DMC Category Rating: Developed

Background
The action arose out of a collision between the vessels Eleftheria and Hakki Deval which occurred in restricted visibility on 6 June 2004 in the Mediterranean Sea about 15 miles off the Algerian Coast.

Eleftheria is a bulk carrier of 38,328 tonnes gross and 20,638 tonnes net, 209 metres in length and 32.2 metres in beam. At the material time she was laden with 41,265 tonnes of cargo giving a draft of 10.7 metres.

Hakki Deval is a bulk carrier of 9,669 tonnes gross, some 136 metres in length and 21.2 metres in beam. At the material time she was laden with 15,350 tonnes of cargo giving a mean draft of 8.86 metres.

Because the vessels did not see each other until moments before impact there were some substantial disputed issues of fact. The judge decided that the facts were as follows:

• Eleftheria had been proceeding on a course of 082° at 13 knots;
• The radar echo of Hakki Deval was observed at about 8 miles;
• Shortly thereafter Eleftheria altered 12° to port onto 070°;
• Eleftheria put her helm 15° to port shortly before collision, coming round to a heading of 030° by impact;
• Hakki Deval’s initial course had been 252° at 8 knots;
• Hakki Deval altered course 15° to starboard onto 266° about 5 minutes after the first radar echo of Eleftheria at about 8 miles;
• Hakki Deval put her helm 10° to starboard for a period through to very shortly before collision and put the engines full astern, which had no effect on reducing the vessel’s speed at the time of impact;
• The stem of Hakki Deval struck the starboard side of Eleftheria in the way of her No.1 hold and at an angle of about 80˚ leading forward;
• The ratio between the speeds of the two vessels was 1.7, meaning that Eleftheria (at 13 knots) was travelling 70% faster that Hakki Deval (at 8 knots);
• No successful VHF radio contact had been made between the vessels, so that no collision avoidance actions had been jointly agreed.

Judgment
Expert Evidence
In addition to the Case Management Conference¹ ("CMC") judge giving the parties leave to instruct a surveyor on the question of speed and angle of blow of the collision, the parties were given leave at the CMC to call additionally expert evidence on "seamanship and breaches of the collision regulations". At trial the claimant sought to have the seamanship expert evidence excluded even though both parties had expended considerable effort and expense on obtaining that evidence.

The trial judge held that the seamanship expert evidence was inadmissible. The reason for doing so was that the court had the benefit of the assistance of two Elder Brethren of Trinity House as nautical assessors. That arrangement was consistent with the court’s order following the CMC. (The trial judge indicated that the legal representatives of the parties had not directed the CMC judge to the fact that the order given would be a significant diversion from standard practice for straightforward cases. This led to an order allowing seamanship expert evidence in addition to the appointment of nautical assessors; the parties having sought their own expert evidence and the CMC judge having decided to include the appointment of two nautical assessors.)

The trial judge indicated that the implications of such an order are well established: where the court has the assistance of nautical assessors expert evidence on matters of navigation and seamanship may not be adduced (citing The "Victory" [1996] 2 Lloyd’s Rep 482, 492, where the judge had allowed the expert evidence as an exception to the general rule). While the trial judge accepted that the rule was subject to variation and exception in appropriate circumstances – for example, where knowledge of ship type or geographic location were unlikely to be familiar to the nautical assessors or where the specific expertise was outside of their competence, such as computer reconstruction or modelling – the present case on the facts did not fall into any exceptional category. Indeed the skeleton argument of the defendant at the CMC indicated that the case had "no unusual features".

In departing from the decision to admit such evidence made in The "Victory", the judge stated:
"Despite the apparent agreement of the Claimant at and following the CMC [to admit the seamanship expert evidence], it does not seem to me that the court is bound to admit the evidence and indeed should not do so unless there are good grounds for doing so. Of course, the parties can deploy reconstructions prepared by experts as their own for illustrative purposes. It may also be that other comments made by retained experts can be used in argument. But the reports could not properly be admitted in evidence and I so ruled."

Relevant Collision Regulations
It was common ground that the vessels were navigating in restricted visibility within the meaning of Rule 19.² The judge also noted that Rule 19 had been extended to apply to vessels in sight of one another when navigating in or near [emphasis added] an area of restricted visibility. The judge considered that any difference in visibility from the vessels that had existed while leading up to the collision must therefore be considered against the background of the amendment to the Collision Regulations.

The judge secondly had to decide whether a "close quarters situation" was developing within the meaning of Rule 19. The judge asked the nautical assessors whether in less than 4 miles visibility where each vessel had detected the other by radar echo at a range of about 8 miles, with the Closest Point of Approach ("CPA") in the region of 3 cables port to port, a close quarters situation was developing. The judge accepted the assessors answered of yes. The assessors also indicated that the situation had developed shortly thereafter to the extent that risk of collision existed.

Fault
Eleftheria –
(i) Poor Lookout
Following initially erroneous sightings no adequate attempt was made to monitor the progress of Hakki Deval by systematic radar observations. Had this been done it would have been apparent that the vessels were steering into danger.
(ii) Speed
The vessel was obliged to proceed at a safe speed in all the circumstances. 13 knots was excessive and should have been reduced to approximately 10 knots given the poor visibility and her location in a traffic lane.
(iii) Port Helm
The alteration of 12˚ to port when the close quarters situation arose at about a range of 8 miles was not in accordance with good seamanship given the poor visibility. A bold alteration of no less than 30˚ to starboard was required.
(iv) Engine Action
Given the circumstances in (iii) and the continued advance of Hakki Deval, vigorous steps to take way off the ship should have been made no later than when the vessels were 2 miles apart.

Hakki Deval –
(i) Speed
There was no suggestion that 8 knots was unsafe.
(ii) Lookout
The initial sighting of the radar echo was wrong and there was no effective monitoring of the approach of Eleftheria, save for observing her initial alteration of course to port.
(iii) Starboard Helm
The subsequent alteration of 15˚ to starboard was not in accordance with good seamanship. The master should have been called to the bridge and Eleftheria should have been closely monitored. Any subsequent alteration of course should have been a bold alteration of no less than 30˚.
(iv) Engine Action
While speed was not excessive it was unsafe to stand-on applying 10 degrees of starboard helm at a range of about 1 mile. The proper steps would have been to take off way vigorously or to take a round turn.

Apportionment
Under the circumstances the judge held a fair apportionment to be one-third/two-thirds in favour of Hakki Deval, given the primary blame falling on Eleftheria for excessive speed and the ill-advised alteration to port.

Comment
The standard admiralty practice for issues of seamanship and navigation evidence in collision cases is that the court will appoint two nautical assessors to provide such expert assistance as is deemed necessary. This may require the assessors to make a pre-trial report for all the parties and court to see and use before and during the trial and to providing oral assistance during the trial itself: for assessors generally see Civil Procedure Rules ("CPR") r.35.15 and for assessors in admiralty actions in particular see CPR r.61.13.

While the judge at a CMC may provide directions to allow additional joint or party-specific nautical expert evidence, this case makes it clear that the trial judge is not bound by that direction and may hold the parties’ nautical expert evidence inadmissible at trial unless "exceptional" circumstances or factors arise justifying its admission. Such a power ultimately comes from the court seeking to achieve the "overriding objective" of dealing with cases in a fair and proportionate manner under CPR r.1 by exercising its general case management powers under CPR r.3.1 – the court specifically being required to restrict expert evidence to that which is reasonably required to resolve the dispute under CPR r.35.1. Indeed the court in exercising its general case management powers may vary or revoke a case management order under CPR r.3.1(7).

This does not bar the parties from having their own nautical experts to provide them with an assessment of the circumstances surrounding the collision. Having early expert evidence to assess the overall merits of the claim is justifiable. This may facilitate early settlement and avoid the costs of going to trial or at least focus the parties’ attention on the key disputed issues, thereby reducing the likely costs of litigation.

However, if the parties’ nautical expert evidence is later held inadmissible the expert’s fees and the associated costs and disbursements of preparing and dealing with such evidence may not be recoverable as reasonable costs, because that evidence has been deemed not reasonably required to resolve the dispute. As a result it is preferable for shipowners to retain admiralty solicitors who have former master mariners on their staff, providing the advantage of specialist legal advice with practical marine experience to aid in strong early assessment of the law and facts and in how best to progress the collision claim cost effectively.

Footnotes:
1. A Case Management Conference ("CMC") is effectively an early administrative meeting between the court and parties to narrow the issues and make standard and special directions for the further conduct of the case and its progression to trial.
2. "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 condition 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 I 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 in 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 toward 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 be 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."

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