Miom 1 Ltd & Anor v Sea Echo ENE

Collision liability is apportioned by weighing the culpability and causative potency of the respective faults. The exercise is qualitative, not a mechanical counting of faults. A vessel that creates a hazard to other traffic by failing to control its position must take reasonable steps to remove the hazard, keep clear of the fairway, maintain an effective lookout and warn approaching vessels. In restricted visibility, navigators must maintain effective aural and radar watches, proceed at a prudent speed and take timely avoiding action. Poor bridge management may materially increase both culpability and causative potency. Where the parties’ faults are equally serious and equally causative, liability is divided equally.

The claim concerned a collision in dense fog in the River Mersey between SEA EXPRESS 1, a high-speed passenger and vehicle ferry, and ALASKA RAINBOW, a bulk carrier being assisted by two tugs while attempting to stem the tide near Alfred Lock. The ferry was proceeding upriver towards Liverpool Landing Stage. The bulk carrier was unable to maintain her position and moved across the river.

The court had to determine the faults of each vessel, whether those faults caused the collision, and how responsibility should be apportioned.

1. Liability. Both vessels were at fault. Under section 187(1) of the Merchant Shipping Act 1995, apportionment required a qualitative assessment of culpability and causative potency. The court was not to add up the number of faults on each side.
2. Fault of ALASKA RAINBOW. Having failed to stem the tide and become a hazard to inbound traffic, she should have aborted the attempt and returned to her anchorage. She should also have monitored the ferry, warned it of her difficulty, sounded the fog signal required by Rule 35 of the Collision Regulations, and kept clear of the fairway. Her failures were seriously culpable and of great causative potency.
3. Fault of SEA EXPRESS 1. The ferry’s aural and radar lookout was defective. The large radar echo should have been recognised as a vessel under tow. The ferry should not have increased speed in dense fog merely to keep station astern of another vessel, should have continued monitoring the echo, and should have taken prompt avoiding action, including going astern when the danger became apparent.
4. Bridge management. The arrangement whereby a master under examination was required both to con the vessel and maintain the radar and collision-avoidance watch was poor bridge management. In pilotage waters and restricted visibility, those functions should have been appropriately shared, with the master taking decisive control when necessary.
5. The faults of both vessels were of a high order and could not be separated by culpability or causative potency. Under section 187(2) of the Merchant Shipping Act 1995, responsibility for the collision was therefore divided equally.