When is a head on situation not a head on situation?
In the first Admiralty case of 2023 the Court handed down its judgment in FMG HONG KONG SHIPPING LIMITED, THE DEMISE CHARTERERS OF FMG SYDNEY (“SYDNEY”) and THE OWNERS OF THE MSC APOLLO (“APOLLO”)
This is a collision matter and the incident has the usual features common in most collisions that of bad decisions and poor seamanship. However, in this particular case, the owners of the APOLLO also raised a novel argument regarding the interpretation of Rule 14 and a head-on situation.
This case is also a rarity in that the Admiralty court apportioned liability 100% in favour of the owners of the SYDNEY. Usually such an apportionment is reserved for when a vessel collides with a vessel at anchor or moored alongside, when clearly one vessel was unable to take any action to avoid the collision.
The brief facts taken from the judgment can be stated as follows.
At about 22.32 LT on 29 August 2020 the SYDNEY collided with the APOLLO in the approaches to Tianjin, China. The collision occurred in conditions of good visibility, light winds from East South East and slight seas. Both vessels were in ballast with the SYDNEY outbound and the APOLLO was inbound.
The SYDNEY is a very large ore carrier built in China in 2017. She is 327m in length and 57m in beam, of 134,840grt and 262,088.5mt deadweight.
On the Bridge at the time of the collision were the Master, the Third Officer as the lookout and a duty able seaman as helmsman.
The APOLLO is a container ship built in Japan in 2002. She is 299.90m in length and 40m in breadth, of 75,484grt and 81,171mt deadweight. She was proceeding to an anchorage area to the south of the Channel entrance to disembark service engineers after completion of sea trials following a dry docking.
On the Bridge at the time of the collision were the Master, Chief Officer, Third Officer, lookout and the helmsman.
Attached to this article are the AIS reconstructions of the 2 vessels movements as taken from the judgment.
After considering all the evidence, the Court found this was a crossing situation and the applicable rules were Rule 15 (crossing situation) and Rule 16 (action by give-way vessel) and that the give way vessel in this case was the APOLLO.
However, what makes this case interesting is that the witness evidence of the master of the SYDNEY states he saw both sidelights and the masthead lights in a line of the APOLLO. For those familiar with the COLREGS you will instantly know this is Rule 14 and a head on situation.
For those not so familiar Rule 14 it states as follows.
(a) When two power-driven vessels are meeting on reciprocal or nearly reciprocal courses 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.
(b) Such a situation shall be deemed to exist when a vessel 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 and by day she observes the corresponding aspect of the other vessel.
(c) When a vessel is in any doubt as to whether such a situation exists she shall assume that it does exist and act accordingly.
The APOLLO argued that as the SYDNEY had referred to a head on situation they should have taken action as per Rule 14. They said that Rule 14 (b) refers to a “vessel” i.e. singular and therefore Rule 14 is engaged if only one vessel sees both sidelights and the masthead lights in a line, of the other vessel.
The Court dismissed this argument for a number of reasons. Firstly, the Court considered that by C-12 the vessels were not on reciprocal or nearly reciprocal courses. The SYDNEY was heading 105 degrees and the APOLLO was heading 267 degrees, some 17 degrees out from being on reciprocal or nearly reciprocal courses.
Secondly, given the wording in Rule 14 (a) it refers to reciprocal or nearly reciprocal courses and this must mean that it requires both vessels to satisfy this test before it is deemed to be a head on situation.
Seafarers might be perplexed why lawyers are arguing over what they consider to be a straight forward issue, but this point had not been considered by the Court before and does provide some useful clarification to non-mariners.
The second interesting point is the Court held the APOLLO to be 100% liable and attributed no causative fault on the part of the SYDNEY. Instinctively, this is difficult to square away. How can a vessel underway with a full complement on the Bridge, with all her equipment working correctly, collide with a vessel and be held to have done nothing wrong, bearing in mind the requirements of Rule 17 and the action to be taken by the stand on vessel and even Rule 2 which does not appear to have been considered during the trial.
That said, the Court considered all the evidence and had the assistance of the Elder Brethren of Trinity House and concluded there was no causative fault on the part of the SYDNEY.
Given the sums at stake, it will be interesting to see whether the apportionment of liability will be appealed by the APOLLO interests.
This article was written by Paul Haworth a solicitor and master mariner with command experience and is part of the Casualty Response Team at Tatham & Co.