Denver Maritime Limited v Belpareil AS

The Editors of Marsden and Gault on Collisions at Sea have it that, “It is prima facie evidence of negligence for a vessel to drag her anchor, ¹⁴⁷ but this may be displaced by evidence of severity of weather or that other vessels also dragged. ¹⁴⁸ ” (15^th Ed., para.5-051). For the first half of their proposition, the Editors cite (at n.147): The Exeter City and Sea Serpent (1922) 12 Ll. L. Rep. 423; The Brabant (1938) 60 Ll. L. Rep. 323 at 327; and The Velox [1955] 1 Lloyd’s Rep. 376. For the second half of their proposition, the Editors cite (at n.148) The Boltenhof (1939) 62 Ll. L. Rep. 235.

The Exeter City and Sea Serpent concerned a collision in the Barry Roads, described by Hill J as “a place in which so many dragging collisions take place”. In a strong gale from the west, the Sea Serpent dragged into collision with the Exeter City, and under the force of that entanglement the Exeter City was pushed into contact with the London. The Sea Serpent was held solely responsible for the whole episode. The basis upon which she was found to be at fault was that dragging creates a presumption of negligence that she had not rebutted (ibid, at 425 rhc):

In The Brabant, the Felix Dzerjinsky ran into barges in the Woolwich Reach on the River Thames as a result of emergency manoeuvres to avoid hitting the Brabant, which (it was held) was dragging her anchor so as to be an obstacle to safe navigation. The Brabant claimed that she was caused to drag by the way the Felix was navigated. That claim was rejected. But then, per Sir Boyd Merriman, P., at 327 rhc: “If she dragged her anchor, not because of any trouble set up by the Felix but because, lying … at that particular place her anchor was not in fact holding when she lay to the ebb, or rather when she had swung to the flood, I do not think [counsel] disputes that that would be negligence. If she had put her anchor down in such a way that when she swung to the flood it did not hold, that would prima facie be negligent. I cannot see how it could be otherwise, and I so hold. I am not putting it upon any admission; it seems to me that the thing speaks for itself. It must be negligence if the vessel is so anchored that, without any other possible explanation that anybody can suggest, she begins to drag her anchor shortly after she has swung to the flood tide.”

In The Boltenhof, the Marklyn dragged into collision with the Boltenhof, at anchor off Melilla in the Mediterranean. In the judgment at 240 lhc, Bucknill J cited The Exeter City and Sea Serpent without demur for the proposition that dragging into a collision is prima facie evidence of negligence, but considered the presumption rebutted on the facts of that case by the proved severity of the weather and the fact that all the ships at anchor (apart from the Boltenhof) had dragged that night.

In The Velox, Willmer J held the Velox at fault for colliding with the Viking Monarch in a storm of unusual severity on Loch Eriboll, on the north coast of Scotland. Although Willmer J would have put the onus on the Velox to explain how without negligence she had been driven by the storm into the Viking Monarch, the case did not turn on the onus of proof or on a presumption (see at 379 lhc). Willmer J found fault on the basis that (at 382 rhc): “Even if it could be said that the Velox was not to blame for dragging her anchors in the first instance, nevertheless the situation called for a lookout of the utmost vigilance”; she had failed in that regard and she had responded inadequately to dragging; and the Viking Monarch had satisfied the court that the Velox had therefore been navigated negligently.

In my judgment, The Exeter City and Sea Serpent and The Brabant, taken together, stand as authority for the proposition that a ship dragging her anchor is prima facie evidence of negligence, to rebut which she must either establish why she dragged, showing that it was not in fact due to negligence, or prove that the dragging could not have been prevented by the exercise of reasonable skill and care. In The Velox, Willmer J understood that to be the law, but fault was affirmatively established without the need to invoke the presumption.

The Boltenhof meanwhile is no more than a case on its facts where that presumption of negligence was rebutted, where those facts included severe weather and the dragging of several other ships. If the second half of Marsden and Gault’s proposition were thought to state a rule of law that severe weather or the dragging of other ships will suffice to rebut the presumption, or a rule that other matters of fact cannot rebut it, that would misunderstand the law.

In the present case, Belpareil did not plead that the dragging of her anchor occurred without fault on her part. Her plea was that from about 23:05 hrs on 8 November 2021 until the collision, she was “continuously dragging (without effective control of her vector) under the influence of a strong northerly/north-northwesterly tidal current with tidal current speeds varying between 3 knots and 5.1 knots”, and that her main engine issue caused her to be unsuccessful in her efforts to control, reduce or arrest the dragging so as to avoid a close quarters situation with Kiran Australia. But prima facie she should not have been dragging in the first place.

It was common ground that Chattogram Anchorage “A” is known to present poor holding ground and difficult conditions. It is evident from the VDR audio that Kiran Australia found it challenging to maintain position, and her master confirmed as much in evidence. But maintain her position she did, until the choice became to engage in evasive manoeuvres to try to avoid being hit by Belpareil, dragging northward/north-north-westward towards her. There was no evidence or suggestion that the conditions were especially or unusually severe, either at all or for the location. There was some indication on the MADAS reconstruction that the Tomini Unity, 8 cables or so to the west, and slightly north, of Belpareil’s original position, may also have dragged her anchor for the first 15 minutes or so after 23:00 hrs, but nothing to indicate that the conditions that night were creating a general difficulty in holding station that the reasonable skill and care of competent mariners could not overcome.

In my judgment, those circumstances fall well short of proof, had such a case been pleaded, that Belpareil dragged otherwise than because of negligence. Her radar records show that she swung on her anchor with the change of tide between c.22:00 and c.22:30 hrs, after the low tide at 21:36 hrs. She made very little use of her main engine as part of holding position, even though the basic reason attested to by the master of Kiran Australia why holding position in that area can be challenging is its call for frequent use of the engine. Belpareil kept her main engine at Stop from 20:53:55 hrs until 23:05:38 hrs (by when she had been dragging for at least 5 minutes), except when the order was Dead Slow Ahead for 19 seconds from 22:14:29 hrs and for 2 minutes 22 seconds from 22:15:11 hrs.

The position, then, is that half an hour or so after completing her swing with the change of tide, and for no reason that Belpareil has offered, let alone proved, let alone proved to have occurred without fault on her part, Belpareil dragged her anchor. Thereafter, as she admits, she dragged continuously, into a close quarters situation with Kiran Australia. The presumption the law makes that ships do not drag without fault has not been rebutted. Belpareil is to be presumed to have been at fault, and on that basis I find her at fault, in dragging her anchor.

That fault operated in combination with the main engine difficulty, for which it is not alleged she was at fault, that she then encountered whilst dragging, such that she came to be bearing down upon Kiran Australia’s position from c.00:00 hrs (C-70).

On board Belpareil, the master’s night orders rightly required the duty officers to “pay utmost attention on anchor watch” and “not … to carry out any other work. Pay attention on anchor watch only.” Especially at an anchorage known to be potentially challenging, there could be no more important task. Although Belpareil was dragging her anchor by 23:00 hrs (and probably for a minute or two prior to that), and a risk of collision if the dragging was not arrested was evident from her radar (if it was being monitored), her main engine was not engaged until 23:06 hrs, and the evidence did not disclose when Belpareil first acquired Kiran Australia as an ARPA target.

The published tide tables predicted a flood tide current heading between 338º and 343º building from 0.6 kn at 23:00 hrs to 4.0 kn from 01:00 to 03:00 hrs. Given the known challenges of the location, and the initial absence on board Belpareil of reason to think she would have difficulty combating the dragging so as to establish a stable position on the rising tide and tidal current, I do not consider that she was at fault for not raising any alarm as soon as it was appreciated that she was dragging; and the failure promptly to identify that she was had no material impact on later events.

However, from 23:16 hrs Belpareil experienced the main engine difficulty that would plague her for the next two hours. The main engine behaved normally when set to Dead Slow or Slow Ahead, but at Half Ahead or Full Ahead, the demanded output (62 RPM and 71 RPM, respectively) was not generated. For 10 minutes, as Half Ahead, Full Ahead, then Half Ahead again, were attempted in succession, main engine response stuck between 48 and 50 RPM (cf 45 RPM = Slow Ahead). Between 23:26 hrs and 23:29 hrs, at Half Ahead, main engine RPM built from 50 to 58, which may have given some temporary reassurance, and the engine setting was stepped back down to Dead Slow Ahead; but when it was stepped back up again from 23:33 hrs, the same very troubling experience was repeated. At Half Ahead by 23:35:30, then Full Ahead by and after 23:36:00, main engine RPM stuck between 47 and 52 for more than the next 10 minutes.

After that experience, it should have been obvious to those in command on Belpareil that she was a potential danger to ships anchored to her north, most obviously Kiran Australia (even more so than Samir, which was closer to Belpareil but further off a course, if Belpareil dragged along it, in line with the flooding tide). She was at real risk of being or becoming close to a dead ship at the mercy of the elements. I considered that it needed no enquiry of the Elder Brethren to conclude, and I do conclude, that it was imprudent, and a failure to exercise reasonable care towards shipping in the vicinity, for Belpareil not to broadcast a clear warning that she presented that risk, explaining why.

In my judgment, that warning should have come no later than 23:40 hrs, several minutes into the second episode of underperformance, as main engine RPM dropped below 50 RPM despite a Full Ahead setting being maintained. It is evident from the VDR audio that, as might be expected, the main engine RPM was being closely monitored, the lack of response to the Full Ahead engine order was noted, and the view expressed on the bridge of Belpareil was that: “The engine will not be enough, otherwise vessel will move backwards. RPM is decreasing again to 49, 50.”; “The problem is now the vessel is going to the backwards, she is dragging …, so we need some more the RPM.”

Instead, and negligently, Belpareil issued no warning until 00:21 hrs. The warning was “All ship, all ship, all ship, this is motor vessel Belpareil call sign LAV17. My vessel is out of control, my vessel is anchor dragging, my vessel is anchor dragging and out of control.”; and then “Security, security, security, security, security, security, this is Belpareil, Belpareil. My engine out of order, my engine is out of order, I cannot control my vessel, anchor dragging, anchor dragging.”

The master had concluded that Belpareil was out of control (not merely at risk of being so) by 00:07 hrs, when he told the attending supercargo, via walkie-talkie, “Cast off, cast off your barge, I cannot control the vessel.”, and was actively contemplating the imminent prospect of a collision, instructing the duty officer to “Take note of all the timing. Where is note paper? If there is any collision, it can be vessel record. We have to solve with timing note.” In fact, it was noted on the bridge from c.00:02 hrs that main engine RPM was well below what it should be and Belpareil was going backwards (meaning moving astern over the ground), leading to the following bridge dialogue:

By 00:10 hrs, Kiran Australia was inferring from what she could observe that Belpareil was dragging. She hailed Belpareil via VHF three times, at 00:10:49 hrs, 00:11:10 hrs, and 00:11:58 hrs, but was ignored. Belpareil communicated with Kiran Australia, finally, only after, and I infer in response to, hearing Kiran Australia hail Port Control. The two bridges then had this exchange, so that Kiran Australia became aware of Belpareil’s true difficulty at 00:15-00:16 hrs, a little over 5 minutes before Belpareil issued any general warning:

On board Kiran Australia, the master’s first thought was to weigh anchor and make an escape; but he assessed, reasonably so, and told Belpareil, that it was too late for that. He had 8 shackles of starboard anchor chain ahead in the water (220m, over a ship’s length) that he would have needed over 20 minutes to take in, easing his ship forward towards the oncoming Belpareil as he did so. The master explained, in evidence in chief that I accept, that he took the decision he did “to try and avoid [Belpareil] using the engines and rudder, with the anchor still down”, because he had assessed that, for the reasons I have just given, it was too late for it to be prudent to follow his first instinct.

I agree with Mr Turner KC that that is likely to be a reliable guide to how the master would have responded to a warning 35 minutes or more earlier that Belpareil was or was at risk of becoming at any moment effectively dead in the water, at the mercy of the tidal current. That is to say, his first thought would then also have been to weigh anchor and get out of the way; and he would have acted on that instinct unless he then assessed that it was already too late for that to be a prudent course.

By 00:15-00:16 hrs, Belpareil was only 3 cables off Kiran Australia (stern to bow), and closing, such that there was a clear risk of collision in the near future (within 20 minutes). By contrast, until 00:00 hrs, she was substantially further off, not yet presenting any near-term collision risk; and it then took until 00:05 hrs or so before she would have seemed settled, in her dragging, on something that might well be or become a collision course.

The advice of the Elder Brethren, which I accept, is to the effect, on any view, that if Kiran Australia had been made aware, when I have found she should have been made aware, that Belpareil was not only dragging but unable to respond properly to or control her dragging, a competent mariner in command would not have wanted to move further east and should have considered taking early action that would not rely on the actions of Belpareil, his options being to weigh anchor and clear away from any possibility of collision or maintain station, observing Belpareil, but weighing anchor and then clearing away promptly if she was observed to be dragging further north (as she would have been).

In my judgment, the master of Kiran Australia had no wish to play slow motion maritime dodgems with Belpareil. He did so, for the best part of an hour before the ships in fact collided at 01:10 hrs, and for nearly as long again afterwards, because of his assessment that it was the only realistic course open to him in the situation Belpareil put him in at and after 00:15 hrs, one key element of which was the lack of prior notice that Belpareil was or might at any moment become out of control. If Belpareil had warned him of that, as I have held that she should have, by 23:40 hrs at the latest, there would have been time and space for Kiran Australia to act on her master’s first thought of weighing anchor and getting clear, and that would have been the first option any competent master would have considered to be available at that time. I think it more probable than not that with such prompt notification of Belpareil’s difficulty, Kiran Australia would have weighed anchor and kept well clear of Belpareil, and the collision would not have occurred.

The master of Belpareil gave shifting and inconsistent evidence as to what he was told, when and by whom, as to the availability or unavailability of tugs to assist ships at Chattogram Anchorage “A”. I do not accept as reliable any of his various versions of having been told there was no such availability. It is evident from the VDR audio record that, when Belpareil belatedly did raise a general alarm over her predicament, she called upon Port Control for urgent assistance by tugs, and neither thought, nor was told, that she was asking for the impossible. To the contrary, she was told, when Port Control eventually responded, that arrangements were being made but would take time.

I consider it negligent that Belpareil did not first call for tug assistance by c.23:40 hrs at the latest. In the event, she first called for tugs, in terms, only at 00:32 hrs. (“Port control, port control, this is Belpareil calling, Belpareil calling. Now we are the anchor dragging and we need the tug assistance immediately.”)

The stark fact, however, is that though Belpareil remained in difficulty well after the collision, no tug ever came to her assistance. In the absence of positive evidence that tugs were available or of some reason why though tugs may have been available none responded, the inference is that the master was correct as to the factual position, viz. there was no prospect of tug assistance for Belpareil, even while he was not telling the court the truth about having been notified of that in advance.

Belpareil was at fault in not calling for tug assistance by c.23:40 hrs, as she was at fault in not warning other ships by then of the danger she posed, but the lack of promptness in calling for tugs was not causative of the collision.

Contrary to a submission by Mr Persey KC in defending the allegation that Belpareil should have dropped her starboard anchor to stabilise herself, it is irrelevant that the master of Kiran Australia rightly did not consider dropping his own second anchor, or wish Belpareil to drop hers, in the latter stages of the incident, as the ships came into close quarters and then danced around each other trying to avoid contact. The material allegation against Belpareil focused upon the initial hour, or just over, during which she dragged and first experienced the main engine issue, but nonetheless stayed around 5 cables off Kiran Australia, before then becoming somewhat settled, dragging, on or very close to a collision course, from 00:05 hrs. The view on board Kiran Australia, matching that on board Belpareil, that it was inadvisable to look at dropping a second anchor thereafter, could not be criticised, because of the circumstances then at hand.

The other introductory point to make is that I reject as untruthful the various contemporaneous documents generated by Belpareil that purported to record an attempt in fact made to deploy the starboard anchor, or experience in fact noted of the ship’s bow oscillating relative to the anchor chain with a decision being made because of that not to deploy (or deploy further) that anchor. Mr Turner KC demonstrated to my satisfaction through cross-examination of the master that those documentary records were a dishonest but wasted effort to cover up the truth. The truth was that those on board Belpareil did not think to use the starboard anchor during the initial phase of the incident. The dishonest attempt to cover that up was borne of a defensive instinct, in hindsight, that they should at least have given it serious consideration at the time. The attempt was a wasted effort inter alia since Belpareil managed to create evidence of two mutually incompatible narratives that cannot both have occurred: (i) that the starboard anchor had been deployed but failed to assist; (ii) that a conscious choice had been made, for good reason, not to try deploying the starboard anchor as a solution.

That defensive instinct, together with the fact that the possibility of dropping another anchor was mooted, as it was, even in the later circumstances of close quarters evasive manoeuvring, is evidence that dropping a second anchor is at least an obvious possibility that ought to be considered by any ship that finds herself dragging and not readily countering that by the use of her engine and rudder. But my rejection as untruthful of the evidence Belpareil created that, if reliable, might have supported a positive case for the defence, does not prove that the failure to deploy the starboard anchor at the earlier stage of dragging between 23:00 hrs and 00:05 hrs was negligent.

Nor does my rejection, as supposed record of historic facts, of the references to “chain leading direction is oscillating between 10 o’clock and 2 o’clock long stay to medium stay. In reality, vessel have no chance to drop stb anchor due to the port anchor chain leading direction is oscillating large amount …”, prove that there would not have been an issue or risk of anchor chains fouling each other or twisting that might have made it imprudent to try using the starboard anchor.

The VDR audio record from Belpareil includes truly contemporaneous anchor chain reports that there is no reason to reject, tabulated below. The VDR audio disclosed by Belpareil begins at 23:30 hrs. It seems likely that how the anchor chain was leading will also have been reported during the first 30 minutes of her extended excursion, dragging her anchor from (just before) 23:00 hrs; but any such reports were not in evidence and it is not possible to say what they may have been.

Turning then to the advice of the Elder Brethren, which I accept, it was to the effect that:

Belpareil was at fault in failing to drop her starboard anchor in response to realising that she could not rely on her main engine to arrest or control her dragging. A competent use of the second anchor would have avoided the collision, because (like the giving of proper, prompt notice of her difficulties) it would have bought the master of Kiran Australia the time to act on his correct first instinct as to how to avoid any risk of collision. Kiran Australia would have weighed anchor and kept clear of Belpareil without the two ships ever coming into close quarters.

The parties’ rival cases were mirror images, reflecting the reality that for what became the final few minutes before the collision, the two masters had taken decisions that in combination set the ships up to collide, and each refused to make a change when confronted with that reality. The mutual insistence on sticking to what they had decided, demanding that the other ship make a change, is nicely captured by the VHF exchange in paragraph ‎38 above.

Before coming directly to those final few minutes, I reject a submission by Mr Turner KC that an exchange more than 10 minutes earlier is helpful to Kiran Australia. At 00:51 hrs (C-19), both ships were heading c.160º. Relative to that heading, Kiran Australia was diagonally astern and to port of Belpareil, her bow c.½-cable off Belpareil’s port aft quarter, and the ships were on separating vectors. By 00:54 hrs (C-16), their positions were similar, Belpareil having moved away fractionally over the ground, Kiran Australia having done so a little more.

At C-19, the master of Belpareil told the master of Kiran Australia that he was trying to shift away but his engine was “back to abnormal condition”. He suggested that Kiran Australia should “move your anchor position backwards”. The master of Kiran Australia replied, “Okay, when you clear enough from me, I will try to heave up anchor, but you are now very close to me.” He made sure his Chief Officer, in command of a forward anchor party, was ready to heave up. At C-16, the master of Belpareil requested, “Please heave up your anchor and move, my engine is out of order again”, the master of Kiran Australia agreed he would start to heave up, and that order was given to the Chief Officer. Just before 00:56 hrs (C-14), Kiran Australia reported to Belpareil that she was at Half Ahead and heaving up her anchor.

However, Belpareil was again dragging astern towards Kiran Australia by then. They passed very close to each other, Bepareil dragging diagonally to port astern, tracking about north-easterly over the ground, Kiran Australia deftly avoiding her by driving forward, using Full Ahead engine and sharp rudder manoeuvres, which is what brought the ships to the position at 01:07 hrs (C-3) shown in Figure 4. Kiran Australia was now ahead and clear of Belpareil, which was across the 10m contour but had from 01:05 hrs (C-5) arrested her north-easterly slide towards a possible grounding and was moving westerly over the ground back towards deeper water.

The exchanges at C-19 and C-16, and the commencement by Kiran Australia then of heaving up her anchor, when the ships were very differently situated relative to each other, with a view to clearing away astern of Belpareil, was no kind of standing agreement or precedent for what they should be doing at and from 01:07 hrs. It did not mean that Kiran Australia had licence from Belpareil to do whatever it might then take to keep weighing anchor, as some overriding priority. The Elder Brethren advise, and I accept this advice, that well run ships speaking a common language, or competent English, should have been in constant communication with each other, working out how best to resolve the situation, and exchanging information on progress. The Elder Brethren say they would have “expected [competently run ships] to agree a course of action and regularly exchange information of their progress until the risk of collision no longer existed. The conversations between KA and BP were more in the nature of statements and requests to the other to take certain actions.” That final observation accords with my assessment of the verbal exchanges, and I accept the expert view implicit in it that the tenor and content is not what the Elder Brethren would expect to see from two well run ships seeking to avoid collision and communicating professionally.

From the VDR audio record, I find that Kiran Australia did indeed heave in anchor chain from C-15 or so until C-4 (01:06 hrs), by when she had brought in 3 shackles so that she still had 5 shackles in the water during the final few minutes and when the ships collided. The push forward, to avoid contact and get clear, ahead of Belpareil, left the chain leading aftward and to port, albeit I cannot say at what angle exactly, and tight.

The case for Kiran Australia, then, was that:

The case for Belpareil, on the other hand, was that:

The Elder Brethren were generally clear in their main advice that, in their opinion, Belpareil was at fault in maintaining Full Ahead, although there was some ambiguity over what, in their view, she should have done instead. Thus:

The effect of that advice, critical of Belpareil for maintaining Full Ahead, was clear enough, but it was not clear whether, and if so how, the Elder Brethren had taken into account, in reaching their view, the location of shallower water astern and to port, and the associated risk of grounding for Belpareil. The advice that Belpareil “should have taken such action as would have stopped them closing KA or going into shallower water …”, perhaps indicated a view that Belpareil was correct to maintain enough way to avoid falling back towards shallower water, which would mean in turn that the criticism was only that Full Ahead was maintained, so that Belpareil did more than just hold station; but that was not as clear as it might have been from the way the Elder Brethren had expressed themselves, and most of the options for different action identified by them would have resulted in Belpareil falling back, not just holding position.

I asked the Elder Brethren the equivalent questions relating to Kiran Australia, i.e. whether a competent mariner in command of Kiran Australia, wishing to get clear of Belpareil, might have chosen to take way off the main engine from c.01:06 hrs, and whether, as a matter of good seamanship, Kiran Australia should have considered taking action (if so, what action(s), to be taken when), in response to appreciating that, relatively speaking, she was falling back towards Belpareil and Belpareil was pushing on towards her. I found the Elder Brethren’s advice in response unclear:

Having received the parties’ written observations on the Elder Brethren’s main advice, and considering the areas I have noted above where it was unclear, I raised requests for clarification, in response to which the Elder Brethren gave their supplementary advice. In view of the submissions advanced by Belpareil that I should not accept the Elder Brethren’s advice concerning the ships’ actions at and after C-3, it is appropriate to quote those requests and responses in full, as follows:

Mr Turner KC supported the Elder Brethren’s advice, as thus clarified, and submitted, in addition, that although a competent mariner on Belpareil would have had well in mind that the ship was in relatively shallow water, they would also have been aware of:

Mr Persey KC submitted that I should accept neither (a) the Elder Brethren’s criticism of Belpareil for maintaining Full Ahead nor (b) their lack of criticism of Kiran Australia for falling back towards Belpareil. I find it convenient to consider his submissions in reverse order ((b) before (a)).

Kiran Australia

In response to the Elder Brethren’s main advice, Mr Persey KC submitted that the key points were those I have already noted. Kiran Australia had allowed herself to fall astern when, according to the Elder Brethren, a competent master would have tried to weigh anchor without dropping astern; and she had failed to take the one course of action she should have identified as available to her to avoid a collision, namely increase ahead speed. I consider that was a justified submission, given the way the Elder Brethren had expressed their main advice.

In response to the supplementary advice clarifying that the Elder Brethren had not intended to criticise Kiran Australia, Mr Persey KC submitted that the advice, as thus clarified, had failed to take account of all known facts and had become internally inconsistent and speculative. In particular, he contended that:

I find myself in respectful agreement with all of those criticisms of the Elder Brethren’s assessment of the actions of Kiran Australia. In my judgment, Mr Turner KC offered no satisfactory answer to them:

In the circumstances, I respectfully do not accept the Elder Brethren’s advice that Kiran Australia is not to be criticised for deciding to take way off the main engine, then holding to that decision even when it was evidently putting the ships on course for imminent collision. The true burden of their reliable evidence on how a competent mariner in command of Kiran Australia ought to have responded was captured by Mr Persey KC’s submission in response to their main advice (paragraph ‎122 above). There was no reason, let alone good reason, for Kiran Australia to fall back dangerously towards Belpareil as she did. Easing the tension on the anchor chain was not reason to drop back to starboard, and was not good reason to continue dropping back at all after Belpareil reported an improved main engine response and a desire to clear away to starboard, astern of Kiran Australia, while she could.

Kiran Australia’s actions from (just prior to) C-3, maintained thereafter, were without proper thought to the situation of Belpareil, were not calculated to avoid a collision, and in my judgment were not the actions that should have been ordered and then insisted upon by a competent mariner acting with due care to avoid contact.

I do not accept a submission by Mr Turner KC that Kiran Australia benefits from the principle that a wrong step taken in the agony of the moment is not negligence (see Marsden and Gault, supra, at 5-021), or the principle that it is not negligent to choose, on the horns of a dilemma, a perilous course that does not turn out well (ibid., at 5-022 to 5-023). It was inventively suggested, in the absence of evidence, that the master of Kiran Australia was caught on the horns of a dilemma between (i) continuing to heave anchor and avoid fouling a dangerous wreck shown on the chart and (ii) interrupting that process to try and keep clear of Belpareil unexpectedly coming ahead when she had no obvious need to do so at that precise time. There was no agony of the moment and no such dilemma.

Kiran Australia was at fault in allowing herself to fall astern and to starboard, so as to be on course to collide with Belpareil, and for sticking to that course in the face of Belpareil’s communicated insistence on continuing to shift to starboard, further away from the shallower water, in an attempt to clear astern of Kiran Australia. She (Kiran Australia) could and should have increased engine speed to avoid the imminent risk, and ultimate reality, of the collision that occurred.

Belpareil

One criticism of the Elder Brethren I have thus accepted, leading me not to accept their advice that Kiran Australia behaved as a competently navigated ship should have in the circumstances, is that they were inconsistent in their approach, failing to carry through to their ultimate views a mutuality present in much of their basic advice as to how competent mariners ought to have reacted. It follows that my rejection of their view that Kiran Australia was not at fault does not provide a reason to reject their view that Belpareil was.

There can be no defence on the part of Belpareil of acting in the agony of the moment or on the horns of a dilemma. In contrast to Kiran Australia, there was a basis in evidence for proposing the latter, other things being equal. Belpareil faced a real risk of grounding, the flooding tide notwithstanding, and that risk in fact operated on the mind of her master in deciding, as he did, to push on with Full Ahead engine, achieving and then maintaining a course over the ground to escape the shallower water without (he hoped) getting too close to Kiran Australia (see paragraph ‎124(iv) above).

However, other things are not equal, because the doctrines do not avail a ship through whose prior fault the situation of peril has been created in the first place (Marsden and Gault, at 5-024). Here, the hazardous close encounter in which both ships had been caught up continuously for over half an hour since Belpareil arrived at or about where Kiran Australia had been safely anchored was entirely brought about by the prior faults of Belpareil in dragging, failing to use her starboard anchor to arrest the dragging, and failing to give proper, prompt warning that she was not merely dragging but unable to control or counter that through use of her main engine.

Mr Persey KC invited me not to accept the Elder Brethren’s view that it was not good seamanship to maintain Full Ahead, as Belpareil did, from C-3, and especially still to do so from C-2 when it should have been apparent that the ships were set to collide unless something changed, because:

I consider there is force in the submission that Belpareil acted reasonably in seeking to shift to starboard, as she did between C-7 and C-3, so as to get back to deeper water, not anticipating that Kiran Australia would fall astern and to starboard as she then did from C-3 onwards. However, by C-2 it should have been apparent to Belpareil that Kiran Australia was indeed falling back towards her, and I see no reason to reject the Elder Brethren’s view, which is also my assessment, that it was unreasonable of Belpareil to insist upon what had become a collision course. It is not necessary to decide whether, had it come to it, Belpareil should have risked grounding rather than continue on that course. She had only to halt further progress to starboard rather than pursue it into hull to hull contact. In my judgment, Mr Persey KC’s criticisms of the Elder Brethren’s advice, and his submissions generally on behalf of Belpareil, did not provide any satisfactory defence to that simple charge.

Belpareil was at fault in maintaining Full Ahead after C-2, thereby failing to take action to avoid collision and in fact driving into the collision that resulted. She was as unreasonable for sticking to her course in the face of Kiran Australia’s communicated insistence on continuing to come astern towards her as was Kiran Australia for sticking to that course. Belpareil could and should have used reduced engine speed after C-2 to avoid the imminent risk, and ultimate reality, of the collision that occurred.

The ships’ faults from C-3 were undoubtedly effective causes of the collision. Belpareil contended that nothing prior to C-3 should be considered. In the course of explaining my conclusions on fault, I have already found that Belpareil’s prior faults in dragging, failing to use her starboard anchor, and failing to give proper, prompt warning of her difficulty, were ‘but for’ causes of the collision, whereas her failure to call more promptly for tug assistance was not (even) such a cause.

Of course, ‘but for’ causation is not enough. At the same time, assessing effective causation is not a simple matter of chronology, treating later events as more significant than earlier events. The rule that ‘but for’ causation is not sufficient must not become a reincarnated ‘last opportunity’ rule (as to which, see The Ouro Fino [1988] 2 Lloyd’s Rep 325, at 328 rhc to 329 lhc).

True it is, as Mr Persey KC emphasised and I have mentioned, that the whole episode culminating in the moment of collision (and in fact continuing for a time thereafter) played out over a substantial period of time, largely in slow motion. But that may be the nature of unplanned, close encounter manoeuvres by large, laden cargo ships that were, and all things being equal had intended to remain, stationary at an anchorage, after one of them loses her station.

The lengthy period and slow speeds do not mean this was other than a single, continuous episode. It is not realistic to view the creation of the unplanned, and unwelcome, close quarters conditions the two ships inhabited from 00:30 hrs or thereabouts as mere background or history providing an opportunity for the two masters to perform well, or not, as the case may be, in trying to avoid contact. A sensible characterisation of the events of this case, and the lived experience on board both ships I have no doubt having read and listened to the bridge transcripts and having seen both masters give their evidence, is and was that Belpareil and Kiran Australia were at all material times in the grip of the perilous situation created by Belpareil’s negligence. Her uncontrolled dragging towards where Kiran Australia was stationed, safely at anchor, for want of proper notice of Belpareil’s difficulties, operated upon the ships’ situation throughout.

The failure by Belpareil to call more promptly for tug assistance aside, all of the faults I have found contributed together to bring about the collision. They were all effective causes, so that, there being causative fault on both sides, the question of apportionment arises.

Belpareil bears much greater responsibility for the collision than does Kiran Australia. Her faults taken as a whole are greater in number and importance, since they include multiple initial faults but for any one of which the perilous situation the ships found themselves in would never have developed. The principle set out in paragraph ‎41 above applies. In relation to the respective faults from C-3, in my judgment Kiran Australia’s were clearly greater than Belpareil’s, even tempering the assessment of Kiran Australia’s culpability by the application of that principle.

In the final few minutes, there was on Kiran Australia’s part both the bad decision not to maintain the separation she had created after C-7, instead setting herself on what could easily prove to be a collision course, and the bad decision to stick to what had plainly become a collision course. On Belpareil’s part the navigational fault was only of the latter kind, the initial decision to clear away to starboard having been sensible and not one that she ought to have identified as likely to set the ships up to collide. The two ships were equally guilty of poor communication with each other.

This is not a case in which a difference in causative potency of the various faults plays a material role. All the causative faults played a part together in causing a collision to occur of the type that occurred, with whatever damage resulted. It is not a case, for instance, of different faults of poor navigation or other negligence combining to cause a collision but where one (for example, excessive speed on one side) does most of the damage. Apportionment in this instance is driven by the relative degrees of blameworthiness on both sides.

I consider that the balance of responsibility in the circumstances of this case can be described in two equally fair and sensible ways, each of which properly translates to an apportionment of 70% to Belpareil, 30% to Kiran Australia. Firstly, taking the case as a whole and bearing in mind all causative faults on either side, I think it right to say that Belpareil was more than twice, but not close to three times, as blameworthy as Kiran Australia. Secondly, I think it fairly represents the case to say that the collision is equally Belpareil’s fault for creating the close quarters situation in the first place and the two ships’ combined fault in how they acted and communicated in the final few minutes, as to which, as I have said, Kiran Australia was distinctly more blameworthy than Belpareil, even taking account of the fact that it was through Belpareil’s faults that the dangerous situation developed. The complementary arithmetic, then, is: 70 ÷ 30 = 2.33; and 50 + 40% of 50 = 70 vs. 60% of 50 = 30.

For the reasons set out above, I have concluded that Belpareil and Kiran Australia were both at fault and that all the fault on both sides was effective, acting in combination, to cause the collision between them early on 9 November 2021, except that Belpareil’s negligent failure promptly to call for tug assistance had no causative impact.

Belpareil was substantially more blameworthy, having been responsible by her faults for bringing the ships into a potentially dangerous situation in the first place and having been at fault again, albeit less so than Kiran Australia, in her actions from C-3 that ultimately brought the ships into damaging contact. A significantly greater share of responsibility rightly lies with Belpareil, and judgment will be entered apportioning liability for the collision 70% to Belpareil and 30% to Kiran Australia.