Case No: QBADF 98/1275 CMS3 

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMIRALTY COURT
Mr Geoffrey Brice QC
Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 11 April 2000 
B e f o r e:

LORD JUSTICE ROCH
LORD JUSTICE CLARKE
and 
SIR CHRISTOPHER SLADE

				ASSESSORS:
 		
				Captain P G J Murison RN
				Captain P D F Cruickshank

	THE OWNERS OF THE SHIP “SELAT ARJUNA”	Claimants/
Respondents	
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	THE OWNERS OF THE SHIP “CONTSHIP SUCCESS”	Defendants/Appellants	
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
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Miss Belinda Bucknall QC and Mr Nigel Jacobs
 (instructed by Penningtons) represented the Claimants/Respondents
Mr Jeremy Russell QC and Mr Simon Kverndal
(instructed by Holman, Fenwick & Willan) represented the Defendants/Appellants
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Judgment
As Approved by the Court

Crown Copyright ©
Lord Justice Clarke:  

1.	At about 00.05 hours (GMT + 4) on 27th July 1993 the anchor handling tug and supply vessel SELAT ARJUNA collided with the motor vessel CONTSHIP SUCCESS in the Arabian Sea off Yemen and subsequently sank.  In a judgment handed down on 22nd July 1998 Mr Geoffrey Brice QC, sitting as a Deputy High Court judge in the Admiralty Court, held that the CONTSHIP SUCCESS  was alone to blame for the collision.  Mr Brice has sadly died since giving his decision in this action.

2.	This is an appeal against that decision by the owners of the CONTSHIP SUCCESS.  They now accept that the CONTSHIP SUCCESS was very substantially to blame for the collision but they say that the SELAT ARJUNA was also to blame and that the judge should have so held.  The appellants accept the findings of fact made by the judge so that the appeal is in a very narrow compass.  In these circumstances it is possible to deal with the matter quite shortly.  The judgment of the judge is reported at [1998] 2 Lloyd’s Rep 488, to which reference can readily be made, so that it is not necessary to recite the issues before the judge or indeed the facts in great detail.  When referring to the judgment I shall refer to the page numbers in the Lloyds’ Report.

3.	The vessels were of different sizes.  The SELAT ARJUNA was a vessel registered in the United Arab Emirates of conventional design with her bridge and accommodation right forward, of 497.78 tonnes gross register, 56.4 metres in length overall, 11.6 metres in beam and with a maximum draught of 4.1 metres.  She was a twin-screw vessel with a controllable pitch propeller and was powered by two diesel engines producing 5,750 BHP giving a service speed of about 9 to10 knots.  She was fitted with a 350 HP bow thruster.  She was very manoeuvrable.  Her navigational equipment included two radars (but no ARPA) and she was fitted with a GPS positioning system.  The radar in use was a Furuno which had some form of visor.  The only method of plotting on it was by using a chinagraph pencil.  At the time of the collision the draught of the SELAT ARJUNA was between about 10 ft forward and 10.5 ft aft on an even keel.  She was carrying charterers’ equipment and was manned by a crew of 10 all told including her master Captain FR Inguin, who gave evidence at the trial, as did the look-out Mr S Rusdianto.

4.	The CONTSHIP SUCCESS is a container ship registered in Hamburg of 16,250 tonnes gross register with a carrying capacity of 1,597 TEUs plus 26 FEUs.  Her bridge, accommodation and engine room are aft.  She is 163.40 metres in length overall and 27.50 metres in beam.  She too is fitted with a GPS system and her navigational equipment includes an ARPA radar.  She is powered by a diesel engine of  13,460 BHP geared to a single right-handed propeller producing a full sea speed of 17 knots.  She is highly manoeuvrable.  At the time of the collision she was laden with a part cargo of containers and was drawing 10.3 metres forward and 11.05 metres aft.  She was manned by a crew of 19 all told including her master Captain E Schröder and the officer of the watch, who was the third officer Mr Arnold.  Both Captain Schröder and Mr Arnold gave oral evidence.  

5.	The sidelights of the CONTSHIP SUCCESS did not comply with the Collision Regulations, which provide that sidelights should be visible between 1 and 3 outside the prescribed sector.  That is, for example, the red sidelight should be visible to an angle between 1º and 3 across the bow to starboard.  In the case of the CONTSHIP SUCCESS it is agreed that the sidelight would only be visible to an angle of about 0.14 across the bow and that the sidelight would be fully obscured at a very slightly larger angle than that.  Thus there is a blind area commencing with the width of the ship and diminishing to 18.8 metres in width at a distance of 1 mile, 9.8 metres at 2 miles and zero at 3 miles.  There was much debate at the trial about the significance of this failure to comply with the regulations, but I shall say nothing more about it because in my judgment it played no part in the collision and is not relevant to any of the questions for decision on this appeal.

6.	Neither vessel was fitted with a course recorder, but the CONTSHIP SUCCESS was fitted with an engine logger printout.  Because the SELAT ARJUNA sank none of her records survived.

7.	The judge’s findings of fact may be summarised as follows:

1.	The weather was fine and clear with good visibility, but dark.  The wind, sea and swell were of no significance force in the context of the collision save perhaps that each vessel would yaw slightly.  The current was probably approximately westgoing at about a knot.

2.	Shortly after the collision the master of the CONTSHIP SUCCESS recorded co-ordinates taken from his vessel’s GPS of latitude 15 11.2’ north longitude 51º 40.4' east.  The collision occurred about 6 cables north of that fix.  Since the fix was about 1.4 miles south of the track of the CONTSHIP SUCCESS as shown on her working chart, it follows that the collision occurred about 8 cables south of the track and about 10 miles from the coast of Yemen.  This was a crucial finding because (together with other evidence) it forms the  basis of the judge’s conclusion that the SELAT ARJUNA could not have been on the port bow of the CONTSHIP SUCCESS when the CONTSHIP SUCCESS began altering course to starboard.  It is not, however, necessary to consider any of that analysis here because the judge’s findings of fact are now accepted.

3.	Before either vessel altered course:

(a)	The CONTSHIP SUCCESS was steering about 065 true whereas the SELAT ARJUNA was steering between about 240 and 250 true.  (The reciprocal of 065 is of course 245 so that the vessels were broadly steering in opposite directions.) 

(b)	If neither vessel had altered course the vessels would have passed safely starboard to starboard at a distance of rather less than a mile.

(c)	The CONTSHIP SUCCESS was proceeding at about 17 knots through the water or 16 knots over the ground and the SELAT ARJUNA was proceeding at about 9 knots through the water or 10 knots over the ground.

(d)	Each vessel was on the starboard bow of the other.

(e)	The master of the SELAT ARJUNA became aware of the echo of the CONTSHIP SUCCESS distant just under 12 miles.  She was very fine on the starboard bow.  Although the master did not make a radar plot, he correctly estimated that the vessels would pass safely starboard to starboard at just under a mile and that the speed of the CONTSHIP SUCCESS  was about 16 to 17 knots.  He first saw one white masthead light of the CONTSHIP SUCCESS at a distance visually estimated at about 4.5 miles and he subsequently saw both masthead lights and the green sidelight at a distance estimated by radar at about 3.8 miles. Thereafter he did not watch her by radar but did so visually.  

(f)	The CONTSHIP SUCCESS was not aware of the fact that there was a vessel on her starboard bow.  Her officer of the watch saw a false echo on her port bow which he wrongly thought was the echo of a vessel.

4.	The cause of the collision was a series of alterations of course to starboard by the CONTSHIP SUCCESS from her initial course of 065  She initially altered course gradually to starboard in steps of less than 10 until she went hard to starboard.  She could not have altered in steps of 10 or more because, if she had, an alarm on the autopilot would have sounded, which it did not.   It was not clear how long the alteration to starboard took.  At no stage did the CONTSHIP SUCCESS sound a signal of one short blast to indicate her alteration or alterations of course to starboard.

5.	The alteration of course to starboard began at about C-9 when the vessels were at least 3 miles apart.  No-one on the SELAT ARJUNA observed that the CONTSHIP SUCCESS was altering or had altered course to starboard until after the CONTSHIP SUCCESS went hard to starboard.  At no stage did either the master or the lookout of the SELAT ARJUNA see the red sidelight of the CONTSHIP SUCCESS.

6.	The judge did not make a finding as to the distance and bearing of the SELAT ARJUNA on the starboard bow of the CONTSHIP SUCCESS when the CONTSHIP SUCCESS first altered course to starboard.

7.	The CONTSHIP SUCCESS altered course gradually to starboard from about C-9 until about C-1 or a little after, when she went hard to starboard.  Although the judge did not make an express finding as to the distance between the vessels at that moment, it must have been about 4 cables or a little more.

8.	The master of the SELAT ARJUNA almost immediately observed that the CONTSHIP SUCCESS was altering substantially to starboard.  So the wheel of the SELAT ARJUNA was put hard to port, but the collision occurred very shortly thereafter.  Until her wheel was put hard to port she had maintained the same course throughout.  

9.	The angle of blow at collision was about a right angle or a little less with the CONTSHIP SUCCESS leading forward on the SELAT ARJUNA, with the bulbous bow of the CONTSHIP SUCCESS in contact with the starboard side of the SELAT ARJUNA about amidships.  The judge did not make express findings as to the headings of the vessels at collision, but the heading of the SELAT ARJUNA cannot have altered more than say 5 to port, so that she must have been heading between 235º and 245º.  It follows that if the angle of blow was 90º the CONTSHIP SUCCESS must have been heading between about 145º and 155º, which means that she altered a total of between about 70º and 90º from her initial course of 065º before collision.

8.	On those findings the judge held that the CONTSHIP SUCCESS was very seriously to blame for the collision.  He put his conclusions in this way at page 509:

	In summary I find Contship Success was at fault for:

	(1)	failing to keep a good radar and visual lookout;
(2)	wrongly interpreting the information from (or which ought by proper operation of the ARPA to be available) on radar;
(3)	wrongly altering course to starboard to a ship on her starboard bow;
(4)	if an alteration to starboard was to be made, failing to make a bold alteration in due time or at all and which could be observed from on board Selat Arjuna;
(5)	failing to put her engines on standby and reduce to manoeuvring full ahead in due time or at all;
(6)	operating the engines so as to cause a temporary blackout;
(7)	failing to sound a whistle signal of one short blast in due time or at all;
(8)	failing to reduce speed in due time to avoid a collision;
(9)	failing to comply with rr 2, 5, 6, 7, 8, 20b, 23(a)(iii) and 34(a) of the International Regulations for Preventing Collisions at Sea 1972 (as amended). 

There was no causative fault as regards r. 34(d) or 36 because the ships were never in a situation where those rules were relevant.

9.	Those conclusions were based upon the following view which he formed of the officer of the watch of the CONTSHIP SUCCESS, Mr Arnold.  He said at page 508:

The remarkable feature of the present case is that Contship Success altered course to starboard and collided with Selat Arjuna which was at all material times on her starboard bow.  Navigators in the open sea normally alter course in this way because they believe there is another vessel dead ahead on a reciprocal course or on their port bow in circumstances which require an alteration to starboard.  Mr Arnold’s evidence is that the echo he saw and acquired on radar was on his port bow and was of a vessel on a course of 2100.  This I find was wrong.  I do not believe the quality of his radar observation was what he would have it to have been; but what can have caused him to form this view?  I believe the answer is that he observed a false echo on his port bow, altered course to starboard, and lost the ship he thought was on his port bow and by his alteration soon placed Selat Arjuna ahead.  He became confused and proceeded to alter more and more to starboard (keeping Selat Arjuna about ahead) and thus compounded his error.  Quite when she exhibited a red light to Selat Arjuna depends on the relative positions of the ships, and rate of turn and, to a limited extent, the visibility of the partly obscured red light. 

As to the evidence of Mr Arnold generally, for the reasons given in this judgment it was not evidence on which I could rely on crucial and important matters.  I believe he reconstructed events in his mind to explain to himself what must have happened to account for the collision.

The appellants do not challenge any of those conclusions.  As I have already indicated, they now accept that the CONTSHIP SUCCESS was very substantially at fault for the collision.  The only question in this appeal is whether the SELAT ARJUNA  was also partly at fault.  Mr Russell submits that she was and that liability should be apportioned either 75: 25 or 80: 20 in favour of the SELAT ARJUNA.  

10.	It is not suggested that the SELAT ARJUNA  was to blame in respect of any action taken or not taken after the CONTSHIP SUCCESS altered hard to starboard.  Mr Russell expressly accepts that the master’s decision to put the wheel hard to port was the proper action to take at that time.  In my view that concession was entirely correctly made.  Mr Russell submits, however, that the SELAT ARJUNA was at fault for failing to keep a proper lookout, that if she had kept a proper lookout she would have appreciated (a) that the CPA was no longer 8 to 9 cables (which was in effect what the judge found) and (b) that the CONTSHIP SUCCESS must have altered course to starboard and that, if he had appreciated those facts he could and should (and probably would) have gone hard to port.  Mr Russell submits that a proper lookout would have involved both a radar and a visual lookout and that the SELAT ARJUNA should have maintained both a radar lookout and a radar plot throughout.  

11.	Mr Russell relies upon the following particular facts:

1.	The alteration of course to starboard by the CONTSHIP SUCCESS  began at about C-9 when the vessels must have been more than 3.5 miles apart.

2.	The alteration of course was gradual in steps of less than 10º until about C-1, when the vessels must have been about 4 cables or a little more apart.

3.	Since, if neither vessel had altered course, the CPA at C-9 was a little under a mile, or say 8 to 9 cables, it follows that between C-9 and C-1 (ie over a period of some 8 minutes) the CPA had reduced very substantially to, say, 3 cables or less.

4.	Indeed any reasonable plot of what must have occurred shows that the CPA must have been noticeably reduced by say C-6 or C-5.

5.	Although it is not possible to be sure precisely in what steps the alterations of course were made, the lookout on the SELAT ARJUNA should have been such that the SELAT ARJUNA should have appreciated that the CONTSHIP SUCCESS had altered course to starboard by C-5 at the latest.

6.	If she had she would have taken radical action by going hard to port at about C-3 and the collision would not have occurred.

7.	The lookout should have been both visual and by radar.

12.	Mr Russell further submits that the judge did not analyse in any detail what the SELAT ARJUNA saw or should have seen in the period between C-9 and C-1.  Nor did he ask the Elder Brethren any questions relating to that period.  In particular he did not ask them whether, as a matter of good seamanship, the SELAT ARJUNA should have continued to observe the CONTSHIP SUCCESS by radar after both vessels were distant 3.8 miles and whether, if so, she should have made a radar plot.  Nor did he ask them what on his findings of fact the SELAT ARJUNA should have seen when she should have appreciated what was happening and what, if anything, she should have done.

13.	I accept Mr Russell’s submission that the judge did not ask the Elder Brethren to address those questions and I further accept his submission that it would be appropriate for us to do so.  I recognise, of course, that this is not an appeal from one set of assessors to another, but in circumstances in which the judge has not asked all the questions which are necessary to resolve all the issues between the parties, I can see no reason why this court should not seek appropriate advice from its own assessors.  I shall return below to the questions which we have asked them and their answers.

14.	Mr Russell submits that if the master of the SELAT ARJUNA had been watching the CONTSHIP SUCCESS carefully, as he should have done, he would have observed that the mast headlights were not opening on the starboard bow as they would have done if she was maintaining her course and a CPA of 8 to 9 cables.  He would also have observed her red light at some stage well before she went hard to starboard.  Miss Bucknall submits, on the other hand, that it was not possible to make firm findings of fact as to what the CONTSHIP SUCCESS was doing, that the judge did not do so and that the appellants are unable to establish the factual basis which would be required before they could advance an arguable case that the SELAT ARJUNA was partly to blame for the collision.  She further submits that the judge held that the master was watching the CONTSHIP SUCCESS carefully, that he saw only the masthead lights and green sidelight and that he at no time saw the red sidelight, although he would have seen it if it had been visible.  She thus submits that the red sidelight of the CONTSHIP SUCCESS was at no time visible to the SELAT ARJUNA.

15.	In the light of those competing submissions it is appropriate to refer briefly to the judge’s conclusions as to what was seen from the SELAT ARJUNA and as to how the vessels approached each other.  The judge described the radar observations made by the SELAT ARJUNA to which I have already referred.  As to the possibility of a radar plot, he said at page 502:

He did not make a radar plot nor did he make any marks on the radar screen.  Nevertheless all he had to do, if, as was the case, he maintained a steady course and speed, was to watch the approaching echo coming down parallel or about parallel to the heading marker: it is only if the two ships were on strictly reciprocal courses that it would be parallel.  I am advised by the nautical assessors that it would have been possible to determine the CPA with constant observation of the radar screen (and without the use of a radar plot) by simple parallel indexing; and if the echo remained to the starboard side of the heading marker (and the bearing slowly broadened) it could be assumed that, absent any change of course by either ship, that the two ships would pass starboard to starboard.

The judge did not further comment on the desirability or otherwise of the SELAT ARJUNA continuing to observe the CONTSHIP SUCCESS by radar and the Elder Brethren were not asked about it.

16.	The visual observations of the CONTSHIP SUCCESS from the SELAT ARJUNA were discussed by the judge in the following passage from the judgment, which appears at page 502 immediately after the passage quoted:

The evidence of the observation of the lights of Contship Success was to the effect that the bearing did in fact broaden.  I do not accept the estimate of a bearing of 15º to starboard mentioned in the statement of Captain Inguin.  His sketches which were exhibited during the hearing show a very fine bearing on the starboard bow.  Further, a CPA of about one mile is wholly inconsistent with a bearing of anything like as much as 15º.  The bearings he give of 20º to 25º at 4.5 miles and 30º to 35º at 3.8 miles are consistent with a CPA in excess of one mile: but the estimated bearings are probably exaggerated.  It must be remembered that the visibility was such that the navigation lights of the approaching Contship Success were visible and I am advised by the nautical assessors that it would not have been difficult to judge by eye that there was to be a starboard to starboard passing i.e. not an head-on or nearly head-on situation at any time.

17.	That passage is included under the heading “Radar observations on board SELAT ARJUNA” so that it is reasonably clear that the judge was there considering the period before the distance between the vessels closed to about 3.8 miles, which must have been at about C-9.  It may be noted that the judge did not ask the Elder Brethren at that stage whether the SELAT ARJUNA could judge by eye what the likely CPA would be.  He did not subsequently do so either.

18.	The judge then described the lights which Captain Inguin and the lookout said they saw.  They said that the only lights they saw before the collision were the white lights and the green sidelight.  The judge said that he had no hesitation in believing them.  He then said at pages 502 to 503:

Captain Inguin in his statements and oral evidence describes how the bearing of Contship Success continued to open on his starboard bow.  At a radar distance of 3.8 miles (about C-9) he could see the two white masthead lights and a green sidelight.  Recollection of bearings is frequently inaccurate and I believe this to be the case here.  However, Captain Inguin was satisfied there would be a safe starboard to starboard passing albeit at a distance of less than about a mile.  He maintained course and speed.  He then describes how he was alarmed to see her masthead lights swinging rapidly to starboard.  He immediately changed from automatic to manual steering and put the wheel hard to port.  The manoeuvre he describes is amazing if the ships were passing “green to green”.  One asks why would a ship alter course to starboard towards a ship on its starboard bow when the ships were about to pass starboard to starboard?  What Captain Inguin did not know is the assumption Mr Arnold had made about an echo on his port bow; nor did he know of the advice or order which Captain Schröder had given about alterations of course to starboard.  Nor did he know that the initial alteration of course to starboard would not be bold but carried out in stages: see below.  Thus he was confronted with a wholly unexpected situation and one which it would be hard for what I believe to be a simple, honest seafarer to invent or imagine.  All he had to do was to keep an eye on the radar screen and look out forward through the bridge windows.  The lookout had simply to watch the approaching lights and would have had no difficulty in telling a green light from a red light.  Again, I found him to be a compelling witness on these matters.

19.	That passage supports the conclusion that no-one on the SELAT ARJUNA in fact saw the red light of the CONTSHIP SUCCESS.  Further, although the judge does not there expressly say that the red light was not visible to the SELAT ARJUNA, it seems to me strongly to suggest that the master of the SELAT ARJUNA was watching the CONTSHIP SUCCESS in such a way that if the red light had been visible he would have seen it.  However, the problem with the conclusion that the judge held that the red light of the CONTSHIP SUCCESS was not visible to the SELAT ARJUNA is to be found in two later sentences in his judgment.  He said at page 508:

Quite when she exhibited a red light to Selat Arjuna depends on the relative positions of the ships, the rate of turn and, to a limited extent, the visibility of the partly obscured red light.

He further said at page 509 with regard to the plot annexed to the judgment:

It further shows how the red sidelight of the Contship Success would not be visible to Selat Arjuna until relatively late (depending on the circumstances as mentioned above).

Those passages suggest that there may have come a time when the red light was visible, but the judge could not say when, save that it must have been “relatively late”.

20.	Mr Russell invites us to hold that the red light of the CONTSHIP SUCCESS must have been visible to the SELAT ARJUNA before the collision and, moreover, well before the CONTSHIP SUCCESS put her wheel hard to starboard.  In this regard he relies in part upon the plot which the judge annexed to his judgment (at page 510) and in part upon a series of plots produced by the appellants or their advisers.  However, as Mr Russell correctly recognises, the plot annexed to the judgment must be viewed with some care.  As the judge explained on page 505 under the heading “Test plotting”, the plot was initially produced as a test plot to test the assertion that the SELAT ARJUNA was on the port bow of the CONTSHIP SUCCESS.  He concluded that it showed that the SELAT ARJUNA was at no time on the port bow of the CONTSHIP SUCCESS.  He also pointed out that the plot does not take account of the reduction of speed on the part of the CONTSHIP SUCCESS which must have taken place because of the starboard turn.  In this regard he said this as part of his conclusions at page 509:

I annex hereto the plot I have prepared (referred to above) which is I believe self explanatory and which is purely illustrative.  It is drawn on a small scale and it is not intended that it should be the subject of detailed measurement.  For example, Selat Arjuna is shown for comparison on courses of 210º, 240º and 250º [and], as mentioned above, the speeds are not shown 100 per cent accurately.  For example, Contship Success would be slowing somewhat on the turn: see findings above.  Further the time when she began her starboard turn and the rate of turn can never be ascertained precisely.  The precise CPA immediately prior to the start of the turn is also not known.  However, with these limitations, it shows the ships about four miles apart at about C–10 (cf. the evidence of Captain Inguin as to the situation when the radar distance was 3.8 miles; and the evidence of Mr Arnold first observing the echo of Selat Arjuna distance about four miles), about two miles apart at C-5 and about one mile apart at C-3.  It further shows how the red sidelight of Contship Success would not be visible to Selat Arjuna until relatively late (depending on the circumstances as to this mentioned above).

In conclusion, I find that the state of affairs leading to the collision from about C-10 is substantially as illustrated in the plot for the course of 240º or 250º or something in between: 245º is the reciprocal of 065º.  I reject the alleged course of 210º or anything like it; and both of the defendants’ crossing cases.

In these circumstances the plot should be treated with care and is not, in my judgment, a sufficient basis on which to hold that the red light of the CONTSHIP SUCCESS must have been visible to the SELAT ARJUNA before the CONTSHIP SUCCESS went hard to starboard.  

21.	The appellants’ plots, of which there were 14 in all, depict a series of possibilities on various assumptions.  However, as Miss Bucknall has pointed out, all but one depict a collision position significantly more than 8 cables south of the track of the CONTSHIP SUCCESS and, she submits, are thus inconsistent with the judge’s findings of facts.  Although Mr Russell submits that that does not matter because the distance of 8 cables is not itself precise (which I accept), in my judgment it does point against their acceptability.

22.	In my judgment, on a fair reading of the judge’s judgment as a whole, he did not hold that the red light was visible to the SELAT ARJUNA before the CONTSHIP SUCCESS went hard to starboard, and it would not be right for us so to hold either.  Mr Russell submits that what probably happened was that the master and lookout of the SELAT ARJUNA, perhaps lulled into a false sense of security by the way in which the CONTSHIP SUCCESS was being navigated, stopped watching her carefully and as a result failed to see the red light of the CONTSHIP SUCCESS which was visible to them.  However, while that may be one possibility, I do not think that the appellants have shown that it is more probable than not.  Miss Bucknall submits that, given that the master of the SELAT ARJUNA correctly judged the CPA of the two vessels initially and that he observed the hard to starboard manoeuvre almost immediately, it is most unlikely that he would not have seen the red light if it had been visible.  She further relies upon a plot produced by or on behalf of the respondents which shows that it is possible to draw a plot in which the red light is never visible, even during the hard to starboard turn.  Mr Russell accepts that it is possible to draw such a plot but submits that it is at the limits of what is possible and that it is most improbable.   

23.	I have reached the conclusion that on the findings of the judge the red light was not visible to the SELAT ARJUNA before the CONTSHIP SUCCESS went hard to starboard.  It seems to me that on the basis of the views expressed by the judge it is more likely than not that the master of the SELAT ARJUNA (who after all had little else to do but to watch the CONTSHIP SUCCESS) would have seen the red light if it had been visible and, if he had, that he would have said so afterwards.  If (as may well have happened) the red light became visible during the hard to starboard manoeuvre it is I think far less likely that the master would have remembered it (if he saw it) because by then, as the judge put it at page 509, the SELAT ARJUNA was taking emergency action when a fast large container ship was bearing down on him.  

24.	In all the circumstances I am not persuaded that the red light was visible before C-1.  The question remains with what precision the approach of the CONTSHIP SUCCESS can be reconstructed with any confidence.  In my judgment the answer is that it can only be reconstructed subject to some uncertainty as to the precise turn of the CONTSHIP SUCCESS because it is not possible to say precisely what orders were given when.  On the other hand, as was I think accepted by both Mr Russell and Miss Bucknall by the end of the argument, the position of the vessels at C-9 can be ascertained within reasonable parameters and the turn of the CONTSHIP SUCCESS can also be reconstructed with reasonable confidence after about C-1.  

25.	Attached to this judgment are two of the plots referred to above.  Plot A is the appellants’ plot which is reasonably consistent with the judge’s conclusions as to the collision position and plot B is the respondents’ plot.  Although neither plot depicts precisely what occurred and there is scope for argument as to the courses and headings of both vessels, the possibilities are not limitless and, in my judgment, the CPA must have reduced substantially as shown in one or other of those plots.  The differences between plots A and B or between those plots and any other plot which could be drawn consistently with the judge’s findings of fact are not to my mind significant for the purposes of deciding the limited issues which arise on this appeal. 

26.	In these circumstances we decided that it would be appropriate to ask the assessors a number of questions on a number of assumptions.  Those questions and the assessors’ answers were as follows.

Question 1

On the following assumptions:

(a)	the CONTSHIP SUCCESS was on a course of 065º true and proceeding at a speed of about 17 knots through the water and 16 knots over the ground;

(b)	the SELAT ARJUNA was on a course of between 240º and 250º true and proceeding at a speed of about 9 knots through the water and 10 knots over the ground;

(c)	it was fine and clear with good visibility, but dark;

(d)	the SELAT ARJUNA first observed the echo of the CONTSHIP SUCCESS by radar distant just under 12 miles and bearing very fine on the starboard bow;

(e)	she correctly judged that the CONTSHIP SUCCESS was proceeding at a speed of 16 to 17 knots and that, if neither vessels altered course, the vessels would pass starboard to starboard at a distance of a little under a mile, say 8 to 9 cables;
(f)	the SELAT ARJUNA first saw one masthead light of the CONTSHIP SUCCESS at a distance visually estimated to have been about 4.5 miles and subsequently saw both masthead lights and the green side light at a distance estimated by radar to have been about 3.8 miles; and

(g)	the SELAT ARJUNA was using a Furuno radar but was not fitted with ARPA;

as a matter of good seamanship should the master of the SELAT ARJUNA have continued to keep a radar watch on the echo of the CONTSHIP SUCCESS and, if so, 

	(a) why? and,

	(b) what if any radar plot should he have maintained and why?

Answer 1

	Yes.  But the SELAT ARJUNA may have thought it more appropriate in the circumstances (green to green) to concentrate on a visual lookout.

	(a)	Rule 5.  As an aid to determining risk of collision.

	(b)	A parallel index by chinagraph as an aid to monitoring the CPA.

Question 2

On the following further assumptions, namely 

(a)	that the SELAT ARJUNA continued to keep a radar watch;

(b)	that the CONTSHIP SUCCESS altered course gradually to starboard from a position in which the vessels were about 3.5 miles apart and shaping to pass starboard to starboard at a distance of about 8 to 9 cables if neither vessel altered course; and

(c)	that the CONTSHIP SUCCESS altered course to starboard as shown either on the appellants plot G in tab 2 attached to their skeleton argument (Plot A) or on the plot attached to the respondents’ skeleton argument (Plot B);

	should the master of the SELAT ARJUNA have appreciated that the CPA had significantly reduced between C-9 and C-3, and, if so;

	(a)	when and why? and

(b)	what, if any, action should she have taken as a matter of good seamanship at C-3 and why?

Answer 2

	Yes.

(a)	Probably not until about C-4 or C-3 because before that the CPA may not have decreased sufficiently for it to be readily apparent.

(b)	Had the final swing of the CONTSHIP SUCCESS been detected, he should have gone hard to starboard.  But the swing had not been detected and therefore the correct action was to stand on.

Question 3

Please answer the same questions as are set out in question 2, but on the assumption that the SELAT ARJUNA did not continue to keep a radar watch but watched the CONTSHIP SUCCESS only visually between C-9 and C-3.

Answer 3	

Yes.

(a)	At about C-4 or C-3 because of changing aspect (or lack of it) of CONTSHIP SUCCESS masthead lights.

NB.  It is the assessors’ view that the CONTSHIP SUCCESS’s swing to starboard would be more readily detectable visually than on radar.

(b)	Same answer as in 2(b).

Question 4

	Questions 2 and 3 have been asked on the assumption that for these purposes there is no significant difference between the two plots referred to in question 2.  If the answers to questions 2 and/or 3 would be different if the plots were considered separately, please indicate what those differences would be.

Answer 4
 
	The answers to questions 2 and 3 would not be different if the plots were considered separately.

27.	The Assessors added that they were conscious of the non-application of rule 8 of the Collision Regulations in this incident.  As I read that note, it is a reference both to the failure of the CONTSHIP SUCCESS to make a bold alteration of course in ample time to avoid collision in breach of rule 8(a) and to the succession of small alterations of course which she made in breach of rule 8(b).  It may also be a reference to rule 8(d).  As appears from the findings of fault made by the judge, he had those breaches of rule 8 well in mind.

28.	It may be noted that the assumptions contained in the questions to the assessors were based on the judge’s findings of fact and, in the case of questions 2 and 3 on the basis of plots A and B.  Before giving their answers the assessors had of course listened to the arguments of both Mr Russell and Miss Bucknall as to the various topics raised.  I should also note in passing that neither counsel indicated a wish to making further submissions after we had received the answers of the assessors, no doubt because (as proved to be the case) the answers simply addressed matters which had already been the subject of extensive submission.

29.	I for my part entirely accept the advice given by the assessors, which accords with the views I would have formed without the benefit of their advice.  It follows that I would hold that the master of the SELAT ARJUNA should have continued to use his radar to watch the echo of the CONTSHIP SUCCESS after she was distant 3.8 miles.  It seems to me that, when two vessels navigating in these circumstances are shaping to pass at a distance of less than a mile, good sense suggests that all available assistance should be used to ensure that the CPA is not significantly reduced.  Moreover, the more that it is said that it is difficult to tell visually whether the CPA is reducing significantly, the more important it is to use radar, especially in the light of rule 7 of the Collision Regulations.  As Mr Russell has pointed out by reference to page 60 of the “Guide to the Collision Avoidance Rules” written by A N Cockcroft and J N F Lameijer, an appreciable change of bearing at greater ranges does not necessarily mean that there is no risk of collision.  The other vessel may be making a series of small alterations which have not been observed.  Although that would apply especially in restricted visibility when the other vessel is being observed by radar only, it may also apply when vessels are in sight of one another.  In these circumstances I would hold that the master of the SELAT ARJUNA should have continued to use his radar and to maintain such a plot as was reasonably practicable given the limitations of the radar set he was using.

30.	I would also hold that the master of the SELAT ARJUNA should have appreciated that the CONTSHIP SUCCESS was altering to starboard significantly before she went hard to starboard.  I recognise that it is not always easy and that it may take time to appreciate what the other vessel is doing, especially when she is doing the unexpected, but it struck me from the outset of this appeal that it would be surprising if a mariner in the position of the master of the SELAT ARJUNA who was keeping a good lookout could not ascertain that the CPA was reducing significantly well before he in fact did.  The judge said at pages 508 to 509:

From the point of view of Selat Arjuna, those on board her would not be readily aware of such a slow starboard alteration for the reasons given above (and having assumed a safe starboard to starboard passing).  They were caught by surprise and reacted very late by altering course to port as soon as what was happening became obvious to them.  This was emergency action taken when a fast large container ship was bearing down on them ie in the agony of the moment.

I agree with the judge that the master of the SELAT ARJUNA would not be readily aware of such a slow starboard alteration and that it would take him some time to appreciate what was happening, but I accept the advice of the assessors that he should have appreciated it before he in fact did.  

31.	The remaining question is whether, if the master had appreciated what was happening when he should have done so, he should have taken any action to avoid the collision.  In this regard it does not matter whether he should have appreciated the position at say, C-5 or C-4 because it is not suggested that action should have been taken before C-3.  It was for that reason that in question 2(b) we asked the assessors what action should have been taken at C-3.  

32.	Mr Russell submits that by that time the master should have appreciated that something had gone radically wrong and that he should have gone hard to port, especially since the SELAT ARJUNA was such a manoeuvrable vessel.  Miss Bucknall submits, on the other hand, that the master was in a very difficult position and that the most appropriate course was to maintain her course and speed.  She warns against hindsight, observing that the master of the SELAT ARJUNA could not possibly have thought that the CONTSHIP SUCCESS might go hard starboard.  She correctly emphasises that the collision would not have happened but for that manoeuvre.  

33.	The assessors have advised us that the correct action was to stand on, which is of course what the SELAT ARJUNA did.  I, for my part, would accept that advice.  The master of the SELAT ARJUNA  was in a difficult position.  He could not go to starboard because the 	CONTSHIP SUCCESS might repent and go to port in order to increase the CPA again.  He could not slow down because the CONTSHIP SUCCESS  was shaping to pass under his stern so that a reduction of speed might put his vessel into her path.  So it is said that he should have gone hard to port.  The problem with that was that, if the CONTSHIP SUCCESS had continued her gradual alteration of course to starboard, it might have put the SELAT ARJUNA into her path.  The master of the SELAT ARJUNA was on any view put in a very difficult position by the navigation of the CONTSHIP SUCCESS.  He could not have known what the CONTSHIP SUCCESS would or might do.  Hard to port is rarely the appropriate action.  He could not have supposed that the CONTSHIP SUCCESS might go hard to starboard.  In all these circumstances, while he might have gone hard to port, I would not characterise his failure to do so as negligent or in breach of duty.  It follows that, while I would hold that he should have appreciated that the CONTSHIP SUCCESS was altering to starboard earlier than he did, even if he had, I would not blame him for standing on.

34.	In these circumstances I would dismiss the appeal and would only add that it was admirably argued on both sides.

Sir Christopher Slade

I agree

Lord Justice Roch

I also agree
Order:  Appeal dismissed with costs.
(Order does not form part of the approved judgment)