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Belpareil found 70% at fault after anchor dragging resulted in collision with Kiran Australia

In Denver Maritime Ltd v Belpareil AS (Andrew Baker J presiding) in the Admiralty Court, apportionment of blame was decided after a collision at anchorage off Chattogram, Bangladesh.

The case covered:

  • whether fault was presumed against ship dragging anchor,
  • whether presumption rebutted,
  • causative fault and apportionment determined on trial of liability.

The Belpareil and the Kiran Australia were materially identical, geared Supramax bulk carriers. At about 01:10 local time on November 9th 2021 they collided in the Bay of Bengal, off Chattogram, Bangladesh. The collision occurred at the end of a lengthy period of collision avoidance after Belpareil dragged its anchor and, unable to counter or control the dragging because of main engine difficulties, headed under the influence of the flood tide current towards Kiran Australia’s anchored position.

After a trial of liability, both ships were held at fault, but Belpareil’s fault was judged to be substantially the greater and responsibility was apportioned 70:30 against it under s.187 of the Merchant Shipping Act 1995:

Kiran Australia had alleged that Belpareil should be held solely responsible for the collision, and in the alternative that if there was fault on both sides Belpareil should bear far greater responsibility than Kiran Australia. Symmetrically, Belpareil alleged that Kiran Australia should be held solely responsible for the collision, and in the alternative that if there was fault on both sides Kiran Australia should bear far greater responsibility than Belpareil.

The Judge found that:

  • Belpareil was at fault because she dragged her anchor, the law presumes that ships do not drag without fault, and that presumption had not been rebutted: Marsden and Gault, 15th Ed., para.5-051, and cases there cited, considered, and the law clarified;
  • Belpareil was at fault in failing to give prompt and clear warning to surrounding shipping, including Kiran Australia, that because of her main engine difficulties she was at real risk of being or becoming close to a dead ship at the mercy of the elements;
  • Belpareil was at fault in failing to deploy a second anchor to arrest or control her dragging; and
  • both ships were at fault in the final few minutes prior to colliding in how they manoeuvred and failed to respond to the other’s manoeuvring;
  • All of those faults were effective contributory causes of the eventual collision (unlike Belpareil’s failure promptly to call for tug assistance, which was also negligent but which it had not been shown had any impact on events).

There was one interesting aspect of the case which required some improvisation on the part of Judge Baker in order to avoid what he described could have been a “proliferation of additional post-trial submissions”.

Before he had received the clarifications of the two “Elder Brethren” (who sit with the judge as nautical assessors), Kiran Australia sent to the judge’s Clerk, for the judge’s attention, a written submission in reply to Belpareil’s observations. That was done without prior notice or accompanying request for permission to provide further argument.

“That should not have happened”, Judge Baker noted, adding that “if the view was taken that in fairness Kiran Australia ought to be allowed to provide a further written submission, that procedural point should have been raised with Belpareil first, and then with the court if agreement was not reached on it”.

However, Belpareil objected to that reply. In response, it was intimated that the reply itself included an objection, namely that Belpareil’s observations involved an attempt to recast the case it had pursued and presented at trial.

Judge Baker undertook a series of responses to this problem, which entailed the judge never reading the submission sent to his Clerk – dealing instead with three other submissions from Kiran Australia, then Belpareil, then finally Kiran Australia.

The judge also referred to “two futile fictions” from the two captains. Baker J wrote that:

Both masters were properly qualified, appropriately experienced, and generally competent to have the command of their respective ships. “ As such, they should both have known that it was pointless to invent a story as to what had happened to bring the two ships into contact, since that story would be told, in some considerable detail, by the VDR data.”

However, both captains made up a narrative and recorded it in writing on the day of the collision, in their deck logs and in casualty reports.

Judge Baker said that

the master of Kiran Australia did what he did because, after the fact, he felt responsible for allowing his ship to fall back towards Belpareil, so that they finally hit each other, after he had worked hard for nearly an hour to avoid contact; and

the master of Belpareil did what he did because, after the fact, he felt responsible for not having warned the ships around him, such as Kiran Australia, or Port Control, that he was having difficulty controlling or countering the dragging of his anchor because of the main engine issue, for not having considered dropping his second anchor in the early part of the incident, and for losing control of the situation in the final few minutes, during which his bridge was chaotic and, to make matters worse, he allowed himself to be distracted by a telephone call from his managers.

Under cross-examination, each master acknowledged that contemporaneous sense of responsibility; “the master of Belpareil, to his credit, accepted that he had created a dishonest account at the time because of it”, noted Judge Baker.

The master of Kiran Australia refused to accept the charge of dishonesty, but the judge considered it was made out.

“For both masters, this was a first experience of a casualty, and each had evidently found the experience stressful, perhaps traumatic. Their failure at the time simply to tell the truth of what had happened, as best they could report, was unattractive as well as futile.”

Ultimately, though, the judge observed, it had little bearing on whether what they respectively did or failed to do amounted to or involved negligence.

Date: 26/02/2024

Before :

Mr Justice Andrew Baker

sitting with Commodore William Walworth and Captain Stephen Gobbi, Elder Brethren of Trinity House, as nautical assessors

Between :

Denver Maritime Ltd – Claimant

– and –

Belpareil AS – Defendant.

James M Turner KC (instructed by Campbell Johnston Clark Ltd) for the Claimant;

Lionel Persey KC (instructed by Penningtons Manches Cooper LLP) for the Defendant.

Hearing dates: 21-23, 28 November 2023.

https://caselaw.nationalarchives.gov.uk/ewhc/admlty/2024/362