The Owners of the “X-PRESS MAHANADA” v The Owners of the “BURGAN” (decided on 26.3.2025)
ColRegs Rules 5, 6, 8, 9 and 34
Mrs Justice Cockerill DBE held : –
– High speed causes and the positioning of the vessel was in contravention of ColRegs.
– No proper lookout in contravention of ColRegs but one vessel did not cause the collision based on this breach.
Factual Background
– On 14.6.2019 a collision happened between the Claimant’s container vessel “X-PRESS MAHANADA (X) and the Defendant’s product Tanker BURGAN (B). The collision occurred at the Gupta Crossing on the Karnapuli River approaching the port of Chattogram in Bangladesh. Both vessels were under pilotage whereby X was incoming and B was outgoing.
– The collision took place very close to the northern edge of the navigable channel at the Gupta Bend. This is a narrow channel.
– B’s defence to this claim is about how she got there. She contends that she was where she was because of the fault of a third vessel named “SHAKTI SANCHAR” (SS). SS entered into this channel navigating broadly east to west between the two vessels fairly shortly before the collision occurred.
Issues
– Is collision caused by B ‘s failure to stay on her own starboard side of the river?
– Was X at fault for the collision to occur as did SS?
Discussion and Analysis
The Fault of X
– X’s lookout was imperfect as she should have seen the other vessels earlier than she did but nothing X did or could have sensibly done would have impacted on the key exchange between B and SS which resulted in B coming hard to port, and effectively placing herself in a position where to avoid SS she rendered a collision with X almost inevitable.
– The next result on the speed issue leads to the conclusion that X had to maintain a considerable speed in order to maintain control and act entirely prudently would further increase that speed in immediate vicinity of the turn so as to counter the effects of the tide within that constricted area.
– The court concluded on the point of speed that X was not generally at fault except when B was visible to them. Having said this the court went on to conclude that the fault did not cause the collision but only to the damages suffered by X.
– The navigation argument brought against X was shot down by the Court as the positioning of X did not impede anyone and had the slightest bearing on the actions of B and SS.
The Fault of B
– X argued that B failed to keep to the outer limit of her starboard side of the channel. The referred to Rule 9(a) of the ColRegs. The breach of this rule is a serious fault (The Maritime Harmony (1982) 2 Lloyd’s Rep 400) and Nordlake v The Sea Eagle (2015) EWHC 3605 (Admlty) [2016] 1 Lloyd’s Rep 656.
– The court concluded that B had ample time to from position C-4.5 to give signal in appropriate ways that she was in fact proposing to comply with ColRegs Rule 9. B was at fault in the line that was taken in steering the vessel.
– Failure of proper look out as provided for in Rule 5 ColRegs. The assessor concluded that B should have observed X by AIS prior to leaving the berth; B should have observed X by radar between 1 ½ and 1 mile by radar; B should have detected SS by radar at 1 mile by careful and continuous observation on the appropriate ranges on both X and S Band radar sets; B should have observed both vessels visually at approximately 1 mile when in direct line of sight.
– The court also concluded the same
– B should have reduced her speed as soon as she saw SS and was unsure of her movement. That was the approach consistent with ColREgs Rule 8(e).
– B failed to engage with SS including use of the appropriate sound signal (Rule 34 ColRegs). In the circumstances where SS was acting unexpectedly and initial communication brought no response, it was a serious fault on B’s part not to signal her intentions unequivocally using the appropriate sound signal.
The Fault of SS
– Failing to keep to the starboard side of the river in breach of Rule 9 ColRegs
– Not making use of her VHF
– Failing to give appropriate or any sound signals. A fault the more serious if no use was being made of VHF.
– Court also concluded that the lookout on the SS was defective
Apportionment
– Apportionment should be attributed pursuant to Section 187(1) Merchant Shipping Act 1995.
– The House of Lords case of The Miraflores & The Abadesa (1967) AC 826 must be followed.
– The decision of Nordlake v The Sea Eagle [2016] 1 Lloyd’s Rep 656 must also be followed. This is a case that decided that the same approach as in The Miraflores & The Abadesa must be applied when one or more of the vessels at fault were not present in the proceedings.
The elements needed to be followed in apportionment of liability
– Culpability and causative potency must be taken into account – The Nordlake and Apportionment of Liability in British Courts under the Maritime Conventions Act 1911.
– Where one ship has be wrong manoeuvres placed another ship in a position of extreme danger, that other ship will not be held to blame is she has done something wrong, and has not been manoeuvred with perfect skill and presence of mind – Bywell Castle [1894] 4 PD 219.
– Apportionment of liability for damage caused by two or more vessels: is it a simple or complex exercise? LMCLQ 2023 p 225
B was much at fault, in a number of ways : –
– B’s failure to regain starboard side of the river was the originating fault (after agreeing to the Dong Jiang Passage prior to the collision)
– This failure was compounded by the lack of proper lookout which meant that her actions were reactive rather than considered
– B’s failure to engage SS as quickly as possible in an effective manner
– B’s failure. Once the SS was sighted, to reduce speed considerably until a safe protocol was established.
SS was also significantly at fault and that fault had a real causative i9mpact. In the decision to cross the river at this precise time, the ambiguous line taken and determined failures to communicate, SS was a key part of the ultimate collision and a not insignificant one either in culpability or causative potence.
X did not keep a proper lookout but it was not the cause of the collision but goes to the extent of the damage.
Decision
Apportionment of 65% fault on B and 35% on SS for this marine incident.
This case summary was prepared by Chakaravarthi Thillainathan, Principal Associate at Low & Partners, Malaysia. We thank Dr. Arun Kasi, Barrister at 4-5 Gray’s Inn Square, London, for his insightful input on the case.