“Woodrop-Sims” (Jones) (1815) 2 Dods 83

“Woodrop-Sims” (Jones) (1815) 2 Dods 83

Rules for fixing or apportioning the loss occasioned by two vessels running foul of each other.

This was a cause of damage at the instance of Thomas Potts and George Taylor, the owners of the brig “Industry,” against the above ship the “Woodrop-Sims,” her tackle, &c.

The two vessels collided off the South Foreland, and the Industy laden with a cargo of coal on its way from Sunderland to some port in the West of England was sank and lost as a result of the negligence or want of skill of the master and crew of the “Woodrop-Sims,” and by the want of a good look-out on board that ship.

The Court was assisted by two of the elder brethren of the Trinity House; and in the course of his judgment, the judge commented on the principle of the apportionment of blame along the following lines.

This is one of those unfortunate cases in which the entire loss of a ship and cargo has been occasioned by two vessels running foul of each other.

It frequently happens in cases of this kind, that there is great discordance of evidence as to the facts upon which the Court has to form its decision. The testimony of the witnesses is apt to be discoloured by their feelings, and the interest which they take in the success of the cause; and the Court too frequently has to decide upon great diversities of statement as to the courses the vessels were steering, or the quarter from which the wind was blowing at the time when the accident occurred. In the present case, I.am in a great measure relieved from all difficulties of this kind, and it is not at all necessary for me to pay any minute attention to the conflicting testimony of the witnesses respecting the wind; for, I understand it to be the opinion of the gentlemen (the Trinity Masters) by whom I have the good fortune to be assisted on this occasion, that the state of the wind, as deposed to on one side and on the other, does not differ so materially as to make any difference in the measures which ought to have been pursued for the avoidance of this unfortunate accident. I am also relieved from any very minute attention to the testimony of the witnesses respecting the look-out which was kept either in one ship or the other; because, however different the representation in this respect may be, there was, at all events, abundance of time after the discovery of each other to have taken precautionary measures for avoiding the accident. The misfortune which occurred must not be attributed therefore to what took place before the vessels perceived each other; but was consequential upon what occurred afterwards.

This state of circumstances raises a question or two of professional skill, upon which you, gentlemen (addressing himself to the Trinity Masters), will have to decide. It is incumbent on you to determine whether proper measures of precaution were taken by the vessel which unfortunately ran the other down. The law imposes upon the vessel having the wind free, the obligation of taking proper measures to get out of the way of a vessel that is close-hauled, and of showing that it has done so, if not, the owners of it are responsible for the loss which ensues. This, therefore, is the first point upon which the Court request to be favoured with your opinion. If you shall think that the proper precautions were taken by the persons on board the “Woodrop-Sims,” then it will become necessary to enquire whether these measures were counteracted and defeated by improper measures taken by those on board the other ship. Upon these points, gentlemen, I shall rely on your judgment.

The Trinity Masters expressed their opinion, that the “Woodrop-Sims” was to blame; that she had the wind free, and ought to have got out of the way.

The Court pronounced its sentence accordingly, and referred the settlement of the amount of loss to the registrar and merchants.

See also

MIOM 1 Limited, The Isle of Man Steam Packet Co Ltd v Sea Echo E.N.E.

[2010] EWHC 3180 (Admlty)

1 On 3 February 2007 at about 1138 SEA EXPRESS 1, a high speed twin hull catamaran passenger and vehicle ferry, collided with ALASKA RAINBOW, a conventional geared bulk carrier, in the River Mersey off the Liverpool Landing Stage. SEA EXPRESS 1 was almost at the end of its regular crossing from Douglas in the Isle of Man to Liverpool and was carrying 274 passengers, 58 vehicles and 20 crew. ALASKA RAINBOW was laden with a part cargo of steel products and had been seeking to stem the tide whilst waiting to enter Albert Lock assisted by two tugs. The collision occurred in dense fog. The bulbous bow of the ALASKA RAINBOW struck the starboard quarter of the SEA EXPRESS 1 causing her damage below the waterline. Her starboard machinery and propulsion spaces were flooded and she had to be towed to the Liverpool Landing Stage. ALASKA RAINBOW suffered only superficial damage and proceeded out of the Mersey to her anchorage.

2 The court is required to apportion liability for this collision.

Apportionment

Culpability

85 The failure of the master of ALASKA RAINBOW to return to anchorage at C-9 or C-8 was the result of a failure to appreciate the danger ALASKA RAINBOW presented to inbound vessels and in particular to KEEWHIT and SEA EXPRESS 1. The danger was caused by the circumstance that, contrary to her intentions and to what she had informed Mersey Radio; she was not stemming the tide but was snaking across the river. The failure to appreciate the danger she presented was particularly culpable having regard to the close distance at which she and WD MEDWAY II passed. Having decided to move back across the river to the west bank it was particularly incumbent upon the master and pilot to monitor the track of SEA EXPRESS 1 and inform SEA EXPRESS 1 of the difficulty ALASKA RAINBOW was in having failed to stem the tide. Neither step was taken. Finally, having turned back from the west bank, ALASKA RAINBOW failed to keep clear of the fairway after C-3. This was probably a result of the failure to monitor the track of SEA EXPRESS 1. I regard the culpability of such faults as serious. They were probably caused by the master having too relaxed an attitude to navigation and his duties (illustrated by the shrug of his shoulders in the witness box when asked why he had not sounded fog signals), which attitude was exacerbated by relying upon the pilot to such an extent that he did not exercise his own judgment.

86 Mr. Brenton submitted that the reasons for Mr. Pirrie's failure on board SEA EXPRESS 1 to appreciate that the large radar echo was a vessel under tow rather than two tugs lay in the circumstance that the master, in assessing Mr. Pirrie for his type rating as master of SEA EXPRESS 1, had required him not only to have the “con” of the vessel but also to be responsible for keeping a good lookout. It was therefore said that the master failed to have sufficient regard to the advice from the owners of SEA EXPRESS 1 in their Route Operating Manual…

89 I accept this advice which is in accordance with the Claimant's standing orders. The vessel was in pilotage waters and therefore the master under examination ought to have had the con at the steering position (the master's chair) and the chief officer ought to have been at the navigation position (the chief officer's chair) providing navigational and anti-collision information. Whilst the standing orders provide that the master may require otherwise I am not persuaded that there was any reasonable basis for placing the master under examination in the chief officer's chair from where he was not only to carry out the required constant radar watch but was also to con the vessel.

90 I consider that the root cause of Mr. Pirrie's failures in lookout was not so much a lack of care on his part as the fact that he was required not only to con the vessel but also to be responsible for a good lookout. Since he was under examination and had failed to berth the vessel safely the previous day one would expect that Mr. Pirrie was doing all he could to navigate SEA EXPRESS 1 safely. It is very likely that his failure to keep a good lookout stemmed from the fact that in addition to keeping a lookout he was required to con the vessel. The master said that as master he normally conned the vessel in addition to keeping a good lookout and therefore Mr. Pirrie was doing no more than he would have to do as master. It may be the case that this was the master's practice but if so it was a practice contrary to that which his Owners thought was good practice in pilotage waters and restricted visibility and contrary to the advice I have received as to good bridge management practice. The master also insisted that the duties on Mr. Pirrie were not too onerous because he had the assistance of the master. It is true that the master was monitoring what Mr. Pirrie was doing but Mr. Pirrie remained the person who was conning the vessel and keeping a good lookout. As events proved the burden placed on him was not alleviated by the master monitoring what he was doing. The master did not appreciate that ALASKA RAINBOW was ahead of SEA EXPRESS I and also did not continue to observe the echo of ALASKA RAINBOW after 1134. I therefore consider that the failure to appreciate the presence of ALASKA RAINBOW was seriously culpable because it was the result of poor bridge management.

91 Nevertheless, despite these strictures as to the bridge management of SEA EXPRESS it is not possible, in my judgment, to separate or differentiate the respective faults of ALASKA RAINBOW and SEA EXPRESS 1 in terms of culpability. They were both culpable to a high order.

Causative potency

92 The dangerous situation which lay ahead of SEA EXPRESS 1 was created by ALASKA RAINBOW. Her inability to stem the tide, the initial cause of which was probably the counter current off the west bank, caused her to snake across the river. She could have brought that dangerous situation to an end by aborting the attempt to stem the tide and returning to her anchorage. Her failure to monitor the progress of SEA EXPRESS 1 and warn her of the danger ahead worsened that danger. In addition ALASKA RAINBOW failed to sound fog signals for a vessel under tow. Such a signal (four blasts in succession, that is, one prolonged followed by three short blasts) was likely to have woken up those on board SEA EXPRESS 1 to her presence. These faults were therefore of great causative potency. The failure to monitor the progress of SEA EXPRESS 1 also led to the failure of ALASKA RAINBOW to keep clear of the fairway at the last.

93 However, the bridge management of SEA EXPRESS 1 was ill-equipped to observe and react to that dangerous situation. As a result the presence of ALASKA RAINBOW was not appreciated until it was too late to take effective avoiding action. The faults of SEA EXPRESS 1 were therefore also of great causative potency.

94 As with culpability I am not able to separate the respective faults of ALASKA RAINBOW and SEA EXPRESS 1 in terms of causative potency.

95 It will often be the case that the vessel which creates the dangerous situation will bear a greater share of responsibility than the vessel which has to react to that situation. However, I am not persuaded that in the present case it is possible to establish different degrees of fault on that basis. That is because the fault in reaction on board SEA EXPRESS 1 was of great causative potency and was the result of poor lookout stemming from poor bridge management.

96 It follows that I have not found it possible to establish different degrees of fault and therefore liability for the damage must be apportioned equally; see section 187(2) of the Merchant Shipping Act 1995 .

Conclusion

97 I have concluded that responsibility for the collision must be divided equally between the two vessels.

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