News / 24-02-2023 / London

FMG Hong Kong Shipping Limited v. the Owners of the MSC Apollo (FMG Sydney v. MSC Apollo) [2023] EWHC 328 (Admlty)

The Admiralty Court has recently handed down judgment in the case of the collision between the very large ore carrier Sydney and the container ship Apollo which took place in the approaches to Tianjin, China, in August 2020.

This is the first collision case to apply the crossing rules since the Supreme Court handed down its judgment in the Ever Smart collision case (the judge in Wilforce v. Western Moscow [2022] finding that it was not necessary for him to decide whether or not the crossing rules applied). It is unusual in that one ship (Apollo) was found to be 100% liable for the collision.

The background facts

The collision occurred in the approaches to Tianjin, China at 2232 LT in good visibility and slight seas. Sydney was outbound, proceeding eastwards in ballast, and was one of several vessels leaving the port. Apollo was proceeding in ballast to an anchorage area to the south of the Channel entrance.

The vessels’ courses from around C-6 can be seen on the plot (Sydney denoted in blue and Apollo in orange).

At around C-11.5, Apollo triggered the AIS alarm on Sydney’s X-band radar.  At that time, both red and green sidelights of Apollo could be seen from Sydney and it was concluded that Apollo would pass astern of Sydney.  By C-9, only Apollo’s green light could be seen following Apollo’s alteration of course to port and by C-6 she was set to cross ahead of Sydney. Apollo then agreed by VHF a port-to-port passing with Chang Fa Long (track in green below) which led Sydney’s Master to believe Apollo would turn to starboard. At about C-1.5, Apollo requested that she and Sydney pass starboard-to-starboard. Sydney replied “no, no, no” and at about C-1 Apollo altered to port. The vessels collided. Sydney’s port bow contacted Apollo’s starboard side just forward of her accommodation at an angle of about 40 degrees.

The Admiralty Court decision

Breach of the crossing rule by Apollo

Rule 15 of the COLREGs is triggered where two power-driven vessels are crossing so as to involve risk of collision. There was no dispute that the vessels were on crossing courses at C-13. With the projected passing distance being found to be less than that which the Nautical Assessors considered to be the minimum safe passing distance, it was held that the vessels were crossing so as to involve a risk of collision. The application of the crossing rule was not dependent on whether or not Apollo was set to cross ahead of Sydney. 

As the give-way vessel, Apollo was obliged to take early and substantial action to keep well clear of Sydney. The Court made clear that the period of time during which action taken can be described as "early" will depend on the circumstances; Rule 15 does not require immediate action.  In this case, the advice from the Assessors was that Apollo should have taken action by C-7. Instead of taking substantial action by this time to keep well clear of Sydney, Apollo altered course so instead of passing astern of Sydney, by C-6 she was set to cross her bows in breach of Rule 15. 

This was due to the failure of the Master to appreciate or understand how the vessels were approaching each other. He wrongly thought at C-10 that they were set to pass starboard to starboard when they were in fact set to pass port to port. This, coupled with his failure to pay attention to the requirements of Rules 15 and 16 of the COLREGs, meant that early and substantial action to keep well clear was not taken. Instead, in ‘flagrant’ breach of the crossing rule, Apollo sought to cross ahead of Sydney, bringing about the close quarters situation and the collision.

Apollo made a number of suggestions as to why it was not appropriate for her, as give-way vessel, to slow speed and alter course to starboard.  However, the Court made clear that none of these points recognised the importance of complying with the crossing rules and the obligation to keep clear of the other vessel so far as possible.

Apollo’s other faults

Apollo was also criticised for the Master’s use of VHF as a means of seeking to agree a starboard to starboard passing in conflict with the COLREGs. It was observed that while VHF can be helpful in some circumstances if the give-way vessel informs the other of the action it is taking to comply with the COLREGs, circumstances must be exceptional before good seamanship justifies the use of a VHF agreement to depart from a course of navigation in accordance with the COLREGs. 

Sydney’s faults

Whilst many criticisms were made of the lookout, speed and alterations of helm to starboard on Sydney, none was found to have been causative. Notably, however, it was argued that Sydney had breached the duty to maintain her speed as the stand on vessel under Rule 17 of the COLREGs on the basis that her speed over the ground increased by over 2 knots between C-12 and C-2. As made clear by the Supreme Court in Ever Smart, this obligation does not require the stand on vessel to maintain her ‘precise’ speed. The increase in speed was a necessary consequence of the nautical manoeuvre upon which Sydney was engaged, i.e. heading for the Traffic Separation Scheme.  In light of the Court’s finding that Sydney’s speed was safe, it was not necessary to consider whether the duty to maintain speed required her to reduce her speed to a safe speed. This point has, therefore, been left open for determination.

A deemed ‘head-on’ case?

It was argued by Apollo that there could not be a crossing situation at between C-14 and C-9.5 on the basis that Sydney could see both sidelights of Apollo.  If so, it was said there was deemed to be a head-on situation under Rule 14 of the COLREGs. This is where two vessels are meeting on reciprocal (or nearly reciprocal) courses so as to involve risk of collision.  It was implicit in this argument that a head-on situation can arise if only one of the two vessels can see both sidelights of the other. In support of this, Apollo relied on the wording of Part (b) of Rule 14, which states that a head on situation “shall be deemed to exist when a vessel [singular] sees the other ahead or nearly ahead and by night she would see the mast head lights of the other in a line or nearly in a line and or both sidelights…” 

The Court did not agree and held that the vessels were not meeting head-on. After detailed consideration of the evolution of the ‘head-on’ rule in the COLREGs and the leading textbooks on collision, the meaning of Rules 14(a) and (b) read together is that both vessels must be able to see the other ahead or nearly ahead.  This is how this rule would be understood by all mariners over the world.

Apportionment of liability

Apportionment of responsibility for a collision depends upon an assessment of the (i) blameworthiness/culpability; and (ii) causative potency (i.e. the contribution which each vessel made to the fact that a collision occurred) of both vessels.  In this case, however, as the Court found no causative fault on the part of Sydney and causative fault on the part of Apollo, it was held that Apollo was solely responsible for the damage caused by the collision.

Comment

It is unusual for the Court to make a finding of 100% liability on the part of one vessel where both vessels are underway and, even more so, in a crossing case . However, on a careful analysis of the navigation of Apollo, her neglect of the crossing rule and failure to appreciate the approaches of the vessels meant that there was little that Sydney could have done to avoid the collision and, in fact, the action taken by Sydney as the stand-on vessel in accordance with Rule 17(a)(ii) or Rule 17(b) of the COLREGS was in accordance with the rules of that part. 

The primacy of the crossing rules and the need to strictly enforce them has once again been highlighted by the Court. While it was argued that a head-on situation arose, it is helpful to see the Court agreeing with the position (widely understood to by mariners) that both vessels are in a head-on situation when on reciprocal or nearly reciprocal courses as set by Rule 14(a)so that [both] vessels can see each other ahead or nearly ahead, as per Rule 14(b).

We understand that leave to appeal is being sought. This is not surprising, given the rare finding of 100% liability against one vessel.