Richard Oakley Partner
3 ships, 2 collisions and 1 judgment
On 2 June the Hong Kong Admiralty Court handed down judgment in a case involving two collisions which happened within three minutes of each other.
The two collisions occurred in the early morning of 14 May 2011, in Chinese waters in the precautionary area between the East Lamma Traffic Separation Scheme (TSS) and the Dangan Shuidao TSS, and involved two outbound container ships from Hong Kong - the MCC JAKARTA and the TS SINGAPORE - and a west bound container ship -the XIN NAN TAI 77 -heading for the Pearl River Delta. The first collision was between the MCC JAKARTA and the XIN NAN TAI 77, and the second collision was between the MCC JAKARTA and the TS SINGAPORE.
This is thought to be only the second time a civil case involving collisions at sea has progressed to a full liability trial in Hong Kong, the last time being in 2011 ( The He Da 98  5 HKLRD 126). This case raised some interesting issues, both on the law and on matters of procedure.
The interesting issues on the law included whether, as the two collisions were so close together in time, they should be treated as one collision or as two separate collisions for the purposes of apportioning liability; the application in particular, of the overtaking rule (MCC JAKARTA was overtaking the TS SINGAPORE at the time), the crossing rules (XIN NAN TAI 77 was on a crossing course with both MCC JAKARTA and TS SINGAPORE), and Rule 10 (the three ships were all navigating in or near the terminations of a TSS); and, of course, the degree to which each ship was at fault for the collisions and how liability should be apportioned between them.
The interesting issues on matters of procedure included how the parties various collision actions should be consolidated and, with two separate collisions, to ensure the liability trials were heard concurrently; and the appointment and role of the Nautical Assessor in collision cases in Hong Kong.
Most of these issues were resolved by the parties with the assistance of the Court before the actual trial. By the time of the trial it had been agreed that the two collisions should be considered separately; and that the TS SINGAPORE was not at fault in any way for the first collision, but was 5% to blame for the second collision. At the trial the Court was required to determine therefore, how the liability of the MCC JAKARTA and the XIN NAN TAI 77 should be apportioned for both the first and second collisions. In doing so, the Court was greatly assisted by the provision of “real time” evidence in the form of electronic replays of the Hong Kong Marine Department’s Vessel Traffic Service port radar and radio systems, and the vessels’ own voyage data recorders; the witness evidence from the Masters of these two ships; and by the Nautical Assessor.
In a carefully reasoned and clearly written judgment, the Court concluded that the MCC JAKARTA was 20% and the XIN NAN TAI 77 was 80% to blame for the first collision; and that their collective liability (95%) for the second collision should be apportioned as between them in the same (80/20) proportions. Very helpfully, the Court added a postscript to the judgment on the role of the Nautical Assessor and the usual directions the Court will make in this regard for the benefit of parties involved in future collision cases in Hong Kong.
Ince & Co represented the MCC JAKARTA.
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