THE “MINERAL DAMPIER” AND “HANJIN MADRAS” [2001] EWCA Civ 1278

Whether avoiding action has been taken in ample time under rule 19(d) of the collision regulations depends on all the circumstances. Relevant matters include the vessels’ size, characteristics and speed, the navigational area and the nature of the visibility. Anticipated transition to the crossing rules may provide ample time for action after the vessels come into sight.

VHF communication about navigation is not prohibited. It may assist by exchanging information about intended action, provided the vessels are correctly identified and the proposed navigation complies with the collision regulations. An agreement conflicting with those regulations requires exceptional circumstances. VHF misuse bears on relative culpability, while the direct cause remains the navigational action or inaction.

Two bulk carriers collided in the East China Sea. The Mineral Dampier sank and all 27 crew members were lost. The vessels had detected one another by radar in restricted visibility before coming into sight at about three miles. They then approached on crossing courses after two VHF conversations.

Aikens J held the Mineral Dampier 20% responsible and the Hanjin Madras 80% responsible: [2000] 1 Lloyd's Rep 282. The owners of the Hanjin Madras appealed against that apportionment. They contended principally that both vessels should have taken avoiding action under rule 19 before coming into sight and that the treatment of the second VHF conversation and the subsequent navigation was erroneous.

The central issues were when the restricted-visibility and crossing rules required action, the proper use and effect of VHF communications, and the parties’ relative blame.

1. Appeal dismissed unanimously. Lord Phillips MR and Clarke LJ prepared the judgment of the court, with which Schiemann LJ agreed fully. Although the Court of Appeal differed from parts of the judge’s reasoning, his 80:20 apportionment against the Hanjin Madras was just.

2. Neither vessel breached rule 19(d) of the collision regulations before coming into sight. Each had to determine whether a close-quarters situation was developing and, if so, take avoiding action in ample time. What constitutes ample time depends on all the circumstances, including the vessels’ size, characteristics and speed, the navigational area and the nature of the visibility. The vessels reasonably expected to see one another at about three miles. The crossing rules would then govern, while a close-quarters situation would arise at about two miles. They therefore had ample time to act under rules 15 and 17 after coming into sight.

3. The court approved the general principle in The Maloja II [1993] 1 Lloyd's Rep 48 that the collision regulations aim to prevent vessels reaching close quarters without time for considered action. Its warning about VHF was confined to agreements involving navigation inconsistent with those regulations. VHF is not subject to a general embargo. It can usefully communicate intended action, provided the transmitting vessel is identified beyond doubt. Circumstances must be exceptional before good seamanship permits a VHF agreement conflicting with the regulations.

4. The first VHF conversation was a prudent exchange of intended action. The second did not create a culpable agreement by the Mineral Dampier. Her acknowledgement that she understood an instruction to maintain course and speed accorded with her existing duty under rule 17(a)(i). The Hanjin Madras was culpable because she encouraged reliance upon the performance of her give-way duty and then failed to perform it.

5. After clearing the fishing fleet at C-9, the Hanjin Madras seriously breached her give-way duty by failing to make a prompt and bold alteration to starboard. Her eventual application of only 15 degrees of helm was also inadequate. The Mineral Dampier was not obliged to act at C-9 under rule 17(b), because the collision could still then have been avoided by the give-way vessel alone. She was nevertheless at fault for failing, by C-5 at the latest, to exercise her discretion under rule 17(a)(ii) by going hard to starboard.

6. The Hanjin Madras was four times more blameworthy. The Mineral Dampier’s later failure was mitigated by her reasonable expectation that the other vessel would take the action announced by VHF. The appeal was dismissed with costs summarily assessed at £23,300.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The apportionment of liability at 80% against the Hanjin Madras and 20% against the Mineral Dampier was affirmed.

2. Queen’s Bench Division, Admiralty Court: Aikens J held the Mineral Dampier 20% responsible and the Hanjin Madras 80% responsible for the collision: [2000] 1 Lloyd's Rep 282.