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English law - Apportionment

of liability in collision cases
and the dilemma of the stand-
on vessel
INSIGHT 172, 2003
01 NOV 2003
English law
Apportionment of liability in collision cases and the dilemma of the stand-on vessel

A recent decision of the English High Court highlights the difficulties faced by stand-on vessels
in situations where the risk of collision exists.
Introduction
In collision cases it is not unusual for both ships involved to be in breach of the Convention on
the International Regulations for Prevention of Collisions at Sea, 1972, as amended (the
Collision Regulations, or COLREGs).1 Section 187 of the Merchant Shipping Act, 1995, which
governs apportionment of liability in collision cases in English law, provides: “Where, by the
fault of two or more ships, damage or loss is caused to one or more of those ships, or their
cargoes or freight, or to any property on board, the liability to make good the damage or loss
shall be in proportion to the degree in which each ship was at fault.” Only causative faults are
relevant in apportioning liability. Each fault is considered and some may be more blameworthy
than others. Liability is apportioned by taking into account both the culpability and causative
potency of each relevant fault.
The case
On 6th May 1991, the TOPAZ (plaintiffs), registered in Panama, and the IRAPUÃ (defendants),
registered in Brazil, came into collision off the east coast of Brazil. Negotiations between the two
parties proved fruitless and the matter came up for trial before the High Court of England and
Wales. Blame was apportioned 80/20 in favour of TOPAZ.2
The TOPAZ, an ore/oil carrier, 285.58 metres in length overall, was proceeding in a westerly
direction and the IRAPUÃ, a bulk carrier, 146.01 metres in length overall was proceeding
broadly northwards. It was a crossing situation, IRAPUÃ being the give-way vessel and TOPAZ
the stand-on vessel. Rules 15, 16 and 17 of the Collision Regulations were applicable.
1 See article “Amendments to the Collision Regulations” elsewhere in this issue of
Gard News.
2 Owners of the ship “TOPAZ” v. Owners of the ship “IRAPUÔ [2003] EWHC 320
(Admlty); [2003]1 Loyds Rep. 19.
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TheRules provide as follows:

“Rule 15 – Crossing Situation
When two power-driven vessels are crossing so as to
involverisk of collision, the vessel which has the other on
herown starboard side shall keep out of the way and shall,if the
circumstances of the case admit, avoid crossing aheadof the
other vessel.

Collision Regulations: Rule16 – Action by give-way vessel

Every vessel which is directed to keep out of the way ofanother
frequently breached.
vessel shall, so far as possible, take early andsubstantial action
to keep well clear.
Rule 17 – Action by stand-on vessel
(a)(i) Where one of the two vessels is to keep out of the way the other shall keep her course and
speed.
(ii) The latter vessel may take action to avoid collision by her manoeuvre alone, as soon as it
becomes apparent to her that the vessel required to keep out of the way is not taking appropriate
action in compliance with these Rules.
(b) When, from any cause, the vessel required to keep her course and speed finds herself so close
that collision cannot be avoided by the action of the give-way vessel alone, she shall take such
action as will best aid to avoid collision.
(c) A power-driven vessel which takes action in a crossing situation in accordance with sub-
paragraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the
circumstances of the case admit, not alter course to port for a vessel on her own port side.
(d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way.”
Evidence from the third officer, the officer of the watch (OOW) on TOPAZ, stated that he
sighted IRAPUÃ when she was 12 miles away. When he realised that a risk of collision existed,
he tried to contact IRAPUÃ on VHF and also tried to get attention by use of light and sound
signals. On failing to get IRAPUÃ’s attention, he changed over from automatic steering to hand
steering and ordered the AB on watch to alter course by 10 degrees to starboard when the
distance between the vessels was six miles.
The OOW continued trying to attract the attention of the IRAPUÃ but to no avail. When the two
vessels were at a distance of less than three miles from each other, the OOW realised that
collision could not be avoided without action on part of the TOPAZ and he ordered the wheel
hard over to starboard and sounded one short blast on the whistle. The two vessels collided
during this manoeuvre, the bow of IRAPUÃ making contact with
the port side mid-section of TOPAZ.
The master of the TOPAZ was with the chief officer in the cargo control room, conducting
ballast operations, and was not contacted by the OOW.
The experienced AB on watch confirmed the above series of events.
The master confirmed that he was in the cargo room and that he did not hear the sound signals
due to being in a closed space and the noise generated by the running ballast pumps.
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Other relevant facts of the case are that:

– The IRAPUÃ and the TOPAZ were both proceeding at 14 knots through the water and neither
reduced her speed prior to the collision.
– It was recognised that there was some loss of speed when the TOPAZ turned hard to starboard
just prior to collision.
– The IRAPUÃ neither saw TOPAZ visually nor observed her by radar before the collision.
The defendants accepted that IRAPUÃ was in breach of Rule 5 of the Collision Regulations in
failing to maintain a proper lookout and that they were also in breach of Rules 7, 8, 15 and 16.
Rule 7 sets out the requirement to determine if risk of collision exists by using all means
appropriate in the prevailing circumstances and conditions. Rule 8 deals with the action to be
taken to avoid collision, which broadly speaking shall, if the circumstances of the case admit, be
positive, readily apparent, made in ample time and with due regard to the observance of good
seamanship. This may be an alteration of course and/or speed.
The defendants also accepted that the IRAPUÃ was at serious fault and should bear a substantial
percentage of the blame for the collision. However, they made the point that substantial did not
mean overwhelming. They did not dispute that IRAPUÃ was more than 50 per cent to blame –
the question being how much more.
The evidence given by the plaintiffs led to much debate, which albeit interesting is not within the
scope of this article. What is relevant is the finding of the court and the reasoning behind the
apportionment.
A reconstruction of events indicated that the 10-degree alteration to starboard by TOPAZ was
not made when the vessels were at a distance of six miles from each other, but more likely when
the vessels were three to four miles from each other. Such alteration of course at a distance of six
miles would have most probably resulted in collision being avoided.
The defendants had argued that an alteration of 10 degrees when the vessels were six miles
distant was in breach of Rule 17(a)(i). However, the court held that as the alteration was
probably made when the distance between the vessels was three to four miles, such alteration
would fall under the requirement of Rule 17(a)(ii). The question was whether a 10-degree
alteration to starboard satisfied the requirements of rule 17(a)(ii). The court held that in order to
avoid the collision, course should have been altered boldly by at least 30 degrees and that an
alteration of course of 10 degrees was inadequate.
In spite of rule 17(a)(ii) not being mandatory, the court found that the OOW was negligent for
altering course by only 10 degrees and also that this fault was causative of the collision. Once a
decision had been made to take action to avoid collision this action should have complied with
Rule 8. The alteration should have been positive, resulted in passing at a safe distance and the
effectiveness of the action should have been carefully checked until the other vessel was finally
past and clear.
Rule 17(b), though, is mandatory. Here the stand-on vessel has to decide when the vessels are at
a distance whereby the collision can not be avoided by the action of the give-way vessel alone.
The action that the stand-on vessel now takes must also result in avoiding collision.
TOPAZ was found to be in breach of Rule 17(b). If she had taken proper action on time,
collision should have been avoided. The court found that the wheel should have been ordered
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hard to starboard when the vessels were two miles distant. It was held that action to comply with
Rule 17(b) was taken too late by TOPAZ.
When to take action to avoid collision in compliance with Rule 17(b) can be a dilemma for the
stand-on vessel. How is she to know when exactly is the moment, after which action by the give-
way vessel alone will not avoid collision? What is the nature of this action assumed to be? Is it
just an alteration of course or speed or does it entail both?
TOPAZ interests submitted that the decision to put the wheel hard over to starboard was timely
as the IRAPUÃ was a much smaller vessel and hence if she had taken action prior to that point,
collision would have been avoided. The court, however, accepted expert evidence that the stand-
on vessel could not base its actions on the dimensions and capabilities of the give-way vessel, as
it was very unlikely that the stand-on vessel would know such information in any case.
Although the court found that TOPAZ was at fault with respect to both Rule 17(a)(ii) and Rule
17(b) and that both faults were inescapably causative of the collision, it also recognised that
TOPAZ’s faults were forced upon her by the total failure of the IRAPUÃ to see or observe the
TOPAZ prior to the collision and her failure to take any action whatsoever to avoid the collision.
In reaching the decision to apportion blame 80/20 in favour of TOPAZ the court also recognised
that TOPAZ’s faults were real faults. They were not so minor as to attract only a de minimis
share of the blame.
Recommendations
It is recommended that a stand-on vessel take the following actions, where it is determined by
her that a risk of collision exists:
– Closely monitor the situation.
– As soon as it becomes apparent that the give-way vessel is not taking adequate action, the
stand-on vessel may try and attract its attention by using the signals prescribed in the Rules.
– If taking action as permitted by Rule 17(a)(ii), such action must comply with Rule 8 of the
Collision Regulations.
– When taking action in order to comply with Rule 7(b):
(a) Take action when, in the prevailing circumstances and conditions, the action by the stand-on
vessel alone will result in avoiding the collision. It is probably best to assume that the give-way
vessel will not take action at this stage.
(b) Rely only on information that is known, e.g., own vessel’s characteristics and manoeuvring
capabilities in the prevailing circumstances and condition. Under no circumstance must
assumptions be made as to the intentions of the other vessel.
– Do not hesitate to summon additional help.
– Maintain a log of events insofar as it does not detract from safe navigation. Otherwise, make a
note of events as soon as circumstances permit.
It is strongly recommended that the master’s Bridge Standing Orders require the OOW to call
him as soon as it becomes apparent that the give-way vessel is not taking adequate action to
avoid collision.