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Grounds publishedDecided 12 Sep 2017
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General Division of the High Court

The “Dream Star”

[2017] SGHC 220Case no. Admiralty in Rem No 9 of 2015

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  1. Introduction

  2. [1] This action in rem is brought by the owner of the Meghna Princess for damages arising out of a collision between two bulk carriers, the Meghna Princess and the Dream Star, in Singapore waters on 16 May 2014 at approximately 12:30:40 (all timings in this judgment will be in local time). The defendant, the owner of the Dream Star, has counterclaimed. The collision occurred in good weather and visibility. The wind was light, and the sea was slight.

  3. [2] Both sides have, amongst other things, alleged breaches of the International Regulations for Preventing Collisions at Sea 1972 (“the COLREGS”). The COLREGS have been incorporated as collision regulations for the purposes of the Merchant Shipping Act (Cap 179, 1996 Rev Ed) pursuant to s 3 of the Merchant Shipping (Prevention of Collisions at Sea) Regulations (Cap 179, Rg 10, 1990 Rev Ed); reg 28 of the Maritime and Port Authority of Singapore (Port) Regulations (Cap 170A, Rg 7, 2000 Rev Ed), which applies to vessels within the port limit of Singapore, also provides that the COLREGS apply for the purposes of navigation and anchoring of vessels.

  4. [3] The trial is on the issue of liability alone. Counsel for the plaintiff, Mr Navinder Singh (“Mr Singh”), claims that the Dream Star was solely responsible for the collision. The case for the plaintiff is that the vessels were on a crossing path and that the Dream Star being the give-way vessel failed to take action in ample time to keep out of the way of the Meghna Princess in breach of rule 15 of the COLREGS thereby causing the collision. The defendant takes a diametrically opposite position. Counsel for the defendant, Mr Richard Kuek (“Mr Kuek”), asserts that the Meghna Princess should shoulder more blame for the collision and that liability should be apportioned 80:20 in favour of the defendant. The defendant’s case by counterclaim is that the Meghna Princess as the overtaking vessel did not keep out of the way of the Dream Star under rule 13 of the COLREGS. In response to Mr Singh’s argument that the two vessels were in a crossing situation in the main action, Mr Kuek argues that the plaintiff as the stand-on vessel neither acted in due time nor with the skill and care expected of a good (competent) seaman to avoid a collision. To denote the standard of good seamanship, the notion of a “competent seaman” has been used interchangeably with that of a “prudent seaman”.

  5. [4] Ultimately, the questions for determination in this judgment are: (a) whether the Dream Star is, as Mr Singh alleges, the vessel that is solely to blame for the collision; and (b) if both vessels were at fault, how liability should be apportioned. The first question is complicated by the experts’ contention on the situation encountered by the two vessels – on the one hand, the expert for the Dream Star saw the encounter between the vessels as an overtaking situation, but on the other hand, the expert for the Meghna Princess saw the encounter as a crossing situation. It is important to determine whether the vessels were in an overtaking or crossing situation before considering the respective alleged fault of each vessel.

  6. [5] This judgment will also examine whether the collision was the result of a lack of appreciation of the situation or a misapplication of the overtaking or crossing rules that led to uncertainty as to the status and responsibilities of the vessels. A related question of significance is what blame, if any, could be attached to the vessels for the Very High Frequency (“VHF”) exchange between them, which took place minutes before the collision – ie, who was culpable for the conversation and whether the VHF conversation was causative of the collision. As regards the alleged breaches of other rules of the COLREGS, this judgment will likewise examine the nature and effect of these breaches in terms of culpability and causation.

  7. The vessels

  8. [6] The Meghna Princess is a single screw bulk carrier built in 1995. She is 26,381 tons gross register, 189.99m in length overall and breadth of 30.53m. The vessel loaded cargo at Cam Pha, Vietnam and whilst en route to a discharge port at Chittagong, Bangladesh, she called at Singapore for bunkers on 15 May 2014. At the time of collision, the Meghna Princess was laden with 46,105 metric tons of cement clinker. She was fitted with modern navigational equipment that was functioning correctly.

  9. [7] The Dream Star is a newer and larger bulk carrier built in 2014. She is 43,008 tons gross register, 228.99m in length overall and breadth of 32.26m. At the time of collision, the Dream Star was laden with 78,750 metric tons of coal. The Dream Star was transiting the Singapore Strait westbound to the Eastern Boarding Ground B to pick up her pilot before proceeding to anchorage for bunkers. She was fitted with modern navigational equipment that was functioning correctly as well.

  10. [8] I pause here to make a brief observation on an evidential deficiency in how the parties presented their cases. As stated, both vessels had cargo on board at the time of the collision and they were bulk carriers of different sizes, the Dream Star being the larger of the two. The Meghna Princess had already taken on bunkers and was sailing out of the port whereas the Dream Star was calling at Singapore for bunkers. This being the case, it would have been helpful for the court to take into consideration evidence as to each vessel’s manoeuvrability, as ascertained from the subject vessel’s stopping distances and turning characteristics at different speeds having regard to, inter alia, the vessel’s laden conditions and other factors. No such evidence was adduced.

  11. [9] At all material times, there were two other vessels in the vicinity. The first is the Ishwari, which was heading towards the Eastern Boarding Ground B at a distance behind the Dream Star. The second is the Pioneer 93, a tug with a barge in tow. On 16 May 2014, at 12:15, the Pioneer 93 was heading in a south-westerly direction approximately 0.8 nautical miles (or nm for short) away from the Dream Star. There is no information as to the barge or the length of the tow line. The Pioneer 93 is 140 tons gross register, 23.50m in length overall and breadth of 7.33m. According to the defendant, the navigation of the Dream Star was to some extent affected by the presence of the Pioneer 93 which caused the former to alter course to port as is shown on a plot annexed to this judgment (see Annex 1). I will elaborate on Annex 1 and explain the selection of it later in the judgment (see below at [12]). Suffice to say that the alteration to port is depicted in Annex 1 as starting to shape from C-18 (or 12:13) and completing at about C-12 (or 12:19). The Dream Star and the Pioneer 93 fully cleared each other after 12:27 (see [72] below).

  12. The collision on 16 May 2014

  13. [10] The location of the collision was fixed at latitude 01º 15.57'N, longitude 103º 57.52'E. This fix is about 0.28 nm east-south-east of the pilot Eastern Boarding Ground B and located between the southern-most boundary line of Singapore Port Limit and the northern-most boundary line of the westbound lane of the Traffic Separation Scheme in the Singapore Strait (“TSS”). As stated, the time of collision was at approximately 12:30:40. There is no allegation that the weather, wind and tidal conditions at and before the collision affected the navigation of either vessel.

  14. [11] At all material times up to the collision, the Master of the Meghna Princess, the Second Officer and the Third Officer were on her bridge; the Second Officer was the officer on watch (the three officers hereinafter will be referred to collectively as “the bridge team”). The Chief Engineer of the Meghna Princess also testified at the trial. In this judgment, all the four officers who testified at the trial will be referred to collectively as “the crew” There was a good deal of evidence available from the Dream Star, but no factual witness was called on her behalf. Significantly, even though the officers of the Meghna Princess testified at the trial, the entries in her Bell Book, Chief Officer’s Log and Engine Manoeuvre Book for the period leading up to the collision were patently unreliable. I will elaborate on the unreliability of these records later in the judgment. In this judgment, the narrative of the events before and at the time of collision are based on the movements of the vessels (latitude, longitude, heading, distance, speed and time at one minute intervals) gathered from the electronic data on board the vessels and subsequently agreed to by the experts, Captain Christopher Phelan (“Captain Phelan”), who is for the plaintiff, and Captain Nicholas White, (“Captain White”) who is for the defendant.

  15. [12] Specifically, the plots depicted in Annex 1 to this judgment serve to demonstrate in a graphic way the positions and relative bearings of the vessels at different time points (marked C-21 to C-0) between 12:09:58 and 12:30:54. Captain White has also made use of an electronic charting application called SeaPro to process raw data from the vessels’ Automatic Identification System (“AIS”) as well as data from the Vessel Traffic Information System (“VTIS”), a tracking and monitoring system used by the Maritime Port Authority of Singapore (“MPA”). I digress to mention that MPA monitors traffic in the Malacca and Singapore Straits by sectors via numerous VTIS work stations operated by MPA. Each sector is assigned a VHF radio channel, and vessels are required to maintain a listening watch on the appropriate sector channel. VTIS data is monitored real-time and when an operator notices something of concern (either a contravention of traffic rules or any potential danger), the operator would alert the vessels in question over the assigned VHF channel.

  16. [13] The plaintiff had appended to its closing submissions a graphic depiction of the vessels’ movements before and at 12:30. This annexure to the closing submissions is the same as the plaintiff’s exhibit marked P1. I choose not to use P1 for two reasons. First, P1 is not drawn to scale; and second, it also contains some ambiguities or inaccuracies. For instance, P1 indicates that the Meghna Princess had gone full astern and turned 32º starboard at 12:27. This information is not borne out by the agreed facts. The joint expert report indicates that the Meghna Princess had maintained a steady heading instead – at 12:24, her heading was 230º; at 12:26, her heading was 232º; at 12:27, her heading was 236º; at 12:28, it was still 236º; and at 12:29, it was 242º. For these reasons, I prefer Captain White’s version instead, which is referred to and appended to this judgment as Annex 1 for convenience. I am mindful that the plots in Annex 1 are illustrations; as Steel J said of the plots produced in The “Sitarem” [2001] 2 Lloyd’s Rep 107 (at [16]), they show what might have happened, not what did happen.

  17. [14] The plot in Annex 1 begins at 12:09:58. Be that as it may, I prefer to start the background narrative from a much earlier point in time.

  18. [15] At 11:03, the Meghna Princess was anchored at the Eastern Bunkering Anchorage B. The Dream Star was transiting in the Singapore Strait westbound to pick up her pilot at the Eastern Boarding Ground B. The defendant’s view is that the tug Pioneer 93 with a barge in tow was coming up on the Dream Star from astern on the starboard side to the north of the westbound lane. At about 11:46, the Pioneer 93 drew abreast of the Dream Star on her starboard side. I pause here to mention the disagreement between the parties on the matter of whether the overtaken vessel was the Pioneer 93 or the Dream Star. The plaintiff’s view is that the Dream Star was the overtaking vessel and she was obliged to keep clear of the Pioneer 93. Having reviewed the evidence, I agree with Captain White that Captain Phelan, the Master and the Second Officer of the Meghna Princess were wrong in their assessment that the Pioneer 93 was the overtaken vessel. In his second report, Captain White plotted out the positions of the Dream Star and the Pioneer 93 from 11:30 to 12:15, demonstrating that, at least from 11:30, the Pioneer 93 was overtaking the Dream Star, and I so find.

  19. [16] At about 11.48, a pilot boarded the Meghna Princess. Her anchor was away and she began to manoeuvre out of the Eastern Petroleum Anchorage area. At about 12:00, both the Pioneer 93 and the Dream Star appeared to be converging, and at 12:08, the Dream Star contacted the relevant VTIS operator (hereafter referred to as VTIS) to find out the intention of the Pioneer 93. At or about this time, the Meghna Princess had just entered the Tanah Merah Ferry Fairway.

  20. [17] Given the close presence of the Pioneer 93 on the Dream Star’s starboard side, the Dream Star began to shape its course to port from 270º (C-18) to 252º (at about C-12). Earlier at 12:11:36, which is approximately at C-19, the Dream Star gave orders for her engine to be stopped because of how close she was to the Pioneer 93. The drop in the Dream Star’s speed between 12:12 and 12:17 was captured and recorded in the Dream Star’s Voyage Data Recorder (“VDR”).

  21. [19] At C-13 (or 12:18), the Meghna Princess, having gone past the Ferry Buoy, began to turn to starboard. At or about that time, VTIS called the pilot on board the Meghna Princess informing him that the Pioneer 93 was 8 cables away (0.8 nm) at a bearing of 190º from the Meghna Princess, and that the Pioneer 93 was trying to stay clear of the Dream Star, which was heading to the Eastern Boarding Ground B. The pilot on board the Meghna Princess replied:

  22. At this time, the Meghna Princess was at a bearing of about 8º, and at a distance of about 1.06 nm from the Dream Star. The Meghna Princess was also now about 22.5º abaft the starboard beam of the Dream Star, with the Dream Star maintaining a speed of about 4.4 knots and the Meghna Princess keeping to a speed of about 5.9 knots. After the Pioneer 93 turned starboard and began clearing away from the Dream Star, at about 12:20, the Dream Star began to alter her course back towards the Eastern Boarding Ground B.

  23. [20] At C-11 (between 12:19 and 12:20), the Meghna Princess was still about 22.5º abaft the starboard beam of the Dream Star, with the Dream Star maintaining speed at about 4.5 knots and the Meghna Princess increasing her speed to 6.5 knots. Between C-9 and C-6 (12:22 and 12:25), the Dream Star continued to shape starboard from 270º to 284º. Her speed gradually increased from 5.2 to 5.6 knots. During that same period, the Meghna Princess maintained a heading of about 230º, and increased her speed over ground from 7.1 to 8.2 knots.

  24. [21] Between 12:25 and 12:26, the following exchange then took place between the Meghna Princess and the Dream Star:

  25. [22] At 12:25, the Meghna Princess was at a bearing of about 12º and 0.58 nm from the Dream Star. At 12:26, the Meghna Princess was at a bearing of about 15º and 0.49 nm from the Dream Star. The relative positions of the two vessels from C-4 to the point of collision are depicted in Annex 1. The speeds of both vessels starting from 12:20 onwards are as follows:

  26. [23] At 12:29, VTIS called the Meghna Princess twice and after the Meghna Princess responded, the following conversation ensued:

  27. [24] At 12:30:41, a loud sound resembling the impact of steel on steel was heard on the audio channels of the Dream Star. Captain Phelan took the view that the collision took place at 12:30:40; Captain White posited that it had taken place at 12:30:47. Nothing, however, turns on this difference.

  28. [25] I make a brief note on the point of collision contact between the two vessels. According to the Dream Star, her heading was about 286º before she turned 26º to port to 260º, and the steel to steel contact was between the port side of the Meghna Princess in the vicinity of her forward cargo hold (the plaintiff’s description was port hull amidship) and the Dream Star’s starboard quarter. The approximate angle of blow between the two vessels was about 41º. The Meghna Princess gave her heading at first contact as 265º and the Dream Star gave hers as 262º.

  29. Preliminary evidentiary issues

  30. The plaintiff’s objection to Captain White’s reports

  31. [27] I begin with Mr Singh’s principal evidentiary objection which relates to the “VTIS and VDR recordings” referred to in Captain White’s reports. To narrow the issue, the plaintiff is primarily concerned with the audio recordings that Captain White had transcribed in his report, as opposed to the positional depiction of the vessels in Annex 1. In fact, in a joint expert statement, the parties agreed on the longitudinal and latitudinal data of the two vessels between 11:59 and 12:29, heading, distance and speed, and there is no suggestion that Annex 1 is inaccurate or misleading in depicting the positional data recorded by the parties.

  32. [28] Mr Singh’s objection is that the recordings in Captain White’s second report dated 16 January 2017 has limited or no probative value because, as Captain White had accepted at trial, he had not personally listened to all of the recording clips while preparing the supplementary report – instead, he had obtained assistance from a colleague. There is really no need to dwell on Mr Singh’s objection since the bridge team who testified at the trial had either accepted the accuracy of the transcripts of the audio recordings or recollected the conversation when the audio recording was played back to them.

  33. [29] This leads me to the transcripts of the audio recordings prepared by Captain Phelan. In relation to the VHF conversation between both vessels starting from 12:25, Captain Phelan’s prepared transcript did not contain the portion where the Meghna Princess told the Dream Star to pass at her bow. At trial however, the exchange between 12:26:33 and 12:26:54 set out above at [21] as transcribed was read out to the Master and the Second Officer, who duly accepted the accuracy of the transcript, having recalled that the conversation did in fact take place.

  34. [30] On a separate note, both parties (the plaintiff more than the defendant) question the expertise and experience of the expert witness appointed by the other side. Mr Singh argues that Captain Phelan’s evidence should be preferred simply because Captain Phelan’s credentials were more impressive than Captain White’s, and Captain White’s qualifications and experience were limited. At the same time, Mr Kuek points to Captain Phelan’s limited merchant sailing experience. As I see it, the debate in this collision related to the navigational situations encountered by both vessels in Singapore waters and they are matters well within the competence of the experts, so I accept their respective qualifications for what they stand for. How the experts conducted themselves in the witness box is an entirely different matter. An expert’s independence and impartiality is a matter that bears on the weight of the opinion evidence (see [36] below).

  35. Role of an expert witness who previously investigated the casualty

  36. [31] Captain Phelan said that he was appointed the plaintiff’s expert witness on 14 October 2015. From his first report, it appears that when he was appointed, his role at the outset as master mariner was to look into the circumstances of the casualty after the reports of the previous surveyor were found to be inaccurate and incomprehensible. It was necessary to start investigations into the casualty afresh, seeing that the Preliminary Act of 8 January 2015 was based on the erroneous reports of the previous surveyor. Captain Phelan said he met the crew in March 2016 to talk about what happened and to find out their views. As Captain Phelan said, the Preliminary Act was subsequently amended on 13 February 2017 on his advice and he even provided the plaintiff with his own revised edition of the Preliminary Act, which formed the basis of the amended Preliminary Act filed in court. Captain White was not involved in the casualty investigations at all.

  37. [33] When cross-examining Captain White, Mr Singh tried to cast doubt on Captain White’s opinion expressed in his expert reports simply because he had not interviewed the crew of the Dream Star. Seemingly, Mr Singh was under a misconception that an expert witness must interview the crew to elicit their evidence on the navigation of the vessel leading up to the collision. If the master mariner who investigated the marine casualty is called to testify in his capacity as an investigator, he is, as I have stated, treated as a witness of fact. In this case, Captain White and Captain Phelan were called to testify as expert witnesses, and their respective duty is to assist the court on matters within his expertise irrespective of who instructed or called them to testify as the expert: O 40A r 2 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed).

  38. [34] In his capacity as an expert witness, Captain Phelan was tasked to express his opinion on what has been embodied in the written evidence of the crew or adduced in the oral testimony of the crew at trial. It was thus patently wrong of him to refer to what the crew told him during an interview that was conducted in March 2016 as though it was factual evidence that could be introduced in court through his testimony as an expert witness. By way of illustration, Captain Phelan insisted that the Meghna Princess had sounded five short blasts on her whistle because that was what the bridge team of the Meghna Princess had told him previously, even though he was reminded by Mr Kuek that the evidence of the bridge team’s AEICs and oral testimony in court was that only one loud blast was sounded. In introducing factual evidence which was not found in the written or oral evidence of the bridge team, Captain Phelan blurred his two separate roles, and inappropriately made use of hearsay information as a factual basis for an expert opinion on rule 34(d) of the COLREGS.

  39. [35] The duties and responsibilities of an expert witness must be borne in mind. The following principles are relevant (see The “Ikarian Reefer” [1993] 2 Lloyd’s Report 68 at 81; Pacific Recreation Pte Ltd v SY Technology Inc [2008] 2 SLR(R) 491 at [70], citing Vita Health Laboratories Pte Ltd v Pang Seng Meng [2004] 4 SLR 162):

  40. (a) Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

  41. (b) An expert’s opinion must be objective and unbiased. He should neither attempt nor be seen to be an advocate of or for a party’s cause.

  42. (c) An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinion.

  43. [36] The transcripts of Mr Kuek’s cross-examination of Captain Phelan will show the former’s exasperation on occasions when Captain Phelan came across as espousing the plaintiff’s case. On one occasion, it was pointed out to Captain Phelan that he had omitted to consider key facts such as the full contents of the VHF conversation between the Dream Star and the Meghna Princess beginning from 12:25 (see above at [21]). However, Captain Phelan doggedly refused to accept that the conversation described above had taken place even after the audio recordings were played twice in court and the transcripts of the oral testimony of the Master and the Second Officer were read to him. Captain Phelan’s insistence that Meghna Princess had sounded five short blasts on her whistle in the face of the bridge team’s evidence to the contrary (see above at [34]) was another such occasion.

  44. [37] The independence and impartiality of an expert witness are paramount as the expert’s duty is to assist the court to come to a decision. Under s 47(4) of the Evidence Act (Cap 97, 1997 Rev Ed) (“Evidence Act”), the court has a discretion to exclude the expert’s evidence in circumstances where, as Professor Pinsler suggests, the expert’s opinion would have a confusing and misleading effect as when there are doubts about good faith of the expert: Jeffrey Pinsler SC, Evidence and the Litigation Process (LexisNexis, 5th Ed, 2015) (“Pinsler”) at para 8.040. Even if I choose not to exercise this discretion, I am of the view that the weight I give to an expert’s opinion could well be reduced by the expert’s lack of independence and impartiality.

  45. [38] Generally, to resolve conflicting views of the experts, the court will evaluate the views by taking into account honest errors, adversarial bias stemming from the possibility that the experts may be influenced by their clients’ interests, an evaluation of the expert’s opinion in light of the overall evidence, and the quality of the experts’ reasoning itself – ie, whether his opinion is sustainable, credible, reasonable and fair. The paper credentials of an expert may be relevant for determining the weight to be accorded to a piece of expert evidence since it is indicative of his familiarity with the subject. But credentials are not solely determinative. It is often more productive to look at other considerations such as the methodology by which an expert reached his conclusions, or his demeanour: see generally Tan Mui Teck v Public Prosecutor [2003] 3 SLR(R) 139 at [11] on the court’s approach to resolving conflicting expert evidence.

  46. The defendant’s case based on expert evidence alone

  47. [39] The next evidentiary point pertains to the absence of the crew of the Dream Star at trial to testify as factual witnesses. In the absence of the Dream Star’s crew at trial, it is not surprising that the defendant’s case was entirely dependent on expert evidence. This approach is not objectionable in principle if the expert opinion is solely premised on digital and electronic data or records that are not in dispute, as in this case. Notably, both Captain White and Captain Phelan were able to agree on a common set of data which was contained within a joint statement dated 6 February 2017. In preparation for their respective reports, Captain Phelan looked at AIS data (latitude, longitude, heading and speed) for both vessels at one-minute intervals between 12:16 and 12:29 as downloaded from the VDR of the Meghna Princess; whereas Captain White made use of the AIS data downloaded from his company’s “shore based” AIS receiver. Notwithstanding some differences of up to 5 meters in location and 1º in heading noted at some time points – which both experts accepted were “minor” – both sets of AIS data were accepted to be similar. Following the experts’ agreement on the AIS data, Captain Phelan prepared a table setting out the distance and bearing between the two vessels from 11:59 to 12:29. The data in the table was accepted by both experts. In other words, the parties by agreement accepted the presumption in relation to electronic records provided in s 116A(1) of the Evidence Act (see also Mitfam International Ltd v Motley Resources Pte Ltd [2014] 1 SLR 1253 at [26]). I should mention that the experts’ agreement did not extend to the interpretation of the data, which was a wholly different matter that the experts disagreed on.

  48. [40] Naturally, the defendant’s decision to have the case tried on expert evidence alone carries some risk, especially where the crew’s evidence is required to establish compliance with the COLREGS. In this case, nobody testified as to the Dream Star’s maintenance of a proper lookout. This, coupled with how the Dream Star had to ask the Meghna Princess where she was at 12:25:42 (see [21] above), led Captain White to conclude that the Dream Star had not complied with rule 5 of the COLREGS. Indeed, without the testimony of the crew on board the Dream Star, there was simply no evidence that the crew maintained a proper visual lookout at the relevant times. It is therefore not surprising that the defendant did not seriously challenge the plaintiff’s allegation that the Dream Star had breached rules 5 and 7 of the COLREGS which are closely linked. In failing to keep a proper lookout (rule 5), the Dream Star would not have constantly appraised the situation around the vessel and this would have led to a breach of rule 7 which requires the vessel to use the information gathered from a proper lookout to continuously assess whether there is a risk of collision. Potentially, there is a need to hear from the Dream Star’s crew on issues relating to their perception of the encounter between the two vessels. This matter has to be analysed especially where one vessel saw the encounter as an overtaking situation and the other vessel saw it as a crossing situation. Be that as it may, the prerequisite of vessels having to be in sight of one another before the overtaking and crossing rules are engaged (discussed at [43] below) would resolve, at an early stage, the debate on the applicability of the overtaking or crossing rules.

  49. [41] The plaintiff’s position is a lot harsher on the defendant. According to Mr Singh, the consequence of not calling the Dream Star’s crew as factual witnesses is that the court should draw adverse inferences under s 116(g) of the Evidence Act as to the crew’s “understanding of the COLREGS, practices of good seamanship, if they were negligent in their discharge of the duties imposed by the COLREGS and/or good seamanship and if their failure to discharge the duties caused the collision”. This assertion, however, must be scrutinised in the context of Mr Singh’s claim that the defendant breached rules 5, 6, 7, 8, and 16 of the COLREGS and good seamanship. Good seamanship is considered in light of compliance with the rules in COLREGS. Broadly speaking, depending on the circumstances, the issue of whether there has been a breach of rule 16 or a failure to obey the dictates of good seamanship involves an objective test that can be resolved with reference to technical data such as the speed, heading, position and relative bearing of the vessels without having to rely on oral evidence from any factual witnesses. Teare J in The “Samco Europe” and “MSC Prestige” [2011] 2 Lloyd’s Rep 579 (“The Samco Europe”), albeit commenting on good seamanship in light of rule 17(a)(ii) of the COLREGS, affirmed the principle that questions of navigational fault are to be assessed objectively (at [63]):

  50. [42] This is an appropriate juncture to highlight the Court of Appeal’s reminder in Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 at [23] that “the court must put its mind to the manner in which the evidence that is not produced is said to be unfavourable when drawing the adverse inference under s 116(g)”. It would be apparent in the light of this judgment as a whole, that Mr Singh’s submission for adverse inferences to be drawn is misplaced.

  51. [43] I conclude this section with two final comments. First, the defendant’s decision not to call any factual witness did create an evidentiary gap pertaining to a prerequisite for the crossing and overtaking rules to be engaged. Rules 13 and 15 are found under Section II of the COLREGS, which contains rules governing the “conduct of vessels in sight of one another”. Rule 11 states that rules under Section II would only “apply to vessels in sight [of] [sic] one another”, and rule 3(k) provides that “vessels shall be deemed to be in sight of one another only when one can be observed visually from the other”. Rule 3(k) makes clear that there must be a visual observation by the officers on watch; that is, a radar observation would not suffice (see Marsden and Gault on Collisions at Sea (Sweet & Maxwell, 14th Ed, 2016) (“Marsden”) at para 5-176). To plug this evidentiary gap, Mr Kuek relies on The “Lucile Bloomfield” [1966] 2 Lloyd’s List Law Reports 239 (“The Lucile Bloomfield”) where at 245, Karminski J held that “in sight”, in his view, “means something which is visible if you take the trouble to keep a lookout”. Mr Kuek therefore submits that vessels are “in sight” when both vessels are in each other’s line of sight such that they would have seen each other with a proper lookout. The difficulty with this submission is that he does not state the time at which both vessels were in each other’s line of sight and he seems to have forgotten Captain White’s opinion that there was no proper lookout. Without calling the crew to testify on the defendant’s beh-----alf, there is no evidence of visual sighting to satisfy the prerequisite question of rule 11 read with rule 3(k). All said, it was unsatisfactory that while Mr Kuek is adopting the position that an overtaking situation started and subsisted from a specific time point (12:18 ), the question of when rule 11 read with rule 3(k) was satisfied (and therefore when rule 13 was applicable) is left unanswered.

  52. [44] The second comment relates to the inaccuracies in the entries made in the Meghna Princess’s various logbooks and the upshot of these inaccuracies. Between 12:20 and 12:25, the Meghna Princess was increasing its speed from 6.42 knots to 8.17 knots whereas the Bell Book entries indicated that the Meghna Princess was slowing down during that same period. Specifically, between 12:22 and 12:23, the records in the Bell Book showed that the engine movements of the Meghna Princess went from dead slow astern to slow astern, to half astern, and finally to full astern. The Bell Book also recorded the time of collision as 12:25 and not 12:30 (see [24] above). The same issues plague the Engine Movement Book which contained entries copied from the Bell Book. The Chief Engineer’s explanation was that some engine movements were not recorded down because of the “abnormal” collision situation. When asked to clarify what entries were copied, the Chief Engineer claimed to be unable to recall which were copied. That said, this court does not have to make findings on the dubious entries since the plaintiff has accepted that the entries in the Bell Book on the time and movements were inaccurate, and has turned to the AIS and VDR data instead in its closing submissions.

  53. The unreliability of the evidence given by the Meghna Princess’s bridge team

  54. [46] The final evidentiary issue I will address is Mr Kuek’s criticisms of the factual witnesses’ written testimonies. Given the court’s criticisms in [45] above, doubts as to the factual witnesses’ personal knowledge of the collision survive to affect the quality of their respective affidavits of evidence-in-chief (“AEICs”). From Mr Kuek’s cross-examination of the bridge team, it is clear that most of the details contained within the AEICs were “fed” to them. Each of the bridge team’s AEICs contained details with precision that beggars belief. More than two years after the collision, they were able to depose in their AEICs precise headings, speeds of vessels, and distances based on a minute-by-minute analysis of the events prior to the collision. Yet, when asked to disclose what their source of information was, the bridge team either gave vague replies or lied on the stand. The Master claimed to have written his affidavit after “[hearing] from so many sources, whatever sources is required, because [he had] to give the statement… [he] cannot, go, go, go blind”. The Second Officer claimed to have made reference to a “survey report” that he “cannot exactly remember”. The Third Officer gave contradictory explanations for being able to go into the level of detail shown in his affidavit – first, that he had made reference to “survey reports” as well; second, that he had recorded down the figures in a personal handbook after overhearing them provided by the Second Officer to the Master. The Third Officer then said that the journal had already been disposed of two to three years ago, before further contradicting himself by claiming to have thrown this journal away the last few weeks before trial. None of the explanations provided were satisfactory. Prevarications aside, it is trite that a witness should only be giving evidence based on what he directly know of and perceived, rather than to facts in issue or relevant facts perceived by other persons and fed back to him: Pinsler at para 4.001. By parroting or relying on information found in extraneous sources like “survey reports”, the bridge team’s AEICs were arguably based on hearsay evidence (though this point was not really pursued and admissibility was not explicitly raised by Mr Kuek). In any case, there is ample reason to be very circumspect about relying on the factual witnesses’ evidence unless there is objective evidence in support. It is not surprising that recognising the difficulty with the evidence of the factual witnesses, the plaintiff in its closing submissions ended up relying on expert evidence in the same way as the defendant.

  55. Negligence and COLREGS

  56. [47] Collisions between vessels often give rise to a cause of action in negligence. Typically, claimants have to establish breach of duty (that a vessel owes a duty of care to other vessels is well-established) that caused or contributed to the collision and damage (see Marsden at paras 4-023 and 5-071; Halsbury’s Laws of Singapore vol 17(3) (LexisNexis, 2016 Reissue) at para 220.0597). The standard of care applicable in collision cases is the exercise of “good seamanship” which is tantamount to the exercise of reasonable skill or care expected of a competent/prudent seaman to prevent the vessel from doing injury (see Stoomvart Maatschappy Nederland v Peninsular and Oriental Steam Navigation Company (1880) 5 App Cas 876 at 890; Marsden at para 4-028). The duty of good seamanship requires the crew of a vessel to observe the COLREGS or local regulations. In other words, good seamanship is considered in light of compliance with the rules in COLREGS.

  57. [48] Marsden at para 5-01 describes the purpose of the COLREGS as follows:

  58. [49] The mere fact that the rules in COLREGS have been broken or that the vessels have not been navigated in a seamanlike manner does not ipso facto give rise to a finding of fault on the part of the breaching party. Simply put, not all breaches of the COLREGS will give rise to a finding of fault on the part of the breaching party; the breach must have caused or contributed to the collision. Notably, the apportionment of liability in collision cases is premised on fault (see the Maritime Conventions Act, 1911 (Cap IA3, 2004 Rev Ed) (“Maritime Conventions Act”)). This has been the long-standing position, which is buttressed by the abolition of the statutory presumption of fault in the UK in 1911, the vestige of which can be found in the explanatory note found in s 4 of the Maritime Conventions Act.

  59. [50] Where there is some degree of fault on the part of all the vessels involved in a collision, a court may apportion liability between the vessels according to the degree to which each vessel was at fault in causing the collision (see s 1(1) of the Maritime Conventions Act). Ng J in The Owners and/or Demise Charterers of the Ship or Vessel “MCC Jakarta” v The Owners and/or Demise Charterers of the Ship or Vessel “Xin Nan Tai 77” [2017] HKCFI 981 (“The MCC Jakarta”) has helpfully set out the principles applicable to the apportionment of liability for breach of the COLREGS. These are the principles relevant to this case:

  60. [51] For expediency, the other principles will be set out at [124] below, where the topic of apportionment is discussed. With the principles set out at [50] in mind, I now turn to the issues in this case.

  61. Were the vessels in an overtaking or crossing situation?

  62. [52] The arguments from both sides present an encounter in which one vessel, the Dream Star, believed that the Meghna Princess was the give-way vessel in an overtaking situation and the other vessel, the Meghna Princess, saw the encounter as a crossing situation in which she was the stand-on vessel and the Dream Star was the give-way vessel. It will be helpful to set out rules 13 and 15 of the COLREGS:

  63. Overtaking situation

  64. [53] Captain White opined that the Meghna Princess, having altered course around the Ferry Buoy at about 12:18, was coming up on the Dream Star from more than 22.5º abaft the starboard beam of the Dream Star, making the Meghna Princess an overtaking vessel. The Meghna Princess continued on a course towards the Eastern Boarding Ground B.

  65. [54] The question of whether there was an overtaking situation is a short point that can be swiftly resolved. As stated in [43] above, section II of the COLREGS is relevant as it concerns the conduct of vessels in sight of each other. But for the defendant to rely on rule 13 of the COLREGS, the prerequisite under rule 11 must first be satisfied. This is a point that I have already dealt with above – under rules 11 and 3(k) of the COLREGS, the rules under section II of the COLREGS will only apply to vessels in sight of one another, and vessels shall be deemed to be in sight of one another only when they can visually observe each other.

  66. [55] The defendant asserts that that an overtaking situation subsisted from a specific time point (12:18) and the defendant’s expert came to this view that there was an overtaking situation from 12:18 onwards based on his analysis of the vessels’ AIS data for the vessels’ positions, headings, speeds and bearings. The defendant therefore submits that rule 13 applies. I am unable to accept this assertion. The phrase “observed visually” does not mean seen by radar; it means observing by eye or with aid of binoculars. In addition, for the reasons explained in [43] above, Mr Kuek’s reliance on The Lucile Bloomfield is misplaced. Without the testimony of the Dream Star’s crew, evidence of visual sighting by the crew to satisfy rule 11 read with rule 3(k) is missing. I therefore find that the defendant has not proved the alleged overtaking situation for rule 13 to apply.

  67. [56] The parties submitted extensively on whether the vessels were in an overtaking or crossing situation. I will comment on this. The point here is that the Dream Star believed that the Meghna Princess was the overtaking vessel and that a subsequent change of bearing between the two vessels could not impinge on the Dream Star’s status as the overtaken vessel. Under rule 13(b) of the COLREGS, the overtaking vessel must be “coming up” with another vessel from a direction more than 22.5º of the beam. The phrase “coming up” is accepted to mean that the overtaking vessel must at least have been travelling faster than the overtaken vessel (see The Main (1886) 11 PD 132 at 140; Marsden at para 5-371). An overtaking situation may arise even when there is no risk of collision (see The “Nowy Sacz” [1977] 2 Lloyd’s Rep 91 at 98). I would add that it is unhelpful to say that both vessels must be on a parallel or an almost parallel course.

  68. [57] Both experts agreed that the Meghna Princess was more than 22.5º abaft the beam of the Dream Star between 12:18 and 12:19. The experts also agreed that the speed of the Meghna Princess during that period was 5.99 knots while the Dream Star’s speed was between 4.3 and 4.4 knots. Assuming that rule 11 of the COLREGS was satisfied, on a plain reading of rule 13(b), it is arguable that the Meghna Princess satisfies the definition of an overtaking vessel. But in my view, that would be too rigid an application of the overtaking rules.

  69. [58] An analysis of the status of the Dream Star based on the relative position and the angle of approach of the vessels is incomplete. Between 12:18 and 12:19, the Dream Star had taken a brief evasive manoeuvre – that is, it had veered to port from 270º to 252º (at C-12 or 12:19) to create distance between herself and the Pioneer 93. This evasive manoeuvre was known to the Meghna Princess from the call that the pilot on board the Meghna Princess had received from VTIS. This call was acknowledged by the pilot so the Meghna Princess must have known that the Dream Star was merely making an evasive manoeuvre which turned out to be momentary anyway. It was with those circumstances in mind that Mr Singh questioned, in his closing submissions, the rigidity inherent in Captain White’s approach of mapping the vessels’ respective locations on a diagram and then determining whether an overtaking situation subsisted based on a geometric analysis. I agree that the present case is similarly one where rule 13 should not be rigidly applied.

  70. [59] The proposition that there is some flexibility when it comes to the application of the overtaking rules finds support in The “General VII” [1990] 2 Lloyd’s Rep 1 (“The General VII”). In The General VII, a small tug had passed another vessel (the Rora Head) on her starboard side – the Rora Head had slowed down to pick up a pilot. After the Rora Head proceeded off, she collided with the tug further up river. One issue the court addressed was whether the small tug could be an overtaking vessel. Counsel for the Rora Head had submitted that the tug remained under its duty to keep out of the way (as overtaking vessel) because she was never “finally past and clear” under rule 13(d). While it was not contended that the small tug would have satisfied rule 13(b) of the COLREGS, Sheen J held that the overtaking rules did not apply. Sheen J commented that “when the overtaking rules cease to apply may be regarded as a matter of seamanship” and the nautical assessor’s view, which Sheen J adopted, was that the “overtaking rules had no application to the navigation of either vessel [for the next eight or nine minutes after the pilot embarked each vessel]” because each vessel was able to navigate the river without any regard for the presence of the other vessel (see The General VII at 3).

  71. [60] Mr Kuek submits that rules 13(c) and (d) of the COLREGS are also relevant. Under rule 13(c) of the COLREGS, the hinder vessel was to assume that an overtaking situation and the concomitant rules applied if there were any doubt as to whether a vessel was overtaking another. Under rule 13(d), no change in bearing would make an overtaking vessel a crossing one – hence the nautical adage, “once an overtaking vessel, always an overtaking vessel” (see also Marsden at para 5-375). Reliance on rules 13(c) and 13(d) is unhelpful in the present context. Rule 13(c) was meant to address the difficulty of ascertaining with certainty whether an overtaking or crossing situation applied (see Marsden at para 5-373); it should not be used by a vessel to claim to be a stand-on vessel by declaring that an overtaking situation applied based on a momentary evasive manoeuvre she undertook herself. On this note, reliance on rule 13(d) of the COLREGS in the present case is also unhelpful since the pertinent question is whether the vessel’s relative positions at 12:18 and 12:19 were such that the overtaking rules began to apply. Rule 13(d) – that “[a]ny subsequent alteration of the bearing between the two vessels shall not make the overtaking vessel a crossing vessel…” [emphasis added] – is a rule that governs alterations of bearing after an overtaking situation is found to apply. Supposing the vessels fell within an overtaking scenario even before 12:18 and the Dream Star had been keeping a constant course, rule 13(d) could be invoked to make the point that the Dream Star’s turn to port would not have disapplied the overtaking rules. In the present case, however, the movement of the Dream Star between C-13 and C-11 was a momentary deviation from the Dream Star’s course instead, and Mr Kuek is seeking to invoke rule 13(d) of the COLREGS to cast such a deviation as the time point from which an overtaking situation arose and persisted. Such an argument seems too fanciful.

  72. Crossing situation

  73. [61] The plaintiff’s position is that the Meghna Princess believed that she was the stand-on vessel in a crossing situation and the Dream Star was the give-way vessel. Mr Kuek disagrees arguing that the bridge team on board the Meghna Princess had not appreciated that a crossing situation was developing at all. Like rule 13, rule 15 is under section II which concerns the conduct of vessels in sight of each other. The threshold question is whether the prerequisite for the application of rule 15 was satisfied in this case. Mr Singh, in his written submissions, claims that the Master of Meghna Princess had visually seen the Dream Star at 12:16 at a distance of 1.2 nm, and at that point in time the Meghna Princess was just abaft the beam of the Dream Star. For this point, Mr Singh cites the Master’s AEIC, but what the Master deposed was quite different. For a start, the paragraph on the events that occurred at 12:16 simply states that “[a]t 12:16 the pilot commenced a turn to starboard to proceed towards the pilot boarding area for him to disembark”. As for the issue of when the vessels were visually in sight of one another, the Master’s AEIC states that at 11:59, “visibility was clear” and that he saw on the vessel’s port bow a tug and barge. The Dream Star was behind the tug and barge. At that point in time, the vessels were about 2 nm apart. 11:59 could therefore be the point from which Rule 11 of the COLREGS is satisfied – though at [46] above, I have expressed doubt as to the reliability of the AEICs of the Meghna Princess’s bridge team.

  74. [62] Mr Singh identifies the time of visual sighting as 12:16. It was about the time VTIS called the pilot on the Meghna Princess to watch out for the Dream Star and the Pioneer 93 (see [19] above). The pilot had replied that he saw the two vessels and would keep more to the starboard side of the channel. From that exchange, the plaintiff inferred that the bridge team had visually sighted the Dream Star at 12:16. However, the plaintiff’s inference is not supported by the factual witnesses. The Second Officer and the Master did not testify as to any visual sighting at 12:16. I agree with Mr Kuek that the Third Officer’s oral testimony that he visually observed the Dream Star coming towards the Meghna Princess at 12:22 is also dubious. If the Third Officer is to be believed, there would be evidence of the Meghna Princess reducing her speed to slow down; instead, as the table at [22] above shows, she continued to increase her speed from 7.16 knots (at 12:22) to 8.17 knots (at 12:25) and then 8.38 knots (at 12:26).

  75. [63] In any case, at the very latest, both vessels would have had sight of each other at about 12:25 when the Dream Star asked for the position of the Meghna Princess over VHF and the Meghna Princess advised that she was at the Dream Star’s starboard bow (see above at [21]). On a side note, reference to starboard bow was a mistake; it was not disputed that the Meghna Princess was at the Dream Star’s starboard beam. However, the Dream Star had never acquired the Meghna Princess on her automatic radar plotting aid (“ARPA”), and based on the entire VHF conversation (see above at [21]), it is more probable than not that the vessels would have visually observed each other at 12:25 – that is to say during the time of the first VHF conversation which started at 12:25:32 and ended at 12:25:54, and I so find. Unless precise timing down to seconds is required, in this judgment, I will refer to “12:25” as the point in time when rule 11 read with rule 3(k) of the COLREGS was satisfied.

  76. [64] In addition, for rule 15 of the COLREGS to be engaged, there must exist a risk of collision within the meaning of rule 7. Mr Singh’s submits that a crossing situation “appertained from 12:16 to 12:30 hours”. His timing of 12:16, however, contradicts with the evidence given by the Master of Meghna Princess – that even after the pilot had disembarked at 12:20, the Dream Star was still “involved with [Pioneer 93], and did not appear to present any danger at a distance of about one mile”. At 12:16, the distance of the two vessels as agreed between the experts was 12.1 cable (1.21 nm) and the bearing of the Meghna Princess from the Dream Star was 2º.

  77. [65] As Captain Phelan rightly pointed out, in a busy port, “crossing situations are occurring all day every day. It’s only when they have a risk of collision that rule 15 comes into play.” I understand from the context of his testimony that he was using “crossing situations” in a loose sense. Captain Phelan took the view that at 12:20, the Meghna Princess did not see the Dream Star as presenting any danger; instead it was only until 12:25 that “[t]he concern on [the Meghna Princess] did indeed come to the fore”. According to Captain Phelan’s second report, a risk of collision was only apparent “after [the Dream Star] had completed a 34º turn to starboard to close with [the Meghna Princess] which she had not previously seen”. Captain Phelan did not pinpoint the time when the turn to starboard was completed but based on a turn of 34º starboard (252º to 286º), he would have in mind 12:26. However, further below in that same report, Captain Phelan used “32º” instead of “34º”, relying on a starboard turn of 252º (at 12:19) to 284º (at 12:25). In fact, he also testified that the Dream Star was not perceived to be a danger to the Meghna Princess until 12:25. Looking at the VDR data of the Dream Star, which the experts do not dispute, the starboard turn was complete at about 12:25 when the Dream Star’s heading was 284º. It then remained fairly constant up to 12:29, the minute before the collision.

  78. [66] Captain White agreed that for rule 15 to apply, a risk of collision has to be present, and in Captain White’s view, a risk of collision was not present at the time the Dream Star passed close ahead of the Pioneer 93 at a distance of about 1.7 cables (at [71] below). He opined in his report that on an application of rule 7(d)(ii) of the COLREGs, a risk of collision arose at about 12:17, but that it was not until 12:25 when the vessels were 0.58 nm apart that the Meghna Princess took note that such a risk existed.

  79. [67] As stated, the heading of the Dream Star was constant after the starboard turn was completed at 12:25 (at [65] above). I prefer Captain Phelan’s evidence that the risk of collision within the meaning of rule 7 existed at 12:25, and I so find. This view follows on from Captain White’s opinion (based on his analysis of all available data) in his first report that the Dream Star was concentrating on the situation with the Pioneer 93 from about 12:00 until the Pioneer 93 was clearing away from the Dream Star at about 12:19. It was only at about 12:20 that the Dream Star started to shape her course back to starboard.

  80. [68] To conclude, a crossing situation subsisted from 12:25 onwards, with the Dream Star as the give-way vessel and the Meghna Princess as the stand-on vessel.

  81. Fault of the Dream Star

  82. Was the give-way vessel alone to blame?

  83. [69] The plaintiff submits that the Dream Star was alone to blame for the collision because the Dream Star, as the give-way vessel in a crossing situation, failed to keep clear of the Meghna Princess, the stand-on vessel. At 12:25, the Meghna Princess was on the Dream Star’s starboard beam at a distance of 0.58 nm away. The Dream Star’s speed was 5.6 knots and her heading was 284º. The Meghna Princess was heading 231º at a speed of 8.17 knots. The plaintiff’s complaint against the give-way vessel rests on two limbs: first, that it was the Dream Star’s 32º turn to starboard (252º to 284º) that charted the Dream Star on a collision course with the Meghna Princess from 12:25 onwards; and second, as the give-way vessel, the Dream Star ought to have taken early and substantial action to keep clear of the Meghna Princess in accordance with rules 8 and 16 of the COLREG. For the reasons explained below, the plaintiff has not shown that the Dream Star was alone to blame for the collision, and I so hold.

  84. Starboard turn to heading of 284º

  85. [70] The first limb deals with the plaintiff’s allegation that by turning 32º to starboard, the Dream Star set the stage for the collision. Captain Phelan opined that upon completion of the turn to starboard, the Dream Star was in the path of the Meghna Princess so as “to instigate a collision situation with the Meghna Princess”. In his view, the Dream Star’s alteration from her original course of 270º, first to port and then to starboard onto a heading of 284º could not be considered to be “making good her course”; instead, it was “erratic navigation and poor seamanship without due regard to other ships in the area”. Captain White disagreed that the turn to starboard presented a danger of collision to the Meghna Princess. He also disagreed that the Dream Star’s navigation was erratic and in violation of the dictates of good seamanship. The alterations were to increase the distance between the Dream Star and the Pioneer 93. He opined that the combined actions of both the Dream Star (to port) and the Pioneer 93 (to starboard) increased the distance between them to about 1.7 cables at about 12:20. At that time (12:20), the Dream Star had already begun to shape starboard to steer towards the Eastern Boarding Ground B.

  86. [71] As I have found above at [9] and [15], up until the two vessels cleared each other, the Pioneer 93 was the overtaking vessel and the Dream Star was the overtaken vessel. The Dream Star had always been at the port side of the Pioneer 93, and she had turned to port because the Pioneer 93 had come up too close to the Dream Star at about 12:15. I should add, for the avoidance of doubt, that the Dream Star’s starboard turn to cross ahead of the Pioneer 93 at a distance of 1.7 cables at 12:20 did not give rise to a crossing situation between the Pioneer 93 and the Dream Star. Under rule 13(d) of the COLREGS, once an overtaking vessel, always an overtaking vessel and in this case, the Pioneer 93 would remain as the overtaking vessel despite any subsequent alteration of bearing between the Dream Star and her. She was required to keep clear of the Dream Star and pass astern of the Dream Star, and that was what happened.

  87. [72] Captain Phelan accepted that the Dream Star’s turn to starboard was to cross ahead of the Pioneer 93 at a distance of 1.7 cables at 12:20 and that manoeuvre would later on enable the Pioneer 93 to pass the Dream Star by her stern. Captain Phelan referred to a screenshot at 12:25 showing the Dream Star emerging from behind the Pioneer 93 on a heading of 284º with the Meghna Princess on her starboard side. It was only at 12:26 that the Dream Star was ahead of the Pioneer 93, and the tug cleared the Dream Star’s stern sometime after 12:27. Finally, I should mention Captain White’s view that in confined waters, it was acceptable seamanship for the Dream Star to cross ahead of a smaller tug travelling at a slow speed at a passing distance of 1.7 cables.

  88. [73] On the evidence, the Dream Star’s turn to starboard was also to allow the Dream Star to head in the direction of the Eastern Board Ground B to pick up her pilot. Based on the Dream Star’s AIS data, at 12:25, the pilot boat was 1.82 nm away, and by the time the first VHF conversation ended (before 12:26), the pilot boat’s distance from the Dream Star had closed to 1.42 nm.

  89. [74] It follows from the above that the Dream Star turned to starboard at 12:20 for two reasons: to create distance between the Pioneer 93 and herself, as well as to fetch her pilot from the pilot boarding ground. This was therefore not “erratic navigation and poor seamanship”, as the plaintiff alleges. This point is corroborated by how the bridge team was aware from as early as 12:17 that the Dream Star was going to the Eastern Boarding Ground B and that after clearing the Pioneer 93, the Dream Star would have turned to starboard to pick up her pilot (see below at [112]). I therefore find that there was no fault to be attributable to the Dream Star for her starboard turn towards the Eastern Boarding Ground B.

  90. Early and substantial action to keep clear

  91. [75] I now come to the second limb which is that the Dream Star as the give-way vessel ought to have taken early and substantial action to keep clear of the Meghna Princess. Both experts agree that at 12:25, there was still time to react before the collision occurred. With rule 8 (action to avoid collision) and rule 16 (give-way vessel to keep clear) in mind, the question therefore is this: what could the Dream Star have done at 12:25? Captain Phelan’s contention is as follows:

  92. [76] This view runs into two difficulties. First, given the close proximity of the two vessels, Captain White opined that a prudent master on board the Dream Star would not have considered the manoeuvre suggested by Captain Phelan since the Dream Star would have to pass very close ahead of the Meghna Princess. As Captain White explained in his report:

  93. [77] Captain White’s analysis above raises a plausible dilemma to Captain Phelan’s proposed manoeuvre that lacked substantiation. I accept Captain White’s expert evidence on this matter. In support of his view, he had produced an illustration of how a sharp right turn by the Dream Star would have panned out – ie, the Dream Star would have to pass very close ahead of the Meghna Princess. It should be noted that rule 8(d) of the COLREGS provides that action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. It bears repeating that Captain Phelan, on the other hand, had made a bald assertion and he had not supported his view with any diagrammatical analysis.

  94. [78] Second, it must be noted that at 12:25, the Pioneer 93 was still in the vicinity, between but slightly behind the Dream Star and the Meghna Princess – ie, the Pioneer 93 was at the starboard quarter of the Dream Star (see also [71]–[72] above). While Captain Phelan had referred to the close presence of the Pioneer 93 which persisted until the Dream Star steered clear of the Pioneer 93 at 12:27 (at 12:26, the Pioneer 93 had only come abreast of the stern of the Dream Star), he did not state whether his proposed manoeuvre took into consideration the presence of the Pioneer 93. Neither of the experts dealt with this factor at length, but it appears to me that as at 12:25, the Pioneer 93 had not cleared the Dream Star, and the experts ought to have clarified one way or the other whether the Dream Star could have put the helm hard to starboard and slowed down without creating again a precarious close-quarters situation with the Pioneer 93 and the barge in tow (the barge is not reflected in Captain White’s plots and there is no information as to the barge and the length of the tow line). On this point, rule 8(c) of the COLREGS, which states that if there is sufficient sea-room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it does not result in another close-quarters situation, is instructive. To be sure, it is not clear whether it was open to the Dream Star to simply reduce speed without altering course as well, especially since the Pioneer 93 had a barge in tow. Captain White had mentioned reduction of speed as an option under rule 8, but his conclusion was that it was not a realistic option since the Dream Star would require sufficient steerageway to maintain a steady course in the general direction of the traffic flow and the current at the time was coming from the port quarter of the Dream Star at about 1.0 knot. This point was not countered by Captain Phelan. The upshot of the above observations is that Captain Phelan’s proposed course of action is not feasible.

  95. Failure to keep a proper lookout

  96. [79] Rule 5 of the COLREGS stipulates that every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions. A proper lookout comprises the use of radar, including the use of ARPA in circumstances where it would be of assistance (see Marsden at para 5-184). In waters where numerous small ships may be encountered, an efficient radar lookout must be employed: The “Golden Mistral” [1986] 1 Lloyd’s Rep 407 at 413. On a related note, rule 7(b) states that proper use shall be made of radar equipment if fitted and operational to obtain early warning of risk of collision.

  97. [80] The defendant is not seriously disputing that the Dream Star had breached rules 5 and 7 of the COLREGS by failing to keep a proper lookout. This was clearly evinced by the crew’s inquiry as to the location of the Meghna Princess at 12:25:42 (see above at [21]). At trial, Mr Kuek made a veiled attempt to explain away this portion of the conversation with the contention that the bridge team of the Meghna Princess had misinformed the Dream Star that she was at her starboard bow when she was in fact at her starboard beam. This explanation is unsatisfactory because it does not address the suggestion, based on the Dream Star’s query, that she had not used her radar equipment to maintain a proper lookout or obtain early warning of risk of collision. It therefore follows that the Dream Star was in breach of rules 5 and 7(b) of the COLREGS. In fact, this was also Captain White’s expert evidence that the defendant quite rightly did not attempt to refute (see [40] above).

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