High Court paves way for 100% apportionment of collision liability in crossing situation
Market Insight 02 March 2023 02 March 2023
UK & Europe
In FMG Hong Kong Shipping Limited, The Demise Charterers of FMG Sydney v The Owners of MSC Apollo  EWHC 328 (Admlty), the Admiralty Court discussed some important aspects related to determining the apportionment of liability in collision cases with two merchant vessels underway and both involved in a crossing situation.
The collision between the FMG Sydney (“SYDNEY”) and the MSC Apollo (“APOLLO”) occurred in the approaches of Tianjin, China, during a period of darkness, under good visibility and fair weather conditions, at about 2232 hrs on 29 August 2020.
SYDNEY was the outbound, very large ore carrier (262,088.50 MT deadweight) heading towards Australia. APOLLO was the inbound container ship (81,171 MT deadweight) heading towards Tianjin port or anchorage. Both vessels were in ballast.
Besides these two vessels, there were three other vessels in the immediate vicinity – the Shen Hua 536 (“SH536”), the Hai Yang Shi You 633 (“HYSY633”), and the Chang Fa Long (“CFL”).
The various vessels’ courses can be seen from the plot included in the judgment here
Some important time events were as follows, below. They are denoted in ‘x’ minutes to the collision (C-‘x’).
APOLLO’s alarm for CPA/TCPA based on its AIS data was triggered at C-11.5 on SYDNEY’s X-band radar.
At that time, APOLLO was 17 degrees on the port bow of SYDNEY, at a distance of about 4.8 nautical miles (Nm).
Upon visual inspection, both the red and green sidelights and masthead lights of APOLLO were seen by the Third Officer of SYDNEY. It was assessed that APOLLO would cross astern of SYDNEY at a distance of over 2 Nm, with the Closest Point of Approach (CPA) of 0.37 Nm on SYDNEY’s port side.
At C-10, the Master on the APOLLO (wrongly) assessed that they would pass starboard to starboard with SYDNEY and started doing repeated small alterations of course to port every next few minutes.
By C-9, only the green sidelight of APOLLO could be seen by the bridge team of SYDNEY. Seemingly APOLLO had altered to port and was thus acquired as a target on SYDNEY’s S-band radar.
Subsequently, by C-7, a close-quarters situation was imminent with APOLLO, as per the radar data on SYDNEY.
By C-6, APOLLO had altered its course by 25 degrees to port, and thus now appeared to be crossing ahead of SYDNEY with a CPA of 0.02 Nm, instead of passing astern.
All this while SYDNEY was proceeding at full ahead, doing about 10.5-11.5 knots, whereas APOLLO was at somewhere between full ahead and full sea speed, doing about 16 knots over ground.
At C-5.5, the Master of the APOLLO instructed the Third Officer to order any ship that called them on VHF to pass starboard to starboard with APOLLO.
While the bridge team of SYDNEY was assessing the situation, they heard VHF communication of APOLLO with other ships, whereby HYSY633 (ship on SYDNEY’s port side) agreed to pass starboard to starboard with APOLLO, while CFL (on SYDNEY’s starboard quarter) was ordering APOLLO to pass port to port. APOLLO could be seen altering to port to first pass HYSH633 on its starboard side.
At C-3.5, APOLLO’s Master ordered hard to starboard, but soon after (in about 10 seconds) ordered the wheel to be brought back to midships.
Between C-3.5 to C-3, SYDNEY altered her course from 110 degrees to 115 degrees, and then to 120 degrees. At this time, it appeared that APOLLO had altered a bit to starboard but stopped altering its course again. By C-1.5, SYDNEY’s Master ordered hard to starboard while APOLLO’s bridge asked them to pass starboard to starboard.
Admiralty Court’s assessment
Sir Nigel Teare, sitting as the judge for this matter, assessed the various breaches of International Regulations for Preventing Collisions at Sea 1972 (COLREGS), as published by the International Maritime Organization and recognised as the navigation rules followed internationally by ships and other vessels at sea. Any mention of ‘Rules’ below is in reference to the Rules as prescribed in the COLREGS.
While the bridge team of SYDNEY was seemingly engaged in trying to understand what APOLLO was doing, APOLLO continued to disregard the importance of maintaining a proper lookout to assess the situation. No adverse comments on a bad lookout by SYDNEY’s bridge team as submitted by APOLLO’s Counsel were accepted.
The marginal increase in speed of SYDNEY (while coming from half ahead to full ahead at the initial stages) was not deemed either causative of the collision, nor a breach of the Rule 17(i) obligation for a standby vessel to maintain her course and speed.
Arguments were presented by APOLLO’s Counsel to suggest that the crossing rule applied and obliged APOLLO to take action only at or after C-5.5.
The Court discussed this in depth and took the advice of Nautical Assessors on the crucial point as to when the responsibility of a give-way vessel under a crossing situation applies. It was determined that in this instance, the same was applicable since C-12.
APOLLO continued to breach its obligations under Rule 15 (Crossing situation) and Rule 16 (Action by give-way vessel) while engaging with almost three out of four vessels which were on its starboard bow, and which could have resulted in a close quarter’s situation with these vessels.
It failed to take early and substantial action (as required by Rule 8) to avoid a risk of collision with SYDNEY.
SYDNEY’s actions, while being taken in a dense traffic situation with vessels on its port and starboard sides following a similar course, were deemed in line with its obligations under Rule 17.
An argument that a last-minute alteration to port could have perhaps avoided the collision, was put forward.
However, Sir Teare acknowledged that even though it may be assessed later that, had SYDNEY gone to port, the collision could have been avoided, the Rules did not allow SYDNEY to take such action at that time.
Nevertheless, the starboard helm action taken by SYDNEY was justified in the circumstances as they appeared to the Master at the time.
Deemed head-on situation
APOLLO’s Counsel submitted that pursuant to Rule 14(b), a head-on situation was triggered when SYDNEY’s bridge team saw both the sidelights and masthead lights of APOLLO. Thus, it could not be deemed a crossing situation, in line with the explanation by Lord Briggs in Nautical Challenge v Evergreen Marine  1 WLR 1436 at paragraph 98.
However, the judgement discussed and clarified why Rule 14(b) was to be read in conjunction with Rule 14(a) to understand the essence of Rule 14 as a whole. The requirement of the ability to see the ‘other’ vessel on a nearly reciprocal course fell upon on each vessel and not only on one of the two vessels. It is only then that both vessels could be deemed to be on a reciprocal or a nearly reciprocal course and thus be involved in a head-on situation. The same was not existent here.
The judgement further went on to discuss various other aspects crucial to prudent navigational practices, including inappropriate use of VHF by the bridge team of APOLLO.
It was eventually determined that there was no action by SYDNEY which could be deemed causative of the collision.
On the other hand, APOLLO’s blatant disregard of COLREGS and prudent seamanship practices, especially in relation to its obligations as a give-way vessel in a crossing situation, was held solely to blame for the collision incident.
It is not the first time that one of two underway vessels has been apportioned 100% liability following a collision at sea. However, with the development of navigational technology, training, and practices worldwide, it is still a rare occurrence for one vessel to have been held entirely to blame.
While the industry has long supported and stood by the argument that there must be something that each of two vessels involved in a collision (while both ships are underway) could have done to avoid an incident, and thus share some proportion of blame, this judgement is a prime example of what can be seen as two completely different bridge team practices.
While there were only three people on the bridge of SYDNEY (master, third officer and helmsman), they were vigilant enough to identify a developing situation with APOLLO, communicated with each other effectively, and took actions under the prevailing circumstances and conditions, which were in line with COLREGS.
On the other hand, although the APOLLO’s bridge was manned by four people (master, chief officer, third officer and helmsman), there was seemingly no effective communication, no challenging of authority (with the Master instructing the Third Officer to tell any ship calling on VHF to pass starboard to starboard), or assessment of the situation, and they continued to navigate without much respect for COLREGS, which have been formulated and adopted globally to avoid a situation precisely as this one.
The incident highlights the importance of developing key soft skills in the bridge teams, besides the importance of strict adherence to COLREGS at all times. It remains to be seen whether the judgement will be appealed and the grounds on which such an appeal may be granted.