Ship Collision Liability in Hong Kong - Dawn of a New Era?

The recent High Court judgment in Sungleam Maritime Limited v The Owners and/or Demise Charterers of the Ship or Vessel “He Da 98” and Sister Ship “Shuncheng” (“The He De 98”) [2011] 5 HKLRD 126 decided that the Defendants’ vessel, He Da 98, was wholly to blame for the collision with the Plaintiffs’ vessel Pontodamon.

The authors explore the first-ever ship collision case in Hong Kong in which the Court awarded 100% liability to the Plaintiff, which might be significant given the occurrence of such high-profile incidences in recent years.

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On 30 November 2007, the Plaintiffs’ vessel Pontodamon collided with the Defendants’ vessel He Da 98 in the port area of Shanghai.

Pontodamon is a Panamax-sized bulk carrier of 38,684 gross tonnes. She is 224.95 meters in length with a beam of 32.24 meters. At the material time, she was leaving the Shanghai port and heading eastwardly direction at a speed of about 16 knots. He Da 98 is a cargo vessel of 4,083 gross tonnes. She is 98.5 metres in length with a beam of 16.8 metres. At the relevant time, she was heading in a south-westerly direction at a speed of six to seven knots.

Had both vessels proceeded along the directions and at the speeds mentioned above, there would have been no collision. Unfortunately, approximately two minutes before the collision, Pontodamon turned to port (ie. left), and at almost the same time He Da 98 turned to starboard (ie. right).

The collision occurred when the port bow of He Da 98 made contact with the starboard side shell plating of Pontodamon. Both vessels were then oriented in a roughly northern heading with an angle of about 45 degrees between them.

The International Regulations for Preventing Collisions at Sea 1972 (“COLREGS”) (as promulgated in Cap. 369N) govern the manner in which vessels should navigate to avoid collisions. There is no dispute that He Da 98 was more maneuverable than Pontodamon. There is also no dispute that according to COLREGS, He Da 98 was the vessel to give way while Pontodamon had the right of way.

Claimants’ case

The Claimants’ case is that Pontodamon maintained her course and speed initially. When the crew on board Pontodamon observed that He Da 98 did not take action to avoid collision, Pontodamon tried to call her on VHF radio and making the light and whistle signals but He Da 98 did not respond.

Thereafter, Pontodamon continued to maintain her course and speed until she observed He Da 98 right ahead and crossing her bow. She then turned to port and reduced speed to avoid collision. The crew on board Pontodamon then observed He Da 98 suddenly turned to starboard, causing the captain of Pontodamon to decide turning hard on port. However, it was not sufficient to avoid collision.

Defendants’ case

The Defendants’ case is that Pontodamon was travelling at an excessive speed in circumstances where she was navigating within a traffic separation scheme, within a designated anchorage where there were fishing vessels / anchored vessels nearby, and was steaming towards oncoming traffic properly navigating along a traffic lane. Pontodamon failed to abide by the traffic separation scheme in that she did not travel within the appropriate traffic lane and was travelling against the flow of traffic.

As a stand on vessel, Pontodamon should maintain her course and speed. Instead, she turned port (without sounding two short whistle blasts to signal He Da 98) while He Da 98 was turning starboard, which eventually caused the collision.

Decision of the Court

The Court decided that He Da 98 was wholly to blame for her failure to turn starboard at an earlier stage to avoid collision and that she only turned to starboard after crossing the bow of Pontodamon, which was too late. On the other hand, the Court said that Pontodamon was not at fault by turning port to avoid the collision because at that time He Da 98 had crossed Pontodamon’s bow and 25% of He Da 98 was to the starboard side of Pontodamon. The Court also found the fact that Pontodamon failed to abide by the traffic separation scheme and proceeding at a speed of 16 knots was not causative of the collision, and that the failure of Pontodamon to sound two short whistle blasts before turning to port does not constitute a source of blame.

The Court’s decision suggests that there was no fault created by Pontodamon which may constitute a source of blame and that the actions of Pontodamon are justified because of the faults created by He Da 98. However, it is rarely the case that when two moving vessels collided with each other, only the actions of the one vessel are to be blamed. In particular, the Court does not regard Pontodamon’s breach of COLREGS as a source of blame, which is inconsistent with the approach adopted by the English Court.

The Position in England and Wales

The law of tort is generally applicable to collisions at sea. To enable the claimant in a ship collision action to recover damages, he must prove that his loss was caused by negligence of the defendant, and that such collision and the damage resulting from it would not have happened but for the defendant’s fault. If the claimant also found to be negligent, the liability will be apportioned according to degree of fault of each party.

The requirement to apportion liability is expressly provided for in Section 187 of the Merchant Shipping Act 1995, which provides that:

“(1) Where, by the fault of two or more ships, damage or loss is caused to one or more of those ships … the liability to make good the damage or loss shall be in proportion to the degree in which each ship was in fault.

(2) If, in any such case, having regard to all the circumstances, it is not possible to establish different degrees of fault, the liability shall be apportioned equally…”

The Court is bound to apportion liability unless it was impossible to do so (The Anneliese [1970] 1 Lloyd’s Rep. 355, CA), and the Court will look at the degree in which the respective faults of the vessels in fault have contributed to the collision (The Buccinum (1936) 55 L1.L.Rep.205 at 218, CA). Whether the Court should attach more blame to any deliberate act should depend upon all the circumstances (The Savina [1976] 2 Lloyd’s Rep. 123 at 133, 134, HL). The ground for differentiating liability of each vessel must be supported by evidence and it is not enough that the Court should have a general leaning in favour of one side rather than the other (The Lucile Bloomfield [1967] 1 Lloyd’s Rep. 341 at 350, CA).

Apportionment of Liability Case
50/50 1. The Maloja II [1993] 1 Lloyd’s Rep. 48 QB
2. The British Aviator [1965] 1 Lloyd’s Rep. 271 CA
3. MIOM 1 Ltd v Sea Echo ENE [2010] EWHC 3180
4. The Bow Spring and The Manzanillo II [2004] EWCA Civ 1007
5. The Sanwa and The Choyang Star [1998] 1 Lloyd’s Rep. 283
60/40 1. The Samco Europe and The MSC Prestige [2011] EWHC 1580 QB
2. The Aleksandr Marinesko and The Quint Star [1998] 1 Lloyd’s Rep. 265 QB
3. The Skyron and The Hel [1994] 2 Lloyd’s Rep. 254 QB
4. The Pelopidas and The TRSL Concord [1999] 2 All E.R. (Comm) 737
66.7/33.3 1. The Owners and/or Demise Charterers of the m/v “Eleftheria” v The Owners and/or Demise Charterers of the m/v “Hakki Deval” [2006] EWHC 2809 (Comm)
2. The Puritan and The Navios Enterprise [1998] 2 Lloyd’s Rep. 16
70/30 1. The Angelic Spirit and the Y Mariner [1994] 2 Lloyd’s Rep. 595 QB
2. The Owners of the Cargo Lately Laden on Board the M.V.Sun Cross v The Owners and/or Demise Charterers of the M.V.Rickmers Genoa [2010] EWHC 1949
3. The Krysia [2008] EWHC 1523
4. The Alexia and The Enif [1999] 1 Lloyd’s Rep. 643
75/25 1. The Devotion and The Golden Polydinamos [1993] 2 Lloyd’s Rep. 464 QB
2. The Sitarem and The Spirit [2001] 2 All E.R. (Comm) 837
80/20 1. The Mineral Dampier and The Hanjin Madras [2002] C.L.C. 11 CA
2. The Hagieni and The Barbarossa [2000] 2 Lloyd’s Rep. 292 QB
3. The Topaz and The Irapua [2003] EWHC 320
85/15 1. Owners of the Ship Bulk Atlanta v Owners of the Ship Forest Pioneer [2007] EWHC 84
2. The Maersk Colombo [1999] 2 Lloyd’s Rep. 491


In recent English cases, the Court’s apportionment of liability ranges from 50/50 to 85/15. The extent of liability depends upon which vessel carries more blame for the collision:

In Samco Europe and The MSC Prestige [2011] EWHC 1580 QB, the Court regarded the plaintiff vessel’s failure to announce her alteration to port by appropriate sound and light signals as a source of blame and the Court eventually held that the plaintiff vessel was 40% responsible for the collision. In The Hagieni and The Barbarossa [2000] 2 Lloyd’s Rep. 292 QB, the Court regarded the defendant vessel’s failure to proceed in her own traffic lane as part of the blame for the collision and eventually held that the defendant vessel was 80% responsible. Further, in The British Aviator [1965] 1 Lloyd’s Rep. 271 CA, the Court found that the parties’ vessels were travelling at excessive speed and eventually held that both vessels were equally to blame.

There is only one recent English case The Owners and Bareboat Charterers of the Vessel “Global Mariner” v The Owners and Bareboat Charterers of the vessel “Atlantic Crusader [2005] EWHC 380 in which the Court awarded 100% liability to the Plaintiff. However, in that case, the defendants’ vessel was solely to blame for the collision because it struck the Plaintiff’s vessel while the vessel was at anchor.

Implication of The He Da 98 to Ship Collision Liability in Hong Kong

The position in Hong Kong should be similar to England given that the requirement to apportion ship collision liability is also expressly provided for in Section 3 of the Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (Cap 508), the contents of which is almost identical to section 187 of the Merchant Shipping Act 1995.

To date, there is no reported judgment in Hong Kong which has considered the implications of The He Da 98. However, it is submitted that the Court’s approach in the apportionment of liability in The He Da 98 is inconsistent with the approach of the English Court and should not be followed. This is because according to the English law, the Court should look at the degree in which the respective faults of the vessels have contributed to the collision and apportion liability accordingly. The Court should not consider whether the faults of one vessel are justified by the actions of the other as adopted in The He Da 98.

It is interesting to note that after the Defendants in The He Da 98 filed an appeal against the Court’s decision, the parties themselves agreed to re-apportion the liability to 75% for He Da 98 and 25% for Pontodamon. It appears that even the parties are of the view that the Court should not have decided that the Defendants were wholly liable to the collision. Therefore, litigants involved in a ship collision dispute in Hong Kong would be well advised to treat The He Da 98 decision with caution. 

Messrs DLA Piper Hong Kong was instructed to represent the Defendants and prepare for a three-day trial hearing after taking over the case from the Defendants’ previous legal representatives on 12 August 2011, four days before the hearing. Messrs. Ince & Co was instructed to represent the Plaintiffs. 

 

By Ernest Yang, Partner DLA Piper Hong Kong
Xiaoshan Chen, Registered Foreign Lawyer DLA Piper Hong Kong
Eric Woo, Senior Associate ONC Lawyers 

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