The Owners of the Ship 'Mineral Dampier' v The Owners of the Ship 'Hanjin Madras'

Page 1 All England Reporter/2000/The Owners of the Ship 'Mineral Dampier' v The Owners of the Ship 'Hanjin Madras' - [2000] All ER (D) 152 [2000] All ER (D) 152 The Owners of the Ship 'Mineral Dampier' v The Owners of the Ship 'Hanjin Madras' Queen's Bench Division, Admiralty Court Aikens J 9 February 2000 Shipping - Collision regulations - Crossing vessels - Restricted visibility - Whether cause of collision failure of one vessel to take correct avoiding action - International Regulations for the Prevention of Collisions at Sea 1972, r 17. As a result of a collision between two Cape size bulk carriers in the East China Sea, namely the Mineral Dampier and the Hanjin Madras, the former sank and all her crew were lost. An action was brought to determine which vessel was to blame for the collision and, if both were to blame, to determine how liability should be apportioned between them. It was agreed that, until the time when the vessels saw one another, it was a case of 'restricted visibility' for the purposes of the International Regulations for the Prevention of Collisions at Sea 1972 (the collision regulations). There had been two VHF conversations between the officers of the watch of the two vessels. In the second conversation the Mineral Dampier accepted a suggestion that she should keep her course and speed. Counsel for the Mineral Dampier submitted that the collision regulations were irrelevant because none of the events that occurred before the vessels came into sight of one another were truly causative of the collision. He submitted, inter alia, that the only cause of the collision was the failure of the Hanjin Madras to take correct avoiding action, as the give way vessel in a crossing situation. Counsel for the Hanjin Madras submitted that the collision regulations were highly relevant since if both vessels had been obeying r 19(d) then they should have reduced speed when about 10 miles distant. He accepted that the vessel was at fault in failing to slow down at that stage, but submitted that when the vessels were six miles distant they should both have taken helm action to avoid a close quarters situation developing. He also submitted that even if the court held that the Hanjin Madras should have come to starboard earlier than she did, then Mineral Dampier was to blame for failing to take action, as the stand on vessel, to avoid a collision under r 17(a)(ii) and/or as a matter of good seamanship. Rule 17 of the collision regulations provided: '(a)(i) Where one of two vessels is to keep out of the way the other shall keep her course and speed. (ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it became apparent to her that the vessel required to keep out of the way was not taking appropriate action in compliance with these Rules... (b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision. (c) A power-driven vessel which takes action in a crossing situation in accordance with sub-paragraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.' The court sought advice from nautical assessors on the question of whether, and if so when, good seamanship might have required the Mineral Dampier, as the stand on vessel, to take action to avoid a collision even before a situation under r 17(b) had arisen. The court ruled: Although r 17(c) stipulated that if the stand-on vessel was taking action pursuant to r 17(a)(ii) she should, if

Page 2 the circumstances admit, not alter course to port for a vessel on her own port side, r 17(c) did not specifically apply to action taken by a stand-on vessel under r 17(b). That rule was deliberately framed to give seamen a wide discretion so that they could take such action 'as will best aid to avoid collision'. In the event the alteration to port by Mineral Dampier was the wrong action, but no additional blame should attach to that last minute alteration. In the light of the advice given by the nautical assessors, the Hanjin Madras had to bear the greater blame, although Mineral Dampier could not escape blame entirely for her acceptance of the suggestion in the VHF conversation that she should keep her course and speed. It followed that a fair apportionment of the blame would be that Hanjin Madras was 80% and Mineral Dampier was 20% to blame for the collision. Timothy Brenton QC (instructed by Holman Fenwick & Willan) for the claimants. Nigel Teare QC (instructed by Ince & Co) for the defendants. Dilys Tausz Barrister. Judgment IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMIRALTY COURT 9 FEBRUARY 2000 Mr. Justice Aikens I direct pursuant to CPR Part 39 P.D. 6.1. that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic. JUDGMENT At about 0330 hours local time (GMT + 9 hours) on 22 June 1995 two Cape size bulk carriers, "Mineral Dampier" and "Hanjin Madras" came into collision in the East China Sea about 160 miles south of CheJu Island, which is itself south of Korea. "Mineral Dampier" was on a voyage to Korea laden with a cargo of iron ore. As a result of the collision she sank quickly and all 27 of her crew were lost. "Hanjin Madras" was southbound in ballast from Korea to Singapore. This is an action to determine which vessel was to blame for the collision and if both were to blame, to determine how liability should be apportioned between them. 2. Unusually there was no oral evidence at this trial. Those acting for "Hanjin Madras" elected not to call the officer on watch from midnight until the collision, Second Officer Kim. Obviously "Mineral Dampier" could not call any witnesses of fact. Both sides instructed experts who prepared reports on the vessels' turning data; their courses and speeds; the angle of collision and the likely sequence of events leading up to the collision. However as the experts agreed on almost every aspect of their reports, it was decided that they need not be called. Therefore I read all the factual and expert evidence out of court and the trial in court comprised the oral submissions of counsel, which elaborated their very helpful written submissions. The trial lasted 1½days and I reserved judgment.

Page 3 3. Particulars of the Vessels "Mineral Dampier" was a 170,698 tonne deadweight bulk carrier built in 1986. She was 87,709 tons gross, 290 meters in length and 45 metres in breadth. As I have stated, at the time of the collision she was laden with a cargo (totalling 166,581 metric tonnes) of iron ore. Her mean draft was about 17.4 metres. She was manned by a crew of 27 hands. She was on a voyage to Pohang, Korea from Brazil. There is little evidence of her navigational equipment, but it has not been suggested that it was inadequate or defective in any way. I find that it was fully operable and functioning correctly. 4. "Hanjin Madras" is a 150,977 tonne deadweight bulk carrier built in 1990. At the time of the collision she was in the course of a ballast voyage from Pohang, Korea to Singapore. She is 77,650 tons gross, 274 metres in length and 45 metres in beam. Upon sailing from Pohang her draughts were 5.94 metres forward and 8.75 metres aft. She had the usual navigational equipment including radar, ARPA and a course recorder. All the equipment was functioning correctly at all times. As I have mentioned, the officer of the watch during the period leading up to the collision was Mr Kim, who is a Korean. I have not been able to judge his command of English, which may be of importance in this case, as will appear. At the time of the collision he was 25 years old. He had obtained his Second Officer's ticket the previous year. He joined "Hanjin Madras" as Second Officer at Pohang, Korea, on 6 May 1995, just before she sailed on a round trip to Canada. It was his first appointment as Second Officer. That voyage was the trip immediately before the one during which the collision occurred. 5. The Conditions in the period leading up to the collision It is agreed that the wind was South Westerly about force 5 and that there was a current setting North Easterly about 0.5 of a knot. There was a swell of about 2-3 metres. It is also agreed that the vessels came into sight of one another when about 3 miles distant (at about Collision minus 14 minutes 1 ) and that they remained in sight of one another until the collision. The defendants, "Hanjin Madras", have suggested that the visibility was variable before that time. But it is not suggested that the vessels could or did see one another before C - 14. It is agreed that, until the time when the vessels saw one another, this is a case of "restricted visibility" for the purposes of the Collision Regulations, 6. The other existing circumstance, which is of critical importance in this case, is the existence of a fishing fleet that "Hanjin Madras" first detected by radar at about 0230 hours. At that stage "Hanjin Madras" was on a course of 203 (T). Mr Kim was on the bridge of "Hanjin Madras" with an Apprentice Officer, Mr Lee and the duty AB/Quartermaster, Mr Do. "Hanjin Madras" was proceeding at about 11.5 knots. She was exhibiting red and green side lights and two white masthead lights and a white stem light. In these circumstances Mr Kim noted a large number of small targets in groups of four or five at a distance of about 10 miles. Mr Kim estimated that there were about 70 or 80 radar targets. He concluded that they represented a fleet of fishing vessels. The fleet was directly ahead at that time and spread across the bows of "Hanjin Madras" perhaps slightly more to starboard than to port. Mr Kim estimated that the fleet was spread over a distance of about 6 miles across the track of the vessel and was perhaps 3 miles "deep". Mr Kim observed the fishing fleet by radar for 10 to 12 minutes. It appeared to be hardly moving at all, either to the South or the East. He decided to manoeuvre "Hanjin Madras" around to the East of the fleet by altering course to port, so leaving the fishing vessels on his starboard side. 7. Although I have no evidence from "Mineral Dampier" it is accepted by both sides that it is likely that she had originally been on a course of 029' (T) when she also saw the fishing fleet. She then came round to starboard to a course of 065' (T) at some time before 0300 hours. Therefore "Mineral Dampier" was shaping to leave the fishing fleet on her port side. But the respective new courses of the two vessels meant

Page 4 that they were converging, with the radar echo of "Mineral Dampier" bearing to starboard of "Hanjin Madras". 8. One of the few factual issues in this case is: how far did the fishing fleet extend? That would determine what action one or both vessels might be able to take and so has an important bearing on the respective degree of fault of each vessel. 9. Navigation of "Mineral Dampier" The navigation of "Mineral Dampier" is agreed. It is based on the evidence from "Hanjin Madras" and the reconstruction work done by the parties' experts. At about C -30 (i.e. 0300 hours) "Mineral Dampier" was proceeding on a course of 065' (T) at a speed of about 12 knots. She was exhibiting red and green side lights, two masthead lights and a white stem light. She maintained her course and speed until about C - 3 to C - 2.5 minutes. During this time there were two VHF conversations between the officers of the watch of the two vessels. I shall deal with these below, as they are recorded in the material produced by "Hanjin Madras" At about C - 3 to C - 2.5 "Mineral Dampier" altered course by going hard-a-port. In the ensuing turn her speed decreased. Given the loss of all those on board "Mineral Dampier" it is not possible, by direct factual evidence, to ascertain whether and if so when, those on board appreciated that "Hanjin Madras" was altering course to starboard. But this question may have a very important bearing on whether any blame should be attached to "Mineral Dampier's" decision to alter course to port at the last. I have therefore consulted the Nautical Assessors on the question of whether and if so when those on board "Mineral Dampier" would have been likely to appreciate that "Hanjin Madras" was altering course to starboard. At the collision the bow of "Hanjin Madras" struck the aft starboard side of "Mineral Dampier" at an angle of 50 degrees leading aft on "Mineral Dampier". 10 Navigation of. "Hanjin Madras" The navigation of "Hanjin Madras" is not seriously in dispute. There is an agreed interpretation of her course recorder from the time when she altered course to port from 203' (T), to avoid the fishing fleet. "Hanjin Madras" altered course to port at about 0256 hours (C-34). She maintained her speed of 11.5 knots. The visibility was then between 3 to 4 miles. Mr Kim had turned off the automatic fog signal at about 0250 hours when the visibility was about 3 to 4 miles. He never reactivated it. I therefore conclude that the visibility never reduced below 3 miles between 0300 hours until the collision. Immediately before the alteration of course to port Mr Kim had detected the radar echo of a vessel that proved to be "Mineral Dampier". The echo was about 10 miles distant and bearing about 3 degrees to port. Mr Kim acquired the echo of "Mineral Dampier" on ARPA which indicated that she was proceeding on a course of 065' (T) at a speed of 13.5 knots. (The parties agree that this speed is not correct and that "Mineral Dampier's" speed was 12 knots). 11. "Hanjin Madras" steadied on her new course of 150 (T) at 0300 hours, i.e. C-30. At about C-24 she altered course to port again to 140 (T). At about C-20, when the vessels were about 6-7 miles distant, the first of two VHF conversations took place between the vessels. Mr Kim made two notes of the VHF conversations. One note was made shortly after the collision 2. The second note was made later that day. 3 They are not entirely consistent because they give different distances between the vessels when the conversations took place and the content of the conversations are differently reported. 12. There is no doubt that the first conversation was initiated by "Mineral Dampier" The conversations were in English. "Mineral Dampier" suggested that the two vessels should pass "red to red". Mr Kim agreed to this proposal, saying: "OK. Red to Red passing; repeat Port to Port passing". That was then confirmed again by "Mineral Dampier" In his second note of the VHF conversations, Mr Kim also records that in the first

Page 5 conversation (at C-20) he stated to "Mineral Dampier" that "I (ie.hanjin Madras) will alter course to starboard".. he also records that he advised "Mineral Dampier" "to keep your present course". I find that Mr Kim did make these further statements in the first VHF conversation. 13. In fact "Hanjin Madras" did not alter course to starboard at that stage. Mr Kim says in his witness statement for these proceedings that after the VHF conversation he looked at the ARPA and found that "Mineral Dampier" was 5.5 miles distant and bearing 190 (T). The parties' reconstruction of the courses of the vessels indicates that at C-20 "Mineral Dampier" was shaping to pass ahead of "Hanjin Madras". Mr Kim further states that the reason that he made no alteration to starboard at that stage was that he could not do so because of the fishing fleet ahead and to starboard of "Hanjin Madras". So she maintained her course and speed until about C-16, when she altered course to port again, on to 130 (T). Having steadied on that course, she almost immediately altered course to starboard again, at about C-14. At this time, when the vessels were about 3 miles distant, they came into sight of one another. 14. At about that time the second VHF conversation took place. On this occasion the VHF conversation was initiated by "Hanjin Madras" In this conversation, which was also in English, Mr Kim said to "Mineral Dampier", according to his notes: 4 "keep your present course and speed". "Mineral Dampier"'s response was: "understand your message ". I find that this was the full extent of the conversation between the vessels in this second conversation. 15. At C-13 "Hanjin Madras" steadied on a course of 137.5 (T) but at C-12 her heading drifted back to 130 (T). Between C-1 1 and C-5 she remained on a heading of between 130 (T) and 126 (T). In his witness statement Mr Kim states that at about C-8 "he assessed" that "Mineral Dampier" would "cross ahead at a range of not less than 8 cables -. He also states that her radar range at that time was 3 miles "still bearing to starboard - I assumed still 190 (T) Mr Kim's statement does not explain the basis for this "assessment". I am not satisfied that he did in fact make an assessment of the course, speed and closest point of approach of "Mineral Dampier" at that stage. I think that this is clear from the fact that in his statement he says he "believed" that "Mineral Dampier" had kept her course and that he "assumed" that her bearing was still 190' (T). If he had actually observed these facts he would have said so. 16. "Hanjin Madras" actually altered course to starboard at about C-5. In his Outline Argument, Mr Teare QC for "Hanjin Madras" accepted that "Hanjin Madras" at first put her helm only 15 degrees to starboard. At that point she also sounded one short blast on her whistle to indicate she was going to starboard. Her helm was put hard to starboard at about C-2.5 and her speed fell as a result. But she came on and her bow struck the starboard quarter of "Mineral Dampier " as I have indicated. 17. The contentions of the parties (1) Mr Brenton QC, for "Mineral Dampier" submitted that the "Restricted Visibility" Regulations are irrelevant because none of the events that occurred before the vessels came into sight of one another at 3 miles, (i.e. at C-14) were truly causative of the collision. He submits that the only cause of the collision was the failure of "Hanjin Madras" to take correct avoiding action, as the "give way" vessel in a "Crossing situation", soon after C-14. He submits that she should have altered course to starboard then as she was clear of the fishing fleet by that time. He further submitted that the VHF conversations and agreement should not be criticised. He also submitted that the decision of "Mineral Dampier" to turn to port at the last was made in desperation when it appeared that "Hanjin Madras" had not turned to starboard as she should have done and, indeed, as she had promised in the VHF conversations. Therefore "Hanjin Madras" was solely to blame for the collision. (2) Mr Teare QC for "Hanjin Madras submitted that the "Restricted Visibility" Regulations are highly

Page 6 relevant. He submitted that if both vessels had been obeying Rule 19(d) then they should have reduced speed when about 10 miles distant. He accepted therefore that "Hanjin Madras was at fault in failing to slow down at that stage. He submitted that when the vessels were 6 miles distant (i.e. at C-20) they both should have taken helm action to avoid a "Close Quarters situation" developing. Because of the fishing fleet to the starboard of "Hanjin Madras she could not have altered course to starboard, but he accepted that she should have reduced speed. He submitted that "Mineral Dampier" could and should have altered course substantially to starboard, where there was plenty of sea room. Mr Teare also submits that even if the Court holds that "Hanjin Madras" should have come to starboard earlier than she did, then "Mineral Dampier" is to blame for failing to take action (as the "Stand On" vessel) to avoid a collision under Rule 17 (a) (ii) and/or as a matter of good seamanship. He submits that she should have turned to starboard when the vessels were 3 miles apart. Mr Teare further submits that both ships are to blame for concluding an agreement by VHF. Overall he submits that the court should hold that each vessel was 50% to blame for the collision. 18. The Collision Regulations Both sides accept that in this case both the "Crossing Rules" and the "Restricted Visibility" rules are involved. The issue is how they interact on the facts of this case. The relevant Regulations are Rules 15,16,17 and 19. These provide as follows: Rule 15: Crossing Situation "When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel. Rule 16: Action by give-way vessel "Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear. Rule 17. Action by stand-on vessel "(a) (i) Where one of two vessels is to keep out of the way the other shall keep her course and speed. (ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules. (b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision. (c) A power-driven vessel which takes action in a crossing situation in accordance with sub-paragraph (a) (ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.

Page 7 (d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way. Rule 19: Conduct of vessels in restricted visibility "(a) This Rule applies to vessels not in sight of one another when navigating in or near an area of restricted visibility. (b) Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility. A power-driven vessel shall have her engines ready for immediate manoeuvre. (c) Every vessel shall have due regard to the prevailing circumstances and conditions of restricted visibility when complying with the Rules of Section 1 of this Part. (d) A vessel which detects by radar alone the presence of another vessel shall determine if a close-quarters situation is developing and/or risk of collision exists. If so, she shall take avoiding action in ample time, provided that when such action consists of an alteration of course, so far as possible the following shall be avoided: (i) an alteration of course to port for a vessel forward of the beam, other than for a vessel being overtaken; (ii) an alteration of course towards a vessel abeam or abaft the beam. (e) Except where it has been determined that a risk of collision does not exist, every vessel which hears apparently forward of her beam the fog signal of another vessel, or which cannot avoid a close-quarters situation with another vessel forward of her beam, shall reduce her speed to the minimum at which she can be kept on her course. She shall if necessary take all her way off and in any event navigate with extreme caution until danger of collision is over. " 19. Cases on the Rules Both parties accepted, of course, that the structure of the Collision Regulations is "to ensure that, whenever possible, ships will not reach a close quarters situation in which there is a risk of collision and in which decisions have to be taken without proper thought" per Sheen J in The "Maloja II[19931]Lloyd's Rep 48 at 50-51. That was a case of a collision in circumstances of restricted visibility. Sheen J stated that a "close quarters situation" was one where decisions have to be taken without proper thought. That description of a "close quarters situation" is clearly applicable to Rule 19 (d) which requires a vessel that detects another by radar alone "to determine if a close quarters situation is developing and/or a risk of collision exists---. But whether, and if so, when a "close quarters situation" is developing must be a question of fact in each case. The time when a navigator should have appreciated it involves a question of good seamanship and I have consulted the Nautical Assessors on this point. 20. I was also referred by Counsel to the Court of Appeal's decision in The "Koscierzyna" and "Hanjin Singapore" [1996]2 Lloyd's Rep 124 at 129, in which Sir Thomas Bingham MR commented on Rule 17(a) (ii). He said that the effect of the Rule is that, although it is in permissive terms, situations may occur where good seamanship requires a "stand on" vessel to take action to avoid a collision even before a situation under Rule 17 (b) has arisen: seepage 129. Although that was a case of overtaking vessels, the same

Page 8 reasoning must apply in a "Crossing Situation ": see the comments of Clarke J in The "Lok Vivek" and "Common Venture" [1995]2 Lloyd's Rep 230 at 240, to which the Master of the Rolls referred. The question of whether and if so when, good seamanship might have required the "Mineral Dampier" (as the "stand on - vessel) to take action to avoid a collision even before a situation under Rule 17 (b) had arisen is one on which I have sought advice from the Nautical Assessors. 21. The VHF conversations Both sides recognised that the Admiralty Court has frequently drawn attention to the possible dangers of communicating with unknown vessels by VHF radio when a risk of collision might develop or has developed 5. There is a danger that the communications will be not properly understood and that the navigators will be distracted from their proper task which is to navigate in accordance with the Collision Regulations. But in some circumstances VHF conversations can be useful in order to exchange information between vessels. Whether the conversations accorded with good seamanship in the circumstances of this case is a matter on which I sought advice from the Nautical Assessors. 22. The Principal Outstanding Issue of Fact: when did "Hanjin Madras" clear the fishing fleet sufficiently to enable her to go to starboard? The evidence of Mr Kim on when he cleared the fishing vessels is inconsistent. The effect of paragraph 14 of his witness statement (for which he was interviewed on 26 June 1995, four days after the collision) is that he cleared them at about C-9, soon after "Mineral Dampier" came into view. But his evidence to the Korean authorities, given on three occasions, on 28 June 1995; 7 July 1995 and 24 January 1996, indicates that he did not clear the fishing fleet finally until C-5. Mr Teare submitted that it is inherently unlikely that Mr Kim would wait four minutes or more before turning to starboard. Therefore he submitted that the fishing fleet extended further than appeared to Mr Kim when he first observed it by radar at about 0230 hours. 23. Mr Brenton submitted that this matter would have been much easier to deal with if Mr Kim had been called and cross examined. I expect that the extent of the fishing fleet would have been clarified. It would also have been possible to investigate Mr Kim's assertion (in paragraph 14 of his witness statement) that before he ordered 15 degrees of starboard helm, he believed that "Mineral Dampier" would pass ahead of "Hanjin Madras" at a "range of not less than 8 cables". In fact the agreed reconstruction shows that although that had been the position at an earlier stage of about C-20, by C-9 "Hanjin Madras" was shaping to pass ahead of "Mineral Dampier" by about 8 cables. 24. I find that, as Mr Kim says in paragraph 14 of his witness statement, he had cleared the fishing fleet by time that he had identified "Mineral Dampier" visually (at C-14) and after he had watched her to ensure that she was still showing her red sidelight. Some time would have elapsed during this process. The time at which I assess that he was clear of the fishing fleet was C-9. There was, therefore, on the agreed facts, a delay of 4 minutes between clearing the fishing fleet and the time when Mr Kim ordered 15 degrees of starboard helm. I attribute this delay to the fact that Mr Kim did not reassess whether or not "Mineral Dampier" was in fact going to pass ahead by 8 cables. He did not take into account the various small changes of course that "Hanjin Madras" had undertaken since he had last made this assessment, which I conclude he must have done at about C-20. Accordingly Mr Kim thought, wrongly, that there was no hurry to make the alteration to starboard which, as the "Give Way" vessel, "Hanjin Madras" should have undertaken if there was a risk of collision. 25. Questions to the Nautical Assessors I have sought advice from the Nautical Assessors on a number of questions of good seamanship. In this case where there was no oral evidence of fact it was probably necessary to ask more questions compared to a case where various points could be put to witnesses. At the hearing I told Counsel that I would be putting

Page 9 questions to the Nautical Assessors and I invited comments and submissions on the draft form of the questions. The questions and answers I have put are as follows: (1) In the circumstances of this case, given the restricted visibility of 3 miles and the existence of the fishing fleet, what would have been a "Close Quarters situation". Answer: 2 miles i.e. at C - 9, bearing in mind the characteristics of the two vessels. (2) What was the latest point at which a prudent seamen would have determined if a close quarters situation was developing and/or a risk of collision existed. Answer: within a moment or so of "Hanjin Madras" altering course from 2030 (T) to 1500 (T) as determined by the ARPA: i.e. C - 25 (3) What would the conclusion of prudent seaman have been in this case. Answer: A close quarters situation was developing (4) (a) What action (including any possible reduction of speed) should prudent seamen have taken if they had concluded (at the latest time that a prudent seaman would have been entitled to determine this question) that a close quarters situation was developing and/or a risk of collision existed. Answer: (i) "Hanjin Madras" should have slowed down, not later than C - 12; (ii) "Mineral Dampier" was not obliged to do anything, but could have altered course to starboard (b) At what time should this action have been taken. Answer: (i) "Hanjin Madras" not later titan C - 12; (ii) similar for "Mineral Dampier" If going to starboard at all. (5) In the circumstances of this case should prudent seamen have reached an agreement by VHF on the manner in which the vessels were to pass i.e. "port to port", assuming that (i) the first VHF conversation took place when the vessels were distant between 5.5 and 7 miles; and (ii) the second conversation took place when the vessels were between 2 and 3 miles distant (i.e. between C - 14 and C - 9). Answer: (i) The first conversation was prudent as an exchange of information of intention;

Page 10 (ii) the second conversation was not prudent because it could curtail possible prudent action by "Mineral Dampier". (6) Assuming the vessels came in sight of one another at 3 miles (i.e. about C - 14) and that (based on her actual course and speed) "Hanjin Madras" would have cleared the fishing fleet at about C - 9, what steps would a prudent seaman have taken on assessing the situation at C-14: (i) in the case of the "Give Way" vessel; and (ii) in the case of the "Stand -On" vessel. Answer: Assuming that there had been no agreement as to tire mode of passing by VHF.. (i) in the case of the "Give Way" vessel: alter course to starboard, in stages if necessary, to show intent; or consider entering the extremities of the fishing fleet to show intent (ii) in the case of the "stand on " vessel. nothing (7) At what stage, in the circumstances of this case, should the "Stand - On" vessel have appreciated that she found herself so close that collision cannot be avoided by the action of the "give way" vessel alone, so that good seamanship required that she should take such action as would best aid to avoid collision. Answer: C - 9 (i.e about two miles distant) (8) If the "Stand- On" vessel had concluded that action should be taken to avoid collision, what action would a prudent seaman take to do so in the circumstances of this case, in particular given that "Hanjin Madras" sounded one short blast and begun to turn to starboard at about C - 5. Answer: hard to starboard and one short blast (9) Assuming "Hanjin Madras" altered course to starboard at about C-5 when the vessels would have been about 1.2 miles apart, given the relative positions of the vessels, is it likely that those on the bridge of "Mineral Dampier" would have heard the one short blast by "Hanjin Madras" assuming that they were keeping a proper aural lookout? Answer: In our view the whistle signal would have been unlikely to have been heard for two reasons: (i) because of the directional nature of ships' whistles and the broad bearing of the vessels, "Mineral Dampier" was just forward of the beam of "Hanjin Madras" and

Page 11 (ii) because of the wind strength and direction - Southwesterly force 5 - i.e blowing from the starboard quarter of the "Mineral Dampier" and from tile starboard beam of "Hanjin Madras" However the all - round white light of "Hanjin Madras" should have shone when one short blast was sounded and this should have been seen by "Mineral Dampier " if she was keeping a proper look - out. (10) Assuming that "Hanjin Madras" altered course to starboard at about C-5 when the vessels would have been about 1.2 miles apart, and assuming those onboard "Mineral Dampier" were keeping a proper lookout, how long would it have been before the alteration of course of "Hanjin Madras" would have been apparent from the change in the aspect of her masthead lights? Answer: "Hanjin Madras" applied 15 degrees of helm in the first instance and this, in our view, would have taken at least half a minute to have any effect. The vessel was in ballast with minimum propeller/rudder immersion and pressure on the rudder. The increase in helm from 15 degrees to hard to starboard (at C-2.5) would have taken at least a further half a minute to take effect. We consider that more titan a minute had elapsed from file beginning of the first alteration of course (C5) before appreciable change in the vessels' heading was achieved. However, due to the 'wide' bearing of the two vessels, (at C-5 tile "Mineral Dampier" was 75 degrees on the starboard bow of "Hanjin Madras", thus appearing almost beam-on to the Officer on the bridge of the "Mineral Dampier'), the change in aspect of the masthead lights of the "Hanjin Madras" would have been hard to detect until the change in heading was substantial - in our view about 1 minute 30 seconds after the beginning of the alteration at C-5. 26. I accept the advice of the Nautical Assessors. 27. Fault before the vessels came into view In the light of the advice given and the fact that it is common ground that the vessels came into sight of one another at C-14, I conclude that no blame can attach to the first VHF conversation of the two vessels. With one exception, I further find that there was no blameworthy conduct of either vessel whilst they were out of visual range of one another. The exception is that Mr Kim failed to keep a proper radar lookout and so failed to maintain a proper assessment of the likely closest point of approach of the two vessels. This failure is clear from his later faulty assessment, at about C- 9, that "Mineral Dampier" would pass ahead of "Hanjin Madras" by not less than 8 cables. 28. Fault after the vessels came into view I find that both vessels were at fault in making the agreement that they did in the second VHF conversation. The effect of the agreement was that "Mineral Dampier" was to maintain her course and speed, whilst she expected "Hanjin Madras" to turn to starboard imminently. This would have meant that "Mineral Dampier" was inhibiting herself from acting in accordance with Rule 17 (a) (ii) or (b) or good seamanship and so altering course or reducing her speed in circumstances that were fast amounting to a "Close - Quarters situation" Blame must attach to "Mineral Dampier" for letting herself be put in this position. 29. However "Hanjin Madras" was at fault in three further and serious respects at this stage. First, as the "Give - Way vessel- she should, pursuant to Rule 15, have slowed down by C- 12 at the latest. Secondly,

Page 12 again pursuant to Rule 15, she should have been shaping to turn to starboard as she came clear of the last of the fishing fleet, which was at C-9 at the latest. But she did not slow down at all and did not start the turn to starboard for a further 4 minutes. Thirdly, 1 find that it was a fault to order only 15 degrees to starboard, rather than hard to starboard, which is what should have been done at that late stage. The reason for "Hanjin Madras" failure to come to starboard earlier was, I find, that Mr Kim. was still not keeping a proper look out by radar. He had failed to reassess the closest point of approach of "Mineral Dampier" since about C-20, i.e. before a number of small alterations of course by "Hanjin Madras" Therefore he continued not to appreciate that the situation was no longer one where "Mineral Dampier" was likely to pass ahead by some margin. He was quite mistaken in thinking, as he apparently did at about C-9, that "Mineral Dampier" would pass ahead of "Hanjin Madras" at a range of not less than 8 cables. 30. The agreement between the two vessels in the second VHF conversation also led "Mineral Dampier" to commit faults as the "stand on " vessel. Although I find that the requirements of good seamanship did not necessitate her taking any positive action before C-9, when the vessels were 2 miles distant, the position from that point was different. From then on "Mineral Dampier" should have realised, in accordance with Rule 17 (b), that her position was "so close that collision cannot be avoided by the action of the give - way vessel alone---. "Mineral Dampier" should therefore have taken positive action at that stage, that is at or about C-9. Her action should have been a bold alteration of course to starboard. I have no doubt that she did not take this action because "Hanjin Madras" had said to her in the second VHF conversation: "keep your present course and speed" and "Mineral Dampier " had agreed to do so. 31. The last issue on "fault" is whether "Mineral Dampier" should be blamed for her alteration to port at the last. The position was that "Hanjin Madras" did not alter course to starboard until C-5, although "Mineral Dampier" must have been expecting that alteration for at least 4 minutes before that time. Based on the advice of the Nautical Assessors and given the relative position of the two vessels and the weather conditions, I find that those on board "Mineral Dampier" would not have heard the one short blast when it was sounded by "Hanjin Madras" at C-5. However, those on board "Mineral Dampier" should have seen the all - round white light flash when "Hanjin Madras" sounded one short blast as she came to starboard at C-5. At that stage, given the proximity of the vessels, "Mineral Dampier" would have been expecting "Hanjin Madras" to turn boldly to starboard. But I also find, on the advice of the Nautical Assessors and given the action of "Hanjin Madras" that the turn to starboard of "Hanjin Madras" would have been so slow to start with that those on board "Mineral Dampier" would not have appreciated until about C - 3.5 that "Hanjin Madras" was actually altering course to starboard. So I find that when "Mineral Dampier" altered course to port at about C-3 to C-2.5 she did so having concluded that to stand on would mean a certain collision dead ahead and an alteration to starboard would also mean that a collision would occur, only a little further to the East. It was natural to think that something had to be done quickly. In the agony of the moment she went to port, with tragic results. 32. I recognise that Rule 17(c) stipulates that if the "Stand - On " vessel is taking action pursuant to Rule 17 (a) (ii) she should "if the circumstances admit" not alter course to port for a vessel on her own port side. But Rule 17 (c) does not specifically apply to action taken by a "Stand - On - vessel under Rule 17(b). That Rule is deliberately framed to give seamen a wide discretion so that they can take "such action as will best aid to avoid collision ". In the event the alteration to port by "Mineral Dampier" was the wrong action. By agreeing to maintain her course and speed in the second VHF conversation she got into an impossible position. But I find that no additional blame should attach to her last minute alteration to port. 33. Apportionment of blame In my judgment "Hanjin Madras" - must bear by far the greater blame. She was the "Give Way"- vessel and her failure to reduce speed (at C- 12 at the latest) and promptly and boldly to alter course to starboard (at C-9 at the latest) put the two vessels into a very dangerous situation. Her failure was brought about by a poor assessment of the situation by the Second Officer, Mr Kim. I have also concluded that more blame should

Page 13 attach to "Hanjin Madras" for the second VHF conversation. It was initiated by her and it was her suggestion that "Mineral Dampier" should keep her course and speed. Given the position of the two vessels at that stage "Mineral Dampier " would naturally have assumed that "Hanjin Madras" was going to make an early and substantial alteration to starboard, but she failed to do so. That failure put "Mineral Dampier" in a very difficult position. If there had been no VHF conversation and if "Hanjin Madras" had not come round to starboard or slowed substantially by C-9, then "Mineral Dampier" should herself have made a bold alteration to starboard. She did not do so because of the prior agreement by VHF. Her position became worse because she concluded that "Hanjin Madras" was not going to come round to starboard. So "Mineral Dampier" had to decide whether or she should alter course at the last moment, and if she should whether it should be to starboard or to port. 34. "Mineral Dampier" cannot escape blame entirely for her acceptance of the suggestion in the second VHF conversation that she should keep her course and speed. That was what led to her failure to go to starboard when, by C-9, "Hanjin Madras" had failed to do so. It also led to her predicament at the last. But the amount of blame attaching to those faults is far less than those of "Hanjin Madras" mistakes overall. A fair apportonment of the blame would, in my judgment, be that "Hanjin Madras" was 80% and "Mineral Dampier" was 20% to blame for the collision. Liability will be apportioned accordingly. 1 shall refer to times hereafter as "C - 14" etc. 2 Trial Bundle pages 90-9 1. 3 Trial Bundle page 89. 4 Both notes are the same on this point. 5 See eg The Maloja II[I993]1 Lloyd's Rep 48 at 53 per Sheen J