The Owners of the “X-Press Mahanada” v The Owners of the “Burgan”

In a collision in a narrow channel, a vessel which has moved away from her starboard side must regain that position promptly, or clearly signal and take other effective steps to show her intentions. A vessel confronted with uncertainty about another vessel’s movements should reduce speed, maintain control and use the prescribed sound signals. VHF communication may assist, but it cannot safely replace compliance with the Collision Regulations.

Where faults by three vessels contribute to a casualty, liability must be apportioned by comparing each vessel’s culpability and causative potency individually with those of every other vessel. The number of faults is not decisive. A vessel whose negligence creates the dangerous situation will generally bear greater responsibility than one reacting to it.

The claim arose from an almost head-on collision between the container vessel X-PRESS MAHANADA, proceeding inbound, and the product tanker BURGAN, proceeding outbound in the Karnaphuli River near the Gupta Crossing in Bangladesh.

BURGAN had agreed to pass another vessel starboard to starboard and consequently remained on the port side of the narrow channel. Shortly before the collision, the military vessel SHAKTI SANCHAR crossed the channel between the two vessels. It was not a party to the proceedings.

The issues included whether BURGAN, X-PRESS MAHANADA and SHAKTI SANCHAR were at fault, whether their faults caused the collision or loss, and how liability should be apportioned where one contributing vessel was absent from the proceedings.

1. BURGAN’s navigation. The Karnaphuli River was a narrow channel to which Rule 9(a) applied. BURGAN remained in the centre or on the port side of the channel after passing DONG JIANG. She should have returned promptly to the outer limit on her starboard side. Her failure to do so was a serious navigational fault and an important link in the causal chain.

2. BURGAN also failed to maintain an adequate lookout by AIS, radar and visual observation. Earlier detection of SHAKTI SANCHAR and X-PRESS MAHANADA would have allowed more time for a considered response. Once SHAKTI SANCHAR was detected and her intentions were uncertain, BURGAN should have slowed substantially or stopped while maintaining control. She should also have used the sound signals required by Rule 34. Reliance on VHF alone was unsafe. The guidance in The Mineral Dampier and The Samco Europe was not confined to close-quarters situations.

3. Other vessels. X-PRESS MAHANADA was generally proceeding at a safe speed through the water, given the flood tide, the sharp bend and the need to maintain steerageway. Her lookout was imperfect, and she should arguably have reduced speed when the danger became apparent, but those matters did not cause the collision and could at most affect the extent of damage. SHAKTI SANCHAR was at fault for failing to keep to her starboard side, failing to use VHF and failing to give appropriate sound signals. Her slowing while assessing the situation was not itself a fault.

4. Apportionment. Under section 187(1) of the Merchant Shipping Act 1995, the court had to assess the causal contribution of each vessel, including the vessel not before the court. Applying The Miraflores & The Abadesa and The Nordlake v The Sea Eagle, the comparison had to be individual and separate, by reference to culpability and causative potency. BURGAN’s faults were more serious and more causative than those of the other vessels.

5. Liability was apportioned 65% to BURGAN and 35% to SHAKTI SANCHAR. No liability was apportioned to X-PRESS MAHANADA.