The Admiralty Court handed down its first collision decision of the year by holding that the Kiran Australia was 30% responsible and the Belpareil was 70% responsible for a collision in the Bay of Bengal, off Chattogram, Bangladesh on 9 November 2021. CJC acted for the owners and insurers of the Kiran Australia. Summary provided by Alistair Johnston, Director, Maria Borg Barthet, Director, and William Stansfield, Managing Associate.

On 26 February 2024, the Admiralty Court (with two Elder Brethren sitting as Nautical Assessors) handed down its first collision decision of the year by holding that the Kiran Australia was 30% responsible and the Belpareil was 70% responsible for a collision in the Bay of Bengal, off Chattogram, Bangladesh at 01:10 hrs (local time) on 9 November 2021.

The decision of the Admiralty Court provides useful guidance on what actions should be taken by a ship, such as the Belpareil, that is uncontrollably dragging its anchor. The decision also confirms earlier cases that a ship that drags its anchor is presumed to be negligent, and it is for the dragging ship to rebut that presumption by proving that the dragging was not caused by its negligence.

Facts

Both ships were anchored at the Chattogram “A” anchorage. Kiran Australia had her starboard anchor down with eight shackles in the water and Belpareil had her port anchor down with nine shackles in the water.

It was common ground between the parties (and recorded in the judgment) that Chattogram Anchorage “A” is known to present poor holding ground and difficult conditions.

The Admiralty Judge found that from at least 23:00 hrs on 8 November 2021 (C-130 minutes), Belpareil was dragging her anchor without effective control of her vector due to main engine problems. Over the next two hours or so, a dangerous close quarters situation slowly developed as Belpareil dragged towards Kiran Australia.

By around C-40 minutes, the two ships were engaged in a “slow-motion maritime tango of collision avoidance” before hitting each other at 01:10 hrs on 9 November.

The allegations of fault

Belpareil accepted that Kiran Australia was not at fault prior to the final few minutes before the collision but alleged that the navigational actions taken by Kiran Australia in the last three minutes meant that Kiran Australia was solely responsible for the collision. The period C-3 minutes is considered in further detail below.

Kiran Australia’s case was that the dangerous close quarters situation that slowly developed over several hours was Belpareil’s fault in that (i) Belpareil was dragging her anchor; (ii) Belpareil failed promptly to notify other ships (including Kiran Australia) of her situation; (iii) Belpareil failed to call for tug assistance; and (iv) Belpareil failed to drop her second anchor. Kiran Australia also argued that Belpareil was solely to blame due to the navigational actions taken by Belpareil from C-3 minutes.

1. Dragging

With regards to the first allegation of dragging, the court affirmed the earlier decisions in The Exeter City and The Brabant, which together stands as authority for the proposition that a ship that drags her anchor creates a rebuttable presumption of negligence. The burden is on the dragging ship to rebut that presumption by proving that the dragging was not due to negligence or that the dragging could not have been prevented by the exercise of reasonable skill and care. On these facts, Belpareil was unable to rebut the presumption that ships do not drag without fault. She was therefore presumed to be at fault, and on that basis, the Court found Belpareil at fault in dragging her anchor.

2. Failure to warn

The second allegation concerned a failure to warn other ships. The Admiralty Judge found that Belpareil was dragging her anchor by around 23:00 hrs and from 23:16 hrs experienced main engine difficulties (low RPMs when set to Half Ahead and Full Ahead).

Given this experience, the Judge said that it should have been obvious to those in command of Belpareil that she was a potential danger and therefore a warning should have been broadcast no later than 23:40 hrs. However, and negligently, Belpareil did not do this until 00:21 hrs.

The Judge further held that Kiran Australia “had no wish to play slow motion maritime dodgems with Belpareil”. Had Belpareil broadcast a warning at around 23:40 hrs (as the Judge held should have happened), it is likely that the Kiran Australia would have had sufficient time to weigh anchor and get well clear of Belpareil such that the collision would not have occurred.

3. Failure to call for tugs

The Admiralty Judge held that Belpareil should have called for tug assistance at the latest by 23:40 hrs, and was negligent by only calling for tug assistance at around 00:32 hrs. However, no tug ever came to the assistance of Belpareil and there was no evidence that a tug was available. In the circumstances, the Judge held that the failure for calling for tugs promptly was not causative of the collision.

4. Failure to drop second anchor

The allegation is that Belpareil should have dropped a second anchor at the initial phase of the incident before the two ships got into the close quarters situation. On this issue, the Admiralty Judge took advice from the Nautical Assessors who advised the Judge that dropping a second anchor should be one of the first considerations of a good seaman when their anchor drags and they find their main engine unreliable. The Nautical Assessors also advised the Judge that Belpareil should have dropped her starboard anchor at, or prior to, 00:05 hrs (C-65 minutes), and if she had done so, Kiran Australia would have had plenty of time to weigh anchor and get clear without Belpareil ever getting close.

The Judge accepted that advice and held that Belpareil was at fault by failing to drop her starboard anchor in response to realising that she could not rely on her main engine to arrest or control her dragging.

C-3 minutes

Both ships argued that the other was at fault due to the navigational decisions that the other took in the last few minutes leading up to the collision. The two cases were effectively mirror images of each other.

Kiran Australia’s case was that Belpareil should have stopped her engine at C-3 minutes, but negligently, Belpareil continued to move ahead and to starboard taking her into Kiran Australia’s path. Conversely, Belpareil argued that Kiran Australia allowed herself to come astern from C-3 minutes without any consideration for Belpareil’s position, which was a dangerous thing to do and not something that Kiran Australia had any immediate need to do. Belpareil also said that they were at risk of grounding in shallower waters if they had allowed themselves to drag further backwards.

In a lengthy section of the judgment, the Admiralty Judge held that Kiran Australia’s actions from C-3 minutes were actions that should not have been ordered. Kiran Australia tried to rely on the principle of English law that a wrong step taken in the agony of the moment or on the horns of a dilemma is not negligence, but this was rejected by the Judge who held that there was no agony of the moment and no such dilemma.

As far as Belpareil was concerned, the Judge said that it should have been obvious to Belpareil that by C-2 minutes, Kiran Australia was falling back towards her, and it was unreasonable of Belpareil to insist upon what had become a collision course. Accordingly, Belpareil was at fault in maintaining Full Ahead after C-2 minutes, thereby failing to take action to avoid collision and in fact driving into the collision that resulted.

The apportionment

Having decided that Belpareil was at fault in the period leading up to C-3 minutes and that both ships were at fault in the period from C-3 minutes up to the collision, the Admiralty Judge had to apportion liability under s.187 Merchant Shipping Act 1995.

The principles underpinning an apportionment of liability under s.187 are well established, and most recently set out in the NYK Orpheus c/w Panamax Alexander and Alexandra 1 c/w Ever Smart judgments. There was no dispute between the parties over what the Court had to do. The exercise involves an assessment of the degree of blameworthiness and the causative potency of each ship’s faults and reflects the resulting overall respective responsibilities in numerical terms.

The Court’s conclusion was that Belpareil was substantially more blameworthy, having been responsible for bringing the ships into a dangerous situation in the first place. Belpareil was at fault again, albeit less so than Kiran Australia, in her actions from C-3 minutes that ultimately brought the ships into contact with each other.

The Admiralty Court held that significantly greater share of responsibility lies with Belpareil, and accordingly liability for the collision was apportioned 70% to Belpareil and 30% to Kiran Australia. In numerical terms, an apportionment at this level translates to Belpareil being more than twice as blameworthy but less than three times as blameworthy as Kiran Australia.

Readers who are interested in learning more about this case may wish to read the full judgment, available at https://www.bailii.org/ew/cases/EWHC/Admlty/2024/362.pdf, which also contains extracts from the agreed “MADAS” reconstruction produced from the VDR data of both ships.