"Eleftheria" Collision with "Hakki Deval"
The pre-trial Case Management Conference1 order had given both parties leave to seek expert seamanship evidence in addition to the normal admiralty collision practice of appointing two nautical assessors to assist the trial judge. The trial judge exercised his discretion and ruled the expert seamanship evidence inadmissible because the case was not in an exceptional category justifying deviation from the normal admiralty practice.
The judge noted that any disparity of visibility between vessels must be considered against the amended Rule 192 of the Collision Regulations ("in or near" an area of restricted visibility). Under the circumstances leading up to the collision the judge apportioned fault one-third/two-thirds in favour of Hakki Deval.
DMC Category Rating: Developed
This case note has been contributed by Jim Leighton, BSc (Hons) (University of Plymouth), LLM (Maritime Law) (University of Southampton), Claims Consultant and Contributor to DMC’s CaseNotes.
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:
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"  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:
Relevant 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.
Hakki Deval –
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.
(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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