350 Apportioning liability for collisions at sea: The Dream Star a good start for the Singapore Court Harry Hirst Partner, Master Mariner, Ince & Co Singapore LLP* On 12 September 2017, Ms Justice Belinda Ang Saw Ean handed down what is believed to be one of the first reported judgments of the Singapore High Court in a civil case (The Dream Star [2017] SGHC 220) involving a collision at sea, namely that between the Dream Star and the Meghna Princess, which occurred in Singapore waters on 16 May 2014. As the Lion City continues to develop as a regional maritime centre, Singapore is becoming an increasingly popular jurisdiction for the resolution of maritime disputes. Another Singapore Court decision in a collision matter is therefore to be welcomed, both as an addition to the growing body of local case law and to the common law library in general. Apportioning liability for collisions at sea is not an exact science, as the Court of Appeal observed in The Maloja II; 1 it is also rarely straightforward. This is particularly so with collisions in the busy waters around Singapore where it is not unusual for experienced Admiralty lawyers and experts to hold very different views about the applicable COLREGs 2 and the degree of fault to be attributed to each of the colliding vessels. This case was no exception. In such cases there is wide scope for judicial error, and especially when the judge has limited experience of handling collision cases and is sitting alone, without the assistance of one or more nautical assessors. Justice Ang is to be commended, therefore, in arriving at what I believe most Admiralty lawyers would consider to be a fair and reasonable apportionment of liability on the facts of the case as she found them. Unfortunately, the legal reasoning she employed in arriving at this apportionment is, in my opinion, open to question. The facts of the case The facts of the case as found by Justice Ang can be briefly summarised as follows. All times are local times 3 and the reference to C denotes the number of minutes before collision. All speeds are speeds made good over the ground. The vessels The Meghna Princess and the Dream Star are both bulk carriers. The Meghna Princess is 190 metres in length, with a gross tonnage of 26,381. At the time of the collision, she was loaded with a cargo * The views expressed in this article are my own personal views and not those of Ince & Co. 1 [1994] 1 Lloyd s Rep 374. 2 The International Regulations for Preventing Collisions at Sea 1972 (as amended). 3 GMT + 8 hours.
APPORTIONING LIABILITY FOR COLLISIONS AT SEA: THE DREAM STAR : HIRST : (2017) 23 JIML 351 of 46,105 tonnes of cement clinker and on passage to Chittagong in Bangladesh, westbound through the Singapore Strait, having just bunkered at Singapore. The Dream Star is 229 metres in length, with a gross tonnage of 43,008. At the time of the collision, she was loaded with a cargo of 78,705 tonnes of coal and heading to Singapore for bunkers. She was proceeding westbound through the Singapore Strait making for the Singapore pilot station at Eastern Boarding Ground B (or Bravo), where she was to pick up a pilot before proceeding to the anchorage. The collision The collision occurred at about 1231 on 16 May 2014, close to the position of the Eastern Boarding Ground B. At all material times, the weather and visibility were good, with light winds and slight sea; the tidal current was reportedly setting in a westerly direction at a rate of about 1.0 knot. The events leading up to the collision 4 The Meghna Princess departed the Eastern Bunkering Anchorage B at about 1148 (C 43). She proceeded under pilotage southwards down the Tanah Merah Ferry Fairway at a speed of about 5.9 knots, and at about 1216 (C 15) she came abreast of the buoy marking the outer end of this fairway. The Dream Star was then bearing almost right ahead at a distance of 1.21 miles and proceeding westwards at a speed of about 4.4 knots. Her engine was stopped and she was in the process of slowly altering her course to port from 270 (at C 18) to 252 (at C 12) because of how close she was to the Pioneer 93, a westbound tug towing a barge. At this time (C 15), the pilot informed the master of the Meghna Princess about two westbound vessels the Dream Star and the Ishwari, which was following astern of the Dream Star both making for the Eastern Boarding Ground B. The master acknowledged this, saying: Ok. DREAM STAR, ISHWARI coming to Boarding Ground Bravo, thank you. Thereupon, the pilot advised the master: Just turn like this, keep going seaward and then slow down Starboard 20. The Meghna Princess then began to turn to starboard and, by 1218 (C 13), she was steady on a heading of about 230. At about this time, Singapore VTIS 5 informed the Meghna Princess that the Pioneer 93 was then bearing 190 at a distance of eight cables 6 and was trying to stay clear of the Dream Star, which was heading for the Eastern Boarding Ground B. The pilot replied: No problem. I saw the two of them. I will keep more to the starboard side of the channel. The Dream Star was now bearing about 42 on the port bow of the Meghna Princess, at a distance of about 1.06 miles; and the Meghna Princess was bearing about 116 on the starboard bow of the Dream Star. At 1220 (C 11) the pilot disembarked but, instead of slowing down, the Meghna Princess now began increasing her speed. By this time, the Pioneer 93 was clearing away from the Dream Star, and the Dream Star now began to alter her course to starboard to head back towards the Eastern Boarding Ground B. She too, now also began increasing her speed. By 1225 (C 6) the Meghna Princess was still on a heading of about 230 and now proceeding at a speed of 8.2 knots; and the Dream Star was now on a heading of 284 and proceeding at a speed of 5.6 knots. The Dream Star was bearing about 38 on the port bow of the Meghna Princess at a distance of 0.58 miles; and the Meghna Princess was bearing about 88 on the starboard bow of the Dream Star. The Meghna Princess then called the Dream Star on the VHF radio and the following conversation took place: 4 It is necessary to read the entire judgment in order to extract all of the relevant facts and events leading up to the collision. 5 Vessel Traffic and Information Service. 6 0.8 miles. A cable is one-tenth of a nautical mile.
352 12:25:32 [MP] Dream Star, this is Meghna Princess, ah Let me pass, ah we are getting closer, close already, so ah, we are now speeding up, so let me join the lane and then you can pass astern. 12:25:42 [DS] So I am just picking up my pilot, where are you, where are you? 12:25:47 [MP] I am on your starboard bow, starboard bow. 12:25:52 [DS] So what s the name of your vessel, what s the name of your vessel? 12:25:54 [MP] The name is Meghna Princess, Meghna Princess. We are going to join the lane, so I m just requesting to ah, to slow down, let me let me join the lane then you can pass my stern. 12:26:41 [MP] You can speed up, speed up. I am reducing my speed, I m reducing my speed. I m waiting for you, you can pass my bow. 12:26:48 [DS] Ok, Ok, I will increase my speed now. 12:26:54 [MP] Ok, thank you. At the end of this conversation, at about 1227 (C 4), the two vessels were now only 0.37 miles apart, with the Dream Star bearing about 35 on the port bow of the Meghna Princess, and the Meghna Princess bearing about 91 on the starboard bow of the Dream Star. The Meghna Princess then put her engine to stop and her rudder hard to starboard at about 1228 (C 3). The Dream Star put her rudder hard to port at about the same time, 1228 (C 3), and increased speed to slow ahead, then half ahead (at C 2) and full ahead (at C 1). At the time of collision, the Meghna Princess was reported to be heading about 265 with her rudder hard over to starboard and her engine stopped. The Dream Star was reported to be heading about 262 with her rudder hard over to port and her engine at full ahead. In collision, the starboard quarter of the Dream Star made contact with the port side forward of the Meghna Princess. The tracks of the two vessels A copy of the plot prepared by the expert for Dream Star was preferred by Justice Ang and attached to her judgment as Annex 1. Whilst she was careful to stress that this plot did not show exactly what happened but only what might have happened, 7 she considered the plot served to demonstrate in a graphic way the positions and relative bearings of the vessels at different time points. 8 A copy of this plot is attached to this article. The position of the parties The position of the plaintiff owners of the Meghna Princess was that the two vessels were in a crossing situation and such that the Dream Star was the give-way vessel; and that the Dream Star caused the collision by failing to keep out of the way of the Meghna Princess in breach of the crossing rule, Rule 15. The position of the defendant owners of the Dream Star was that the two vessels were in an overtaking situation and such that the Meghna Princess was the overtaking and therefore the giveway vessel; and that the Meghna Princess caused the collision by failing to keep out of the way of the Dream Star in breach of the overtaking rule, Rule 13. Crossing situation The lawyer for the Meghna Princess considered a crossing situation existed from about 1216 (C 15) as, at this time, the Meghna Princess had visually seen the Dream Star, which was then bearing almost right ahead at a distance of 1.21 miles and on a crossing course. In his opinion, a crossing situation appertained from 12:16 to 12:30 hours. 7 At para 13. 8 At para 11.
APPORTIONING LIABILITY FOR COLLISIONS AT SEA: THE DREAM STAR : HIRST : (2017) 23 JIML 353 Overtaking situation The expert for the Dream Star considered an overtaking situation existed from about 1218 (C 13) as, at this time, the Meghna Princess was steady on a heading of about 230 and coming up on the Dream Star from a position of more than 22.5 abaft the starboard beam of the Dream Star 9 (the Meghna Princess was then bearing about 116 on the starboard bow of the Dream Star; that is, about 26 abaft the beam). The judge s legal analysis Crossing or overtaking? The judge considered that it was important to determine whether the vessels were in an overtaking or crossing situation before considering the respective alleged fault of each vessel. 10 She noted that Rules 13 and 15 are both in Part B, section II of the COLREGs, and that the Rules in this Section apply to vessels in sight of one another ; 11 and that vessels shall be deemed to be in sight of one another when one can be observed visually from the other. 12 She considered it important first to determine, therefore, when the two vessels came in sight of one another, and to do so she applied a subjective test; that is, she examined the evidence to determine when each of the two vessels did actually first observe the other visually. In this case, the defendant owners of the Dream Star elected not to call any of their crew to give oral testimony and their case was entirely dependent on expert evidence. The judge noted that: This, coupled with how the Dream Star had to ask the Meghna Princess where she was at 12:25:42 13 led Captain White 14 to conclude that the Dream Star had not complied with rule 5 of the COLREGs, Indeed, without the testimony of the crew on board the Dream Star, there was simply no evidence that the crew maintained a proper visual lookout at the relevant times. It is therefore not surprising that the defendant did not seriously challenge the plaintiff s allegation that the Dream Star had breached rules 5 and 7 of the COLREGs 15 She went on: Without calling the crew to testify on the defendant s behalf, there is no evidence of visual sighting to satisfy the prerequisite question of rule 11 read with rule 3(k). 16 Accordingly, as there was no evidence to suggest the Dream Star did visually observe the Meghna Princess at 1218 (C 15) that is, at the time when the defendant owners of the Dream Star asserted that an overtaking situation existed she determined that Rule 13 did not apply, reiterating that: Without the testimony of the Dream Star s crew, evidence of visual sighting by the crew to satisfy rule 11 read with rule 3(k) is missing. I therefore find that the defendant has not proved the alleged overtaking situation for rule 13 to apply. 17 In doing so, she accepted that Rule 13 could arguably apply, but this would involve too rigid an application on the facts of the case: Assuming that rule 11 of the COLREGs was satisfied, on a plain reading of rule 13(b), it is arguable that the Meghna Princess satisfies the definition of an overtaking vessel. But in my view, that would be too rigid an application of the overtaking rules. An analysis of the status of the Dream Star based on the relative position and angle of approach of the vessels is incomplete. Between 12:18 and 12:19, the Dream Star had taken a brief evasive manoeuvre that is, it had veered to port from 270 to 252 (at C 12 or 12:19) to create distance between herself 9 At para 53. 10 At para 4. 11 COLREGs r 11. 12 COLREGs r 3(k). 13 Refer to the transcript of the VHF conversation above. 14 Expert for the defendant owners of the Dream Star. 15 At para 40. 16 At para 43. 17 At para 55.
354 and the Pioneer 93. This evasive manoeuvre was known to the Meghna Princess from the call that the pilot on board the Meghna Princess had received from the VTIS. This call was acknowledged by the pilot so Meghna Princess must have known that the Dream Star was merely making an evasive manoeuvre which turned out to be momentary anyway. It was with those circumstances in mind that Mr Singh 18 questioned, in his closing submissions, the rigidity inherent in Captain White s approach of mapping the vessels respective locations on a diagram and then determining whether an overtaking situation subsisted based on a geometric analysis. I agree that the present case is similarly one where rule 13 should not be rigidly applied. 19 Risk of collision The bridge team on the Meghna Princess was called to give oral testimony, and the lawyer for the plaintiff asserted that a crossing situation existed from about 1216 (C 15), as at this time the Meghna Princess had visually observed the Dream Star. According to the judge, 20 this was about the time when the VTIS called the pilot on the Meghna Princess and warned him of the presence of the Pioneer 93; and that the Pioneer 93 was trying to stay clear of the Dream Star, which was heading for the Eastern Boarding Ground B. As appears above however, the time was about 1218 (C 13). The judge noted that: The pilot has replied that he saw the two vessels and would keep more to the starboard side of the channel. From that exchange, the plaintiff inferred that the bridge team had visually sighted the Dream Star at 12:16. However, the plaintiff s inference is not supported by the factual witnesses. The Second Officer and the master did not testify as to any visual sighting at 12:16. I agree with Mr Kuek 21 that the Third Officer s oral testimony that he visually observed the Dream Star coming towards the Meghna Princess at 12:22 is also dubious 22 She continued: In any case, at the very latest, both vessels would have had sight of each other at about 12:25 when the Dream Star asked for the position of the Meghna Princess over VHF and the Meghna Princess advised that she was at the Dream Star s starboard bow 23 based on the entire VHF conversation it is more probable than not that the vessels would have visually observed each other at 12:25 and I so find I will refer to 12:25 as the point in time when rule 11 read with rule 3(k) of the COLREGs was satisfied. 24 The judge noted that, in order for Rule 15 to apply, the two vessels also had to be crossing so as to involve risk of collision. The plaintiff s expert considered the Dream Star did not present any danger to the Meghna Princess until about 1225 (C 6), after [the Dream Star] completed a 34 turn to starboard to close with [the Meghna Princess] which she had not previously seen. 25 This was the time when, in his opinion, risk of collision first arose. The defendant s expert considered risk of collision arose at about 1217 (C 14), but that: it was not until 12:25 when the vessels were 0.58 nm apart that the Meghna Princess took note that such a risk existed. 26 The judge preferred the evidence of the plaintiff s expert and found that risk of collision existed first arose at 1225 (C 6), concluding that: a crossing situation subsisted from 12:25 onwards, with the Dream Star as the give-way vessel and the Meghna Princess as the stand-on vessel. 27 18 Legal counsel for the plaintiff owners of the Meghna Princess. 19 At paras 57, 58. 20 At para 62. 21 Legal counsel for the defendant owners of the Dream Star. 22 At para 62. 23 Refer to the transcript of the VHF conversation above. 24 At para 63. 25 See para 65. 26 See para 66. 27 At para 68.
APPORTIONING LIABILITY FOR COLLISIONS AT SEA: THE DREAM STAR : HIRST : (2017) 23 JIML 355 Faults of the Dream Star The plaintiff s expert considered the Dream Star was at fault for altering her course to starboard at about 1220 (C 11) and so bringing about the risk of collision at 1225 (C 6); and for not taking early and substantial action to keep clear of the Meghna Princess in breach of Rules 8 and 16. By altering her course from 270, first to port and then to starboard, the plaintiff s expert considered the Dream Star was guilty of erratic navigation and poor seamanship with regard to other ships in the area. 28 The judge noted, however, that this starboard alteration of course was made to create distance between the Pioneer 93 and herself, as well as to fetch her pilot from the pilot boarding ground ; 29 and that the bridge team on the Meghna Princess was aware from as early as 12:17 that the Dream Star was going to the Eastern Boarding Ground B. 30 She found accordingly, that the Dream Star was not at fault for turning to starboard at about C 11. The judge also noted that, whilst both experts agreed there was still time for the Dream Star to take avoiding action at 1225 (C 6), 31 the experts could not agree on what avoiding action the Dream Star should have taken. In particular, the judge did not accept the plaintiff expert s contention that it was appropriate for the Dream Star to have immediately put her helm hard over to starboard so as to pass astern of the Meghna Princess, with the latter then almost abeam and only 0.58 miles away. She criticised the experts for not clarifying one way or the other whether the Dream Star could have put the helm hard to starboard and slowed down without creating again a precarious close quarters situation with the Pioneer 93 and the barge in tow To be sure, it is not clear whether it was open to the Dream Star to simply reduce speed without altering course as well, especially since the Pioneer 93 had a barge in tow. 32 It might appear, therefore, that as the plaintiff had failed to prove its case, the judge determined the Dream Star was not in breach of Rules 8 and 16. When apportioning liability for the collision however (see below), it is clear that she did in fact consider the Dream Star at fault for not taking any avoiding action, but that the causative potency of this fault was reduced by reason of the misuse of the VHF by the Meghna Princess. As she noted: The fact remains that the misuse of the VHF by the Meghna Princess led to uncertainty as to the status and responsibilities of the vessels and navigational action or inaction which conflicts with the requirements of the COLREGs or of good seamanship. 33 The defendant s expert accepted the Dream Star was at fault for not keeping a proper lookout visually and by radar (she never acquired the target of the Meghna Princess on her ARPA) 34 in breach of Rules 5 and 7. The judge considered these breaches to be significant as if the Dream Star had maintained a proper lookout, she would have taken into account the Meghna Princess s navigation along with the Pioneer 93 s to assess and react to the situation at hand. 35 The plaintiff also argued that the Dream Star was at fault for not immediately increasing her speed when she said she would at 12:26:48, 36 and only doing so at 12:28:30. 37 The judge agreed but did not consider this fault to be causative as there was no evidence that, if the Dream Star had increased her speed earlier, the collision would have been averted or less serious. 38 In summary, therefore, the judge found the Dream Star at fault for not maintaining a proper lookout, and for failing to take action to avoid collision as the give-way vessel in a crossing situation, but that 28 See para 70. 29 At para 74. 30 ibid. 31 At para 75. 32 At para 76. 33 At para 85. 34 see para 63. 35 At para 81. 36 Refer to the transcript of the VHF conversation above. 37 See para 82. 38 At para 85.
356 the causative potency of this fault was reduced because of the misuse of the VHF by the Meghna Princess. Faults of the Meghna Princess The judge considered the Meghna Princess at fault for her misuse of the VHF at 1225 (C 6) which caused uncertainty as to the status and responsibilities of the vessels, 39 enhancing the risk of collision and bringing about the dangerous close-quarters situation: A significant feature of this collision is the VHF contact initiated by the Meghna Princess at 12:25, which is when the crossing situation arose, and the time point from which the Dream Star as the giveway vessel ought to have taken action to keep clear of the Meghna Princess 40 the purpose of the VHF conversations was not to inform the Dream Star that the Meghna Princess was the stand-on vessel. Neither was it to find out what action the Dream Star as the give-way vessel was intending to take to keep clear of the Meghna Princess in compliance with the COLREGs In my view, the directions were neither helpful nor justified in the circumstances. On the evidence, the misuse of the VHF enhanced the risk of collision instead of limiting it, and brought about the dangerous close-quarters situation. 41 The VHF conversations were inappropriate because they sought to depart from the requirements of the COLREGs, were contrary to good seamanship, and brought about the dangerous close-quarters situation that arose. 42 The judge also found the Meghna Princess at fault for not keeping a proper lookout: specifically, for not using her ARPA to acquire and track the movements of the Dream Star; 43 and for deciding to cut through the Eastern Boarding Ground B 44 and not slowing down as advised by the pilot 45 (see above, at C 15): this was not a situation where the Meghna Princess was forced to react to a situation at 12:25, but a situation where she should have seen the approach of the Dream Star and then continued to maintain a proper lookout. She should also have slowed down her speed after 12:20 46 What the Meghna Princess did following that VTIS conversation was to head to the westbound channel of the TSS by transiting across the Eastern Boarding Ground B while picking up speed 47 its decision to cut through the Eastern Boarding Ground B was not consistent with the dictates of good seamanship 48 the master s decision not to slow down (as advised by the pilot) and the manner in which she approached the Eastern Boarding Ground B also contravened rules 6 and 8 of the COLREGs, which required her to maintain a safe speed and avoid any risk of collision 49 All in all, Meghna Princess s decision to cut through the Eastern Boarding Ground B at an increasing speed over time brought her to a crossing situation with the Dream Star. 50 39 ibid. 40 At para 87. 41 At para 88. 42 At para 97. 43 At para 110. 44 At para 119. 45 At para 120. 46 At para 114. 47 At para 117. 48 At para 119. 49 At para 120. 50 At para 121.
APPORTIONING LIABILITY FOR COLLISIONS AT SEA: THE DREAM STAR : HIRST : (2017) 23 JIML 357 In summary, therefore, the judge found the Meghna Princess at fault for failing to keep a proper lookout; for bringing about the crossing situation and the attendant risk of collision by her decision to cut through the Eastern Boarding Ground B, whilst increasing her speed; and for her misuse of the VHF, which created uncertainty, enhanced the risk of collision and brought about the close-quarters situation. Apportionment of liability After discussing the principles to be applied when apportioning liability, the judge determined that the faults of the Meghna Princess were both more causative and culpable than those of the Dream Star: In terms of causative potency, the primary fault lies with the Meghna Princess the misuse of the VHF by the Meghna Princess led to navigational action or inaction which conflicted with the requirements of the COLREGs or of good seamanship. 51 An antecedent fault of the Meghna Princess was its decision to transit through the Eastern Boarding Ground B to get to the TSS 52 when she could have gone a different route. She was also at fault for not reducing her speed Her breach of good seamanship and the COLREGs had a causal link with the collision. 53 On the other hand, in terms of causative potency, the Dream Star s breaches of rules 5 and 7(b) of the COLREGs are significant because it meant that the Dream Star had not taken the Meghna Princess s navigation into account up until 12:25, thereby contributing to the risk of collision. But it must be highlighted that even at 12:25, there was still time to avoid the collision, so the VHF contact reduced the causative potency of the Dream Star s breach. 54 Having regard to the matters stated above in relation to causative potency, I am satisfied that the Meghna Princess is more to blame for the collision 55 In terms of culpability, the Meghna Princess s violation of rule 5 is more blameworthy since she had been notified by VTIS 15 minutes before the collision that the Dream Star was headed to Eastern Boarding Ground B Granted, the Dream Star should also be faulted for not complying with the rules, 56 despite the fact that she was distracted with the close-quarters situation with Pioneer 93 but Meghna Princess s transgressions (which include her misuse of the VHF) have made her relatively more culpable than the Dream Star 57 She went on to apportion liability for the collision 70:30 in favour of the defendant; that is, with the Meghna Princess being 70 per cent to blame and the Dream Star being 30 per cent to blame. Is this legal analysis open to question? I believe the judge s legal analysis is open to question and for the following reasons. Crossing or overtaking? The judge felt compelled to determine that the situation was either crossing or overtaking; that either Rule 15 or Rule 13 of the COLREGs applied. I believe, however, that there is in fact a third possibility: that the navigation of the two vessels was more properly governed by principles of good seamanship rather than either of these two rules. The judge did not consider this possibility, which is perhaps not surprising in circumstances where the two parties and their experts considered the situation was either crossing (plaintiff) or overtaking (defendant), and did not advance any alternative 51 At para 128. 52 Traffic Separation Scheme. Here specifically, to enter the westbound traffic lane. 53 At para 129. 54 At para 130. 55 At para 131. 56 Rules 8 and 16. As the give-way vessel in a crossing situation, the Dream Star was required to take action to avoid collision. 57 At para 132.
358 possibilities. The judge, however, recognised that the decision by the Meghna Princess to cut through the Eastern Boarding Ground B was contrary to the dictates of good seamanship and, in my opinion, this should have been her starting point, and not whether the situation was either crossing or overtaking (see below). The judge was wrong to apply a subjective test for determining when the two vessels were in sight of one another within the meaning of Rule 3(k) and Rule 11. The leading texts on collisions at sea all make it clear that the test is an objective one; and, indeed, the defendant s counsel referred the judge to the case most regularly quoted in support of the objective test, The Lucile Bloomfield. 58 As Farwell observes: 59 Must one vessel actually see the other before she is in sight? No. The test is objective not subjective. The rule focuses on the ability to observe, not the fact of observance: if a proper lookout could have seen the vessel visually, she is in sight, even if the lookout failed to see her. As one court put it: in sight means something which is visible if you take the trouble to keep a lookout 60 Risk of collision It is clear from the plot annexed to the judgment that factually, risk of collision first arose when the Meghna Princess altered her course to starboard and steadied on her new course of about 230 at 1218 (C 13), aiming to cut through the Eastern Boarding Ground B. From this time onwards, the two vessels were on converging courses such that they would come into contact or otherwise pass very close to each other, if neither vessel made any substantial alterations to her course or speed. Risk of collision is not defined in the COLREGs and depends upon the facts and circumstances of every case. It consists of a spatial element (CPA) and a temporal element (TCPA) and both were clearly satisfied at this time (C 13). Unfortunately, by applying a subjective test, and being constrained by her belief that either the crossing rule or the overtaking rule applied, the judge concluded that risk of collision only arose much later at 1225 (C 6), as that is when she determined, in all probability, that the two vessels first visually observed the other. If she had applied the correct, objective test then I believe it is likely that she would have determined risk of collision arose earlier, at about 1218 (C 13). This was the view of the parties lawyers (see above), who considered the crossing rule (plaintiff) applied from 1216, and the overtaking rule (defendant) applied from 1218, and for either rule to apply risk of collision had to exist at these times. 61 The defendant s expert considered risk of collision arose at about 1217 (C 14) but, as noted above, the judge preferred the evidence of the plaintiff s expert, who considered risk of collision only arose at 1225 (C 6). The plaintiff s expert, however, appears to have equated the time when risk of collision arose with the time when avoiding action should have been taken. The judge did not consider the pilot of the Meghna Princess to be part of her bridge team for the purpose of determining when the Meghna Princess first visually observed the Dream Star. 62 In doing so, she appears to have accepted that the pilot himself did visually observe the Dream Star at about 1218. A pilot when on board a vessel advising the master in matters of navigation is recognised to be the servant of the vessel owners. Even applying a subjective test, therefore, the judge ought properly to have found that the pilot was an integral part of the bridge team on board the Meghna Princess and that the Meghna Princess was accordingly in sight of the Dream Star at 1218. Had she done so, she would then presumably also have found that risk of collision first arose, therefore, at this time. 58 See [1966] 2 Lloyd s Rep 239 and para 55. 59 C H Allen Farwell s Rules of the Nautical Road (8th rev edn Naval Institute Press 2004) 69. 60 The Lucile Bloomfield (n 58) (Karminski J). 61 It is said that r 13 can apply when there is no risk of collision (see The Nowy Sacz [1977] 2 Lloyd s Rep 91) but that depends upon how risk of collision is to be defined. 62 At para 62.
APPORTIONING LIABILITY FOR COLLISIONS AT SEA: THE DREAM STAR : HIRST : (2017) 23 JIML 359 Faults of the Dream Star Without knowing the full facts, the judge s finding that the Dream Star was not maintaining a proper lookout cannot be seriously questioned and, indeed, was conceded by the defendant s expert. This finding, however, does appear somewhat harsh. The judge determined that the Dream Star only first visually observed the Meghna Princess at 1225 (C 6), based upon the content of the VHF exchange which took place at this time (see above, at 12:25:42). 63 This, I believe, is reading a great deal into the words where are you, where are you? In the busy waters of the Singapore Strait, it would not be unusual for a vessel that was keeping a proper lookout, both visually and by radar and AIS, on being called by another vessel requesting permission to pass, to ask that other vessel to state her position. It should be noted also that the Meghna Princess only stated her name once when first calling the Dream Star (at 12:25:32), and it appears the Dream Star may not have heard the name clearly, as immediately after asking the Meghna Princess to state her position, the Dream Star asked her to state her name (at 12:25:52). The judge determined that the Dream Star was not maintaining a proper radar watch because the Dream Star never acquired the target of the Meghna Princess on her ARPA. 64 In doing so, she was relying upon the report submitted by the defendant s expert, who examined the vessel s VDR data 65 but who did not interview her crew. 66 The type of VDR is not identified in the judgment, but many types only record the information from one radar, and the Dream Star is fitted with two radars, and both are likely to have been fitted with ARPA. It is conceivable, therefore, that the Dream Star could have been monitoring (or tracking) the approach of the Meghna Princess on the ARPA on one radar, but not on the ARPA on the radar linked to the VDR. Furthermore, and admittedly whilst often not always the case, most vessels navigating in the Singapore Strait are keeping a close watch on their radars. As the judge rightly noted, however: In the absence of the Dream Star s crew at trial, it is not surprising that the defendant s case was entirely dependent on expert evidence 67 Naturally, the defendant s decision to have the case tried on expert evidence alone carries some risk, especially where the crew s evidence is required to establish compliance with the COLREGs. In this case, nobody testified as to the Dream Star s maintenance of a proper lookout. This, coupled with how the Dream Star had to ask the Meghna Princess where she was at 12:25:42, led Captain White 68 to conclude that the Dream Star had not complied with rule 5 of the COLREGs 69 With all the modern bridge technology on vessels today, there is a tendency to downplay the importance of crew witness evidence, and the judge s comments serve as a salutary reminder to shipowners and maritime lawyers and experts not to do so. The judge s finding that the Dream Star was at fault for not taking any effective action to avoid collision as the give-way vessel in a crossing situation (as she found) also appears somewhat harsh in circumstances where she did not and could not, because of the absence of any clear advice from the parties experts explain what action the Dream Star should have taken at or after 1225 (C 6) to avoid collision with the Meghna Princess. Admittedly, she did not apportion much, if any, liability to the Dream Star for this fault, as she found its causative potency was reduced by reason of the Meghna Princess s misuse of the VHF. But this is not entirely satisfactory for two reasons. First, I believe she should have explained why the action that the Dream Star did in fact take, or failed to take (her inaction), was wrong (a fault). 63 See para 80. 64 See para 81. 65 See para 27. 66 See para 33. 67 At para 39. 68 The expert for the defendant owners of the Dream Star. 69 At para 40.
360 Secondly, it is not the causative potency of this fault which was reduced by the Meghna Princess s misuse of the VHF, but its culpability. In this respect, and whilst the judge carefully summarised the approach taken by the courts to the use of VHF for collision avoidance in her judgment, 70 it appears she may have misunderstood the English Court of Appeal s comments in The Hanjin Madras. 71 Faults of the Meghna Princess The judge rightly criticised the misuse of the VHF by the Meghna Princess, but was it really as culpable as she found? That is, was it really, on its own, sufficient to render the Meghna Princess as the stand-on vessel in a crossing situation, more liable than the give-way vessel, the Dream Star? On the facts as she found them risk of collision arising at 1225 (C 6) simultaneously with the commencement of the VHF conversation clearly, yes; but if it is accepted that risk of collision within the meaning of the COLREGs first arose at 1218 (C 13), then most certainly not. Having determined that risk of collision first arose at 1225 (C 6), the judge was arguably wrong to find fault with and apportion liability to the Meghna Princess for her antecedent actions; that is, for her actions before the risk of collision arose at 1225. For vessels manoeuvring in clear visibility, it is generally understood that there are four distinct stages to their approach, with the first stage being that before risk of collision arises, when the two vessels are free to manoeuvre as they wish. As Farwell observes: In Stage 1, at the outer end of what some call the collision avoidance funnel, two approaching vessels are at such a distance that their respective courses and speeds pose no present risk that they will collide. In Stage 1, the rules do not require action to avoid risk of collision and the vessels are generally free under the rules to manoeuvre as they choose. 72 As the judge considered the Meghna Princess to be at fault for following a course which cut through the Eastern Boarding Ground B, and for increasing her speed as I believe she was right to do then she ought also to have found that the risk of collision first arose when the Meghna Princess was steady on this course at about 1218 (C 13). A possible alternative approach I believe a possible alternative approach for apportioning liability for this collision is to start with Rules 2 and 10 of the COLREGs and good seamanship practices. The Singapore Strait could be said to be analogous to the main channel in a river, and the various channels like the Tanah Merah Ferry Fairway by which vessels enter and leave the main channel are analogous to tributaries joining the main river. It is an established principle of good seamanship that a vessel entering the main channel in a river from a tributary is required to do so at such a time and in such a manner as will not hamper vessels navigating along the main channel. See, for example, The Canberra Star, 73 in which Mr Justice Hewson observed: The Port of London River By-laws Rule 40 reads as follows: A vessel shall not come into the main channel of the River from any of the tributaries or creeks at such a time and in such a manner as to hamper traffic passing up and down such main channel. It is conceded straightaway in this case that this rule, as worded, does not apply but in my view, the principle of that by-law, which is one of good seamanship, does apply in full force. Rule 10 of the COLREGs stipulates how a vessel is to join or cross a traffic lane 74 and in The Century Dawn [1994] 1 Lloyd s Rep 138; [1996] 1 Lloyd s Rep 125 (Court of Appeal), Mr Justice Clarke at first instance said: 75 70 See paras 89 to 93. 71 [2001] 2 Lloyd s Rep 419, quoted in para 92. 72 Allen Farwell s Rules of the Nautical Road (n 59) 208. 73 [1962] 1 Lloyds Rep 24. 74 See Rules 10(b)(iii) and 10(c). 75 At pp 150, 151.
APPORTIONING LIABILITY FOR COLLISIONS AT SEA: THE DREAM STAR : HIRST : (2017) 23 JIML 361 the separation lanes should be left clear for vessels proceeding the correct way along them except to the extent that it is necessary for others to cross them or enter them. the obligation in r10(c) applies to vessels crossing any traffic lane whether the purpose of crossing it is to cross the next lane or to join it Moreover no attempt should be made to cross either lane in a traffic separation scheme unless it is safe to do so. The Century Dawn case involved a collision in the Singapore Strait, and Mr Justice Clarke s comments are consistent with the principle of good seamanship enunciated by Mr Justice Hewson in The Canberra Star. Accordingly, and on this basis, as a matter of good seamanship the Meghna Princess was required to enter the Singapore Strait, and in particular the west bound traffic lane, at such a time and in such a manner as would be safe, and not hamper the navigation of the Dream Star. It appears the pilot of the Meghna Princess was aware of this, as when ordering Starboard 20 at about 12.16 (C 15) he nevertheless advised the master to slow down, presumably in order to keep out of the way of the Dream Star, and so that the Meghna Princess would join the traffic lane safely, after the Dream Star had passed ahead. The Meghna Princess failed however, to follow his advice. It is also another established principle of good seamanship, as the judge noted that a vessel which is leaving port after dropping off her pilot should set a course to avoid the designated pilot boarding area rather than pass through it, or between the pilot cutter and an inbound vessel: see The Thomas Everett. 76 In this case, the Meghna Princess was aware that the Dream Star was inbound and making for the Eastern Boarding Ground B to pick up a pilot, but the Meghna Princess nevertheless shaped a course to cut through the pilot boarding area, and to pass between the Dream Star and the pilot station. Furthermore, with this approach and although steady on a crossing course after 1218 (C 13), the Meghna Princess would not thereby be entitled to the status of a stand-on vessel in a crossing situation. Indeed, it appears this may have been the view of the pilot of the Meghna Princess, as when ordering Starboard 20 at about 1216 (C 15) the effect of which was to put the Meghna Princess on a converging crossing course with the Dream Star in which the Meghna Princess would be the stand-on vessel if the crossing rule applied, as her plaintiff owners asserted he nevertheless advised the master to slow down, presumably in order to keep out of the way of the Dream Star. There is legal support for this, as Lord Justice Willmer observed in The Tojo Maru: It seems to me that no vessel is entitled, in face of another vessel seen to be approaching, to put herself deliberately on a crossing course in the position of a stand-on vessel, so as to force that other vessel to keep out of her way. 77 With this approach, it is clear that the Meghna Princess should have to bear most of the liability. It was her actions which brought about the risk of collision and which resulted in the two vessels coming into close quarters and subsequently colliding. These actions were in breach of these established principles of good seamanship and, in consequence, with this approach the Meghna Princess is always going to have the majority of the liability. This, I believe, she should have on the facts of this case, and the judge clearly thought so too. The misuse of the VHF by the Meghna Princess serves to make her more culpable than she would otherwise have been, adding to her liability, but it is not the main cause of the collision. The only issue then is how much, if any, of the liability should be apportioned to the Dream Star. If her lookout really was as poor as the judge found, I do not believe her owners can seriously complain about having to bear 30 per cent of the liability. Conclusion As with all technical matters, when a judge sits alone without independent expert assistance, he or she must rely upon and choose between the evidence of the experts appointed by the parties. This case was no different, and it is clear from her judgment that the judge had concerns about the evidence given by both experts, and particularly by the plaintiff s expert. Her judgment contains a 76 [1981] 1 Lloyd s Rep 1. 77 [1968] 1 Lloyd s Rep 365.
362 detailed summary of what the court expects from an expert witness, 78 and maritime experts in Singapore would be well advised to read the judgment for this reason alone. Whilst the judge is the final arbiter on the law, it is rare (outside of England at the moment) to find a judge who is well versed and experienced in handling collision cases. As with other types of specialist case, the judge is entitled to receive assistance and advice about the relevant law from the parties lawyers. I have no doubt Justice Ang was well assisted in this case but unfortunately, and as I have observed, it is not unusual for experienced Admiralty lawyers to hold very different views about the applicable COLREGs and the degree of fault to be attributed to each of two vessels in a collision in the busy waters around Singapore. As I have said, therefore, Justice Ang is to be commended in arriving at what I believe is the right apportionment the right decision in this case; and when all is said and done, it is the decision which most matters in a court of law. The Singapore Court, therefore, has got off to a good start in this, one of its first reported cases of a collision at sea. The Dream Star [2017] SGHC 220 Annex 1 78 See paras 31 to 38.