Bow Spring, owner of the Ship v Owners of the Ship Manzanillo II

A vessel must not cross a narrow channel or fairway if doing so would impede a vessel which can navigate safely only within it. A vessel approaching in circumstances which reasonably suggest that it may cross must make its contrary intention clear in sufficient time.

Where that failure creates a legitimate perception of danger, an unreasonable over-reaction by the other vessel does not necessarily break the chain of causation. Responsibility may be apportioned between the vessel which created the danger and the vessel which responded negligently.

When a court consults a nautical assessor, fairness ordinarily requires the assessor’s answers to be disclosed so that the parties can address whether the advice should be accepted.

The laden chemical tanker BOW SPRING grounded after leaving the Northern By-pass Channel of the Suez Canal. Her master acted because the approaching dredger MANZANILLO II appeared to be shaping to cross the channel ahead of her. The tanker sustained rudder and propeller damage.

David Steel J, in the Admiralty Court, held in [2003] EWHC 1802 (Admlty) that both vessels were at fault and apportioned responsibility equally. The owners of MANZANILLO II appealed, contending that their vessel was free from fault or, alternatively, that the tanker should bear substantially more responsibility.

The principal issues were whether MANZANILLO II’s navigation caused or contributed to the grounding and whether the equal apportionment was justified. A subsidiary procedural issue concerned the judge’s failure to invite submissions on advice obtained from the Elder Brethren as nautical assessors.

1. Appeal dismissed. MANZANILLO II was at fault for failing to make clear, sufficiently early, that she would not cross the channel. She was approaching at about 10 knots on a course which suggested that she would cross approximately half a mile ahead of BOW SPRING. Such a crossing risked impeding a deeply laden vessel which could navigate safely only within the channel, contrary to rule 9(d) of the International Regulations for Preventing Collisions at Sea.

2. The evidence did not permit the vessels’ tracks to be reconstructed with precision. Nevertheless, MANZANILLO II had made no alteration, or no sufficiently apparent alteration, when BOW SPRING’s master decided to leave the channel. She had not then begun dredging or displayed shapes from which BOW SPRING could be expected to identify her as a dredger. The published navigational warning was insufficiently precise. In any event, the decisive question was whether the approaching vessel intended to cross the channel, not whether she was a dredger.

3. MANZANILLO II’s fault was causative. BOW SPRING’s concerns about the dredger’s intentions, closest point of approach and the risk of collision were legitimate. Her master’s decision to beach the tanker was a hurried and ill-considered over-reaction; he should instead have reduced speed. That error did not make his conduct the sole cause because MANZANILLO II had negligently placed him in a position where an urgent decision appeared necessary.

4. The equal apportionment was upheld. MANZANILLO II created the initial danger by leaving her intentions unclear. BOW SPRING then responded negligently by leaving the channel rather than taking off way. Each fault materially contributed to the grounding and resulting damage.

5. By way of postscript, fairness under the common law and article 6(1) of the European Convention on Human Rights ordinarily requires a court to disclose advice received from a nautical assessor. The parties must have an opportunity to submit whether the judge should accept it. The judge should therefore have disclosed the Elder Brethren’s answers. No irremediable prejudice was established, so the procedural issue did not affect the appeal.

1. Court of Appeal (Civil Division): The appeal in [2004] EWCA Civ 1007 was dismissed. The equal apportionment of liability and the costs order below were left undisturbed, and the respondents were awarded their costs of the appeal.
2. High Court, Queen’s Bench Division, Admiralty Court: David Steel J held in [2003] EWHC 1802 (Admlty) that MANZANILLO II and BOW SPRING were each 50 per cent responsible for the grounding. The owners of BOW SPRING were entitled to recover half their resulting loss and damage.