The "RSS Courageous"
This was an appeal from the district judge’s decision convicting the Officer-of-the-Watch ("OOW") and the trainee OOW of the offence of causing death by a negligent act when their navy ship "RSS Courageous" collided with a merchant ship "ANL Indonesia" off the Horsburgh Lighthouse at Pedra Branca, resulting in the death of four crew members of the "RSS Courageous". The appellate judge at the High Court upheld the conviction, holding that (1) the vessels were approaching each other so as to involve a risk of collision under Rule 14(a) of the Collision Regulations; (2) "RSS Courageous" made a series of alterations to port in breach of the Collision Regulations; (3) the ANL Indonesia’s reaction, although negligent, did not break the chain of causation and (4) the trainee OOW had to be held to the same standard as a reasonably competent and qualified OOW.
DMC Category Rating: Developed
This case note is contributed by Ang
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At about 12.25 pm on 3 January 2003, the anti-submarine patrol boat "Courageous", which had previously been travelling with the general traffic flow in the eastbound lane of the Traffic Separation Scheme ("TSS") just off the Horsburgh Lighthouse at Pedra Branca, executed a "U-turn". This brought her against the flow of traffic, including the "ANL Indonesia", which was coming in the opposite direction. The Closest Point of Approach ("CPA") alarm on the radar was activated, indicating that the closest distance at which the "Courageous" would pass the "ANL Indonesia" was approximately three cables (0.3 nautical miles). Upon being informed, erroneously, by the bridge team that the "ANL Indonesia" was on the starboard side of "Courageous", the trainee OOW - who had control of the steering - ordered a series of alterations to port. The "ANL Indonesia" was in fact on the port side of the "Courageous" and the alterations brought the two vessels even closer together. The "ANL Indonesia" made two alterations to starboard by autopilot in reaction. Rule 14(a) of the Merchant Shipping (Prevention of Collisions at Sea) Regulations ("the Collision Regulations") provides that:-
"When two power-driven vessels are meeting on reciprocal or nearly reciprocal course so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other."
The combination of the two vessels’ movements resulted in a collision and the death of four crew members on board the "Courageous". The district judge convicted the OOW and the trainee OOW under section 304A, for causing death by a negligent act not amounting to culpable homicide. The two lieutenants were jointly responsible for negligently navigating the "Courageous" in an unsafe manner across the path of the "ANL Indonesia". The district judge’s findings included the following:
At the appeal, the accused raised three issues:-
1. Rule 14(a) of the Collision Regulations would have applied only if the two vessels were meeting on reciprocal or nearly reciprocal courses (i.e. approaching within 6 degrees of each other), and they were approaching "so as to involve a risk of collision". "Involve a risk of collision" refers to a time when there is not yet actual danger, but when the relation between the vessels is such that danger may shortly arise, if the rules are not obeyed. The real question was not whether a risk of collision existed at the material time, but whether the situation simply involved a risk of collision.
2. The test of whether a risk of collision is involved must be an objective one. Any other approach would completely subvert the Collision Regulations’ objective of promoting certainty and safety. The High Court agreed with the district judge that the situation clearly involved a risk of collision.
3. The test for causation under section 304A Penal Code is that the death must be the direct result of a rash and negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another’s negligence. Although the standard of negligence in criminal cases should be the civil standard of negligence, this does not mean that the entire law of civil negligence should be transplanted into the criminal sphere. Therefore, principles of causation in civil negligence, such as the "but for" test and the doctrine of novus actus interveniens (the intervening act of a third party) are not applicable in criminal negligence. The distinction between civil and criminal negligence is reflected in both the higher standard of proof for the prosecution and the stricter test of causation for criminal liability to attach.
4. The question was whether the contributory negligence of the "ANL Indonesia" had such causative potency that the accuseds’ initial negligence could not be said to have contributed significantly to the collision. Although the vessels would not have collided if the "ANL Indonesia" had not been negligent, the accused were the ones who created the situation of danger to begin with. The "ANL Indonesia" was obliged by the accuseds’ action to respond with her own, albeit negligent, manoeuvres. The accuseds’ negligence was clearly a substantial cause of the collision.
5. A doctrine of varying standards depending on the defendant’s experience was too uncertain to be viable. The duty of care should be tailored not to the actor, but rather to the act which he or she elects to perform. Holding a trainee to the same standard as a qualified professional is also sound as a matter of policy. Once she was placed in the position of making navigational decisions for the vessel, she was also responsible for the lives and safety of the crew of other vessels in the vicinity as well. In the circumstances, the trainee OOW had to be held to the same standard as a reasonably competent and qualified OOW.
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