DMC/SandT/25/07
England
THE OWNERS OF THE “X-PRESS MAHANADA” v THE OWNERS OF THE “BURGAN”
English Admiralty Court: Cockerill J: [2025] EWHC 721 (Admlty): 26 March 2025
Judgment Available on BAILII @ https://www.bailii.org/ew/cases/EWHC/Admlty/2025/721.html
Lionel Persey KC (instructed by Holman Fenwick Willan LLP) for the X-PRESS MAHANADA (the “XPM”)
Nigel Jacobs KC (instructed by Stann Law Limited) for the BURGAN (the “BURGAN”)
ADMIRALTY: COLLISION: APPLICATION OF RULE 9(A) OF THE COLREGS: COLLISION INVOLVING THREE VESSELS: CAUSATIVE FAULT: APPORTIONMENT OF LIABILITY: FAULT OF A VESSEL NOT REPRESENTED AT TRIAL
Summary
Following a near head-on collision in a narrow channel, the XPM sought to rely upon Rule 9(a) of the International Regulations for Preventing Collisions at Sea 1972 (the “COLREGS”) to assert that the BURGAN was liable. In defending the claim, the BURGAN did not dispute the application of Rule 9(a) of the COLREGS, but argued fault lay with the actions of a third vessel, the SHAKTI SANCHAR (the “SS”).
The High Court apportioned fault for the collision against BURGAN at 65% and against SS at 35%. The Judge held that the XPM was not entirely faultless; however, its faults were not causative of the collision.
Case note contributed by Sheridan Steiger, LLM (International Trade and Commercial Law), LLB (Hons), BA (Hons), Solicitor of England & Wales and International Contributor to DMC’s CaseNotes
Background
On 14 June 2019, at around 08;17, a near head on collision occurred between the XPM, a container vessel, and the BURGAN, a product tanker, at the Gupta Crossing, which is a significant bend in the Karnaphuli River (the “River”) in the approaches to the Bangladeshi port of Chattogram (also known as Chittagong) – as illustrated in the Admiralty chart below.
At the time of the collision both vessels were under pilotage and the XPM was the inbound vessel whilst the BURGAN was outbound.
The collision occurred at the northern edge of the Gupta Crossing: a narrow, navigable channel of the River. The Admiralty chart for the area notes:
“The Karnaphuli River is narrow with sharp bends at Gupta Crossing area.
Mariners are advised to navigate with extreme caution when transiting the river”
The north-eastern part of the Gupta Crossing is further narrowed by a training wall which remains beneath the water level except in times of extreme drought. The navigable limits are marked by a series of physical buoys and Buoy 11 marks the NE of the bend in front of the wall.
The BURGAN had arrived at Chittagong on 10 June 2019 and discharged her cargo such that she was ready to sail by the evening of 13 June 2019. Movement of vessels her size is not permitted on the River in the hours of darkness so it was necessary to wait for the morning of 14 June 2019 to sail. The BURGAN’s pilot boarded at 0724 and she sailed at 07:36.
Meanwhile, the XPM was a containership engaged on the Upper Bay of Bengal liner service between Colombo, Sri Lanka, and Chittagong. She arrived off Chittagong on 7 June 2019 where she dropped anchor waiting to be advised of berth availability. She departed the anchorage bound upriver at 05:36 on 14 June 2019 and ^^^ entered the River at 07:57. From this point until just before the collision her speed over ground (“SOG”) was kept above 10 knots (and generally above 11-11.5 knots.
At 08;55, an exchange occurred between the pilots of the BURGAN and another incoming vessel, the DONG JIANG. The DONG JIANG requested, and the BURGAN agreed, to pass starboard to starboard. ^^^ To pass starboard to starboard, the BURGAN’s pilot ordered her rudder hard to port.
At 0806, messages were heard on BURGAN’s VHF from the SS reporting that she had “already departed”.
The SS was an amphibious warfare ship operated by the Bangladeshi army. Subsequent investigation suggests she had departed the Patenga Container Terminal construction area and moved west to east before coming to a halt. No information had been provided to port control by the SS.
At around 08:10, the BURGAN and DONG JIANG passed one another starboard to starboard.
As a result of the need to apply port rudder to achieve this manoeuvre, the BURGAN was now on the port (north) side of the River on a heading of 104° with a speed of 6 knots SOG. She applied starboard rudder before settling on a heading of 110°.
At this time the River was flooding at a rate of around 3 knots. XPM, with the benefit of the incoming tide, was faster over the ground, whilst the BURGAN’s speed was reduced through the water. The vessels came into sight of one another at around 08:10 although neither particularly observed the other on radar.
Around 08:12, the BURGAN submitted she found herself on the horns of a dilemma when the presence of the SS made it unsafe for her to go to starboard, but it was equally unsafe to go to port. At this time the BURGAN was slightly to n the starboard (south) side of the channel, but was on a heading of 114.5° towards the port side of the River.
At around this time, the SS became visible on the BURGAN’s radar and the BURGAN’s pilot sought clarification from Port Control as to the SS’s identity and her intentions.
The XPM observed that the SS entered the channel, to cross ahead of the XPM, before turning to port to proceed upriver.
When the BURGAN entered the sharply curved section of the Gupta Crossing, the SS was roughly in the middle of the navigable channel. The BURGAN’s pilot tried to raise the SS on the VHF without success. The BURGAN had not slowed and was not on the starboard side of the channel. By now three minutes had elapsed since the BURGAN had passed the DONG JIANG and she had maintained a bearing of 110°-115° throughout.
At around 08:14, the pilot of the BURGAN again tried to raise the SS without success. The BURGAN was still heading away from the starboard bank and the SS was roughly in the middle of the channel.
Meanwhile, the XPM was steering a course to take a tight turn on the far (north/north-east) side of the channel. At around 08:16, the XPM moved closer to the training wall with a view to passing the BURGAN port to port. As the XPM began to swing to port, to negotiate the bend in the River, it became clear that there was insufficient room for XPM to pass BURGAN port to port.
45 seconds before the collision, the SS cleared the BURGAN’s starboard side. Shortly before the collision there was an exchange on VHF between the pilots of the BURGAN and the XPM in which they tried to agree how best to steer their respective vessels to avoid the collision. The XPM ordered her engine to a stop and put the rudder hard to starboard.
At 08:17, the BURGAN’s starboard bow collided with the port bow of the XPM in a position well to XPM’s side of the River on the very edge of the navigable channel.
The XPM was making around 13.3 knots SOG and the BURGAN 7.7 knots at the time of the collision.
In the picture below, the green shape represents the BURGAN and the red shape the XPM. The grey shape represents the SS and the grey line the course of that vessel. The blue line shows the course of the DONG JIANG.
The XPM’s case
The XPM argued that the collision was the result of the BURGAN’s failure to stay on the south side of the River and was a failure to follow Rule 9(a) of the COLREGS.
The BURGAN’s case
The BURGAN’s case was that the SS was predominately the blameworthy vessel, but that the XPM was also at fault for proceeding too fast. It was also submitted that any faults on the part of the BURGAN were not causative and the situation facing the BURGAN was unenviable: moving to starboard would have meant a close quarter situation with the SS, but an alteration to port would potentially embarrass inbound vessels, such as the XPM.
The SS
The SS was not represented at trial.
Judgment
The Court had the benefit of advice and commentary from two Assessors of the Elder Brethren, Captain Gobbi and Commodore Dorey.
The Judge noted that the collision occurred because of two factors. The first was that the BURGAN was to the north of the channel. The second was that, faced with two oncoming vessels, she reacted as she did.
The questions the Judge had to address were: (1) whether the BURGAN could and should have been elsewhere, (2) whether the other vessels were themselves at fault, and (3) which of the faults were causative of the collision.
Fault of the XPM
The Judge held that the XPM’s lookout was imperfect and she should have observed the other vessels earlier than she did. However, the Judge deemed this fault was not causative of the collision. The Judge held:
“Nothing XPM did or could sensibly have done would have impacted on the key exchange between BURGAN and SS which resulted in BURGAN coming hard to port and effectively placing herself in a position where to avoid SS she rendered a collision with XPM almost inevitable.”
With the benefit of advice from the Assessors, the Judge rejected BURGAN’s criticism of the XPM’s speed (a breach of COLREGS Rule 6), noting that, while navigating a sharp bend of a river with a very considerable tide, it is necessary to make considerably more speed than the tide to maintain any degree of steerageway.
The Judge did, however, reproach the XPM in one regard: her failure to reduce speed in the very last moment, which, it was suggested, might have helped to reduce the extent of the damage. The Judge went on to recognise that it is the orthodox approach of the Admiralty Court to disregard the final couple of minutes before a collision and held that the XPM’s speed was not causative of the collision.
Fault of the BURGAN
The XPM’s submissions focused on the BURGAN’s failure to comply with Rule 9(a) of the COLREGS, which states:
“A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable.”
The Judge was reminded of the need to treat breaches of the COLREGS as a serious fault (fn.2).
In assessing the BURGAN’s fault, the Judge noted that, while her interaction with the DONG JIANG was not causative of the collision, it had set the backdrop for later events.
It was the Assessors’ view that the request to pass starboard to starboard was a reasonable one for the DONG JIANG to have made; however, it should have been rejected by the BURGAN as it led to her being on the wrong side of the River approaching a sharp turn with inbound traffic.
However, having agreed to the manoeuvre, it was the Judge’s view that the BURGAN was obliged to remedy the situation as soon as possible after passing the DONG JIANG, to ensure compliance with Rule 9(a) of the COLREGS.
The Assessors opined that there was ample time for the BURGAN to have regained the south side of the River. She emphatically did not do so.
The Judge rejected the BURGAN’s submission that it was not possible to regain the south side of the River on account of the SS. The Judge held that there was time and that it could have been achieved through an alteration of course “large enough to be readily apparent” (Rule 8(b)) or more slowly with the use of audible signals.
Compounding this fault, the Judge also held that the BURGAN failed to keep a good lookout (in breach of COLREGS Rule 5) and was also at fault for proceeding at an excessive speed. The Assessors, and, in turn, the Judge, determined that the BURGAN would have been controllable at low speed in light of the strength of the incoming tide. The Assessors suggested that the BURGAN should have slowed or stopped (over the ground) or possibly even placed an anchor to hold the bow while the XPM passed.
Finally, the BURGAN was criticised for not using appropriate sound signals and instead, futilely, seeking to rely on VHF communications with the SS. The Judge noted that it was redolent of panic rather than ordered thought and suggested that the time may have been better used to ensure the BURGAN came to starboard and her speed was reduced.
Fault of the SS
The Judge held that the SS was at fault in failing to keep to the south side of the River in breach of Rule 9(a) of the COLREGS. The SS was also criticised for not making use of her VHF and for failing to give appropriate sound signals. The Judge also allowed an inference that the SS’s manoeuvring suggested she had failed to keep a good lookout.
The Judge noted that the SS should have aborted her attempt to cross the River once it became clear that she ran the risk of colliding with both the BURGAN and the XPM if she proceeded.
Apportioning liability
In apportioning the liability for the collision between the three vessels, the Judge referred to section 187(1) of the Merchant Shipping Act 1995:
“…you do not count the number of faults. The number is not decisive. What matters is their nature and quality, which must be assessed by reference to the two elements of fault: causative potency and blameworthiness..”
Applying these principles to the facts, the Judge held that the BURGAN was most at fault (assigning it 65% of the liability). In choosing to cross the River, failing to maintain a lookout and taking an ambiguous route, the Judge held the SS 35% liable. Whilst the Judge criticised the lookout keeping and the speed in the final moments of the XPM, it was held that these were not causative.
In absolving the XPM of liability, the Judge referred to The Miraflores v The Abadesa (fn.3) noting that a person who has a crisis thrust upon them is generally viewed as less culpable than a person who creates a crisis by their negligence.
Comment
It is not common for a Court to apportion 0% liability for a collision when a ship is underway, but this judgment reminds us that non-causative faults will not attract liability. This is particularly so where errors arise as a result of a vessel failing to respond perfectly to a situation in which it finds itself as a result of the errors of another.
The Court treats breaches of the COLREGS as serious. Whilst the temporary deviation from Rule 9(a) in passing the DONG JIANG was acceptable (if not prudent), the failure to rectify the position in the period up to the collision was not.
Seafarers should also be cautious of an over reliance upon the VHF; the Judge noted that time spent trying to raise the other ships may have been better utilised in adopting an approach consistent with that set out in the COLREGS.
Finally, the Court is willing to apportion liability to vessels even if they are not represented in the proceedings. Litigators may look to be guided by this when they handle future multi-ship incidents.
Footnote 1: [2005] EWHC 380 (Admlty) at [12]-[17]
Footnote 2: The Maritime Harmony [1982] 2 Lloyd’s Rep 400 and The Nordlake v The Sea Eagle [2015] EWHC 3605 (Admlty) [2016]
Footnote 3: The Miraflores v The Abadesa [1967] A.C. 826
Footnote 4: The Nordlake v The Sea Eagle [2015] EWHC 3605 (Admlty) [2016] and Apportionment of Liability in British Courts under the Maritime Conventions Act 1911 (1977) 51 Tulane Law Review 1025
Footnote 5: Apportionment of liability for damage caused by two or more vessels: is it a simple or a complex exercise? LMCLQ 2023 p 225
