Eleftheria, Owners & Demise Charterers of v Hakki Deval, Owners & Demise Charterers of

This action arises out of a collision between the vessels ELEFTHERIA and HAKKI DEVAL which occurred in restricted visibility on 6 June 2004 in the Mediterranean Sea about 15 miles off the Algerian Coast.

ELEFTHERIA is a bulk carrier registered at Panama. She was of 38,328 tonnes gross and 20,638 tonnes net, 209 metres in length and 32.2 metres in beam and powered by engines of 13,050 hp. At the material time she was laden with 41,265 tonnes of soya beans giving her a draft of 10.7 metres fore and aft.

HAKKI DEVAL is a bulk carrier registered in Istanbul. She was of 9,669 tonnes gross, some 136 metres in length and 21.2 metres in beam and powered by engines of 55,188 kw. At the material time she was laden with 15,350 tonnes of steel billets giving a mean draft of 8.86 metres.

ELEFTHERIA’s pleaded case in summary was as follows. She had been steering a course of 082° true and, with her engines working at 110 rpm, was making about 13 knots through the water. The echo of HAKKI DEVAL was first observed at a range of about 8 miles, bearing approximately 5-10° on her starboard bow. Shortly thereafter ELEFTHERIA altered course to 070° true with a view to increasing the passing distance between the vessels. Attempts to contact HAKKI DEVAL by VHF were unsuccessful. Shortly before collision, HAKKI DEVAL was seen to be turning to starboard towards ELEFTHERIA whereupon ELEFTHERIA’s engines were reduced to 90 rpm and her wheel put to port.

HAKKI DEVAL’s pleaded case in summary was as follows. She had been steering a course of 252° true and was making about 8 knots through the water. The echo of ELEFTHERIA was first observed at a distance of just over 8 miles, bearing 2° on the port bow. Shortly thereafter the course of HAKKI DEVAL was altered to 266°. Contact was then made by VHF with ELEFTHERIA and oral agreement was reached to pass port to port. Thereafter HAKKI DEVAL altered course by a further 15° to starboard. This in turn was followed by her course being altered by “10° to starboard”. And thereafter her engines were stopped and put full astern.

Neither vessel saw the other until moments before impact. There were accordingly some substantial issues of fact on the pleaded cases: in particular whether contact by VHF was made between the vessels and, if so, whether an agreement was reached to pass starboard to starboard.

In addition, as appears from the list of issues prepared by the parties, there were disputes as to the angle of blow, the collision position, the degree of visibility and the sounding of fog signals.

The Claimants in due course served witness statements. Those of their Master and Chief Officer (the officer of the watch at the material time) were dated prior to the filing of the Claimant’s collision statement of case. In contrast, the statements furnished by the Defendants from their Master and 2^nd Officer (the officer of the watch) were dated after the relevant filing date.

The statement of the 2^nd Officer of HAKKI DEVAL asserted that ELEFTHERIA’s initial alteration of course to port had been observed (albeit it appeared to be from 080° to 073°) at a range of about 6.8 miles and further that, following agreement to pass starboard to starboard and the second alteration of 15° to starboard by HAKKI DEVAL, ELEFTHERIA was seen to alter course to port. Thereafter HAKKI DEVAL put her “helm” 10° to starboard. When the vessels had closed to about a mile, and following a further exchange on VHF in which ELEFTHERIA stated it was altering course to starboard, she was seen in fact to alter course to port. It followed that on the basis of this statement there was a further significant issue as to whether ELEFTHERIA altered to port from 073° true on two occasions prior to the final hard to port order.

To assist the court in the resolution of these issues, various witnesses of fact were called. The Claimants called a Mr Dindo Dorupan, an able seaman, who was the helmsman of ELEFTHERIA at the time of the collision. The Defendants called both their Master, Mr Yilmaz Altan and (after a considerable break to enable him to come ashore from another vessel) their 2^nd Officer, Mr Yucal Yilmaz.

The action had come for trial with commendable promptness. Even then it took place some two years after the event. In considering the oral evidence I have very much in mind the observations of Robert Goff LJ in the Ocean Frost [1985] 1 Lloyd’s Reps 1 at p.57: -

“It is frequently very difficult to tell whether a witness is telling the truth or not and where there is a conflict of evidence…. Reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities can be of great assistance to a judge in ascertaining the facts.”

Before turning to the issues of fact, I must touch on the question of expert evidence. Each party was given leave to instruct a surveyor on the question of speed and angle of blow at collision. There was a very substantial measure of agreement which made it unnecessary for either of them to be called.

As regards the question of the angle of blow, the parties accepted that the stem of HAKKI DEVAL struck the starboard side of ELEFTHERIA in way of her No.1 hold at an angle of about 80° leading forward.

As regards the question of speed, the experts approach was sensibly to assess the ratio between the speeds of the two vessels speed. This was accepted to be in the region of 1.7 i.e. that ELEFTHERIA was steaming at a speed 70% faster than HAKKI DEVAL. Since it was not suggested that any significant reduction of speed was made by either vessel before collision, this was consistent with the pleaded speeds of 13 knots and 8 knots respectively.

But the parties were also given leave to call expert evidence on “seamanship and breaches of the collision regulations”. Since a substantial amount of such material was contained within the trial bundles and I held that it was all inadmissible, I should accordingly record the background.

I have had the benefit of the assistance of two Elder Brethren of Trinity House as assessors. This conventional arrangement was consistent with the Court’s order of 8 April 2005 following on the Case Management Conference. The implications of such an order are well established: -

“It has been established by decisions of the courts, by textbook writers and by the practice of the Admiralty Court over a very long period that when the Court is assisted by nautical assessors, expert evidence on matters of navigation and seamanship may not be adduced”: see e.g. The Victory [1996] 2 Lloyd’s Rep 482 at 492..

This rule is subject to variation and exception in appropriate cases e.g. where the facts involve ship types or remote geographical areas which are unlikely to be familiar to the Elder Brethren or where the specific areas of expertise are outside the general competence of such assessors e.g. the fields of computer reconstruction or modelling. However, the present case does not fall into any exceptional category and, accordingly, given the objection made on behalf of the Claimant to the admissibility of such evidence, it was necessary to have regard to the circumstances in which the order giving leave was made.

I have seen the skeleton arguments that were provided to the court for the CMC. The Claimant sought leave to call an expert on the issues of the angle of blow and speed and, by reference to a draft order, sought the appointment of the assessors. The Defendant’s skeleton rightly anticipated a lack of controversy as to the form of order in a case with “no unusual features”. But their draft order nonetheless sought leave to call experts on “seamanship” without the appointment of assessors. The judge used the Defendant’s form of order as a template. The judge accepted that it was appropriate to give leave to call such expert evidence but nonetheless also added the requirement for assessors. No-one appears to have drawn the judge’s attention to the significant diversion from the usual practise that this order involved in a case which the parties regarded as straightforward.

Both parties thereafter expended substantial effort and expense on expert’s reports in this field and I was thus presented with a considerable difficulty when at the opening of the trial the Claimant’s challenged the admissibility of it all.

A similar situation arose in the Victory supra where Mr Geoffrey Brice QC, sitting as a deputy judge of this court, was persuaded to admit the expert evidence which was largely made up of reconstructions and comments on them.

In the present case, I took a different view. Despite the apparent agreement of the Claimant at and following the CMC, it does not seem to me that the court is bound to admit the evidence and indeed should not do so unless there are good grounds for doing so. Of course, the parties can deploy reconstructions prepared by experts as their own for illustrative purposes. It may also be that other comments made by retained experts can be used in argument. But the reports could not properly be admitted in evidence and I so ruled.

One of the features of the case was that each vessel had recently been fitted with an “Automatic Identification System”. The system is mandatory for cargo vessels under SOLAS Chapter V as from December 2004. While designed and installed primarily for security purposes, it does provide navigational information which may be of value to watch officers.

The device, either installed in a radar or as a stand alone item, will reveal amongst many things the name of the relevant target vessel, together with its destination and cargo. Also available are its geographical position, its heading and its speed. On the premise that this information is reliable, the equipment will usually furnish a CPA of a selected vessel.

There are dangers associated with the use of this equipment. First there may be a temptation for its use in preference to or even in isolation from other navigational aids. In fact, the primary instruments for safe navigation must remain an alert and systematic visual and radar lookout. Information derived from AIS may be erroneous: see MGN 277.

Second it must also be recognised that it enables attempts to establish radio contact to be undertaken with greater confidence. However, regardless whether contact is made, navigators must continue to observe the collision regulations: see Maloja II [1993] 1 Lloyd’s Reps 48. As will emerge, on the facts of the present case, it is not necessary to develop these points further.

It is common ground that ELEFTHERIA had been proceeding on a course of 082° at 13 knots. It is also accepted that the echo of HAKKI DEVAL was observed at about 8 miles (say C-23). Further it is also not contentious that shortly thereafter (say C-22) ELEFTHERIA altered 12° to port onto 070° and that she put her helm 15° to port shortly before collision, coming round to a heading of 030° by impact.

The primary issue is whether ELEFTHERIA altered to port between these two events. In my judgment the answer must be “no”:

It follows that I conclude that ELEFTHERIA was on a course of 082° until C-22. She then altered to 070°. Her next and final alteration was by reason the helm being put 15° to port through to collision on a heading of 030°. Throughout she was proceeding at 13knots. I asked the Elder Brethren the following question:

“Having regard to the manoeuvring characteristics of ELEFTHERIA, what is the maximum time needed for her to alter 40° to port under 15° of port helm at 13 knots?”

Their answer was:

“No more than 2½ minutes and probably nearer 2 minutes”.

I accept that advice. Accordingly her track could be readily plotted back from a notional collision position.

The question of speed is easy: it is common ground that throughout she was proceeding at 8 knots.

Her initial course had been 252° as from her plotted 0330 way point. It is also common ground, as I understand it, that she put her helm 10° to starboard for a period through to very shortly before collision. The primary issue between the parties is whether she had previously altered 15° to starboard on one or even two occasions.

The initial alteration of 15° was said to have occurred after the VHF agreement to pass port to port. It appeared to be accepted that such an alteration was made albeit, on the Claimant’s case, not against background of an agreement. Despite that common ground, it is to be noted that such an alteration on the Defendants’ case occurred shortly after the initial alteration of course to port by ELEFTHERIA was discerned. If these were the circumstances, it might be regarded as a strange response since it merely ensured that the CPA remained similar to that before the earlier alteration.

It is accordingly necessary to turn to the question of VHF exchanges. Both ships sought to contact the other. Only HAKKI DEVAL asserts that she was successful. The assertion emerged for the first time in a notebook maintained by the 2^nd Officer of HAKKI DEVAL. The reliability of this document is to a significant extent dependent on how contemporary the document was.

The relevant entry was as follows:-

“0344 distance 6.8 miles called again channel 16 ELEFTHERIA answered channel 69 old and tired voice. “We are altering course to starboard; we will pass port to port. Ok?” He said “I agree with you.” Channel 16 again. “We altered course to starboard by autopilot”.”

It was the 2^nd Officer’s evidence in his statement that the entries in the notebook were made “as soon as possible after those events had occurred”. In his oral evidence, which was somewhat confused on this topic, he claimed as follows:

I regret that I am unable to accept that account:

There can be no doubt, in my judgment, that this is an account prepared after the collision and then copied largely word for word into the fair deck log. The only question is when? It would seem clear that it formed the basis of the Defendants’ case as pleaded and I would accordingly find that it was made some time after the collision as part of a record or report to the master or owners. It is certainly not a contemporary record of the alleged VHF agreement.

In my judgement again the answer must be “no”. My rejection of the alleged contemporaneity of the report undermines the credibility of the 2^nd Officer. In any event:

I now return to the question of the timing of HAKKI DEVAL’s initial alteration to starboard. The 2^nd Officer’s account in his notebook is set out above. At first blush, there would appear to be some considerable difficulties with this account:

However, despite these uncertainties, the fact of this turn occurring at about C-20 did not appear to be contentious. According to the 2^nd Officer of HAKKI DEVAL, the time to collision from the initial sighting at 8.1 miles was some 27 minutes. But included in that period is some 4 minutes of full astern. This, cannot be right. The vessel was still proceeding at 8 knots or thereabouts at collision. It follows that the order for full astern was probably about three minutes later at C- 1. This is consistent with sighting at a range 8 to 9 miles (e.g.C-24) and an alteration to 266° about 5 minutes later (C-19). Accordingly I accept that such an alteration was made at that time.

Before leaving the issue of the two vessels’ course and speed, I must touch on a proposition advanced by the Claimants in written additional submissions furnished after the hearing to the effect that it was appropriate to plot HAKKI DEVAL’s track by reference to her working chart so as to determine the extent to which she came to starboard.

In my judgment, this admixture of plotting back from the collision in respect of one of the vessels (ELEFTHERIA) and forward to collision in respect of the other is not helpful – not least because of the margins of error in the collision position pleaded by HAKKI DEVAL. Accordingly, the invitation to find that HAKKI DEVAL altered 45° to starboard in some general sort of way over the 20 minute period before collision as depicted in the Claimants’ reconstruction is rejected.

So far as the final alteration under 10° of starboard helm is concerned by HAKKI DEVAL, it is clear that the collision occurred immediately after the final hard to starboard /full astern order which achieved no material loss of speed. In short I find that the period required to put her helm over and to commence stopping and thereafter reversing the engines was overtaken by impact.

I have already found that ELEFTHERIA’s heading at collision was 030 and that the angle of blow was 80° leaning forward on ELEFTHERIA. Thus the heading of HAKKI DEVAL at collision was 310°. This would involve an alteration to starboard by HAKKI DEVAL of 44° from 266°.

I have asked the Elder Brethren the following question:

“Having regard to the manoeuvring data of HAKKI DEVAL, what is the maximum period of time required for HAKKI DEVAL to alter 44° to starboard under 10° of helm at 8 knots?”

Their answer was:

“A maximum of 4 minutes but probably only 3-3½ minutes.”

I accept that advice.

From these various findings on the course and speed of each vessel, it is possible to make with the help of my assessors a broad reconstruction of the vessels’ approach, working back from the vessels’ headings at collision. Such a reconstruction does not require any allowance for current in determining their relative approach.

The picture that emerges is as follows:

Before turning to the faults of each vessel I must consider the application of the collision regulations to the material circumstances.

First, it is common ground that the vessels were navigating in restricted visibility within the meaning of Rule 19. It is possible that HAKKI DEVAL had had more extensive visibility, certainly earlier in her passage, than that available to ELEFTHERIA. However, by the time each identified the echo of the other, visibility had been closing in and I find from that moment onwards the visibility was substantially less than 4 miles and reducing to a matter of a few 100 metres by the time of impact. In any event, any disparity of visibility must be considered against the background that, by amendment, the regulations relating to conduct of vessels in restricted visibility applied to vessels “in or near” an area of restricted visibility.

Secondly, the question arises whether at the time the vessels detected each other to a range of about 8 miles “a close quarter’s situation” was developing within the meaning of Rule 19. I asked the Elder Brethren the following question:

“Assuming that visibility was less than 4 miles, that each vessel had detected the echo of the other at a range of about 8 miles and that the CPA was in the region of 3 cables port to port, was a close quarter’s situation developing?”

Their answer was, and I accept it, as follows:

“The short answer is yes. Indeed the situation had developed shortly thereafter to the extent that risk of collision existed.”

The faults in the navigation were to some extent accepted by the Claimants. They can be summarised as follows:

Various other allegations were made by each side on such issues as regards fog signals, VHF calls and so on. I do not find it necessary to embark on these as they were not causative.

I have no doubt that ELEFTHERIA must bear the preponderance of blame primarily because of her excessive speed but also because of her ill advised (albeit perceived) alteration to port. However, the lookout on both vessels was appalling and no sensible or let alone robust steps were taken to avoid collision by either vessel.

In my judgment a fair apportionment would be 1/3^rd 2/3^rd in favour of HAKKI DEVAL.