DMC Category Rating: Developed

This case note is contributed by Ang & Partners, the International Contributors to the website for Singapore

Facts
This case involved the criminal prosecution of two officers of the Singapore navy, arising out of the collision of their vessel "RSS Courageous" with the merchant ship "ANL Indonesia", resulting in the death of four crew members of the "RSS Courageous". The accused, the Officer-of-the-Watch ("OOW") and the trainee OOW, were charged with the offence of causing death by a negligent act. Both of them were lieutenants in the Singapore navy.

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:

1. The "Courageous" had technically contravened rule 10(b)(i) of the Collision Regulations requiring a vessel in a traffic separation scheme to proceed in the general direction of traffic flow. As this manoeuvre was safe and operationally necessary, the accused were not negligent in doing so, but the onus was on them to take extra precautions to avoid a close-quarters situation with other vessels proceeding in the right direction. Given that this was a head-on situation at night with a large vessel, the CPA of three cables was unsafe as the "Courageous" should have kept a greater buffer to take contingencies into account.
2. Although the accused had perceived the "ANL Indonesia" to be on their starboard side, they were nonetheless obliged to alter to starboard (following the recommendations of Healy and Sweeney, The Law of Marine Collision (1998), at p. 184). By altering to port, they had negligently breached rule 14(a) of the Collision Regulations.
3. Instead of making a bold alteration by manual steering, the "ANL Indonesia" made two small alterations by autopilot, which were not large enough to be readily apparent, as required under rule 8(b) of the Collision Regulations. However, the actions of the "ANL Indonesia" were not so unreasonable as to eclipse the accuseds’ initial negligence, which was causative of the collision and the resulting deaths.

At the appeal, the accused raised three issues:-

1. Whether the alteration to port by the "Courageous" was a negligent act in breach of rule 14(a) of the Collision Regulations;
2. Whether the alteration to port was the proximate and efficient cause of the collision;
3. Whether the trainee OOW should be held to the same standard of care as a qualified OOW.

Judgment
The appellate judge at the High Court upheld the conviction.

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.

Comments
This case is important in establishing a number of principles regarding criminal negligence. The finding that a trainee is held to the same standard as a fully qualified officer is important, and will find application in the civil negligence context as well. In fact, on this point, the judge followed the English case of Nettleship v Weston [1971] 2 QB 691, a civil case on the negligence of a learner driver. The judge acknowledged that this decision may have wider implications on the training regime of the Singapore navy, as allowing trainees to take control of naval vessels was part and parcel of the navy’s training regime. But the judge noted that he had to consider not just the welfare of the navy trainees, but also the wider interests of other navy personnel as well as the other vessels and their crews at sea. To subject trainees to a lower standard of care would unfairly place the safety of everyone else around them at risk.