Approved Judgment: TH TH ND TH TH

Neutral Citation Number: [2005] EWHC 380 (Admlty)
Case No: 2002/737
IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice

Strand, London, WC2A 2LL
Date: 23 March 2005
Before :
THE HONOURABLE MR JUSTICE GROSS
Sitting with CAPTAIN COLIN STEWART & CAPTAIN IAN GIBB

RNR Elder brethren of Trinity House, as Nautical Assessors
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Between :
The Owners and Bareboat Charterers of the Claimants

Vessel GLOBAL MARINER
- and -
The Owners and Bareboat Charterers of the vessel Defendants
ATLANTIC CRUSADER
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---------------------
Mr N Teare QC & Mr J Turner (instructed by Barlow Lyde & Gilbert) for the Claimants
Mr L Persey QC & Mr M Davey (instructed by Hill Taylor Dickinson) for the Defendants
Hearing dates : 6th & 7th October; 22nd 14th Oct and 20th October 2004
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APPROVED JUDGMENT
High Court Unapproved Judgment: Global Mariner - v Atlantic Crusader
No permission is granted to copy or use in court
Mr Justice Gross:
INTRODUCTION
1. At about 08.28-08.29 local time on the 2 nd August, 2000 (GMT-4), the
Claimants vessel, the GLOBAL MARINER (GM) and the Defendants
vessel, the ATLANTIC CRUSADER (AC), came into collision in the River
Orinoco, between miles 194 and 195, off the port of Matanzas, Venezuela. The
consequences of the collision were dramatic, in that GM sank within minutes;
fortunately, there was no loss of life or significant personal injury.
2. GM, registered in the port of London, was a geared motor cargo vessel of 12,778
GRT, 161.83m in length overall and 22.90m in beam. She was powered by an
8827 kW engine. At the time of collision she was laden with some 16,598mt of
wire rods and hot and cold rolled steel coils and was on an even keel drawing
9.9m. She was in commercial service but was being used as a training vessel for
deck and engineering cadets.
3. AC, registered in the port of Limassol, was a motor cargo vessel of 7,366 GRT,
122.34m in length overall and 20m in beam. She was powered by an engine
developing 6,080 BHP. At the time of collision, she was laden with a cargo of
some 7,700mt of bulk ferromanganese and her drafts were 8.17m forward and
8.34m aft.
4. GM had hitherto been berthed port side to alongside Sidor no.3 berth on an
upriver heading. In broad terms, the collision occurred in the course of her
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undertaking a 180 starboard turn to commence her downriver passage, assisted
by two tugs and under the advice of a local pilot. Another vessel, ILLAPEL,
was anchored abeam of GM, distant some 2.5 3 cables off the berth, to the
northern side of the navigable channel. AC had been at anchor, most recently to
her starboard anchor, with 5 shackles in the water, about astern of ILLAPEL,
distant some 5 cables from her. As will be seen, ACs position, the question of
whether she had been dragging and, if so, the direction of her dragging were
controversial; subject to ACs substantial yawing, which was common ground,
for the moment it suffices to say that her heading had been very broadly upriver.
There is annexed to this judgment, a copy of a chart of the relevant area, with the
simulations of both parties experts superimposed thereon (Annexe I).
5. A number of matters were common ground:
i) The time of the collision, as already recorded.
ii) The weather was fine and clear. The wind was immaterial, being NE of
10 knots or less, alternatively variable, about force 1. The river current,
which was of significance, was setting ENE at some 4-5 knots, generally
following the direction of the river (downriver).
iii) The current could cause AC to yaw substantially, to about 35-40 either
side of her mean upriver heading.

iv) The angle of blow was about 60, leading aft on GM. Contact was
between the bow of AC and the port side of GM, about in way of hold 2A
and, thereafter, hold 3 (both of which were penetrated).
v) At the time of collision, GM was on a heading to starboard of downriver
and AC was on a heading to port of upriver.
6. Certain matters were not common ground but the differences between the parties
were such as, in my judgment, to render dispute immaterial:
i) Experts instructed by both parties prepared simulated tracks of GM,
covering her manoeuvre from her berth to the collision position. As
appears from Annexe I, there is a difference of about 50m (North/South)
between the two. Given (inter alia) the fact that the GM did not have a
course recorder or an engine data logger and the inevitable margins of
error in such exercises, nothing turns on the difference between the two
simulated tracks. I accept these simulations as providing good illustrative
plots of the track of GM, subject throughout to the caution expressed by
David Steel J. in The Pelopidas [1999] 2 Lloyds Rep. 675, esp. at p.682.
ii) As further appears from Annexe I, the difference between the parties
collision positions is of the order of 70m (East/West); indeed the
disagreement between expert photogrammetrists (who contributed in their
reports to this debate), was of no more than 37m, within each experts
acknowledged margin of error. Again, no practical consequences rest on

such differences. I am therefore content to conclude that the collision
position was about 500m from and bearing about WNW of the South
Western end of Venalum pier, shown in the annexe.
iii) I did not understand the parties ultimately to dispute that the ILLAPEL
was (as already noted) anchored some 2.5 3 cables off the Sidor berth.
For completeness, the difference between 2.5 and 3 cables is wholly
immaterial and I say no more of it.
7. The principal issues in the case may conveniently be considered under the
following broad headings:
i) ACs anchorage position and the control of yaw, sway and drag by AC
(Issue (I): AC at anchor);
ii) The manoeuvre carried out by GM, including planning, appreciation and
lookout (Issue (II): The GM manoeuvre);
iii) Causative faults, if any, on the part of each vessel (Issue (III): Fault);
iv) Apportionment of such causative faults (if any) as are found against each
vessel (Issue (IV): Apportionment).
8. By way of broad outline only, the rival cases were these. GM, if I may say so,
somewhat boldly, contended that AC was solely to blame, alternatively should
bear the preponderance of blame. AC had been anchored in an unsafe anchorage

and had failed to take any or adequate steps to control her yaw, drag and sway. In
its final form, GMs case was that there probably was some but not very great
dragging in a SE direction, towards Venalum berth; the greater movement was
caused by yaw and sway. The duty to control yaw, drag and sway was acute,
given that AC had anchored in a narrow channel in close proximity to busy
berths. Control could have been achieved by the adoption of an open moor
(anchoring with two anchors, to an angle of about 60), together with use of helm
and engines; had such measures been taken, AC would have been more to the
North of the channel and a collision would probably have been avoided or its
nature would have been less serious. For her part, GM had maintained a proper
lookout before unberthing; neither ILLAPEL nor AC presented risks to the
unberthing manoeuvre and it could not reasonably be anticipated by those on
board GM that AC would yaw and sway substantially and not take steps to
control such movement. The manoeuvre itself was reasonably conducted and it
was ACs intermittent movement into the middle of the narrow channel which
caused or was the major cause of the collision. The notion that GM as the moving
vessel should be solely to blame was in any event wrong and amounted to a
resurrection of the last opportunity rule.
9. ACs case was that GM was solely to blame for the collision; very much as a
fallback alternative, GM was preponderantly to blame. GM, underway, had
struck a vessel at anchor. At anchor, AC, painted bright red, had been visible; her
yawing was not unusual for a vessel at anchor in a river with a fast flowing
current. Her anchorage was not unsafe. She was not dragging or any dragging
was minimal and immaterial; she had taken reasonable measures to seek to

control her yaw; an open moor had been tried; so too had use of the helm; the use
of engines would likely have made matters worse. The fault here lay with the
failure of those on board GM to make any appreciation prior to unberthing or to
maintain a proper lookout before or after departure from the berth. There had
been no adequate planning or discussion between the master and pilot. The use
of her engines at full ahead for some 3 minutes (between 08.24 and 08.27) had
resulted in GM proceeding further to the North than should have been the case
and accelerating out of her turn; if GM had needed half or full ahead at all, only a
kick with the engines was needed. Even after GM came onto a downriver
heading, having made too wide a turn at an excessive speed, a collision could
have been avoided if (now having her engines on full ahead) her engines had
been kept at full ahead and she had gone to starboard; instead confusion
prevailed on the bridge and a series of unjustifiable orders were given, resulting
in GM failing to keep clear of AC. GMs manoeuvring was such that any failure
on the part of AC to control her yaw and sway was not causative of the collision;
there would have been a collision in any event. While not disputing that ACs log
and record keeping had been lamentable, it would be wrong to hold AC
causatively to blame in order to register the courts disapproval of the way she
may have managed herself.
10. As to the evidence:
i) I heard from nine witnesses of fact; eight called by GM and one by AC.
GM called her master, third officer, pilot and helmsman, together with
four tug masters, on board the two tugs (NICOLE and MARIANNE

D) waiting to assist in the berthing of ILLAPEL, scheduled to follow
GMs departure. AC called her relatively inexperienced third officer, Mr.
Cubid, but neither her master nor chief officer. It was a feature of the
case that, with the sole exception of the helmsman of GM, all this
evidence must be approached with varying degrees of caution though I
should make it clear at once that there was, rightly, no suggestion that
either the master or third officer of GM had been other than honest
witnesses. It is convenient to note here that prior proceedings in the
United States (the US proceedings) had generated a volume of
evidential material, which, in the event, furnished considerable pickings
for cross-examination in this trial.
ii) Given the record keeping on board AC and, in particular certain
alterations to her bell book and log to which I must return, no particular
weight could be placed on the written statement evidence from her master,
Captain Quimsing. He could not attend to give evidence on the stated
ground of ill-health. I must of course do the best I can on the evidence
before me but it is perhaps unfortunate that no steps were taken to make
the master of AC available to give evidence by way of video link. I
particularly highlight this matter to draw attention to the use to which
video technology can be put, in appropriate cases, when, for good reason,
attendance by the witness cannot be obtained.
iii) A plethora of expert evidence, which it is unnecessary to list in detail, was
available in statement form. In the event, through the good sense of the

parties, it proved unnecessary to call any of the experts to give evidence
orally. To a large extent this was apparent at the outset of the trial, given
the immaterial disagreements as to the track of GM and the collision
position, as already noted. Although it had been anticipated that it might
be necessary to call some expert evidence as to questions going to the
simulation of a vessel at an open moor, in the event ACs expert came to
accept the views of GMs expert. It is not to be inferred from the fact that
they were not called to give oral evidence, that the experts did not play a
useful role in narrowing the ambit of the dispute.
11. I was most grateful to Mr. Teare QC, representing GM and to Mr. Persey QC,
representing AC and their respective teams, for their assistance throughout this
case.
NAUTICAL ASSESSORS AND THE HUMAN RIGHTS ACT
12. This trial post-dated the decision of the Court of Appeal noted in Bow Spring
(Owners) v Manzanillo II (Owners) [2004] EWCA 1007; [2005] 1 WLR 144.
Before coming to the principal issues, it may be of some general interest to
consider the procedure to be adopted at trial to give effect to the guidance
furnished by the Court of Appeal in that case.
13. In The Manzanillo II, the Court of Appeal held that the practice previously
followed in collision actions was not compatible with Art. 6 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms

1950 (as set out in Schedule 1 to the Human Rights Act 1998), in that the parties
did not have the opportunity to address argument as to the answers of the nautical
assessors in response to questions posed by the Judge. Giving the judgment of the
Court of Appeal, Clarke LJ said this:
[59] Where the court has evidence from an expert who has not
been called as a witness by either party and CPR 61.12 makes it
clear that nautical assessors are such experts the principle needs
to be adapted to the procedure. Its effect is that any consultation
between the assessors and the court should take place openly as
part of the assembling of evidence. Because the judge is not
bound to accept the advice he receives from the assessors .the
parties are entitled to an opportunity to contend that he should or
should not follow it. In many, perhaps most, cases the questions
and advice taken together will be susceptible of little or no
argument that has not already been directed to the issues which
have prompted the questions. But fairness requires the
opportunity to be given..
[61] it is right that, except in cases where such a discussion is

unnecessary in the light of submissions made earlier, the
preferable modern practice of putting questions to the assessors
after discussion with counsel should be complemented by a
practice of disclosing their answers to counsel, either orally or in
writing in order that any appropriate submission can be made as
to whether the Judge should accept their advice.
14. As it seems to me, in the light of The Manzanillo II, the correct course to adopt is
as follows:
i) The range of topics on which advice might be sought from the Assessors
should be canvassed with counsel by, latest, the stage of final
submissions.
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ii) Ordinarily, the questions asked of the Assessors by the Judge should not
stray outside the range previously discussed with counsel; should they do
so, however, there are safeguards contained in iii) and iv) below.
iii) The questions ultimately put by the Judge, together with the answers
given by the Assessors, should be disclosed to counsel before any draft
judgment is handed down.
iv) Counsel should thereafter be given the opportunity to make submissions
to the Judge, as to whether the advice given by the Assessors should be
followed. Ordinarily, any such submissions should be in writing; but if
there is good reason for doing so, an application could be made for an oral
hearing. The Judge will consider any such submissions before finalising
his judgment.
v) Generally speaking, the interests of proportionality and finality will make
it unnecessary to repeat the procedure after the Judge and the Assessors
have had the opportunity of considering the parties submissions and any
suggested further or revised questions. Accordingly, unless the Judge in
his discretion thinks it appropriate to disclose them to counsel before the
judgment is finalised, any further or revised answers will simply be
recorded in the judgment, together with the Judges decision as to whether
or not to accept the Assessors advice and his reasons for doing so.
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15. Pausing there, I have had the benefit of discussing this proposed procedure with
David Steel J, who authorises me to say that he agrees with it. It should
accordingly be treated as the proper practice in all collision cases.
16. The aim is to strike the right (and proportionate) balance between the desirable
goal of transparency on the one hand and the need to curb the cost and delay
inherent in the ping pong of post-hearing exchanges on the other. No doubt
both the practice and the balance will be refined by experience in due course.
17. The procedure adopted in this trial followed the course set out above. In the
event, following disclosure to counsel of the questions put to my Assessors and
their answers (the questions and answers), both counsel responded with written
submissions. In summary, these included invitations to the Assessors to
reconsider their answers and a number of suggested further or revised questions.
All these matters were raised with my Assessors. In the light of their response to
the submissions of counsel, it seemed to me unnecessary to repeat the disclosure
procedure. The questions and answers, together, where appropriate, with their
evolution, are set out below. So too is my response to the advice given by the
Assessors. I turn to the principal issues.
ISSUE (I): AC AT ANCHOR
18. (1) ACs final anchorage position before the collision: While no credit is due
to those on AC in this regard, the scope for debate on ACs final anchorage
position prior to the collision is necessarily limited. It is therefore appropriate to
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mention this feature at the outset, in order to maintain some perspective on the
debate. Given:
i) the conclusions of the experts that the extent of ACs sway was a total of
some 200m and hence some 100m on the port swing (there being no
evidence of asymmetric yawing in the relevant location);
ii) the realistic acceptance by Mr. Teare that any dragging, let alone any
cross-channel rather than downriver dragging, was not very great;
iii) that on her own pleaded case, the heading of AC at the time of collision
was well to port of an upriver heading;
it can be deduced that the collision occurred towards the extreme end of ACs
port swing. If so, it follows that ACs final pre-collision anchorage position was
about 100m to the North of the collision position, or marginally (and
immaterially) further to the North if there was any cross-channel dragging. It
further follows that AC was then anchored a little downriver and closer to the
centre of the channel than the position inserted by the master into ACs log, in
circumstances to which I shall come. The fact that ACs final anchorage position
can be relatively straightforwardly deduced, permits shorter treatment of the
matters leading up to it, though they remain important in the light of the rival
cases.
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19. (2) ACs arrival off Matanzas and her repeated re-anchoring: On the 29th July,
2000, at about 09.36, AC anchored off Matanzas. Though, in the light of the
somewhat unsatisfactory evidence of the third officer generally as to position
fixing, there must be some doubt as to the precision of the position, for practical
purposes it can be taken as that recorded in the bell book, namely, 818.35N
6249.8W. At all events, that is the position that corresponds to the notation
made (at some time after the collision) on ACs working chart of I and 29/7
09.36. She was then anchored to her starboard anchor, with 5 shackles out on
deck.
20. There is no dispute that between about 18.25 and 19.44 on the 30 th July, AC
dragged her anchor during what appears to have been something of a passing
squall. The vessel ultimately re-anchored, again to her starboard anchor, with 5
shackles in the water. Curiously, no position is entered in either the bell book or
the log. Still more curiously, the notation on the AC working chart marked 2 nd
(whenever and by whomsoever it was made) puts the AC at anchor over a rocky
shoal.
21. On the 31st July, at about 09.30, the AC again dragged her anchor. According to
the log (though not recorded in the bell book), AC thereafter re-anchored at about
11.40, in an upriver position of 1818.10N 6250.09W. If plotted on the
working chart (there is no notation matching this position), it places AC some 2.5
cables upriver of the shallow patch with rocks already referred to. Though he had
entered this position in the log and claimed to have cross-checked it, the third
Draft 10 May 2013 12:25 Page 14

officer could not shed any light on this position; it had been given to him by the
master, who had plotted it on the chart and recorded it on a piece of paper.
22. On the afternoon of the 31st July, between about 14.30 and 16.06, the AC
dragged again before re-anchoring. This time both anchors were deployed; the
starboard anchor was out to 5 shackles in the water and the port anchor to 2
shackles on deck. No record of ACs new anchorage position was kept; the third
officer said that when he came on watch, this position too was given to him on a
piece of paper.
23. On the 1st August, there was a further incident of dragging between about 10.15
and 12.24. The third officer was on watch between 08.00 and 12.00. Both
anchors were recovered and, thereafter the vessel re-anchored to her starboard
anchor with 6 shackles in the water. As at 12.24, no anchorage position was
recorded in the log. As to re-anchoring to one anchor, according to the third
officer, the master told him that he did not want to be caught dragging with both
anchors down. That is something of a puzzle because, according to the log, at
13.30 the engine was started and at 13.36 the log records that the port anchor
was (additionally) let go to 3 shackles on deck; the masters witness statement
asserts that the AC was now lying in what was almost an open moor. At
13.42, the log records Finished With Engines and an anchorage position of
0817.7N 6250.48W (the 13.42 position). The third officer did not know
how that position came to be taken; it appears in a location on the working chart
where there have been erasures and where there is also located the time 08.28
and the notation collision.
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24. Later on the 1st August, between about 22.47 and 23.40, AC dragged again. Both
anchors were recovered; when the vessel re-anchored, it was to the starboard
anchor only, put out to 6 shackles in the water. No anchorage position is found
in the bell book. The log purports to record an anchorage position for 23.40; it is
the 13.42 position. In his witness statement, the master admits that he wrote this
position in as an estimate after the collision. Curiously, the third officer
maintained in his evidence that he had written this position in
contemporaneously. I see no reason to doubt admissions made by the master
against his interest. I am unable to accept the third officers evidence in this
regard; in my judgment, personable though he was, he was here giving an
untruthful answer out of misplaced loyalty. It follows that when the third officer
went off watch (at 24.00), there was no record of the vessels anchorage position
in the log.
25. I come to the 2nd August, the day of the collision. Between 01.50 and 02.48, a
further dragging incident is recorded in the log. When AC re-anchored on this
occasion, it is clear that no contemporaneous record was made of ACs
anchorage position, either in the bell book or the log. Shortly after the collision
(some time after 09.00), the Harbour Master at Matanzas took away and copied
the ACs log and bell book entries for that day. These show that no anchorage
position is recorded for 02.48. However, subsequently, an entry has been made
in the log, inserting the same 13.42 position for 02.48. Again, the master admits
to having made this insertion.
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26. Between 05.06 and 05.48 on the 2 nd August, AC dragged again. She re-anchored,
once more to her starboard anchor, with 5 shackles in the water. The same
farce concerning the ACs log was again played out. No position was recorded at
the time, either in the log or bell book; that is clear from the copies taken by the
Harbour Master. Both bell book and log contain insertions of the selfsame 13.42
position made, admittedly by the master, subsequent to the collision.
27. At 08.00, the third officer again came on watch. He claims that the anchorage
position was plotted on the working chart in the much used 08.28 area;
moreover, he claims that he double-checked the vessels position by use of radar.
On the morning of the 2nd August, he accepted that AC was yawing, though he
had not measured the extent; he agreed that AC was moving across the channel to
port and to starboard up to the limit of her chain. It was for the master to
decide whether to let go one anchor or two; he did not know what an open moor
was; he had received no instructions as to the use of helm and/or engines to
control yaw and swing. In short, he admitted that while he did have instructions
from the master to guard against dragging, involving (inter alia) the use of ACs
GPS anchor watch facility, he had not been given any instructions at any time to
guard against or control her yaw and swing.
28. (3) Conclusions: Pulling the threads together:
i) The masters conduct in inserting positions into the log and bell book
after the collision was disgraceful. In his witness statement, he says that
he had not intended to mislead anyone but [it was] rather an error on my
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part in believing the record should be made more complete rather than
leaving it as it was. Insofar as that sentence is intended to suggest an
innocent explanation, I regret that I am unable to accept it. The inference
which I draw from the masters conduct is that he and those on board AC
had no more than an approximate idea of where AC had been at anchor
(somewhere in the vicinity of the 13.42 position), felt embarrassed or
exposed in consequence and sought to create a false record to the
contrary.
ii) Misguidedly, as already indicated, the third officer sought to lend his
name to this exercise, in his evidence as to the suggested
contemporaneous nature of the 23.40 position on the 1 st August; no more
need be said of that. Additionally, the third officer suggested that where
no records existed for various positions over the days in question, he had
been given the vessels position, recorded not in the bell book or log but
on pieces of paper. None of those pieces of paper have been disclosed.
For my part, in the light both of the masters conduct and the third
officers evidence as to the 23.40 position, I regret that I do not accept this
explanation. I think this is another instance of misplaced loyalty on the
part of the third officer, leading to an untruthful answer. If wrong on that,
however, then the picture painted of the conduct of those on board AC is
scarcely more attractive; a system which depended on positions being
recorded on pieces of paper none of which have survived does nothing
to encourage confidence in ACs position fixing, lookout or record-
keeping.
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iii) The suggestion made by the master in his deposition for the US
proceedings, together with those made by the third officer in his evidence,
that GPS was used to take or check positions, cannot be true. The
evidence was clear that GPS could not be used on the Orinoco to plot a
position on the chart without making appropriate corrections to the co-
ordinates. As was all too apparent when he gave his oral evidence, the
third officer did not know how to make any such corrections. This
evidence too was therefore false.
iv) Save for the periods to which reference has been made on the 31 st July
and 1st August, AC was never anchored to two anchors; at no point was
she anchored to two anchor cables of even approximately equal length.
The master himself recognised that he was never anchored to an open
moor; in his witness statement, he asserts, as already noted, that he
achieved almost an open moor. I return later to the topic of open moor.
v) No instructions whatever were given by the master to those on board as to
the control of yaw and sway. Save for a wholly unparticularised reference
in the masters witness statement to an unsuccessful attempt being made
to use the helm with a view to maintaining ACs upriver heading, no use
appears to have been made of the helm to control yaw and sway. Nor was
use made of her engines in this regard, though it is unnecessary to
consider the use of the engines further (given the view which I take of that
matter, set out below).
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vi) For my part, I think it is plainly the case that between the 30 th July and
the 2nd August, AC dragged her anchor. Given the evidence as to her
yawing, that is indeed hardly surprising. In the light of the downriver set
of the current, I would anticipate that the direction of any dragging would
primarily be downriver rather than cross-channel. That is certainly so
between 08.00 on the 2nd August and the time of collision when, in my
judgment, any dragging was immaterial, a matter of no more than some
metres and with a negligible, if any, cross-channel component.
vii) It does seem to be the case that use was made of ACs GPS anchor watch
facility to detect dragging; it is difficult otherwise to explain the frequent
observations of dragging in the log entries (to which no challenge is
made) and the evidence as to the sounding of the GPS alarm; moreover, I
am not persuaded that Mr. Teare was correct to suggest that the vessel
needed to drag some 1.4 cables before the GPS alarm was triggered. All
that said, the benefits of the GPS anchor watch facility were much
reduced by the failure on the part of those on AC to engage in proper
position fixing, as already discussed.
viii) In his witness statement, the master expressed his attitude as follows:
By the morning of 02 August, I was already aware from regular

contact with the agents that we would be berthing at some time on
02 August. I accepted the fact that we might drag again but I felt I
had exhausted all possible options to try to reduce or avoid the
dragging occurring. I did not feel any further change of position
was going to help. When it did occur the drag was slow and
intermittent. I felt that by continuing to closely monitor the ships
position we could deal with any dragging when it occurred and
that it would not endanger either my ship or any other
Draft 10 May 2013 12:25 Page 20
Rightly or wrongly (a matter to which I return when considering fault), it
is plain that the master of AC in effect gave up. I turn to consider the
GM manoeuvre.
ISSUE (II): THE GM MANOEUVRE
29. The Master: This was the second visit by Captain Crofts, the master of GM, to
Matanzas. Both times he had navigated with the aid of BA charts but their
scale was too small to be of any real use. On the 1 st August, he in fact received a
local chart for which he had asked; but, in the event, he had not yet looked at it
by the time of the departure manoeuvres from Matanzas on the next morning and
the collision which so shortly followed. On the occasion of the masters previous
visit, the current had not been flowing so strongly and there had been no ships
anchored even approximately in the position of ILLAPEL and AC. In
accordance with his owners (or managers) standard procedures a berth to berth
passage plan had been prepared for the voyage to come (it was lost in the
collision); so far, however, as unberthing manoeuvres were concerned, these had
been left, understandably in my view, to be discussed between master and pilot.
30. Although the master knew of the presence of the anchored ILLAPEL and
thought that she was far enough off the vessel for GM to complete her turn safely,
it was clear from his evidence that at the time he had no real appreciation of the
distance between GM and ILLAPEL; in an early interview (weeks after the
collision), the master put ILLAPEL as being some 7-8 ships lengths distant,
i.e., some 5.5 6.3 cables. Subsequently, after time for consideration, the master
Draft 10 May 2013 12:25 Page 21

revised this view down to the (correct) distance of some 2.5 3 cables. Though
there may be some doubt in the matter, I am content to accept that the master
knew that AC had moved up-river (rather than remaining at her original
anchorage), albeit that, to begin with, he under-estimated her distance from
ILLAPEL. More significantly, he said in evidence that he did not make
accurate observations of AC because she appeared to be safely at anchor and did
not consider her a threat to his departure manoeuvres. His intention was to pass
AC, at a distance no closer than 1 cables. He said that he had observed AC on
a number of occasions but did not notice her yawing. He agreed that radar
observation (using GMs two rastascan radars) would have revealed her yawing
but he had not thought it necessary to make any such observation. Had he seen
AC yawing, he would have consulted with the pilots and the harbour authorities
as to what action to take. He had not considered proceeding upriver before
making his turn because he did not consider such a course to be necessary.
31. The Pilot: The (un)docking pilot was pilot Torres. He was experienced and self
confident. In the event, having seen and heard both men give evidence, the
combination between a somewhat relaxed master and a forceful and over-
confident pilot, proved unfortunate in the extreme. Prior to unberthing, there was
no more than a cursory discussion between master and pilot. Pilot Torres was
more interested in his conversation with the river pilots than in any discussion
with the master. The master did not pursue the matter further; it does not appear
that anything was said between master and pilot which went beyond that it would
be the same as last time; but, as already observed, the conditions on this
occasion were very different from last time.
Draft 10 May 2013 12:25 Page 22

32. The pilot said in his evidence that he had seen AC at anchor and that at the time
GMs unberthing manoeuvre commenced, the AC was tranquil. He did not
observe her swinging. He also thought (a matter to which I shall return later) that
she was anchored in a proper position. As far as the pilot was concerned, this
was a routine operation. He said that the positions of ILLAPEL and AC gave
him no particular cause for concern; hence, he did not check their positions by
radar. However, as the evidence emerged, it seemed clear that he lacked any
accurate grasp of their positions and their distances from GM a necessary pre-
condition for treating them, even on the basis of instinct and experience, as posing
no danger to GMs proposed manoeuvre. Strikingly, he put ILLAPEL at some
700 metres distant from GM, on the edge of the deep water channel; she was in
fact some 200 metres closer than that. So too, AC was correspondingly and
significantly closer to GM than the pilot appreciated. The pilot assumed,
however, that provided he cleared ILLAPEL he would clear AC. Only when
the ships were very near would the pilot take a ship upriver before making her
turn; but he declined to talk in terms of distances or how close was very near.
33. The manoeuvre itself: In his deposition in the US proceedings, pilot Torres said
this as to his practice in conducting this manoeuvre:
Q. Do you use a half ahead or full ahead to assist the turn?
A. No, thats not necessary just dead slow to make sure that the
ship is away from the pier and that the stern doesnt hit the pier.
Q. on the day of the unberthing, after you left the berth, did you
order half ahead and full ahead?
A. Yes, its very possible, because after having turned, if there

was no apparent danger, I would have ordered half ahead and
Draft 10 May 2013 12:25 Page 23

then proceeded full ahead, once the ship was safe and free of all
obstacles.
Q. I am not asking what is possible. I am asking what you did
A. It would be hard for me to remember . But had I asked for

half ahead, it would have been because the ship was then safe and
free of obstacles, because during the manoeuvre itself, one would
never command half and full ahead. It would only be after the
turn had been safely executed that you go to half and full ahead.
At the hearing there was some, if to my mind inconclusive, debate about the true
meaning of never in translation from the original Spanish used by the pilot.
Suffice to say that in cross-examination, the pilot accepted that it would not be
usual to use half or full ahead during the course of the turn (i.e., prior to its
completion). He explained that the purpose of his standard procedure would be
to make as short a turn as possible; it would be a dead ship turn, with as little
use of the engines as possible; the key was for the turn to be conducted carefully
and slowly in a controlled manner. In the event that the turn did not proceed
satisfactorily, then a kick to half ahead might be used; but too much forward way
towards the north of the channel was to be avoided.
34. I am amply satisfied that the turn in fact conducted was very different:
i) GMs Deck Bell Book records that at 08.23 the vessel was swinging off
the berth. At that time, the engines were put to half ahead. At 08.24, the
engines were put to full ahead and remained at full ahead for 3 minutes
until stop engines was ordered at 08.27. This was not in any sense a
momentary kick to half or full ahead.
Draft 10 May 2013 12:25 Page 24

ii) As is apparent from Annexe I, both half ahead and full ahead were
ordered, on any view, when GM was still on a broadly Northerly heading
and well before completion of her turn. Indeed as the plots in Annexe I
suggest and as I accept, were it otherwise, it would be difficult to
reconcile GMs manoeuvres and any realistic collision position.
Furthermore, I accept the masters evidence (in its final form) that GM
was on a northerly heading when full ahead was ordered.
iii) In the event, as the pilot confirmed in his evidence, including in a sketch
and on a chart which he marked, GM conducted a wide turn. That turn, as
GMs helmsman said in his evidence and as I accept, took GM a bit too
close to ILLAPEL. In short, the turn produced the very northerly (or
forward) movement which the pilot had said was to be avoided.
iv) The pilots motive for conducting the turn in this fashion remained
unexplained and the master could shed no real light on the pilots
intentions; as already noted, the unberthing manoeuvre had not been
discussed between them.
35. In the light of the important debate at the hearing as to the effect of using half and
(in particular) full ahead for a sustained period during the turn, I consulted my
Assessors as follows:
Draft 10 May 2013 12:25 Page 25

Q.1: What would be the effect of using half ahead and then full ahead
in the manner recorded in GMs deck bell book, assuming that the
vessel was on a broadly northerly heading at 08.24?
A.1: Whereas a short kick to full ahead could assist the tightness of the
turn by increasing its rate, anything more than a kick of half or full
ahead would inevitably take the vessel further to the north due to the
increased advance. Moreover the use of full ahead in the manner set
out in the deck bell book would increase the speed of GM when coming
out of the turn and would render the tugs less effective in maintaining
the vessels position.
36. Following the disclosure of the questions and answers to counsel, GM requested
that, in this regard, various supplementary questions should be put to the
Assessors. Pausing there, by way of terminology, GM referred to the turn,
approximating to that in fact conducted, as a standing turn a turn in which
the engine speed is increased to full ahead and thereafter maintained at that
speed; it is unnecessary to consider whether that terminology is appropriate,
provided the meaning given to standing turn by GM is clearly understood.
37. These supplementary questions were as follows:
SQ(i): If a short kick ahead is used instead of executing a standing turn, what
effect will that have on the vessels overall turn rate, and thus on the time
taken for the vessel to complete the turn?
Draft 10 May 2013 12:25 Page 26

SQ(ii): If the turn rate is lower, will the vessel have been swept further
downstream by the time the turn is complete than if a standing turn had been
executed?
SQ(iii): Is it desirable for a vessel turning to head downstream in a strong
current to turn quickly, in order to keep to a minimum the time that the vessel
is swept downstream on a heading which is not downstream?
SQ(iv): Is it desirable for a vessel turning to head downstream in a strong
current to have at least sufficient speed through the water to give her steerage
way when coming out of the turn?
SQ(v): Where there is a downstream current of about 4-5 knots would the
prudent mariner rely upon the tugs assisting GM to maintain her in position
when coming out of the turn or would he ensure that he had sufficient
headway to ensure that he could steer with his rudder?
38. The Assessors supplementary answers to these questions were as follows:
SA(i): The overall turn rate would not be materially affected.
SA(ii): Possibly, but only marginally.
Draft 10 May 2013 12:25 Page 27

SA(iii): Yes, but maintaining full ahead gave rise to two problems detrimental
to safety: (i) going to the North; (ii) taking GM further downstream more
quickly as she came out of the turn.
SA(iv): Yes.
SA(v): A prudent mariner would have allowed the tugs to all but complete the
turn before slow ahead was given; once pointed downstream, properly
assisted by the tugs, there would have been sufficient steerage by the
application of full ahead or half ahead to maintain safe clearing distances
from both ILLAPEL and AC.
39. I accept the Assessors advice, both as originally given and as subsequently
amplified. Elaboration is unnecessary. It seems to me unanswerable that
maintaining full ahead while still on a broadly northerly heading would result
both in GM proceeding on a more northerly track and coming out of the turn
faster than would otherwise have been the case. The Assessors advice is further
reflected when considering questions of fault, below.
40. Contrary to the pilots continued assertions and some other evidence, to the effect
that GM was about abeam of Sidor no. 3 berth when she completed her turn, the
probability is that by then she was further downriver, about abeam of Sidor no. 5
or no. 6 berth. Quite apart from the simulations contained in the annexe, it seems
inevitable to me that such would be the case, given the nature of the manoeuvre
and the strength and direction of the current. Indeed, in his deposition for the US
Draft 10 May 2013 12:25 Page 28

proceedings, the pilot himself (when describing his standard procedure) accepted
that the ship travels downstream somewhat; the actual manoeuvre, as already
described, can only have increased this tendency. It follows that GM must have
been downriver of ILLAPEL when her turn was completed and the evidence of
GMs helmsman was plainly to this effect.
41. For completeness, it will be recollected that GM was assisted by two tugs. These
were pusher tugs. In the event, the aft tug was not made fast. As to that, there
was some further controversy, on which it is unnecessary to dwell, as to a
suggested change in the pilots evidence. In all the circumstances, I have no real
doubt both that the tugs would not have prevented the downstream movement of
GM and that the manner in which GM conducted her manoeuvre would have
reduced or lost any benefit which the pusher tugs might otherwise have provided
(especially if GM had been turned short-round). See too, in this regard, the
Assessors expanded advice, set out above in their answer SA(v).
42. First concerns as to AC: I come next to the question of when GM first became
concerned as to AC. In my judgment, this was not until GM had steadied onto a
downriver heading, at about C-2 (or C-3 at the earliest); before then, it is likely
that GM had focused on ILLAPEL. In deference to the arguments advanced,
my reasons for this conclusion are these:
i) GMs third officer (Mr. Watterson) was on the focsle. In cross-
examination, he said that after getting clear of ILLAPEL, his next
concern would be to see what else was in the river. At about this time, he
Draft 10 May 2013 12:25 Page 29

observed that AC had changed her aspect. AC was on the port bow; her
bearing was opening from, he estimated, 2 to 4 points, though he accepted
that it was possible that it was from 1.5 to 2.5 points. From her change
of heading, the third officer deduced (wrongly in the event) that she was
no longer at anchor and was manoeuvring. The third officer reported this
development to the bridge. In my judgment, it is probable that this was
the first time that those on GM became concerned as to AC. Thereafter, as
the third officer put it, things happened rather rapidly.
ii) In cross-examination, the masters evidence was clear and to like effect.
He said this:
A. The first time that we noticed that her [i.e., ACs] aspect had
changed and her heading had changed was as we steadied up.
Q. That was shortly before about 08.27, was it not?
A. About that time, yes.
While it is fair to Captain Crofts to say that, on the day, he was probably
not timing events by reference to his watch, the 08.27 answer does not
stand alone. To the contrary it ties in with his preceding answer as to
GMs heading. Moreover, this timing accords well with the subsequent
action taken, attempted or considered by GM (see below); conversely, had
concern as to AC arisen significantly before (about) 08.27, the delay
before those on GM considered taking action would be both considerable
and curious. At the time, the master made the assumption that AC was
manoeuvring to reposition herself in a SSW direction, towards Sidor pier;
she appeared to be moving slowly.
Draft 10 May 2013 12:25 Page 30

iii) The pilot first noticed that AC was heading into and across the channel
when GM was completing her turn; GM was then passing Sidor no.6
berth and nearing Venalum pier. If this is right, the time would have been
about 08.27. The pilot thought that AC was dragging her anchor.
iv) The evidence of the helmsman of GM (Mr. Holmes) is consistent with the
sequence suggested above. Having hitherto focused on ILLAPEL, his
attention turned to AC when the pilot ordered GM to steady up. For his
part, he thought that AC was gently nudging across the channel.
Thereafter, in his words, It got a bit hot.
v) I am not dissuaded from this conclusion by evidence that a VHF call from
someone on GM to someone on AC, probably prompted by the perceived
change of ACs aspect, was timed in ACs VHF log at 08.24; that timing
is supported by evidence from the ACs master (in his US depositions)
and third officer. At the hearing it was unclear who had made or
participated in the VHF call but it is unnecessary to take time over that or
as to the substance of the conversation (such as it may have been). The
short answer to the timing point is that the record keeping on AC was
lamentable and the evidence from her master and third officer is entitled
to little, if any, weight, as already described; such evidence as is furnished
by ACs VHF log (in any event written up after the collision) is simply
outweighed by the overwhelming weight of evidence pointing to concern
about AC developing amongst those on GM at about 08.27.
Draft 10 May 2013 12:25 Page 31

43. Subsequent orders and manoeuvres: Interposing here, the reality, not
appreciated on GM, was that ACs change in aspect was to be explained by a
combination of GMs own movement (due to her speed and the effect of the
current) and AC swinging at anchor; the likelihood, as pictured in Annexe I, was
that at about this time AC was distant about 2-3 cables and bearing about 1.5
points on GMs port bow.
44. Turning to the position on GMs bridge, the evidence suggests a degree of
confusion at about this time. Those on GM gave uncertain and varied accounts of
ACs distance and her bearing from GM. On the most favourable view of the
masters and pilots evidence, AC was suddenly and surprisingly a concern.
Plainly at this time, the fear of collision was very real indeed. Both the master
and the helmsman described the pilots orders then or thereafter as erratic, albeit
that by this it was meant (according to elaboration in re-examination) that the
orders were given quickly (the master) or fast and furious (the helmsman). The
master thought that the pilot was slightly agitated; the helmsman thought that the
pilot was very confused. At some point, the master appears to have taken over the
con.
45. Although this confusion seems to have manifested itself in the sense that there
was some uncertainty in the evidence as to what orders were then given on GM
and as to the giving and countermanding of one particular order, the actual
sequence of subsequent orders and manoeuvres can be traced with reasonable
confidence as follows:
Draft 10 May 2013 12:25 Page 32

i) At 08.27, GMs deck bell book records stop engines. There is no reason
to doubt that this order was given and acted upon.
ii) At about the same time, the master accepted that he had also ordered full
astern but that he countermanded the order before the engines were
operated astern. I accept that evidence. In the circumstances, it is
unnecessary to dwell on criticism levelled during the trial at his thought
process in giving this order (namely, that had GM gone astern she would
have lost steerage and risked broaching).
iii) Also, at about this time, starboard helm was ordered. The master said that
he ordered hard to starboard. By contrast, the helmsman said that he was
ordered to steer starboard 20, to bring (as he put it) the vessel over a bit;
had he steered hard to starboard, GM would have gone straight up the
bank. In this regard, I am unable to accept the masters evidence and
prefer that of the helmsman. It is further to be recollected (as underlined
by the pilot in his evidence) that GM was not only seeking to keep clear
of AC to port but also the various ships berthed at Venalum pier to
starboard.
iv) At 08.28, GMs deck bell book records full ahead. According to the
helmsman, immediately before the collision hard to starboard was ordered
but there was not time for this order to take effect. It may be that hard to
port was likewise ordered (I reach no conclusion on that) but that order
too (if given) did not take effect. As it appears, at least at the last, the
Draft 10 May 2013 12:25 Page 33

master was making every attempt to overcome the effect of the current,
setting GM down on AC. It was, however, to no avail and the collision
resulted.
46. Postscript: The evidence of the tug masters: I come to the evidence of the tug
masters. To some extent, in the view I take of it, this is a digression but it is not
a digression without any relevance.
47. Captain Acosta, the master of the tug NICOLE spoke of AC swinging at
anchor, some 45; he did not report it because to anyone who looked at her it
would have been apparent that she was swinging. According to his oral evidence
and consistent with a statement made in March 2002, suddenly AC stopped
swinging and then dragged rapidly in a SE direction. When he observed AC
dragging, GM was already on a downriver heading; she was not however being
set downriver by the current, as, he said, the tugs were holding her in position; the
stern tug was made fast. Asked to draw what he was describing, he put both
ILLAPEL and AC well aground in the shallows to the north of the channel.
He was very surprised by the rapid movement of AC across the river. With the
sole exception of his observation that the swinging of AC was obvious to
anyone who looked and that he did not report it, evidence which I do accept, I
have no hesitation in rejecting the remainder of his oral evidence. It is
unnecessary to say more of Captain Acostas sketch. He was wrong about the
tugs and about GM not being set downriver; but perhaps all that is by the by.
However, were he right, AC would have been dragging at speed across the
current; that is improbable, to put it no higher. Still further and strikingly, in a
Draft 10 May 2013 12:25 Page 34

statement made on the 14th August, 2000, within a fortnight of the collision,
Captain Acosta said this:
From the position where I was located, I could observe the

manoeuvreThe mentioned vessel [i.e., GM] aimed bow down
river. When at that moment, I observed that it was going directly
to the position where the vessel [AC].. was anchored. Coming
so close it could not avoid colliding with it almost head to head.
As is apparent there is no mention in that contemporaneous statement of AC
dragging her anchor, let alone in the remarkable fashion described in Captain
Acostas evidence. With great respect and though he sought to do so, he was
unable in his oral evidence to provide a coherent explanation as to why not.
Taken at face value, his contemporaneous statement suggests that GM failed to
keep clear of AC. In my judgment, the very different account of AC dragging,
given by Captain Acosta in his oral evidence, was incredible.
48. Captain Rodriguez was the relief master of the NICOLE, due to take over from
Captain Acosta. His evidence too encountered real difficulties. To begin with, his
timings were impossible to reconcile with the events which happened; he spoke of
a period exceeding 20 minutes between the time when he first saw GM on a
downriver heading and the collision; he spoke too of the collision being
unavoidable for 15 minutes; yet on any view, the total time between GM
commencing unberthing and the collision was less than 10 minutes. His evidence
must be treated as unreliable on that ground alone. Further, although he said in
evidence that he had seen AC dragging into the channel and (in fairness to him)
had made some mention of dragging when interviewed after the collision (albeit
Draft 10 May 2013 12:25 Page 35

in different terms to the picture he described in evidence), in a report to his
operations manager made on the day of the collision, he said this:
once the vessel [GM] was freed of the dock it started

positioning in order to set a course to head down the river and
start to navigate, when it collided with the vessel [AC] that
was anchored in the area.
As with Captain Acostas contemporaneous statement, this suggests not AC
dragging but GM failing to keep clear of AC. I can therefore give no weight to
Captain Rodriguezs account of the incident as given in his oral evidence.
49. Captain Omana was the master of the tug MARIANNE D; he was due to hand
over to Captain Lossada at 08.00 on the 2 nd August, 2000. I accept Captain
Omanas evidence that the swinging of AC at anchor had been pronounced and
obvious. That apart and though he was a confident witness, I am unable to accept
Captain Omanas account of the incident. In large measure, Captain Omanas
evidence was based on a sketch drawn by Captain Lossada, who, as became
clear, had not in fact seen the collision. Curiously, according to Captain Omana,
Captain Lossada had prepared this sketch of his own initiative and without
assistance from others, at a joint meeting attended by Captains Omana, Lossada
and Rodriguez, together with US attorneys. (For completeness, Captain
Rodriguez suggested that Captain Lossada undertook the sketch because of his
drawing abilities). Whatever the provenance of the sketch it and a chart marked
by Captain Omanas were remarkable for the unlikely speed at which they
suggested AC to be dragging in a SE direction towards Venalum pier and the
distance travelled (some 700 metres in a matter of minutes) even making
generous allowance for guesstimates.

Draft 10 May 2013 12:25 Page 36
50. Finally, Captain Hernandez gave evidence. Suffice to say that as he appeared not
to recognise diagrams apparently containing his signature and even a 2004
statement apparently signed by him, any evidence from him must simply be
disregarded as worthless.
51. Pulling the threads together on the tug masters: first, for the reasons given, no
weight can be put on their evidence, insofar as it purports to assist GMs case;
secondly, to the contrary, their contemporaneous (or most contemporaneous)
material, if anything, tends to support the AC argument that ACs yawing at
anchor was obvious and that GM failed to keep clear of AC. In the
circumstances, it suffices to conclude that these were unreliable witnesses (save
where their evidence was contrary to GMs interests); it is unnecessary to go
further and consider whether this unreliability was attributable to mistaken
recollection, exaggeration, rationalisation after the event, or design. It is fair to
the tug masters to record that no motive was suggested, still less established, as to
why they should have attended Court in order deliberately to give untruthful
evidence.
ISSUE (III): FAULT
52. I turn to the topic of causative faults, if any, on the part of each vessel. In the light
of the facts already set out, it is convenient to consider this matter under the
following broad headings:
i) (A) Was ACs anchorage position unsafe?
Draft 10 May 2013 12:25 Page 37

ii) (B) Was AC at fault in failing to control her yawing and swaying?
iii) (C) Was GM at fault in terms of lookout and appreciation?
iv) (D) Was GM at fault in respect of her unberthing manoeuvre?
v) (E) Was GM at fault in respect of her later manoeuvres?
vi) (F) What caused the collision?
53. (A) Was ACs anchorage position unsafe? I have already concluded that
ACs final anchorage position was about 100m to the North of the collision
position, which was itself about 500m from and bearing about WNW of the
South Western end of Venalum pier, shown in Annexe I. As such, AC was
anchored in the channel, albeit towards its Northern side. It is difficult to express
the matter more precisely in terms of ACs position within the channel as the
channels limits were not defined with accuracy.
54. GMs case was that this was an unsafe anchorage position; as Mr. Teare put it in
his closing oral submissions, AC was anchored in close proximity to busy berths
(Sidor and Venalum) in a narrow channel. There was a risk that AC might sway
and/or drag into the centre of the channel in circumstances where movements
might be expected off those berths. The fault was serious in that it gave rise to a
dangerous situation; a vessel turning off (for example) Sidor berth might not
appreciate that AC was moving intermittently into or towards the centre of the
channel. Moreover, it was particularly blameworthy because the master had (re-)
Draft 10 May 2013 12:25 Page 38
anchored there without reference to the local authorities and by reason of the
position fixing failures (already set out).
55. I am unable to accept GMs submissions in this regard. I do not think that ACs
anchorage position was, as such, unsafe. For completeness, I reach this
conclusion independently of any consideration as to whether ACs yawing ought
to have been observed by those on GM, a matter to which I later return. My
reasons follow.
56. First, I accept the thrust of Mr. Perseys summary, in his closing oral
submissions:
It has never been suggested by either the authorities, the local

authority, the port Captain, or indeed Pilot Torres, that
[ACs]anchorage position astern of the Illapel was either
unlawful or inappropriate. It is common ground that she was
astern of the Illapel, and indeed that was the observation of
everybody.Her position was a position about 5 cables or 900
metres astern of the Illapel.
As has already been noted, the pilot had no criticism to make of ACs anchorage
position; moreover and regardless of whether he falls to be criticised in this
respect, it is noteworthy that the anchorage position of AC did not prompt the
pilot to consider going upriver before turning GM. Equally, the tug masters made
no criticism in this regard. This silence is improbable, had ACs anchorage
position been unsafe.
57. Secondly, although there was some evidence that AC was fined for re-anchoring
without a pilot, there is no evidence that the fine was imposed for anchoring in
Draft 10 May 2013 12:25 Page 39

the wrong place or that the anchorage position was outside the permitted
anchorage. In the circumstances, it is unnecessary to enter into the controversy
over whether the fine had been properly imposed. Instead, it seems relevant to me
that AC re-anchored on several occasions, over a relatively extended period, in
full view of a busy port; wherever precisely she anchored, the general area
cannot have been in doubt; yet no objections were raised until after the collision.
Again, this is a feature difficult to reconcile with the submission that her
anchorage position was unsafe.
58. Thirdly and tellingly, if ACs anchorage position was unsafe, so too must
ILLAPELs have been perhaps even more so. There is, however, no
evidence whatsoever of any criticism or surprise as to ILLAPELs anchorage
position.
59. I accordingly conclude that this was a channel in which ships were accustomed to
anchor and that ACs anchorage position was not unsafe. AC was not at fault in
this regard; accordingly, questions of culpability and causation do not arise. That
said, the fact that AC was anchored in a narrow channel, in close proximity to
busy berths does have ramifications; to those, I turn next.
60. (B) Was AC at fault in failing to control her yawing and swaying? The first
question here is whether AC was under any duty to control her yawing (and
swaying). In my view there plainly was such a duty. Given ACs anchorage
position, as already described, commonsense rebels at the notion that with
knowledge of her yawing and even if able to do so, AC was not required to take
Draft 10 May 2013 12:25 Page 40

reasonable steps to control her yawing. As so much of good seamanship involves
the application of informed commonsense in the interests of safety at sea, I am
amply satisfied that the requirements of good seamanship are to like effect. In his
final oral submissions, Mr. Teare said this:
It is a non sequitur to suggest that because you can anchor in a

channel, therefore you need not correct a sway. On the contrary,
because you have anchored in a narrow channel it is good
seamanship, and indeed common sense, that you should control
your sway. That is because other river users can be expected to be
navigating in the same channel.
I agree. The fact that even with AC yawing there was sufficient sea room for
another vessel to pass safely in the channel, does not mean that good seamanship
did not require AC to take reasonable steps to control that yaw with a view to
maximising the amount of available sea room. Furthermore, it was not or not
seriously in dispute that pronounced yawing gives rise to the risk of dragging; as
there can be no doubt that a vessel is under a duty to exercise reasonable care to
prevent dragging it must follow that there is a duty to take reasonable care to
control her yawing.
61. If necessary to cite authority, it discloses support for this approach. In The
Sedulity [1956] 1 Lloyds Rep. 510, Willmer J (as he then was) held an
anchored vessel to be at fault for failing to take adequate measures to control her
sheer. See too, The Gerda Toft [1953] 2 Lloyds Rep. 249, esp. at p.257, with
regard to an anchored vessels duties in respect of dragging. Insofar as it was
suggested that observations in The Viper [1926] P 37 (as to an anchored vessel
not altering her position or heading until it was apparent to her that a ship
underway could not by her own unaided action avoid a collision) told against the
Draft 10 May 2013 12:25 Page 41
imposition of such a duty, I reject the suggestion. I agree with Mr. Teare that
those observations are inapplicable in the circumstances of this case, involving as
they do a vessel yawing and swaying unlike the anchored vessel in The Viper
and, moreover, doing so close to a busy berth; further, were it otherwise, it is
impossible to imagine that Willmer J. would have expressed himself in The
Sedulity as he did.
62. Turning to breach of duty to control yawing and swaying, I start with the facts,
as already found. First, no instructions had been given by the master of AC to
control yaw and sway; secondly, AC had never been anchored to an open moor;
thirdly, such if any effort as had been made to use the helm to control yaw and
sway, had been ineffective; fourthly, no use had been made of the engines in this
regard. GMs criticisms were founded on all these facts.
63. The criticism as to the failure to use ACs engines can be disposed of at once. As
demonstrated by the expert evidence, the use of engines ahead would be
detrimental to the yawing amplitude and the amount of swing; conversely,
yawing would be reduced by using the engines astern. Mr. Persey submitted that
going astern would be counterintuitive and, even if beneficial, was not
reasonably to be expected from an ordinarily competent master. Mr. Hendy (the
relevant AC expert) added this in his report: Going astern may not be the
obvious choice to reduce dragging. I agree. I do not think that AC falls to be
criticised in this regard.
Draft 10 May 2013 12:25 Page 42

64. The position as to anchoring to an open moor is, in my judgment, very different.
For practical purposes, an open moor involves the vessel anchoring with both
anchors leading ahead. GMs case was that adopting an open moor required no
more than ordinary good seamanship; its purpose was to dampen down yawing
and swaying, so as to enable a vessel to lie quietly (or more quietly) at anchor,
thereby reducing the risk of dragging. On the evidence, the master of GM, her
third officer and the pilot were all familiar with the technique. As I understood
the expert evidence, by the conclusion of the trial it was not (or not seriously) in
dispute that the adoption of an open moor, with a total angle of 60 between the
anchors (i.e., 2 x 30) would reduce the angle of yaw to a maximum of +/- 20
and swaying to about 20m each side of the centre position. Furthermore, there
was agreement between the relevant experts that while, even with an open moor,
there would be some dragging after about 30 minutes to an hour and that the
anchors would thereafter drag closer together, reaching a 2 x 15 moor after
about a further 4.5 hours, it would take some 9-9.5 hours in total for the anchors
to drag together.
65. Notwithstanding this evidence, ACs case remained that the master was not to be
criticised in this regard; it was not clear why a 60 open moor should be adopted;
given that there would be yawing, swaying and dragging in any event, the
masters concerns were not unreasonable. Instead, he made the legitimate and
reasonable decision to remain anchored to a single anchor and to deal with
dragging as and when it occurred.
66. I sought advice from the Assessors as follows:
Draft 10 May 2013 12:25 Page 43

Q.2: As a matter of ordinary seamanship, would you expect the master
of a vessel, anchored as AC was and (to his knowledge) yawing and
swaying considerably, to consider anchoring to an open moor? If
used, what would you expect anchoring to an open moor to achieve? If
adopted, what total angle would you recommend between the anchors?
A.2: Yes. Anchoring to an open moor is a recognised seamanship skill
and unquestionably the correct anchoring selection to avoid or reduce
yawing and swaying. A 60 open moor should be adequate, though a
larger angle may be used.
67. In response to the disclosure of this answer, AC submitted that while a 60 open
moor was a possible approach for a prudent mariner to take, a 30 open moor
would likewise have been a legitimate choice for a prudent mariner; in short, the
Assessors opinion should not be accepted as reflecting the only reasonable view.
68. To this submission the Assessors responded as follows. The aim was to reduce
yaw and sway, as yawing gives rise to the risk of dragging. Such considerations
outweigh the increase in holding power (such as it may be) obtained by reducing
the angle of the open moor. Accordingly, a prudent mariner would have aimed
for an open moor of 60 or more.
69. I accept the Assessors advice, as originally given and as supplemented,
essentially for the reasons which they gave.
Draft 10 May 2013 12:25 Page 44

70. Against this background, I can see no good reason for the failure by the master of
AC to anchor to an open moor. An open moor of 60 or more should have been
adopted; in any event, the master had ample time to ascertain which angle was
most beneficial. The masters observation, that he did not want to be caught
dragging with both anchors down is, with respect, not an answer or a good
answer; on the occasion when he made that comment, not only was he able to
raise both anchors without difficulty but thereafter he anchored to two anchors,
albeit not to an open moor. As to the two anchors dragging together, on the
evidence of the experts which I accept, he would have had ample time to reset the
open moor before that happened. I therefore conclude that an open moor was a
recognised technique, requiring no more than ordinary good seamanship; by
latest 05.48 on the 2nd August, 2000, in the light of her pronounced yawing and
the number of instances of anchor dragging, AC was at fault in not anchoring or
re-anchoring in this manner. For completeness, it may be that an open moor
should have been adopted following an earlier dragging occasion but nothing
turns on that and I express no final view in that regard. At all events, giving up,
as the master of AC appears to have done, was not a prudent option.
71. As to the use of helm, it has already been observed that in his witness statement
the master spoke of using his helm but that it was not successful. Indeed, in
essence, that was ACs case on this point. With justification, as it seemed to me,
Mr. Teare remarked that he gave no details; it is impossible to say when and for
how long he tried it and what precisely he did. GMs case was that, with a strong
current against her, the use by AC of her helm to control yaw was a recognised
seamanship skill and an obvious step to take as a matter of ordinary good
Draft 10 May 2013 12:25 Page 45

seamanship. As agreed by the relevant experts, the application of constant 15
starboard helm would, after about 30 minutes, have reduced the amount of yaw
and offset the location of the yaw to starboard (i.e., away from the centre and
towards the North side of the channel).
72. I again consulted my Assessors:
Q.3: As a matter of ordinary seamanship, would you expect the master
of a vessel, anchored as AC was and (to his knowledge) yawing and
swaying considerably, to consider the use of his helm? If used, what
would you expect to achieve?
A.3: Yes. The use of helm is a well-known procedure as a matter of
ordinary good seamanship, which, if persevered with, should serve to
reduce yaw and offset the location of the yaw in the direction in which
the helm is used.
73. On the disclosure of this answer, once again AC submitted that the Assessors
advice should not be accepted. The submission was that there was no reason
why the prudent mariner should necessarily have used the helm in the manner
suggested. To this submission, the Assessors answer was succinct. They
repeated their original answer; the helm could and should have been used to
control yawing.
Draft 10 May 2013 12:25 Page 46

74. I accept the Assessors advice as reiterated. The use of helm was an obvious step
to take. The master must either be mistaken in saying that he did apply helm or
he failed to apply it effectively or for long enough. There is no reason to suppose
that if the master had persevered, adjusting his helm as appropriate, he would not
have achieved a good result in terms both of dampening the yaw and offsetting its
location to starboard. If this measure indeed involved thirty minutes of constant
starboard helm, it would have been thirty minutes well spent. If there was some
additional reason for the masters failure to pursue this measure beyond that
which appears in his witness statement, then he has only himself to blame for not
supplying additional particulars in his statement or attending (if need be by video
link) to explain himself. In the circumstances, I conclude that AC was at fault in
this respect as well.
75. It follows from the above conclusions that the master of AC was likewise at fault
in failing to give instructions as to the control of yaw and sway. Such instructions
should have covered the adoption of an open moor and the use of ACs helm.
76. Accordingly, I conclude that AC was at fault in failing to control her yaw and
sway, to the extent and in the manner already described. It remains to consider
whether ACs failure to control her yaw and sway was causative of the collision.
That question is by no means straightforward and is best deferred until later, for
consideration in conjunction with such faults of GM (if any) as have by then been
established.
Draft 10 May 2013 12:25 Page 47

77. (C) Was GM at fault in terms of lookout and appreciation? This issue relates
to the appreciation and lookout of those on GM, both prior to unberthing and in
the course of the manoeuvre. Prior to unberthing, the key questions are whether
those on GM were at fault in failing to appreciate or observe the true positions of
ILLAPEL and AC, together with the pronounced yawing and swaying on the
part of AC. So far as concerns the manoeuvre itself, the central question, it may
be thought, is whether GM was at fault in only becoming concerned as to ACs
position and heading at C-2 (or C-3 at the earliest).
78. In a nutshell, GMs case was to the following effect. Prior to unberthing, in the
prevailing good weather, a visual lookout was all that was required. That lookout
did not reveal ACs yawing and swaying. Those on board GM were aware of
both ILLAPEL and AC at anchor; they did not regard them as giving rise to
any danger; they were not under any duty to look out for behaviour which should
not be happening they could not be expected to anticipate that if AC was
yawing and swaying, she would not take steps to control and reduce the same.
There were difficulties with radar observations which were, in any event, not
required. On the turn, GM argued that the problem lay in ACs unexpected and
intermittent movement towards the centre of the channel rather than in any failure
of lookout on her (GMs) part.
79. I am in large measure unable to accept GMs submissions in this regard. I
conclude that GM was at fault in terms of appreciation and lookout. My reasons
follow.
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80. The starting point is the framework for this debate, contained in Rules 5 and 7 of
the Collision Regulations 1972 (the Collision Regulations). So far as here
material, these Rules provide as follows:
Rule 5 Look-out
Every vessel shall at all times maintain a proper look-out by sight

as well as by all available means appropriate in the prevailing
circumstances and conditions so as to make a full appraisal of the
situation and of the risk of collision.
Rule 7 Risk of collision
(a) Every vessel shall use all available means appropriate to the
prevailing circumstances and conditions to determine if risk of
collision exists. If there is any doubt such risk shall be deemed to
exist
The philosophy of these Rules is both well known and apparent. They emphasise
the need for those on a vessel to make a proper appreciation of her situation;
assumptions are to be avoided; where there is doubt, a risk of collision is deemed
to exist. I turn to GMs performance, measured against such yardsticks.
81. As is clear on the evidence, those on board GM proceeded on the basis that both
ILLAPEL and AC posed no risk to their proposed manoeuvre. For this
conclusion to be tenable, they needed an accurate understanding of the positions
and hence distance of both those vessels and of their behaviour at anchorage
insofar as such behaviour might impact on GMs turn. Were it otherwise, not
only would they have failed to keep a proper lookout but they would not have
available the information to negate the risk of collision. In stark terms, GM could
not plan a manoeuvre with a safe passing distance from vessels to be encountered
on route, unless those on board had a proper understanding of the position and
Draft 10 May 2013 12:25 Page 49

behaviour of the vessels they were to pass. This is emphatically not a recipe for
navigation by paperwork or chart; it is instead basic good seamanship. It is here,
that the failures of those on board GM began.
82. It is unnecessary to recount the evidence as to the positions of ILLAPEL and
AC and their distance from GM. It is plain that neither master nor pilot had any
real appreciation of these matters. Insofar as the master discounted the
significance of these vessels because he remained unaware of the details of the
proposed manoeuvre, having left those to the pilot, that is of course no answer.
As to the pilot, his appraisal was simply inaccurate, with the result that he
effectively ignored ILLAPEL and AC when he should not have done. If visual
observation did not suffice, then radar plotting could have been undertaken. On
the evidence, although the vessel had two rastascan radars available, no use was
made of radar to plot the position of ILLAPEL and AC. It could not seriously
be suggested that plotting the positions of these vessels by radar would have
occasioned any difficulty.
83. In answer to a question which I posed with regard to the use of radar, the
Assessors expressed an opinion which comprised the original answer disclosed to
counsel. In the light of GMs submissions on this topic and the Assessors
response, it is only necessary to set out here the revised question and answer.
Q.4: On the assumptions: (i) that it was daylight; (ii) that visibility was
good; (iii) that AC was only about a mile downstream of GM at
anchor astern of ILLAPEL, which was herself at anchor abeam of
Draft 10 May 2013 12:25 Page 50

GMs berth: would a prudent seaman, formulating an unberthing plan,
rely simply on visual observation to ascertain the distance of vessels
on route from the berth to the completion of the manoeuvre or would
use be made of radar (if available) for this purpose?
A.4: A prudent seaman would have carried out a radar plot. Radar
plotting would have indicated distances more satisfactorily than visual
estimates (even with daylight and good visibility); radar plotting
should therefore have been done. An accurate assessment of the
positions of vessel in the vicinity of the berth is one of the pre-
conditions for the formulation of a prudent unberthing plan.
84. I accept this advice. It may be noted, inter alia, how it dovetails with the
philosophy of Rule 5 of the Collision Regulations (set out above), mandating the
use of all available means. The fact of the matter here is that, even on the
assumptions on which the (revised) question is premised, those on GM failed to
evaluate distances correctly; a correct evaluation would or should have had a
material impact on the unberthing plan. First, such an evaluation would have
lent emphasis to the need for the manoeuvre to be conducted as tightly as could
safely be accomplished (see the Assessors earlier answer); secondly, the option
of proceeding upriver to turn could and, if need be, should have been considered.
The matter does not quite end there. If the Assessors reasoning is to be faulted,
it can only be because in daylight and with good visibility, visual observation
should have sufficed. But if that be right, then it serves, with respect, only to
underline the egregious nature of GMs failure(s) of lookout.
Draft 10 May 2013 12:25 Page 51

85. I accordingly conclude, without hesitation, that those on GM were at fault in
failing to form an accurate appraisal of the positions of ILLAPEL and AC.
86. I come next to the failure by master and pilot to observe that AC had been
yawing. Each said that they had observed AC but not seen her yawing.
Intuitively, this is surprising. To begin with ACs yawing cannot be regarded as
unusual or unexpected; as agreed by the relevant experts, yawing was normal
for a laden vessel in the Orinoco, subject to a current of 4 to 4.5 or 5 knots
(unless appropriate steps were taken to reduce it). Mr. Teare, for his part,
realistically accepted that yaw and sway are normal consequences of lying to a
single anchor in a heavy current with a vessel of a certain trim and in a certain
depth. To the extent that there was evidence to the contrary (notably from the
pilot), I cannot give it credence; curiously, the pilot thought that dragging caused
yawing when the converse is plainly the case. Furthermore, ACs yawing was
noticed by others: two days earlier, GMs helmsman had seen AC yawing quite
a lot; additionally, as will be recollected, the tug masters (Captains Acosta and
Omana) had likewise seen her yawing, in effect, obviously.
87. In essence and as already foreshadowed, GMs case came to this: given a yawing
period of in excess of 10 minutes (as agreed by the experts), it would have taken
a prolonged period of observation to detect it; neither master nor pilot could be
faulted for not undertaking such a lengthy observation when it was not to be
expected that AC would fail to take steps to control her yaw and sway. With
respect, I am wholly unable to accept this submission. Again for the moment
instinctively, the object of a good lookout is to permit planning for a safe
Draft 10 May 2013 12:25 Page 52

passage; it is therefore necessary to take into account the behaviour of the ship
under observation; where yawing is to be anticipated (as here), an observer is, so
to speak, on notice to look out for it. It is unsafe and imprudent to proceed on the
assumption that appropriate measures have been taken to reduce it. In any event,
others appeared to have seen AC yawing without any particular difficulty. It
cannot be right that the duty under Rule 5 of the Collision Regulations is satisfied
by a fleeting observation which at the moment it is made detects nothing of
significance; that would be to pay lip service to the Rule and to ignore its object.
88. Against this background, I sought and obtained advice from my Assessors,
which, again, in the light of GMs further submissions and the Assessors
response, need only be set out in its revised form:
Q.5: On the assumption that AC was yawing over about 1 cable in a
period of 11-14.5 minutes, should a prudent seaman on GM, carrying
out a lookout of the duration properly to be expected of such a seaman
where AC is anchored in a 4-5 knot current downstream of another
vessel at anchor, have detected such yawing by visual observation?
A.5: Yes. A good lookout involves noting the behaviour as well as the
position of all vessels to be passed in an unberthing procedure, so as
to enable safe planning for a worst case scenario. There is no
reason to think that a proper as opposed to a cursory lookout on GM
should have failed to note pronounced yawing by AC. An appreciation
Draft 10 May 2013 12:25 Page 53

of the yaw would have been evident over a minute or twos proper
observation.
89. I regard that advice as compelling; I accept it. Those on GM were at fault in
failing to observe ACs yawing and to plan their passage accordingly. Either the
observations of the master and pilot were no more than cursory or else they were
simply inadequate. The reality, in all probability, was that on the basis of
inappropriate factual assumptions, neither the master nor the pilot of GM paid
sufficient attention to AC.
90. Pausing there, given GMs failure in respect of visual lookout, it is unnecessary
to enter into the debate as to whether difficulties were likely to have arisen had
GM sought to observe ACs yawing by means of radar. Suffice to say that in my
judgment, the difficulties suggested by GM were significantly overstated. Had it
been necessary to use radar, then in gyro-stabilised (north-up) mode, no
particular difficulty ought to have attached to observing ACs behaviour by
radar, before and during GMs turn.
91. I have already concluded (contrary to GMs submissions) that GM did not first
become concerned as to AC until C-2 (or C-3 at the earliest). In these
circumstances, it seems inescapable on the facts of this case that there was a
failure in lookout, regardless of the behaviour of AC. A good lookout entailed
keeping watch on the vessels to be passed during the manoeuvre, not least so as
to observe any changes in their position or behaviour. Whether this failure of
lookout was attributable to the absence of a dedicated lookout on the bridge (as
Draft 10 May 2013 12:25 Page 54

the master appeared to accept) or to the failure of those on the bridge to maintain
a proper lookout, is neither here nor there.
92. Though very much linked with the manoeuvre in fact conducted by GM, it
seems plain that the failure of appreciation and lookout on the part of GM prior
to conducting the turn was causative of the collision. As already foreshadowed,
with proper appreciation and lookout it is probable that the future course of
events would have been very different. Two examples suffice; first, the master
accepted in his evidence that if he had realised that AC was yawing, he would
have consulted with the pilot and harbour authorities as to what action to take;
secondly, there was always the option of going upriver before making the turn; in
the event that option was not even considered. Further consideration of causation
is best deferred until later both on this aspect of the failure of lookout and as to
poor lookout during the manoeuvre. For the present it is sufficient to remark
that there was much force in the following criticism contained in ACs final
written submissions:
[GM] did not determine whether there was, or might be, a risk
of collision with [AC] but instead proceeded on the basis of
assumptions, in breach of Rule 7 of the Collision Regulations.
The result was that those on board [GM] adopted a course that
would on any view bring her far too close to [AC] and then had to
deal unexpectedly with a close quarters situation that was of their
own making and which they should have foreseen.
93. (D) Was GM at fault in respect of her unberthing manoeuvre? This is an issue
of the first importance. However, in the light of the facts already found, it
requires minimal elaboration given the inevitability of the conclusions which
follow:
Draft 10 May 2013 12:25 Page 55

i) There had been a failure to plan the unberthing manoeuvre; the premise
of the passage plans silence as to unberthing was the expectation of
proper discussion between master and pilot; but as between the master
and pilot there had been no discussion, still less planning, to speak of.
While the master did have in mind a (broad) minimum safe passing
distance for vessels on route, he could not have had any real idea of
whether and, if so, how the pilot would achieve that. Understandable
though it may be in some respects that the master chose to leave the turn
to the local pilot, such abdication of responsibility cannot be right in terms
of good seamanship and furnishes no defence in law.
ii) As explained by the Assessors answers to Questions 1, 4 and 5 (as
supplemented or revised), there was a comprehensive failure in the
execution of the turn. GM proceeded too far to the North, came too close
to ILLAPEL, came too far downstream (adjacent to Sidor Nos. 5 or 6
berths) and came out of the turn too quickly. All of these matters flowed
both from the prior failure of appreciation and lookout and from the
unusual decision to use the engines, for a sustained period, half ahead
and, thereafter, full ahead, in the course of the turn For the decision to use
the engines as described, there has been no or no satisfactory explanation.
There was moreover, no need to conduct the turn in such a manner.
iii) In the result, GM rapidly encountered a close quarters situation with AC
for which those on board GM were unprepared. She was then being taken
Draft 10 May 2013 12:25 Page 56

rapidly downstream by the current, aided by her speed of advance through
the water attributable to the sustained full ahead movement.
94. Rule 6 of the Collision Regulations provides as follows:
Every vessel shall at all times proceed at a safe speed so that she
can take proper and effective action to avoid collision and be
stopped within a distance appropriate to the prevailing
circumstances and conditions
Among the factors to take into account in determining what is a safe speed are
traffic density (Rule 6 (a)(ii)) and the state of the current (Rule 6(a)(v)). In my
judgment, the manner in which GM conducted her turn discloses a plain breach
of this Rule and the requirements of good seamanship. Her turn failed to take
into account adequately or at all the presence, position and behaviour of
ILLAPEL and AC and the strength of the current.
95. Whether taken by itself or in conjunction with the prior failure of appreciation
and lookout, together with the failure of lookout during the turn, there can be no
realistic doubt that GMs conduct of the turn was, at the least, a major cause of
the collision. I return later to the relationship between this GM fault and other
suggested causes of the collision. The question of whether a collision was
unavoidable at the conclusion of GMs turn or whether subsequent manoeuvres
could have avoided a collision, I also defer until after consideration of the next
topic. On any view, however, the failures of appreciation and lookout and the
manner in which the turn was conducted, left those on GM now ill-placed to
avoid a collision.
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96. (E) Was GM at fault in respect of her later manoeuvres? Mr. Persey submitted
that if, at 08.27, GM had kept her engines at full ahead and gone to starboard,
even then and notwithstanding all that had gone before, a collision would have
been avoided. Having conducted her turn too fast and having, hitherto, failed to
ease, stop or reverse her engines, at this stage GM should have maintained full
ahead. Accordingly, Mr. Persey criticised the 08.27 stop engines order as
disastrous; steerage way was lost when it was most needed and there was a
significant risk of broaching. Mr. Persey accepted, however, that it would be
wrong to weigh matters too finely in the balance in the last two minutes
preceding the collision.
97. I do not think it would be right to criticise those on GM for their conduct from the
time they first became concerned as to the proximity of AC (i.e. C-2, or, at most,
C-3, onwards). Moreover, by then, a collision was in any event probable, so that
such conduct made no causative difference. My reasons are these:
i) When ACs change of aspect was belatedly seen, those on GM did not
(it would appear) appreciate that she was yawing; the master and third
officer thought that she was manoeuvring rather than at anchor and the
pilot thought she was dragging her anchor. Against this background, the
masters instinctive order to stop engines can be understood, whatever
view might be taken of it free from those prior misconceptions.
ii) Moreover, by C-2 (or even C-3), it is easy to imagine the desperate
concern to avoid a collision that now appeared both imminent and
Draft 10 May 2013 12:25 Page 58

unavoidable. It is in that context that the 08.27 order falls to be judged
with the anxiety of a looming collision and without the benefit of
hindsight. It would be harsh to criticise the masters instinctive adoption
of a measure which (at all events) would serve to reduce the impact of a
collision.
iii) For these reasons and those given earlier, the proper criticism to be made
is that, at C-2 or thereabouts, by reason of the earlier faults of those on
GM, they were both in the wrong position and unable to make a proper
evaluation of events; such criticism is well-founded.
iv) Further, by C-2 or thereabouts, it is in my judgment probable that there
would have been a collision regardless of whether the master had
maintained full ahead as well as ordering starboard helm. While no doubt
it is possible that with the additional steerage way furnished by
maintaining full ahead, a collision might have been avoided, I regard it as
unlikely; the current was too strong, so that, by then, the die was already
cast. In the circumstances, even if the master was at fault in ordering stop
engines, any such fault was not causative of the collision.
98. (F) What caused the collision? Causation is an important topic and it is
convenient to begin by separating out some first principles.
i) As concisely set out in Marsden (12th ed.), para. 13-01, it is not every act
of negligence committed at or about the time of a collision that is
Draft 10 May 2013 12:25 Page 59

actionable; to found a claim for damages, the negligence in question must
form a link in the chain of causation ending in the collision and thereby
cause damage.
ii) If the collision is due partly to the fault of one ship and partly to the fault
of the other, then liability is to be apportioned. The so-called last
opportunity rule has long disappeared: The Ouro Fino [1988] 2
Lloyds Rep. 325. Thus the fact that one ship had the last opportunity
to avoid a collision does not mean that she will be solely to blame for it if
in fact the fault of both ships caused or contributed to the collision.
iii) If, however, both ship X and ship Y were at fault but the fault of ship X
was causative of the collision, whereas the collision would have happened
in any event regardless of the fault of ship Y, then ship X is solely to
blame for the collision. In this example, the fault of ship Y is causatively
irrelevant. See too, Marsden, at para. 13-02.
99. In the present case, there was undoubtedly sufficient water for GM, differently
manoeuvred, to have passed AC safely, even at the extremity of her yaw;
accordingly, there can be no realistic doubt that the faults of GM, in respect of
appreciation, lookout and the manner in which her unberthing manoeuvre was
conducted, were at least a major contributory cause of the collision. Provided
only that it is right to conclude, as I already have, that ACs yawing should have
been observed, then it can properly be said that the collision, in broad daylight,
was caused by GM simply failing to keep clear of the very visible AC. It will be
Draft 10 May 2013 12:25 Page 60

recollected that in contemporaneous statements, two of the tug masters (Captains
Acosta and Rodriguez) said, effectively, just that and, for whatever reason,
neither of those two witnesses was predisposed to favour AC.
100. I have also, however, concluded that AC was at fault in failing to control her yaw
in that she neither anchored to an open moor nor used her helm (adequately or at
all) to dampen down her yawing and offset it to starboard. On this footing, Mr.
Teare submits that ACs fault was also a cause of the collision and, accordingly,
that liability is to be apportioned.
101. Before, however, the apportionment stage is reached, the issue must be resolved:
would the collision have occurred even if AC had controlled her yaw? If the
answer is yes, then, as it seems to me, ACs fault is causatively irrelevant and
GM must be solely to blame for the collision. If the answer is no, then I must
go on to consider apportionment.
102. For AC, Mr. Persey submitted that GMs manoeuvre was such that whatever AC
did (whether by way of open moor or use of helm), a collision would probably
not have been avoided. In support of this argument he relied on a diagram
produced by his expert (Mr. Hendy) which, as a matter of geometry, was agreed
by GMs expert (Mr. Byrne); a copy of that diagram forms Annexe II to this
judgment. Annexe II shows the actual degree of ACs yaw (in green), together
with the degrees of yaw on a 60 open moor (in red) and a 30 open moor (in
blue). Superimposed on Annexe II are GM and her track. Annexe II suggests,
Mr. Persey submitted, that a collision would not have been avoided on red (i.e.
Draft 10 May 2013 12:25 Page 61

had AC anchored to a 60 open moor) and would only have been avoided had
she been at the starboard or northern extremity of green (her actual yawing) or
blue (the lesser 30 open moor). In short, the collision would probably not have
been avoided. In the circumstances, GM was solely to blame for the collision. In
the event, ACs fault was not causative and she was not to be fixed with a share
of the liability for the collision simply to register the Courts disapproval as to the
manner in which she had been managed. This last submission, however
unpalatable, is of course plainly right and no more need be said of it.
103. For GM, Mr. Teares submissions proceeded as follows. First, although the
experts had agreed the geometry of Annexe II, GMs expert (Mr. Byrne) had
added the following qualifications:
any conclusions drawn using this plot regarding the

possibility of a collision with the AC lying to two anchors should
include reference to the following:
(a) for the 2*30 situation [i.e., red], the AC would need to be
found at the southern extremity of her cycle of movement;
(b) for the 2*15 [i.e., blue] situation, the AC would need to be
found in the southern side of the cycle;
(c) the drift angle of the GM illustrated in the plot (the difference
between her heading and her track) is that which obtained at the
point of collision;
(d) the simulations themselves are not necessarily precise .
Accordingly, Annexe II needed to be approached with caution and with these
qualifications in mind. Secondly, had the collision been between GM and AC on
(the notional) blue or red, it would have been a less serious collision; the angle of
blow would have been less so that it might well have been something in the
Draft 10 May 2013 12:25 Page 62

nature of a glancing blow. Thirdly, Annexe II only applied to GMs case that
AC should have anchored to an open moor; it did not apply to GMs case that
AC should have used helm to offset her yaw to starboard. For completeness, Mr.
Teare also submitted that Annexe II had no application if his case succeeded that
ACs anchorage position was unsafe; but as I have already reached an adverse
conclusion to GM on that point, no more need be said of that argument.
104. For my part, I am satisfied that a collision would probably not have been avoided
even had AC anchored to an open moor or used her helm to offset her yaw to
starboard. In expressing my conclusion in these terms, it may be that I have been
generous to GM in respect of the incidence of the burden of proof but I am
content to proceed on that basis. The reasons for my conclusion are these:
i) I readily accept that the simulations underlying Annexe II are not
necessarily precise; indeed, I approach them here, as I have throughout,
with considerable caution.
ii) I begin, therefore, by treating Annexe II as no more than a good
illustration of the overall situation on the various assumptions there set
out. As such, fairly considered, it strongly suggests to me that even had
AC adopted an open moor, while it was possible that a collision would be
avoided (if all concerned were lucky there might have been the closest of
near-misses), the probability was that a collision would have occurred in
any event. This conclusion follows from the nature of GMs manoeuvre
Draft 10 May 2013 12:25 Page 63

and irrespective of the beneficial steps AC should have taken to control
her yaw.
iii) A more detailed study of Annexe II (if appropriate) points to the same
conclusion. In my judgment, a collision with AC on red was unlikely to
be avoided. I am unable to accept Mr. Byrnes suggestion that it is only
with AC at the southern extremity of her cycle of movement that a
collision was likely. So far as concerns AC on blue, there is force in
Mr. Byrnes qualification that for a collision to be probable, AC needed to
be in the southern side of her cycle; however, as already discussed (and as
was GMs case), the desired open moor contemplated a total angle of 60
(or more) between the anchors (red), rather than 30 (blue). In any
event, to my mind, it is artificial to conduct an over-refined analysis of
Annexe II; it is the overall picture which matters.
iv) As to the submission that, with AC anchored to an open moor, any
collision would have been less serious, with respect, this is simply too
speculative. If anything, Annexe II raises the spectre of a contact
occurring in way of GMs accommodation area or certainly closer to it.
v) Finally, it is right, so far as it goes, that Annexe II does not deal in terms
with the application by AC of starboard helm. It is legitimate, however,
to approach Annexe II, on the assumption that starboard helm was
applied (ex hypothesi, to AC on green in Annexe II). If so, it remains
improbable that sufficient movement would have been achieved for a
Draft 10 May 2013 12:25 Page 64

collision to be avoided. I would accept that it was possible here too that a
collision might have been avoided; but that is not the test.
105. It must follow from these conclusions that though there is much to criticise in the
conduct of those on AC, her failure to control yaw and sway was not causative of
the collision. It follows further that GM must be held solely to blame and that no
question of apportionment arises. In essence, this was and remained a
straightforward case of a vessel under way colliding with a very visible vessel at
anchor, in broad daylight, following poor appreciation and lookout and a poorly
executed turn.
ISSUE (IV): APPORTIONMENT
106. For the reasons already given, this Issue does not arise. In deference however to
the arguments advanced at trial, I record that had I thought ACs fault (in not
controlling yaw and sway) to be causative, I would nonetheless have remained of
the view that the preponderance of blame lay with GM. Whatever the failings on
board AC (and in terms of ship management they were real indeed), even on this
assumption, the faults of those on GM gave rise to the dangerous situation which
resulted in the collision or, at the very least, played the major role in converting a
passing with the potential for embarrassment into a collision. Standing back from
the matter and viewing it in terms of both culpability and causation, I would have
apportioned liability 90% to GM and 10% to AC; necessarily, however, this
observation is of academic interest only.
Draft 10 May 2013 12:25 Page 65

Approved Judgment: TH TH ND TH TH

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Neutral Citation Number: [2005] EWHC 380 (Admlty)

Case No: 2002/737

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Date: 23 March 2005

THE HONOURABLE MR JUSTICE GROSS

Sitting with CAPTAIN COLIN STEWART & CAPTAIN IAN GIBB

The Owners and Bareboat Charterers of the Claimants

1. At about 08.28-08.29 local time on the 2 nd August, 2000 (GMT-4), the

Claimants vessel, the GLOBAL MARINER (GM) and the Defendants

consequences of the collision were dramatic, in that GM sank within minutes;

fortunately, there was no loss of life or significant personal injury.

deck and engineering cadets.

Draft 10 May 2013 12:25 Page 2

undertaking a 180 starboard turn to commence her downriver passage, assisted

controversial; subject to ACs substantial yawing, which was common ground,

simulations of both parties experts superimposed thereon (Annexe I).

5. A number of matters were common ground:

i) The time of the collision, as already recorded.

10 knots or less, alternatively variable, about force 1. The river current,

following the direction of the river (downriver).

side of her mean upriver heading.

Draft 10 May 2013 12:25 Page 3

and, thereafter, hold 3 (both of which were penetrated).

v) At the time of collision, GM was on a heading to starboard of downriver

and AC was on a heading to port of upriver.

were such as, in my judgment, to render dispute immaterial:

i) Experts instructed by both parties prepared simulated tracks of GM,

covering her manoeuvre from her berth to the collision position. As

appears from Annexe I, there is a difference of about 50m (North/South)

course recorder or an engine data logger and the inevitable margins of

simulated tracks. I accept these simulations as providing good illustrative

plots of the track of GM, subject throughout to the caution expressed by

collision positions is of the order of 70m (East/West); indeed the

disagreement between expert photogrammetrists (who contributed in their

acknowledged margin of error. Again, no practical consequences rest on

Draft 10 May 2013 12:25 Page 4

such differences. I am therefore content to conclude that the collision

Western end of Venalum pier, shown in the annexe.

For completeness, the difference between 2.5 and 3 cables is wholly

immaterial and I say no more of it.

following broad headings:

(Issue (I): AC at anchor);

lookout (Issue (II): The GM manoeuvre);

vessel (Issue (IV): Apportionment).

somewhat boldly, contended that AC was solely to blame, alternatively should

bear the preponderance of blame. AC had been anchored in an unsafe anchorage

Draft 10 May 2013 12:25 Page 5

dragging in a SE direction, towards Venalum berth; the greater movement was

given that AC had anchored in a narrow channel in close proximity to busy

lookout before unberthing; neither ILLAPEL nor AC presented risks to the

unberthing manoeuvre and it could not reasonably be anticipated by those on

resurrection of the last opportunity rule.

fallback alternative, GM was preponderantly to blame. GM, underway, had

Draft 10 May 2013 12:25 Page 6

failure of those on board GM to make any appreciation prior to unberthing or to

and record keeping had been lamentable, it would be wrong to hold AC

may have managed herself.

10. As to the evidence:

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D) waiting to assist in the berthing of ILLAPEL, scheduled to follow

GMs departure. AC called her relatively inexperienced third officer, Mr.