32 metres in beam. She was powered by MAN diesel engines of 35,280 hp. She was registered under the U.S. flag at St. Louis. She was equipped with two ARPA radars and with AIS.

She was engaged on a regular liner service between Europe and the U.S. At the relevant time she was in the Gulf of Mexico inward bound to Houston, Texas with a cargo of 11,224 mt. of containerised cargo. Her sailing draught had been 7.10 metres forward and 9.10 metres aft. She was exhibiting normal navigation lights.

Her navigation officer was the Third Officer who had held a third mate’s ticket for about 2 years and had only joined the vessel a few days earlier. (Footnote: ⁵) The weather was recorded as fair with good visibility save that “heavy rain was experienced on the Northern sector of the radar picture prior to the collision.” The wind was assessed as Easterly force 3. ST LOUIS EXPRESS was on a course of 292° true at a speed of about 20 knots.

An important feature of the equipment onboard of ST LOUIS EXPRESS was the presence of a Voyage Data Recorder (“VDR”). This furnished a recorded picture of the radar screen and the AIS display every 15 seconds. (Footnote: ⁶) In addition there was a record of the conversation from the two VHF radios and from six microphones paced at various locations on the bridge. (Footnote: ⁷)

From this material it was possible to reconstruct the passage of the two vessels with considerable accuracy.

As regards the navigation prior to C-18 the position as derived from the VDR is as follows. As already noted WESTERN NEPTUNE was on a course of 225° true making about 4½ knots through the water. With a Westerly current of about ½ knot the AIS readout gave her course over the ground as between 224° to 227° and her speed over the ground as between 4.4 to 5.1 knots.

At about 0000 on 24 September 2007 WESTERN NEPTUNE was in position lat. 27° 21.1’N Long. 090° 28’E. Having made a slight alteration of course to port WESTERN NEPTUNE was in the course of passing a rig called HOLSTEIN SPAR. At about 0050 the rig was abeam to starboard at a range of 1.2 miles. She resumed her original track at about 0130. Thereafter she made no material alteration of course or speed.

At 0000 on 24 September, ST LOUIS EXPRESS was in position Lat. 26°48’ N, Long. 89°39.7’ W. She was on course of 292° at a speed of about 20 knots. The AIS readout recorded a course over the ground of about 291° to 294° and a speed over the ground of about 19.7 to 20.2 knots.

The AIS reveals that at 0200 WESTERN NEPTUNE was on ST LOUIS EXPRESS’s starboard bow bearing 311° true, distant 17.43 miles. The CPA was 1.79 miles and the TCPA was 59 minutes.

At this stage (0200) there was another vessel on ST LOUIS EXPRESS’s starboard bow. This was EAGLE SUBARU. She was on a COG of 195° with a SOG of 13.8 knots. She was bearing 327° distant 14.61 miles. The CPA was 0.8 miles and TCPA 34 minutes.

The VHF traffic log of FURORE records that a VHF call to EAGLE SUBARU had been made by FURORE at 0115. EAGLE SUBARU had been informed of the convoy’s passing requirements and responded that she would pass 3 miles “behind”.

By 0214 the distance between WESTERN NEPTUNE and ST LOUIS EXPRESS had closed to 13.5 miles with WESTERN NEPTUNE bearing 312° from ST LOUIS EXPRESS. The CPA was 1.8 miles (Footnote: ⁸). Of more immediate significance however, was the fact that the range of EAGLE SUBARU had closed to 8.3 miles bearing 329° with a CPA of only 0.48 miles. In consequence the readout on ST LOUIS EXPRESS’s AIS display began to categorise the target as “dangerous” and outlined the echo with a red triangle.

The situation by 0220 was as follows:

It was at this stage that FURORE made VHF contact with ST LOUIS EXPRESS reporting as follows:

“07.20.59 Just for your information ahead of you on your starboard bow bearing from you 313° and range 11.8 nautical miles seismic convoy is seismic vessel WESTERN NEPTUNE towing 10 steel seismic cables with length 5 nautical miles behind and request safety box 3 nautical miles ahead, 3 nautical miles from either side and 6 nautical miles behind. Can you alter course a little bit to port and give CPA for WESTERN NEPTUNE of 3 nautical miles ahead of her.”

The third officer of ST LOUIS EXPRESS responded that he was altering course to port and appears to have called upon the helmsman to take up a heading of 270°. This course was achieved by 0724. However in the meantime at 0723 EAGLE SUBARU also made contact with ST LOUIS EXPRESS by VHF:

“07.23.31 ES: “I am asking for your intentions - are you altering to starboard, you are coming into a close quarter situation?”

07.23.37 ST LOUIS EXPRESS: “I am altering to port to keep out of the way of a ship towing a cable”

07.23.43 ES: “Please alter to starboard first, once you have cleared, then you alter to port, I repeat please alter to starboard”

07.23.53 ST LOUIS EXPRESS: “Roger that I am altering to starboard.”

07.23.57 ES “Thank you very much sir, back to 16””

There ensued various instructions to the helmsman of ST LOUIS EXPRESS to come to starboard progressively. By about 0229 ST LOUIS EXPRESS had steadied on a heading of about 333°. She remained on that course until 0232. By this time ST LOUIS EXPRESS was shaping to pass astern of EAGLE SUBARU. As regards WESTERN NEPTUNE, however, the position was now she was distant 8.4 miles bearing 309° from ST LOUIS EXPRESS. But the CPA was 4.8 miles (Footnote: ⁹). Despite this ST LOUIS EXPRESS came somewhat back to port onto 321°, thus reducing the CPA by 0234 to 3.76 miles. ST LOUIS EXPRESS then came back to starboard again. She reached a heading of 343° by 0239 increasing the CPA to 5.53 miles.

ST LOUIS EXPRESS began a slow alteration to port at 0242. By 0250 she had entered the “safety” zone around the convoy, heading 315° and with a CPA to WESTERN NEPTUNE of 5.15 miles. She continued her swing and steadied on a heading of 290° at 0253. At this stage the flashing lights on the buoys would have been fine on her starboard bow, the closest distant about two miles. She remained on that heading until collision at 0259 with the CPA commencing at 4.22 miles and slowly reducing to about 4 miles (Footnote: ¹⁰).

It was accepted by the defendants that ST LOUIS EXPRESS should bear the preponderance of blame for the collision. The basis of this concession appeared to be an admission of fault in the following respects thereby creating the situation of danger:

The claimants submitted that this did not represent the entirety of faults committed by ST LOUIS EXPRESS. In particular it was submitted that, consistent with systemic poor standards of navigation of the Third Officer:

But the principal issue in the case was the question whether, as contended by the defendants, WESTERN NEPTUNE was also to blame for the collision. The focus of this charge can be summarised as follows:

The claimants called the Master of WESTERN NEPTUNE to give oral evidence. He was of course not a direct witness to the events leading up to the collision although he was able to give helpful supplementary evidence. He had served on board WESTERN NEPTUNE for many years and was able to speak with authority about the management of such a survey vessel. He was by any standards an impressive witness who was entirely frank in accepting criticism of some aspects of operations on the night of the collision.

The officer of the watch on WESTERN NEPTUNE was not called to respond to these criticisms. Whilst he monitored the VHF traffic between FURORE and other vessels, he never participated himself. He heard ST LOUIS EXPRESS’s agreement to turn to starboard to avoid crossing ahead of EAGLE SUBARU. In his note written after the collision he asserted that the last CPA from ST LOUIS EXPRESS that he observed was 8 miles. This is clearly unreliable. Consistent with this apparent want of accurate observation he spent some time “in the last 5 minutes” in the washroom before thereafter concentrating solely on an adjustment of speed.

The defendants called no witness of fact. Indeed the statements taken from the master and even more so from the third officer were sparse on detail. There were a number of matters which I have no doubt the claimants would have wished to put to the master or third officer. Although substantial blame was accepted, the court’s assessment of the degree of culpability had to be undertaken without the benefit of such material. In the result it was appropriate to resolve doubts in the claimants’ favour. More significantly the absence of these witnesses presented a difficulty from the defendants’ point of view in establishing the causative significance (if any) of a range of potential criticisms of the navigation and management of WESTERN NEPTUNE.

The starting point to any consideration of the management of WESTERN NEPTUNE is to reflect on the size and scale of her convoy. In FURORE’s VHF broadcast at 0221 a request was made for a ‘safety box’ around WESTERN NEPTUNE of 3 miles ahead, 3 miles on each side and 6 miles astern. Given the length of the tow and the lack of manoeuvrability this proposed exclusion zone was understandable and legitimate. Nevertheless the implications were quite far reaching. The request amounted to seeking to enforce a “no-go” zone covering 54 square miles of ocean.

Even disregarding the exclusion zone the convoy itself occupied considerable space. With two vessels alongside WESTERN NEPTUNE (Footnote: ¹¹), the furthest 1⅓ miles away, a length of tow of over 4 miles and an array of stern buoys about ⅔ mile wide, the convoy presented as akin to a vessel 4 miles long and 1 mile wide proceeding at 5 knots.

Whilst not unique, the convoy was by any standard unusual and called for appropriate warnings to shipping. Such should not have been and was, in some respects, not confined to VHF messages transmitted in the event of encountering an approaching vessel.

As noted above, the claimants had taken steps to promulgate details of the survey operations in the USCG Local Notice to Mariners. Although ST LOUIS EXPRESS was out of range of any VHF broadcast of this notice it can be safely assumed, so the Elder Brethren advise me, that it would have been sent out by NAVTEX. This would (or should) have been received by ST LOUIS EXPRESS and should have been posted on the bridge (Footnote: ¹²).

No complaint was made about the content of the notice. Nonetheless there were certain features of it which the Elder Brethren regarded as unsatisfactory and I agree with them. First it is somewhat surprising that the notice failed to incorporate the requirement to give a 3 mile berth on either side. If a vessel needs an exclusion zone with a wide berth on either side, it is desirable to include the entirety of the requirement in such a notice.

Secondly there was no reference in the notice to the make up of the fleet. It would have been desirable to assist mariners in their visual and radar look-out to draw attention to the fact that a group of four or five vessels were involved with the lead vessel responsible for making VHF contact (not WESTERN NEPTUNE) being ahead by at least 1 mile from the others.

Thirdly it was a matter of concern that no reference is made to the existence of the buoys (fitted with lights and radar reflectors) at each end of the cables. This complaint re-emerges in a different form in regard to the specific content of the VHF warnings to ST LOUIS EXPRESS. It was an omission which the court regards as of some significance and is a topic to which I must return.

However as regards the first two defects I accept that they were probably not causative:

In 2000 IMO adopted a new requirement under SOLAS for all eligible ships to carry AIS. The system was designed so as to use transponders to provide information about a ship to other ships and to coastal authorities automatically. The scheme became effective in 2004.

By way of example, guidelines for operational use of AIS were published by the MCA. These included as follows:

“AIS will provide identification of targets together with the static and dynamic information listed in the IMO Guidelines para. 12. Mariners should, however, use this information with caution noting the following important points:

a.) Collision avoidance must be carried out in strict compliance with the COLREGs. There is no provision in the COLREGs for the use of AIS information: therefore decisions should be taken based primarily on visual and/or radar information.

b.)The use of VHF to discuss action to take between approaching ships is fraught with dangers and still discouraged. (See MGN 167 - Dangers in the use of VHF in collision avoidance) The MCA’s view is that identification of a target by AIS does not remove the danger. Decisions on collision avoidance should be made strictly according to the COLREGs.

c.) Not all ships will be fitted with AIS, particularly small craft and fishing boats. Other floating objects which may give a radar echo will not be detected by AIS.”

The system provides information about many matters, including a ship’s identity, type, position, course, speed and navigational status. The details of WESTERN NEPTUNE available on AIS are set out above. This included reference to both the existence of the tow and its length but no reference to the “exclusion zone”. As the guidelines warn, objects such as the buoys making up the tail of the array are not included in the AIS system

Attention was drawn by the Elder Brethren during the course of the proceedings to the facility for installing a “short safety-related message” in the AIS Details. (Footnote: ¹³) It is a possibility that this facility could have been used to include details of the exclusion zone for WESTERN NEPTUNE but space was limited. Further, the examples given in the literature are such matters as the sighting of an iceberg or of an off-station buoy. In any event the point was not taken up by the defendants. This is perhaps not surprising given that the OOW of ST LOUIS EXPRESS never selected “the details” of WESTERN NEPTUNE on the AIS system.

Before turning to the question of exhibiting lights at night I should first deal with the question as to whether the array is to be treated as part of WESTERN NEPTUNE for the purposes of collision avoidance under the rules. Rule 3(g) of the 1996 Collision Regulation provides that a vessel restricted in its ability to manoeuvre includes one engaged in a towing operation which severely restricts the towing vessel (and the tow) in its ability to deviate from its course. This clearly encompasses WESTERN NEPTUNE (Footnote: ¹⁴). In the result, by virtue of Rule 18, ST LOUIS EXPRESS was obliged to keep out of the way of her to the extent that the two vessels were in sight of one another.

Rule 3(g) provides that vessels shall be deemed to be in sight of one another only when one can be observed visually from the other. There is no difficulty of ST LOUIS EXPRESS becoming visually in sight of WESTERN NEPTUNE. But the reverse is not so easy. In one sense the vessel that could be seen was the WESTERN NEPTUNE and nothing else save for the flashing lights on the aft buoys. Indeed any reading of the CPA would be off WESTERN NEPTUNE. Does the array form part of the vessel from the perspective of the rules?

I asked the Elder Brethren for assistance on this hypothetical issue. Their response was as follows:

“Rule 7d (ii), (Risk of Collision) speaks about bearing movement when approaching a very large vessel or a tow in the context of judging whether risk of collision exists. To this extent it would appear that a tow is to be considered as being similar to a very large vessel, and to be judged as such, in the context of the Rules.

From a practical point of view the tow always has to be treated as a part of the towing vessel for the purposes of collision avoidance since it has no life or being outside of the towing vessel and is unable to take any form of unilateral action. WESTERN NEPTUNE’s array, as a tow part of which was on the surface, must therefore be considered as an integral part of WESTERN NEPTUNE herself.”

I accept that advice and against that background I turn to the issue of both shapes and lights bearing in mind the need for consistency of treatment in the two different situations.

Let us assume that the situation leading up to the collision had arisen in daylight. This first raises the question as to what shapes need to be exhibited by the towing vessel:

By any standards this is not easy to apply in the context of a submerged array with buoys at the forward end about 190 metres from the vessel and more buoys at the extreme aft end some 4 miles away from the towing vessel. Furthermore the buoys’ dimensions were only 2 metres in length and 0.7 in beam. Attached to them was a small diamond shape at a height of 1.6 metres (which doubled as a radar reflector). The height of this shape was probably only a foot or 18 inches. I assume that the buoys could not support diamond shapes of the prescribed size. Certainly the buoys and their shapes would not be readily visible from WESTERN NEPTUNE, even less so in any sea.

In one sense the short answer may be that it was impractical to exhibit the prescribed shapes. But this imports the obligation to take all possible measures to “indicate the presence” of the object: Rule 24 (h). Since the collision took place at night the issue was not of course considered. But the arrangements have to provide a seamless transition from night time to daylight and vice versa. It does strike me (and the Elder Brethren agree) that these considerations in regard to the position in daylight and at twilight do much to support the need for a second guard boat. But the point need not be taken any further at this stage.

Now for lights. The Rules provided that WESTERN NEPTUNE should exhibit a towing light above the stern light: Rule 24(a) (iv). They were both required to have a minimum visibility of 3 miles: Rule 22 (a). As regards, the tow, Rule 24(g) and (h) provide:

“g)

An inconspicuous, partly submerged vessel or object, or combination of such vessels or objects being towed, shall exhibit:

(i)

if it is less than 25 metres in breadth, one all-round white light at or near the forward end and one at or near the after end except that dracones need not exhibit a light at or near the forward end;

(ii)

if it is 25 metres or more in breadth, two additional all-round white lights at or near the extremities of its breadth;

(iii)

if it exceeds 100 metres in length, additional all-round white lights between the lights prescribed in subparagraphs (i) and (ii) so that the distance between the lights shall not exceed 100 metres;

(iv)

a diamond shape at or near the aftermost extremity of the last vessel or object being towed and if the length of the tow exceeds 200 metres an additional diamond shape where it can best be seen and located as far forward as is practicable.

(h)

Where from any sufficient cause it is impracticable for a vessel or object being towed to exhibit the lights or shapes prescribed in paragraph (e) or (g) of this Rule, all possible measures shall be taken to light the vessel or object towed or at least to indicate the presence of such vessel or object.”

The provisions of sub-rule (g) are difficult to apply to the “objects” being towed by WESTERN NEPTUNE. The Elder Brethren advise, and I accept their advice, that what was required was:

But the position was that:

The only lighting was the blue strobe lights on the buoys. (Footnote: ¹⁵) The claimants contended that such constituted appropriate compliance with sub-rule (h). It was submitted that it was impractical to exhibit the prescribed lights and that all possible measures had been taken to light or at least to indicate the presence of the object.

The proposition that it was impractical to exhibit the prescribed lights was not controversial at least in the sense that it was not possible to light the length of the array at intervals not exceeding 100 metres. But it was the Elder Brethren’s view (and I share it) that the vast unlit space astern of WESTERN NEPTUNE presented a considerable hazard to and from other vessels. Whether a separate streamer designed to carry lights at reasonable intervals (even if much more than 100 metres) was wholly impractical is somewhat surprising, although it would no doubt be costly and inconvenient. Nonetheless it is accepted by the court that it was impractical albeit with some reluctance.

But accepting the fact that such lighting is to be treated as unrealistic (and it certainly seems to accord with the practice in the industry) merely emphasises the high standard of care required to indicate the presence of the array by other means. This leads to considering such means under four headings:

It was not suggested that exhibiting an all round white light on each buoy was impractical. But it was contended that:

It is convenient to start with the scope of the regulations. Rule 24 makes provision for lighting objects under tow including inconspicuous or partly submerged objects. The editors of Marsden: Collisions at Sea (13^th ed.) suggest that such is ultra vires on the basis that the rules are limited to vessels: see Regulation 2(i)(a) of the MS (Distress Signals and Prevention of Collision Regulations 1996) (S.I. 1996/75). The enabling legislation is the MSA 1995 (ss. 85 and 86), a ship being “every description of vessel used in navigation” (s.313). Special provision is made for seaplanes and hovercraft but not otherwise.

That view is arguably correct. A ship would not include a raft, gas float and such like: Merchant Shipping Legislation: Fogarty para 20. 27ff. But the better view is that the prescribed lighting for the tow is simply part of the prescribed lighting for the towing vessel. The point is of marginal significance since, as the editors point out, the failure to make arrangements for towed objects to carry adequate lights consistent with prescribed navigation lights, would be a breach of the duty of good seamanship, a view with which the Elder Brethren concur.

Should all round white lights have been installed or were the blue strobe lights an appropriate substitute? Again, it was not suggested that there was any fault or at least causative fault in this respect. But again the court has some concerns about the practice:

That said it certainly appears to be customary in the survey industry for the end of each array to be lit by strobe lights. The topic is dealt with in an IMO note dated January 1997 entitled “The Marking of Seismic Streamers”. The note recommends as follows:

“2 Towed streamers can extend to considerable lengths (e.g. more than 8 km). Their ends can be out of sight of the towing vessel. Long unmarked streamers represent a danger to navigation to other vessels, which need to be warned that they may be running into danger.

3 To enhance safe navigation, seismic survey vessels should mark their towed streamers with tail buoys. Additionally, another buoy should be towed a short distance behind the towing vessel. All buoys should display by day and night an all-round high-intensity white light flashing the Morse signal "U" - "You are running into danger".

4 It will be clear to approaching vessels that the area of danger lies between the buoy towed close to the vessel, and the array of buoys towed on the tails of the streamers.”

The arrangement for the streamers behind WESTERN NEPTUNE did not comply with this recommendation. The flashes on the tail buoys were continuous and not in the form of the Morse signal “U”. The explanation proffered for selecting continuous flashing as opposed to “U” flashes was concern that confusion might arise given that the many oil rigs in the vicinity were equipped with lights flashing “U”. The Elder Brethren doubt whether any confusion was likely given the proximity of the buoy light to the sea surface but accept that the decision was not unjustifiable.

Although the point not was considered in any detail at the trial, it would appear that the forward buoys were similar in type to the aft buoys and presumably lit in the same way. This is an important precaution because taken in isolation the lights on the tail buoys would give no information as to which side vessels should pass. But, as the recommendation states, the combination of flashing lights at each end of the array should make it clear on which side the danger lay. But given the scale of the tow, this suggestion may not be valid. It is all dependent on the visibility of the lights. The minimum is 3 miles but that would be of limited value with a length of over 4 miles.

However no complaint is made about any aspect of the lighting. The explanation may well be that any defective lighting was not viewed as causative. It is clear that the look-out on board ST LOUIS EXPRESS was poor. The precise point of contact with the streamers is controversial but it was no more than 200 metres from the buoys. In the VHF exchange following impact there was this exchange:

“0806: WESTERN NEPTUNE: “Yes, our cables are four and a half nautical miles long and you have passed over all ten of them just in front of the tail buoys … so I guess you saw all the flashing lights on your starboard side.”

ST LOUIS EXPRESS : “Roger that””

The Master of the SL then came on the bridge and questioned the OOW:

“0817: Master: “So when did you sight the buoys under water or above the water.”

OOW: “There was flashing lights but he didn’t say anything about lights… he said our cables extend so far out so the flashing lights figured to starboard and that is where they were.””

In his statement the Third Officer of ST LOUIS EXPRESS comments in the context of WESTERN NEPTUNE’s question whether “he could see the tail buoys” that “I saw two white flashing lights which I believed to be lights from a stand-off buoy from the oil-rig”. On any view ST LOUIS EXPRESS passed unsafely close to the aft buoys. Indeed on the claimants’ case within 20 meters. In these circumstances there must be doubt whether the lights on them were seen at all before collision or at least until a very late stage.

The thrust of the Third Officer’s comment to the Master of ST LOUIS EXPRESS was that he was aware of the cables extending out for some miles but had not been told that their end was marked by the flashing lights. Nonetheless the information from the VHF exchanges and the AIS system was more than adequate to demonstrate that the lights were at the aft end of the tow and should be left to port.

The tail buoys were fitted, as already noted, with radar reflectors. In fact these were not picked up as echoes on the radar of ST LOUIS EXPRESS. They were no doubt effective in suitable conditions although somewhat less effective in a seaway. In any event the likely explanation for the absence of any visible echo is that there had been over-adjustment of the anti-clutter controls whereby these weaker targets were erased. This explanation is the more likely given the identification of “heavy rain in the Northern Sector of the radar”.

A further question thus arises as posed by the Elder Brethren as to whether the aft buoys should have been fitted with transponders (although again this was not a complaint made by the defendants). The starting point in this discussion is IMO Resolution A.615 dated 19 November 1987 which adopted various recommendations made by the Maritime Safety Committee on “The Marine Uses of Radar Beacons and Transponders”. Notably para 3.3 reads:

“3.3

Where an operational requirement exists for a responding device, other than for radio navigational purposes, a transponder should be used. Examples of requirements suitable for transponders are:

1.

Identification of certain classes of ships (ship to ship) and towed devices…”

The IMO circular entitled “The Marking of Seismic Streamers” quoted earlier in this judgment drew attention to IMO Circular 154 dated April 1992 on the basis that it might have some relevance to the issue. IMO Circular 154 provided as follows:

“2.

Resolution A.615(15) recommends that Administrations, which permit radar transponders to be used on ships for safety purposes, should prepare guidelines to ensure that no misunderstandings should occur in the use or identification of the transponders.

3.

In establishing guidelines on the use of radar transponders on ships, Administrations concerned should take into account the following:

1.

ships and maritime activities permitted to be marked by transponders should, in order to ensure safe identification and proper actions by other ships, conform to criteria developed by the Administrations concerned and notified to IMO;

2.

to avoid causing confusion on radar displays and to ensure proper identification of radar beacons (racons) in the area, the use of radar transponders in congested or constrained waters should be limited:”

It was against that background that the UK MCA issued a guidance note in February 2001 where, in the context of IMO circular 154, the point was made that “to avoid causing confusion on radar displays, and to ensure proper identification of navigation radar beacons (racons) in the area, the use of radar transponders in the congested and constrained waters around the United Kingdom is not normally permitted. Permission must be obtained from this Administration on a “case by case basis”. The Elder Brethren advise me that such permission should certainly be sought for this type of survey in say the English Channel and would probably be granted.

No equivalent documentation issued by USCG was in the papers. If permission was not required it was in the Elder Brethren’s view an obviously sensible precaution (not least because the radar reflectors as fitted were low down and pretty small). It is of course possible that the USCG would have adopted a similar policy to the MCA. In my judgment (in accordance with the advice of the Elder Brethren) if an application was required it ought to have been made. It is at least possible that the US Administration would have permitted the use of transponders on the WESTERN NEPTUNE array if an application had been made. If installed vessels approaching the convoy would have identified a strikingly long straight line echo proceeding at the same speed and on the same course as the other echoes.

Nonetheless it is clear that standards within the industry did not include transponders on the tail buoys. Whether this is because such is a proper standard in any event or whether an application to fit them would fail matters not. Since there is an element of speculation in the passages above I make no finding of fault. That said the position should certainly be reviewed by way of a precursor to any continuing operations.

The fact that the array had limited lighting and presented limited radar visibility merely emphasises the need for vigorous efforts to give effective warnings to other vessels of the requirement to give WESTERN NEPTUNE a very wide berth. An analogous example of such an obligation on the part of the towing vessel is to be found in The Albion [1953] 1 Lloyds Reports 239.

I have already referred to the content of the USCG notice to mariners and the details available on AIS. Both emphasised the length of the tow although were less helpful on the scale of the exclusion zone. In reality the first line of defence was the VHF broadcasts made by FURORE to on-coming vessels. Indeed it must be borne in mind that some vessels may not have received the notice to mariners and/or may not be equipped with AIS.

Various points arise at this stage: -

As regards to the need for caution this court has repeatedly warned about the risks involved in using VHF to assist in collision avoidance: see The Mineral Dampier [2001] 2 Lloyds Rep 419. Of course the problem of misidentification has been much alleviated by the arrival of AIS: see The Hakki Deval [2006] EWHC 2809. But misunderstandings by reason of language difference, poor radio reception, insufficiently prompt broadcasts and so on can still arise. All those features are material when considering this part of the case.

As regards the regularity of broadcasts it is significant that FURORE only made contact with specific individual vessels. Thus at 0115 she made contact with EAGLE SUBARU although the precise terms of the exchange which led to EAGLE SUBARU agreeing to pass three miles “behind” are not recorded in the papers. Nor is it apparent whether the exchange was overheard on ST LOUIS EXPRESS (any confidence in such having been the case is somewhat undermined by the loud music being played on the bridge of ST LOUIS EXPRESS).

The first call to ST LOUIS EXPRESS was at 0220 (C-39). In fact at that stage WESTERN NEPTUNE was distant 11.9 miles with a CPA of only 0.73 miles (although the CPA for FURORE itself was 1.45 miles). But the EAGLE SUBURU was already a “dangerous” target with regard to ST LOUIS EXPRESS. She was only 6 miles distant with a CPA of just over a cable. ST LOUIS EXPRESS’s alteration to port at FURORE’s request provoked a complaint from EAGLE SUBARU and the subsequent substantial alteration to starboard by ST LOUIS EXPRESS.

This state of affairs demonstrates, the Elder Brethren advise me, the desirability of regular broadcasts by WESTERN NEPTUNE of her position, course, speed and her lack of manoeuvrability and the size of the necessary exclusion zone. This should have been broadcast regularly, dependent on the level of on-coming traffic.

It was not suggested by the defendants that there was a fault in this respect. This again may be based on the proposition that any failure was not causative in that ST LOUIS EXPRESS received and understood FURORE’s message and did so in sufficient time to take effective action.

This in turn leads to the contents and source of the message. As regards its content it is unfortunate that it contained no reference to the buoys and the lights on the tail of the tow. The Elder Brethren advise me that it was an obvious and necessary piece of information given the absence of any intermediate lights over a distance of some four miles, the unusual nature of the flashing lights and the proximity of the drilling rigs.

It is also unfortunate that the message did not describe the nature and make up of the convoy. The message emanated from FURORE. At no time was there any broadcast let alone any contact made by WESTERN NEPTUNE. Yet FURORE was a mile or more ahead of WESTERN NEPTUNE. There was a need to interrogate AIS to establish the identity and relative positions of the four vessels in the convoy. In this context it may be of some note that, at the time of the collision between ST LOUIS EXPRESS and the array, WESTERN NEPTUNE was distant 4.22 miles (and thus inside the exclusion zone measured from her) but FURORE was distant 6.49 miles (and thus outside the exclusion zone measured from her). It would be entirely speculative to suggest that the third officer had regard to the CPA from the wrong vessel. But there are obvious risks of misunderstanding with a group of several vessels one of which made radio announcements to safeguard the others.

Next comes the question of confirmation. The initial broadcast was acknowledged by the Third Officer saying: “Roger that. I am altering course to port”. Clearly the need to give a CPA of three nautical miles ahead by altering course to port had been understood. But whether the balance of the message about the scale of the safety box had been absorbed must have been somewhat unclear.

More importantly re-confirmation of ST LOUIS EXPRESS’s appreciation of the requirement ought to have been obtained once EAGLE SUBURU had requested an alteration to starboard. This exchange was overheard both on WESTERN NEPTUNE and FURORE but neither vessel made any attempt to contact ST LOUIS EXPRESS, let alone repeat the need for a wide berth if ST LOUIS EXPRESS was to pass astern of WESTERN NEPTUNE.

It is by no means clear that ST LOUIS EXPRESS appreciated the width or length of the exclusion zone (let alone the place of the flashing lights within it). Indeed the officer of the watch of ST LOUIS EXPRESS expressed himself as content with what he regarded as a passing distance of 5.85 miles astern in a VHF conversation subsequent to the collision. No references were made by or to him after the event as regards to the required lateral distance of three miles. He certainly remained ignorant of the association of the lights with WESTERN NEPTUNE and complained as much afterwards to his master. Indeed he appears to have associated the flashing lights with a rig in the vicinity.

A possible explanation for a somewhat lax approach by WESTERN NEPTUNE to broadcasting the extent of the exclusion zone and its enforcement was contained in the evidence of the OOW of WESTERN NEPTUNE to the effect that sometimes vessels were permitted to “cut the aft corner” of the zone so long as their course would lead to clearance. This is a somewhat unsatisfactory relaxation of the requirements of safety which would risk bringing in its train curtailed communication and sloppy look-out.

I accordingly turn to the topic of lookout on WESTERN NEPTUNE. Those on WESTERN NEPTUNE and FURORE saw ST LOUIS EXPRESS come to starboard and shape to pass close to the exclusion zone. In fact encroachment into the zone would have been substantial had she remained on 333 degrees as from 0230. Clearance was not achieved even after ST LOUIS EXPRESS came onto 347 degrees as from 0241. On that course she would have “clipped” the limit of the zone on WESTERN NEPTUNE’s port quarter. Be that as it may it was assumed throughout by WESTERN NEPTUNE and FURORE that the passing would be safe and no particular observations were made of ST LOUIS EXPRESS or her movements from about C-30.

Leaving aside the habit of accepting a short-cut as mentioned above, the lack of observations by those on WESTERN NEPTUNE may have been encouraged by an undue reliance on FURORE. (Footnote: ¹⁷) Those on GECO TAU and OCEAN ODYSSEY were equally unobservant. But in fact FURORE’s attention may have been transferred to further traffic approaching from ahead. If so the absence of a second guard boat (and particularly one in the vicinity of the exclusion zone aft of WESTERN NEPTUNE) would have been a further difficulty.

The Elder Brethren advised me as follows and I accept their advice:-

It is of some note that after the collision the claimants and the Master of WESTERN NEPTUNE introduced some significant changes to navigational practice during surveying operations. It is important not to allow this development to justify the finding of fault without more. Nothing is so perfect that it can not be improved:-

“People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that because the world gets wiser as it gets older therefore it was foolish before: Hart v L &Y Railway. (1869) 21 LT261 at pg 263 per Brownwell J.

But in fact I did not understand it to be controversial that the new practice in fact reflected good practice. The meat of the point is to be derived from the amendment to the masters’ standing orders introduced on 1 October 2007 within a week of the collision:

“Traffic Monitoring

All approaching vessels to be plotted on the appropriate radar including the AFT radar for targets passing astern of the WESTERN NEPTUNE. Due attention to be given to blind sectors, range, gain and clutter settings to control distortion to the picture

All crossing traffic to have a past track activated ECDIS to help visually highlight any changes to courses

Monitor radio traffic between chase vessels and other traffic and check that course alterations are sufficient

Keep monitoring approaching traffic until they are safely clear of all equipment

Ref. VSI M6NPN/WO36 Traffic monitoring”

The need for continued oral contact and reconfirmation of the exclusion zone was covered by a further instruction dated 25 October 2007:

“GENERAL

This instruction applies to chase vessels and bridge officers on the WESTERN NEPTUNE. The minimum required CPA from the WESTERN NEPTUNE for approaching traffic is 3NM ahead, 3NM to both sides and 6NM astern. This should be advised to all approaching traffic with a CPA within or close to these limits. If the WESTERN NEPTUNE is in a turn, then due regard must be given to the streamers being in a loop off to the side.

A 3 step contact will be attempted made with all approaching traffic.

First contact

At minimum a range of 10-12NM, or further vessels doing more than 20knots, the first contact will be made to advise approaching traffic of our operations and minimum required CPA. The first contact will also be used to advise of most efficient deviation to meet required CPA.

Second contact

Once the vessel has deviated to meet the required CPA, the new course and/or speed will be checked by the duty officer on the WESTERN NEPTUNE. When the course and/or speed is verified as appropriate by the WESTERN NEPTUNE, the vessel will be contacted and requested to maintain this course and speed until contacted by the chase vessel or WESTERN NEPTUNE to confirm they are clear of the operation. The second contact should also be used to advise of the tail buoys and marking lights and also of any chase vessel located behind the cables to indicate which side to safely pass.

Third contact

When the vessel is safely clear of the operation, she will be contacted and advised that she is clear to alter back to original heading.”

Finally on 28 December 2007 a new arrangement for guard vessels was introduced whereby if (but presumably only if) two such vessels were available, the second should be placed one mile astern from the tail buoys with all vessels being required to pass astern of the second guard vessel.

Once it became apparent that ST LOUIS EXPRESS was taking no or no adequate action to keep out of the exclusion zone, WESTERN NEPTUNE (or at least one of the vessels in the convoy) should have taken steps to warn ST LOUIS EXPRESS. All appropriate means should have been adopted including the use of VHF, lights and flares. In fact it seems probable that a VHF call would have been sufficient to result in an alteration to starboard on ST LOUIS EXPRESS’s part. An added sensible step would have been to use the searchlight both to attract attention and to try and light up the buoys. The range between the vessels probably militated against effective use of sound signals. All this again identifies the desirability of a second guard boat.

It is common ground that the streamers astern of WESTERN NEPTUNE could have been dived from 12 to 25 meters in about 5 minutes. Allowing for a reasonable period for decision making the overall period for such an operation would have been little more than about 6 minutes. Subject to the precise position of the initial contact, the outcome of such an operation would have furnished a substantial margin of safety given ST LOUIS EXPRESS’s draft. With reference to Rule 17 the defendants contend that this was a step that should have been taken.

Was such an operation called for? It is notable that the initial reaction of the master of WESTERN NEPTUNE on being called to the bridge after the collision was to ask if the streamers had been dived. Furthermore, in response, the officer of the watch told the master “we are trying”. This was not true but it pointed to the correct reaction to the situation of danger that had been created by ST LOUIS EXPRESS.

Certainly in house “best practice” suggestions made within the claimants’ organisation both before and after the collision included procedures for diving the gear. Albeit a measure of last resort, I have no doubt (nor do the Elder Brethren) that efforts to dive the streamers should have been undertaken to avoid or limit the damage, particularly given the vulnerability and value of the streamers. The ability to take such evasive action timeously is emphasised by the fact that at C-6 ST LOUIS EXPRESS was already a whole mile inside the exclusion zone and, on a heading of 290 degrees, was shaping to cross the aft end of the array.

There was a considerable dispute between the parties as to the precise position of contact on the outside streamer number 10. The claimants contented that it was about 20 meters forward from the stern buoy: the defendants contended that it was at least 200 meters forward of the buoy.

I was not persuaded that the resolution of this issue was particularly revealing although it is true that even when dived that part of streamer 10 in close proximity to the tail buoy would by definition not be lowered much if at all in the water (i.e. it would remain at about 4 meters). Thus even when dived contact close to the buoy would still occur.

In my judgment the claimants’ case on this issue (if it matters) is correct. I find the evidence of their expert Mr Thomas, based on the damage exhibited by the streamers, is entirely persuasive. In particular I accept his evidence that the strands of the streamer number 10 showed clear signs of being pulled around bows of the ST LOUIS EXPRESS while the other streamers had parted in straight tension. That is entirely consistent with the contemporary observation that ST LOUIS EXPRESS crossed in very close proximity to the buoys.

Calculations made by the defendants’ expert Mr Cavell do not persuade me that the observations derived from the damage give a misleading impression. There are obvious margins of error with regard to speed, course, current and so on which militate against an accurate calculation.

Nonetheless I do not accept the proposition that once the point of contact at 20 meters forward of the tail buoy is established, failure to dive is shown not to be causative. It is clear that whilst the damage caused by the initial contact would have been unaffected, contact damage with some of the remaining streamers would probably have been avoided. In short the damage might not have been as extensive as it was although it would nonetheless have been substantial.

There is no dispute that the situation of danger was created by SLE. She had heard and understood FURORE’s request to stay out of the exclusion zone: indeed there would be no other reason for attempting to give WESTERN NEPTUNE such a wide berth if she had not. But she never adopted a course which kept her well outside the zone and more importantly came to port progressively from 02.41 (C-18) shaping to cut across the after section of the exclusion zone and thereafter across the stern of WESTERN NEPTUNE at an unsafe range of 4.3 miles. There was no navigational reason for this alteration: the rigs in the vicinity posed no obstacle. Indeed somewhat astonishingly she must have been steering a course with the flashing lights on the buoys almost dead ahead without appreciating their significance (assuming they were seen at all before impact).

All this was brought about by faulty visual and radar lookout together with:

For what it is worth I accept the claimants’ submission that this navigation was symptomatic of sloppy practice on board the bridge of the ST LOUIS EXPRESS that night in:

As already noted the defendant accepts that they must bear the preponderance of the blame.

It is in effect accepted (and if not I find in accordance with advice from the Elder Brethren) that WESTERN NEPTUNE (whether directly or through the offices of FURORE) failed to act with reasonable care in various respects:-

That said these faults of WESTERN NEPTUNE were substantially less blameworthy or indeed causatively potent than those of ST LOUIS EXPRESS. I would apportion liability one third/two thirds in favour of WESTERN NEPTUNE.