Collision Court Consultation With Nautical Assessors

August 2005

The Admiralty Court in London recently decided a collision case involving two ships, one being at anchor the other underway. The case, "Global Mariner" and "Atlantic Crusader"¹, is interesting in three respects.

1. Procedure For Consultation With Nautical Assessors

The Judge, Mr. Peter Gross, addressed a point of procedure. Both plaintiffs and defendants will inevitably seek to strengthen their respective arguments by employing Expert Witnesses to appear before the court. This is particularly so in collision matters where experts give their views on matters of navigation and seamanship. However, a judge sitting in the Admiralty Court in London may, and often does, call upon the expertise of independent Nautical Assessors, so called 'Elder Brethren' of Trinity House London. Having listened to the arguments put in front of him at trial and in considering his decision the Judge may put questions to the Nautical Assessors, either of a hypothetical nature or specific to the circumstances of the case. It is in the Judge's sole discretion whether he accepts or disregards the replies received. But, until recently, the Judge was under no obligation to consult counsel for the plaintiff or defendant in either the preparation of the questions put to the Nautical Assessors nor provide them with an opportunity to respond to the answers given.

That procedure was recently challenged as being incompatible with Art.6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In "The Bow Spring" and "Manzanillo II"², the Appeal Court agreed, stating the answers of the Nautical Assessors should be disclosed and an opportunity provided to the respective Counsel to make submissions, either written or oral, as to whether the Judge should accept the advice of the Nautical Assessors.

Putting this into practice, Gross J laid down a procedure with the aim of achieving transparency of proceedings against considerations of delay and cost of potentially endless submissions and counter argument. The procedure is in three parts:-

• a range of topics on which the Judge may consult the Nautical Assessors is agreed with counsel first; 
• the questions put to the Nautical Assessors and their answers are disclosed to counsel before any draft judgement is handed down; and 
• counsel have opportunity to make submissions to the judge on whether the advice of the Nautical Assessors should be followed.

However, Gross J went on to state that where, following counsel's submissions, the Judge sought clarification from the Nautical Assessors on a particular question, or posed further questions related to that original question, then in the interest of keeping proceedings in proportion to the importance of the point and for the purpose of finality the Judge need not disclose to counsel those further exchanges with the Nautical Assessors, but merely record them in his judgement giving his reasons for accepting or disregarding them. The aim here is to avoid as Gross J put it "the cost and delay inherent in the "ping pong" of post-hearing exchanges".

2. Finding On Liability And Good Practice Issues

The collision took place on the River Orinoco where the 'Global Mariner' was alongside heading up river and the Atlantic Crusader anchored midstream some half a mile down river from where the Global Mariner was berthed. The judge found the failings of the 'Global Mariner' manifest in its apparent total failure to take any account of the presence of the 'Atlantic Crusader' in executing its departure from berth. The ship effected a wide 180° turn practically from the moment it left its berth and ordered full ahead on its engine. On coming out of the turn, at full ahead and with a following river current of 4-5 knots the judge found the Global Mariner to be proceeding far too fast when the presence of the 'Atlantic Crusader' was first realised (C-2). This left those navigating the 'Global Mariner' unprepared for the situation suddenly faced and at this point the judge took the view the collision was unavoidable. For a poor appreciation of the situation prior to departing its berth, a poor lookout and executed turn , Gross J found the 'Global Marine' 100% liable for the ensuring collision.

However, the 'Atlantic Crusader' did not escape criticism. It was determined as fact that the ship was suffering considerable yaw and sway riding to its anchor, ranging from 35° to 40° either side of its up river heading. Even with this wide arc of movement there was sufficient room for other users of the river to pass safely. But this did not relieve the Atlantic Crusader from a duty imposed by good seamanship, and commonsense, to take measures to lesson the yaw to maximise safe passing distance and to reduce the risk of dragging its anchor, commonly associated with exaggerated yawing. Using only its starboard anchor to maintain position, the judge was critical of the failure to employ an alternative anchoring method, particularly an open moor, or to employ the ships rudder and engine to control or lesson the yawing effect. He went on to state that had he found these failings causative, then he would have apportioned 10% fault to the 'Atlantic Crusader'.

3. Video Link Evidence Encouraged

The third and final point concerned evidence from a key witness, in this case the Master of the 'Atlantic Crusader'. He was not present for reasons put down to ill health but Gross J considered it unfortunate that no measures had been taken to present his evidence in court by way of a video link. Gross J encouraged the future use of such technology where attendance of witnesses cannot be obtained in person.

1. [2005] 1 Lloyd's Rep. 699

2. [2005] 1 Lloyd's Rep.1