Kamal XXVI, The Owners and/or Demise Charterers of the Ship and Barge v The Owners of the Ship Ariela

This action arises out of a collision in the entrance channel to Mormugoa (Goa) at about 2012 hours (UTC + 5 ½ hours) on 30 April 2004. The Defendants’ vessel ARIELA came into contact with the Claimants’ hopper barge KAMAL XXIV. KAMAL XXIV was moored alongside the Claimants’ dredger KAMAL XXVI. The impact brought the barge into contact with the dredger. Although the damage to ARIELA was minimal, the dredger was heavily damaged.

The relevant particulars of the barge KAMAL XXIV are as follows: 48.7 metres in length, 12.2 metres in beam with a draft of 2.65 metres. As regards the dredger KAMAL XXVI, she was 80 metres in length, 14.8 metres in beam with a draft of 2.2 metres.

It is common ground that KAMAL XXVI was not underway. She was lying, secured by five anchors, in line with the axis of the channel (i.e. 110°/290°). It is the Claimants’ case that she was on the Northern edge of the channel in the vicinity of Buoy 10. The Defendants say that she was in the channel some 100 metres south of the Northern limit thereby narrowing the gap between Buoy 10 and Buoy 9 on the Southern edge to about 200 metres.

It was also common ground that KAMAL XXVI was exhibiting 3 all round lights in a vertical line, two all round green and two all round red lights as prescribed by Rule 27 of the Collision Regulations. Her deck lights were also illuminated. In addition a flashing white light marked the position of the two anchors laid out on her portside. Prior to the trial it had been common ground that the KAMAL XXIV was unlit. However by consent the Claimants amended their collision Statement of Case to allege that search lights were being shone by KAMAL XXVI onto KAMAL XXIV and KAMAL XXIV was itself equipped with a search light and was also exhibiting port and starboard navigation lights.

ARIELA is a bulk carrier, some 235.63 metres in length and 52.22 metres in beam, some 44,985 tons gross and powered by engines of 16,500 h.p. ARIELA was in ballast with a draft of about 5.01 metres forward and about 7.61 metres aft.

ARIELA was bound to Mormugoa from Damman. She was exhibiting appropriate navigation lights. She had anchored off the port to the North of the entrance channel in the vicinity of Buoy 4. Having weighed anchor she proceeded into the channel and having been joined by a pilot she made her way inward bound in about the middle of the channel on a course of 080°.

The wind was West-North-Westerly force 4. It was dark but fine and clear. There was a tidal current flooding to the East at well under 1 knot.

The dredger was operating pursuant to an agreement between the Mormugoa Port Trust and Jaisu Shipping dated January 2004 although work had actually started in October 2003. Indeed on 14 October 2003, the Port Trust had issued a marine notice requesting pilots “to liaise with the dredger well in advance to ensure clear and safe passage.” The notice went on to say that the dredger would be moored with two anchors laid across the channel with marking buoys:-

“Shifting of anchors would require at least 30 minutes notice and pilots are requested to advise the dredger well in advance so that movements can be co-ordinated without delay.”

On 30 April 2004, the dredger initially positioned itself in the vicinity of No. 10 buoy having dropped her starboard anchor with 3 shackles in a position 150 metres North West of the buoy. The master of the dredger records in a note to his owners written on 2 May that the dredging bucket ladder was lowered in a position 50 metres southwest of the buoy. She then set about laying out her working anchors. The form in which the anchors were laid was not in issue. There were two on her starboard side, two on her port side and a further one laid out astern.

On the first day of the trial, the Defendants sought and obtained leave to amend Part 2 of their Collision Statement of Case to allege that, not only was the dredger well into the channel, but also that the available width of the channel was further reduced because the port anchors of KAMAL XXVI and their associated lights were 80 to 100 metres inside the Southern Boundary.

Dredging appears to have commenced at 1610. The master’s report records (in an exchange confirmed by the record maintained in the Signal Station VHF log) that at 1615 the pilot of MEDY SYDNEY, outward bound from No. 1 berth, made a VHF request for the dredger to “remove 3 anchor buoys to secure passing loaded ship.” The master’s response was that the anchor buoys were in fact outside the channel. The pilot is said to have “agreed” and certainly the vessel duly left at 1700 without any change in the anchors’ position. The same pilot then brought in the AKER at 1730. Both these movements are recorded as having interrupted dredging no doubt as a result of slackening off the port side anchor cables.

At about 1800 the pilot, who was later to bring in ARIELA, was instructed to take out the TAI BAI HAI which he boarded at about 1840. As TAI BAI HAI got under way at about 1910, the pilot advised ARIELA, at this stage still anchored out in the roads, to weigh anchor and commence coming in.

At about 1940 the signal station spoke to KAMAL XXVI to report that ARIELA would be entering the channel and requested the dredger to “keep clear”. (This request is recorded in the dredger’s deck log at 1950.)

In considering the lead up to the collision, I have inevitably had particular regard to the contemporary documents albeit supplemented by evidence from witness statements.

The deck log of ARIELA reads as follows:

“2012

While vessel was manoeuvring at Mormugao channel towards berth No.9…passing between buoys 9 and 10, the barge tied up to dredger KAMAL 26 brushed the port side of ownship. The dredger was stationary. Its anchor was on the centre of the channel as marked by 2 white lighted buoys…Own vessel was under the advice of port pilot Capt. P. Singh at the time and was well inside the channel’s centre. Pilot notified Goa port control of the dredger’s anchor buoys not being in the right position.”

In addition to her deck log, other documentary evidence was put before the court by the Defendants:

As regards factual witness evidence, the Defendants tendered a number of statements including:

The log book of the dredger has the following entry:

“1955

Stopped dredging, shifted the dredger up to boundary of channel, in accord with DGPS coordinates 1704943.3m. North, 371257.6m. East, port side and stern wires slackened, bucket ladder fixed downward (depth 14.9m CD) to avoid drifting of the dredger. Keep alongside portside, dump barge KAMAL XXIV.

(It is common ground that this position if accurate is in the immediate vicinity of Buoy 10.)

2015

MV ARIELA (Singapore) moving with slow speed to berth No. 9. collided with dumb barge KAMAL XXIV…..”

In addition to the deck log and the dredging log, the Claimants’ documentary evidence included:

As regards statements, the Claimants tendered:

The primary issue in the case was the location of the dredger. There were also subsidiary but related issues as follows:

The second officer of ARIELA prepared a voyage plan on 20 April which was duly approved by her master. The passage into Mormugoa was planned with a way point in mid-channel between buoys 7 and 8 followed by a track on 109½° towards Buoys 9 and 10. This passage was duly plotted on the working chart.

It is common ground that ARIELA having entered the channel in the vicinity of Buoy 4 duly proceeded inwards in mid-channel on a heading of 080° at dead slow ahead (about 4 Knots). It was the pilot’s evidence (to some extent supported by the oral evidence of the master) that the helm was ordered 15° to starboard when buoys 7 and 9 were in transit. If correct, this helm order would have been given when the vessel was about 500 metres prior to the way point at C-9.

There are difficulties with this account on the documents:-

These considerations alone create a degree of scepticism as to probabilities of the helm order having been given some 3 or 4 minutes earlier. There are also difficulties from the theoretical perspective. I have asked the Elder Brethren to express a view on the likely impact of an order of 15° starboard helm at the position suggested by the pilot. Their advice was as follows:

“The manoeuvring data of ARIELA suggests that she is quite responsive to her helm even at slow speed. (Indeed at half-speed/7.7 knots, a hard -a-starboard order would achieve a 90° alteration within about 4 minutes with a transfer of 0.22 miles and an advance of less than 0.4 mile. Notably, there is a note to the effect that “at slow speed transfer and advance about the same … but speeds proportionally lesser and times proportionally greater. In our assessment, if the turn had started at C-9, the vessel would already have altered to starboard very substantially, perhaps approaching 90°, and reached a position on the South side of the channel before reaching buoy 9.”

Whilst not remotely decisive as to the position of the barge given the margins of error involved, if this advice is to be accepted, it throws further doubt on the Defendants’ case. In accordance with the practice of this court as established in the wake of the decision of the Court of Appeal in The Bow Spring and The Manzanilla II [2005] 1 Lloyd’s Rep 1 the parties were notified of the advice tendered by The Elder Brethren to enable comment to be made. The Defendants took the opportunity to tender expert evidence. This is not appropriate and inconsistent with the rationale behind the procedure outlined by Gross J in The Global Mariner and The Atlantic Crisader [2005] 1 Lloyd’s Rep 699 at p.702.

That said I will try and grapple with the points raised. First it was submitted that a “vessel acts quite differently when she is maintaining minimum steerage speed as opposed to half speed”. I have asked the Elder Brethren for their advice on this topic. They have responded as follows:

“It is clear from the manoeuvring characteristics sheet that the trial for half speed was conducted at 7.7 knots – i.e. half full sea speed. This was not materially different from “slow ahead”. It follows that the reference to transfer and advance at slow speed must incorporate the equivalent of something in the range of “dead slow ahead” or 4 knots. In any event it is not our experience that a vessel, in terms of its turning circle, acts “quite differently” at dead slow ahead. There is no reason to treat the minimum steering speed as giving rise to unusual steering effects.”

I accept all that advice. The supplementary submissions went on to contend that the advice tendered failed to take account of the influence of wind and current. The Elder Brethren respond as follows:

“In our opinion, the influence of a West North Westerly wind (force 4) on a vessel turning from 080° to 140° would have been minimal. Indeed this seems to be supported by the latest plot produced by the Defendants. As regards the influence of tide, a current of 0.2 knots would only result in a transfer of 100 feet from C-5. The effect is so slight as to be discounted. ”

Again I accept that advice. It follows that, both from the contemporary evidence and the reconstructions of the track, I find it very unlikely that ARIELA would have commenced her turn as early as suggested (C-9). She was likely to have commenced her turn no earlier than about C-6.

At some stage, the helm of ARIELA was put hard-a-starboard. It was the Defendants’ case that this occurred at about C-7. The Claimants contended that the order was given no earlier than C-2. In my judgment the order is likely to have been given at a fairly late stage:

In this connection I have not forgotten the simulation produced by TMC on behalf of the Defendants. This puts ARIELA in about mid-channel at the time of collision. Part of the input modelled was the West North Westerly (i.e. 290°) wind at 12 Knots which appeared to limit ARIELA’s rate of turn at least initially. The helm orders assumed for the simulation were:

I have already recorded the amendment made by the Defendants in the form of an allegation that the port anchor buoys of the dredger were well out into the channel restricting the width available to ARIELA. The complaint seems to have been first raised by the other pilot who was conning vessels earlier that same day. Indeed his complaint is recorded in both the VHF log and in the report prepared by the Master of KAMAL XXVI.

In his statement, the pilot of ARIELA stated that, on his passage out on TAI BAI HAI, he saw the port side anchor buoys 80-100 metres inside the southern boundary. As regards the Master, his initial statement records what he understood to be the pilot’s concern about two white lights in the channel “near the vicinity of No. 9 buoy”. In his supplemental statement, he records hearing the pilot complaining to the Harbour Master “that some white lights were in the wrong place.” The Master added that the light “appeared to be inside the channel”. These observations are confirmed in the deck log of ARIELA and the sketch made after the collision.

In the event this issue somewhat evaporated during the course of the hearing since it was accepted in the course of argument by the Defendants that, unless it was established that the dredger was well into the channel, it could not be said that the position of the anchors was of any causative significance.

The Defendants have sought to withdraw that concession in their supplementary submissions. But even if it is open to them to do so the point fails on the facts. In short I am not persuaded that the anchor boys were positioned within the channel, let alone 80-100 metres inside:

The unamended version of the Claimants’ Statement of Case was to the effect that the barge was unlit. I see no reason for the court not to hold the Claimants to that admission:

The Master and Chief Officer did not see the barge until very close. In contrast the Pilot accepts that saw the barge through binoculars at a considerable range (around 1 ½ miles).

I now turn to the primary issue in the case: the position of the dredger. In this connection it is necessary to record that the dredger was equipped with a Differential Global Positioning System (DGPS) integrated with Hydropro Navigation dredging software.

Photographs of the screen on which information was exhibited were put before the court. The important feature was a digital read-out of the position of the vessel in DGPS coordinates. The figures contained in the Master’s report are examples of such coordinates. The coordinates need to be converted to coordinates of longitude and latitude and then further adjusted for plotting on the appropriate Admiralty Chart. Assuming the figures from the report (and the log book) are correct the position of KAMAL XXIV was Lat. 15° 25.16’ North, Long. 73° 48.01 East. This position is adjacent to Buoy 10 on the extreme edge of the channel.

Is this position reliable? In my judgement it is:-

So far I have focused on the contemporary material, supplemented by witness statements. But, as already noted, the Defendants called their Master, Captain Sangil, who had been in command of ARIELA since June 2003. Captain Sangil obtained his masters certificate in March 1999 and first served as a master in January 2002. The occasion of the collision was his first visit to Mormugoa.

He was carefully cross-examined about many of the inconsistencies that emerged from his statement and that of the pilot. He was unable to furnish much assistance. This is not put forward as a criticism. Captain Sangil was transparently an experienced and careful master who did what he could to help the court. I am not remotely surprised that he was unable to resolve the disparities. He was giving evidence 3 years after the event in respect of a short passage in which an experienced pilot had the con of his vessel.

I have already made passing reference to the expert evidence filed on behalf of each party. Each sought to use a computer model to simulate the track of ARIELA by reference to various assumptions.

The focus of such simulations was to identify where in respect of the width of the channel ARIELA was positioned at the time of the collision. Bearing in mind that the extreme cases between the parties only involve a transverse distance of 100 metres, it is important to recognise the limitations of any simulation. Given the margin of error in any given assumption, the inevitable disparities between the theoretical tracks calculated by the computer models and the actual behaviour of the vessel and indeed the disparities between the models themselves, it is important to recognise that the simulations are only helpful in showing what could and (more importantly) what could not have happened rather than what did.

It is quite apparent that dependent upon the timing of the starboard helm orders there is no difficulty in demonstrating a track which takes ARIELA to either mid channel or to the Northern edge of the channel in way of buoy 10. However what is notable is:

Neither plot is remotely determinative of the issues that I have to decide but the overall picture probably gives greater support to the Claimants’ case rather than that of the Defendants, the more so in the absence of any convincing evidence that ARIELA commenced her turn at C-9.

I conclude as follows:

It is clear that ARIELA was at fault in commencing her turn too late and/or in failing to apply sufficient helm. (In the event that there was insufficient steerage way, then engine revolutions should have been increased.) I have asked the Elder Brethren to comment on this conclusion. They agree with my opinion.

I find that KAMAL XXVI was not at fault:

Accordingly there must be judgment for the Claimants.