Menu
Navigating Precautionary Areas: cross carefully!

News / / London

Wilforce LLC and Awilco LNG AS v. Ratu Shipping Co SA and Sea Queen Shipping Corporation (Wilforce v. Western Moscow) [2022] EWHC 1190 (Admlty)
The Admiralty Court has recently handed down judgment in the case of the collision between the LNG carrier Wilforce and the bulk carrier Western Moscow which took place in the Singapore Straits in May 2019. This case is notably the first collision case to come before the Admiralty Court since the Supreme Court handed down its judgment in the Ever Smart collision case. It is also the first case in which the Court has had to consider responsibility for a collision in a Precautionary Area.

The background facts

The collision occurred in a Precautionary Area of the Singapore Straits Traffic Separation Scheme (TSS). These areas are defined by an IMO Resolution as an “area within defined limits where ships must navigate with particular caution and within which the direction of traffic flow may be recommended”. In this case, the Precautionary Area represented an area where vessels may cross the TSS from north to south or south to north. Local navigational rules provided that vessels should be in a maximum state of manoeuvring readiness in this area and vessels are to navigate in an anti-clockwise direction.

Wilforce was leaving Singapore by proceeding eastwards in the TSS. Western Moscow was also leaving Singapore but intending to proceed westwards in the TSS. She had intended to join the westbound lane of the TSS at the western end of the Precautionary Area but, to avoid a tug and tow crossing the Precautionary Area southwards, instead entered the Precautionary Area at the eastern end and proceeded south. 

The vessels’ courses from around C-10 can be seen on the plot below (Wilforce denoted in blue and Western Moscow in orange). At around C-10, the Western Moscow crossed the Precautionary Area ahead of Wilforce in a southwards direction. She then proceeded to turn to port on a westerly heading, intending to join the westbound lane. The port bow of Western Moscow struck the port side of Wilforce. It is said that the combined claims for damage amount to around £14 million.

Precautionary Areas

 

Vessels’ faults

Western Moscow

Although the radar echo of Wilforce was observed at about C-6, the lookout on Western Moscow was found to be very poor. This poor lookout resulted in a failure to apply starboard helm at C-3 and the need to correct an order of hard port to hard starboard in the last two minutes before the collision.

It further meant that Western Moscow failed to adopt a course where she would join the westbound traffic lane at as shallow an angle as possible and instead continued to turn to port, such that she found herself heading in a westerly direction in that part of the Precautionary Area where there might be vessels proceeding in an easterly direction.

The failures on the part of Western Moscow (i) in exhibiting additional, non-navigational lights; and (ii) not sounding two short blasts (indicating a turn to port) were not held to be causative. Furthermore, Western Moscow’s use of VHF in concluding an agreement for a port to port passing was not to be criticised.

Wilforce

Whilst criticisms were made of the lookout on Wilforce, none was found to have been causative. However, her speed approaching the Precautionary Area was criticised as had she been in a maximum state of manoeuvring readiness, she would have been able to reduce speed more quickly.

The Admiralty Court decision

A crossing case?

This was the first collision case to be determined following the Supreme Court’s decision in Ever Smart.

Western Moscow interests argued that the crossing rules (rules 15 – 17 of the COLREGs) applied to the vessels’ encounter. If they did, Wilforce, as the give way vessel, was to take early and substantial action to keep out of the way and Western Moscow was to keep her course and speed (which would then give rise to the question of what ‘course’ the porting Western Moscow was obliged to ‘keep’).

On the facts of this case, the Judge held that it was not necessary for him to decide whether or not the crossing rules applied. Instead, the encounter was governed by the requirements of good seamanship. On the advice of the Nautical Assessors, the action required of both vessels was the same as that which was required if the crossing rule did not apply: Wilforce as the give-way vessel should have reduced speed by C-5 (which she failed to do) and turned to starboard when the tug and tow permitted (which she did).Western Moscow should have steadied on a course of 350 degrees at C-7.

However, it was argued that in circumstances where Western Moscow was said to have created the crossing situation herself, Western Moscow would not in any event be entitled to invoke the crossing rule. Previous authority suggested that a putative stand-on vessel cannot claim ‘stand-on’ status when that vessel has created the crossing situation by her own fault. The Judge expressed some hesitancy in reconciling these past authorities with the recent Supreme Court crossing case of the Ever Smart, where it was suggested that the crossing rules should only be dis-applied if there is some necessity to do so. Although there was discussion of the various authorities, the Judge considered it preferable to deal with this question when its resolution actually matters.

As to the course that Western Moscow should have kept had the crossing rules applied and following the Supreme Court’s decision in Ever Smart, it was accepted that her duty to keep course and speed should be moulded to comply with the IMO resolution as to how vessels should navigate in a Precautionary Area. That is to say that she should not have maintained her port turn.

Apportionment of liability

Apportionment of responsibility for a collision depends upon an assessment of the (i) blameworthiness/culpability; and (ii) causative potency (i.e. the contribution which each vessel made to the fact that a collision occurred) of both vessels.

Although Wilforce’s excessive speed contributed to the damage caused by the collision and was a breach of an important obligation, both the causative potency and blameworthiness of Western Moscow was found to be greater than that of Wilforce. Her poor lookout meant that she not only continued to turn to port, but also delayed in applying hard starboard helm. This poor lookout was also particularly blameworthy given her navigation in a Precautionary Area.

The Judge held that Western Moscow’s fault was three times the fault of Wilforce. Liability was, therefore, apportioned 75% to Western Moscow and 25% to Wilforce

Comment

Collision cases do not come to Court frequently and so it is interesting that the Court has had to consider and examine the Supreme Court’s ruling so soon. It does, however, highlight the difficulty that the Judge faced in reconciling the Supreme Court judgment with previous authority. The matter of whether a stand on vessel who has created a crossing situation by her own fault can invoke the crossing rules will, therefore, be for another day. However, it remains the case that the crossing rules should be applied wherever possible and, in the absence of an express stipulation, should not be overridden unless there is compelling reason to do so.

Martin Dalby

Martin Dalby Partner

Sophie Henniker-Major

Sophie Henniker-Major Managing Associate

Related sectors:

Related news & insights

News / Ince celebrates one year since Scotland office opening

23-11-2022 / Insurance, Maritime, Real Estate

We are pleased to be celebrating one year since opening our first Scottish office in the city of Glasgow.  Stefanie Johnston, dual-qualified Partner and Head of Scotland, has worked tirelessly over the last year to develop our offering through the opening of an Ince office in what is arguably an established Scottish market. Starting from the ground up, Stefanie and her team have successfully gained an admirable reputation in the region and further afield in the maritime, insurance, real estate and regulatory sectors. 

Ince celebrates one year since Scotland office opening

News / Shipping E-brief November 2022

17-11-2022 / Maritime

The Shipping E-Brief is a publication providing you with key information on legal decisions and developments in shipping and related business areas.

Shipping E-brief November 2022

News / Appeals from arbitration: is reform required?

15-11-2022 / Maritime

In September 2022, the UK Law Commission published a consultation paper with provisional recommendations for updating the Arbitration Act 1996 (the Act 1996). Amongst other things, the Law Commission considered whether any changes need to be made to: (i) s.67 of the Act 1996, which deals with jurisdictional challenges to arbitral awards; and (ii) s.69 of the Act 1996, which deals with appeals on points of law.

Appeals from arbitration: is reform required?

News / Owners not in breach of charter and entitled to claim demurrage

09-11-2022 / Maritime

CM P-MAX III Limited v. Petroleos Del Norte SA (MT Stena Primorsk) [2022] EWHC 2147 (Comm) This recent laytime and demurrage dispute demonstrates that an owner can legitimately refuse orders where such orders may jeopardise the safety of a vessel.

Owners not in breach of charter and entitled to claim demurrage

News / Court of Appeal finds owner should have accepted non-contractual performance

09-11-2022 / Maritime

Mur Shipping BV v. RTI Ltd [2022] EWCA Civ 1406 A majority of the Court of Appeal has held that the Owner under a contract of affreightment (COA) should have accepted payment of freight in Euros, rather than the US dollars provided for in the COA. Its refusal to do so meant that the Owner could not rely on the force majeure clause in the COA, in circumstances where US sanctions might have restricted US dollar transfers from or on behalf of the Charterer.

Court of Appeal finds owner should have accepted non-contractual performance

News / “Due” means due!

03-11-2022 / Maritime

Ceto Shipping Corporation v. Savory Inc (Victor 1) [2022] EWHC 2636 (Comm) The Court in this case had to construe a purchase option clause in a bareboat charter. Specifically, it considered whether the fact that the charterer had not fulfilled certain payment obligations under the charter because it was disputing them in good faith meant that the owner was not obliged to transfer title to the vessel at the end of the charter period.

“Due” means due!