The “Tian E Zuo” [2018] SGHC 93

Introduction

This action arose out of two related collisions on 12 June 2014: (a) the plaintiffs’ vessel, the Arctic Bridge of the port of Malta and the Stena Provence of the port of Bermuda; and (b) the defendant’s vessel, the Tian E Zuo of the port of Hong Kong and the Stena Provence. As a result of the related collisions, the three named vessels sustained hull damage to varying extent. The plaintiffs and the defendant settled with the Stena Provence having accepted between themselves that the Stena Provence, a vessel at anchor, was not at fault at all for the related collisions. In the settlement, both the plaintiffs and the defendant assumed equal responsibility for the damage sustained by the Stena Provence. Notably, the settlement was without prejudice to the parties’ right to be indemnified by the other in respect of the claims by the Stena Provence. In this action, the plaintiffs contend that the defendant is wholly to blame for the related collisions whereas the defendant by counterclaim argues that the plaintiffs are responsible for the related collisions and must bear 100% blame.

The series of events culminating in the related collisions that occurred in Singapore waters, in the Western Petroleum Anchorage B, may be described as most unusual. The detailed facts will be narrated in due course. It suffices to say for now that, factually, the Arctic Bridge was a vessel underway when her port anchor or anchor chain entangled the port anchor or anchor chain of the Tian E Zuo, which was a vessel at anchor. The entanglement started an involuntary towage of the Tian E Zuo that culminated in the related collisions. The defendant contends that the involuntary towage effectively propelled the Tian E Zuo into contacting the Stena Provence twice. This judgment will discuss whether there were serious faults in respect of each vessel. In terms of causative potency and blameworthiness, is one party wholly to blame or is one party by far the most at fault. The plaintiffs’ case is founded on the negligence of the Tian E Zuo in permitting the vessel to drag her anchor initially and that the earlier anchor drag triggered a chain of events that culminated (about one hour 20 minutes later) in the Arctic Bridge’s involvement in the related collisions. The plaintiffs’ reliance on the “but for” test focuses on earlier events and that test will be examined in the light of their argument that there was no break in the chain of events, seeing that the Arctic Bridge was forced to move away from her safely anchored position and had to dredge her port anchor because of the Tian E Zuo. If the court finds that there were faults on the part of the Arctic Bridge, the plaintiffs will rely on the defence of agony of the moment. Whether it applies to the two occasions identified by the plaintiffs’ expert witness will be examined. If the court, on the evidence, is unable to determine the extent of the parties’ blameworthiness, then liability would be apportioned equally under section 1(1) of the Maritime Conventions Act 1911, (Cap IA3, 2004 Rev Ed) (“Maritime Conventions Act”).

All time references in this judgment are to Singapore local time (UTC +8). I note that the time points used in the various sources for the occurrence of certain events appear to differ between the parties. However, nothing turns on the differences since the exact timing of the occurrences are immaterial to the outcome of this action.

Background facts leading to the dispute

The vessels and her crew

As stated, the related collisions involved first the Stena Provence and the Tian E Zuo, and second the Stena Provence and the Arctic Bridge. Prior to the related collisions, there was an earlier collision that involved the Tian E Zuo, the Marine Liberty and the DL Navig8. This earlier collision is not placed before this court as an issue for determination in the present case. The Marine Liberty is a bunker barge that was supplying bunkers to the Tian E Zuo at the material time. The Marine Liberty was still securely moored to the Tian E Zuo when the latter’s anchor dragged in the prevailing squall. The two vessels drifted into close proximity with the DL Navig8, an oil tanker with a gross tonnage of 30,964 tonnes, breadth of 32.23 metres and an overall length of 189 metres. At 0308 hours the Marine Liberty collided with the DL Navig8. Subsequently, at about 0314 hours, the Tian E Zuo collided with the DL Navig8. As a result, these three vessels became hampered by the presence of each other in a way that prevented them from unilaterally manoeuvring to clear and break free. This predicament was the state of affairs that existed from 0330 hours until sometime between 0402 and 0406 hours. The Marine Liberty was freed at about 0402 hours. It is not clear precisely when the DL Navig8 could safely move away from the Tian E Zuo. It could have been any time from 0402 hours to 0406 hours.

The Arctic Bridge is a Korean built chemical/oil tanker, constructed in 2005. She has a gross tonnage of 30,053 tonnes, a breadth of 32.2 metres, and an overall length of 183 metres. She is also equipped with a bow thruster of power 950 kW. She was partly loaded with 19,543 tonnes of gasoline at the material time. Two members of her crew testified at the trial. They are: the master of the Arctic Bridge, Captain Erik Khuzhin (“Captain Khuzhin”), and the chief officer, Alexander Ignatyuk.

The Tian E Zuo is a newer and larger Chinese built chemical/oil tanker. She was constructed in 2012, has a gross tonnage of 43,718 tonnes, breadth of 32.26 metres, and an overall length of 228.6 metres. She was loaded with 56,114.984 tonnes of naphtha at the material time. Four members of her crew testified at the trial. They are: (a) the master of the Tian E Zuo, Captain Zou Zhizi (“Captain Zou”), (b) Wu Binggao who was the chief officer, (c) Liu Bo the second officer, and (d) Zhang Guangyan (“Zhang”), an able-bodied seaman.

Relative position of the vessels prior to 0247 hours

All the vessels mentioned earlier were in the Western Petroleum B Anchorage at the time the Tian E Zuo dragged her anchor. The movement of vessels in the anchorage falls under the oversight of West Control of the Maritime and Port Authority of Singapore (“West Control”). It is not disputed that the anchorage was congested at the material time. The Tian E Zuo was anchored by a single port anchor, six shackles deep. She had a north-westerly heading. The Marine Liberty was made fast to her starboard side. To the north of the Tian E Zuo was the anchored vessel, the Kingfisher, to the east was the DL Navig8 and slightly further out north-east was the Arctic Bridge.

The plot in Annex 1 depicts the relative locations of the six vessels (including the Kingfisher and the Stena Provence) on 12 June 2014 at 0239 hours. This plot was produced by the defendant’s expert, Mr Hakirat Singh s/o Harnek Singh (“Mr Singh”), using Automatic Identification System (“AIS”) data. For context, an AIS is a device that transmits information regarding a ship’s position to a network to allow maritime authorities to track and monitor vessel movements. I have also included other plots (also from Mr Singh’s report) illustrating the position of the vessels at different time periods in this judgment as a graphical reference. These other plots were drawn up with information from the Voyage Data Recorders on board the Arctic Bridge, the Tian E Zuo and the Stena Provence. These Voyage Data Recorders store, in a secure and retrievable form, information regarding the movement and control of a ship over the period leading up to and following an incident (“VDR”). While these plots are useful, I am mindful of what I have said in The “Dream Star” [2018] 4 SLR 473 at [13] (“The Dream Star”); that they show what might have happened, not what did happen. The same comments equally apply to the defendant’s video which is supposedly a video replay compilation using extracted VDR data from the VDRs of the Arctic Bridge and the Tian E Zuo. I will elaborate on this video below.

Weather and tide conditions

At 0245 hours, in the light of a developing squall, West Control broadcasted a warning to all ships announcing that “the area [was] experiencing strong winds [, and advised] all vessels … to keep a good anchor watch”. Both experts agreed that the sea was slight to rough after the onset of the squall.

According to the defendant’s Preliminary Act, the squall lasted from 0245 hours to 0320 hours. While there was a squall, visibility was moderate. Those on board the Arctic Bridge and the Tian E Zuo were able to visually see each other for the most part of the entire incident. While Captain Khuzhin claimed that visibility was reduced to a mile, he could nonetheless visually observe that the stern of the Tian E Zuo had collided with the bow of the DL Navig8 and that both vessels were dragging astern together. He also was able to see that at about 0330 hours, the Tian E Zuo had stopped dragging astern with the DL Navig8 but the Tian E Zuo’s bow started to turn starboard towards the Arctic Bridge. Captain Khuzhin estimated the distance between his vessel and the Tian E Zuo to be about 70 metres. However, Mr Singh has calculated the distance to be 95 metres based on VDR data.

Both experts agreed that the tidal steam direction was towards 119° true with a rate ranging 1.25 knots to 1.62 knots between 0245 hours and 0430 hours. While there was initially some dispute over the prevailing wind direction at the material time, I have accepted the prevailing wind direction to be, generally, westerly to south-westerly after 0246 hours. This was the direction stated by the experts in their joint statement.

As stated, the Tian E Zuo dragged her anchor in the early morning of 12 June 2014 during a squall. The plaintiffs’ expert witness, Captain Jonathan Mark Walker (“Captain Walker”) in his supplemental report depicted Captain Khuzhin taking navigational decisions “in a situation where it was dark, heavy rain, strong winds and in a very congested anchorage with another vessel nearby dragging its anchor and colliding”. He appeared to suggest that these same conditions prevailed even at 0337 hours, after the squall ended. Captain Walker’s description of the conditions, however, is inconsistent with the other evidence before the court. In his earlier report, Captain Walker said that the winds had abated to a fresh breeze at 0337 hours. Further, the plaintiffs’ Preliminary Act records the visibility as moderate and Captain Khuzhin himself said that he could observe other vessels a mile out prior to 0337 hours.

Factual narrative

The Tian E Zuo started to drag her port anchor at about 0247 hours. Along with the Marine Liberty secured by mooring lines to her starboard side, the Tian E Zuo moved astern in the direction of the DL Navig8. At about 0300 hours, the Tian E Zuo’s engines were set at dead slow ahead followed by slow ahead in an attempt to stop her astern movement. However, at about 0308 hours, the Marine Liberty collided into the DL Navig8 and thereafter, at about 0314 hours, the Tian E Zuo contacted the DL Navig8. The Tian E Zuo’s engines stopped around the time of her contact with the DL Navig8. From the communication between the respective vessels and West Control, it is apparent that the three vessels could not unilaterally move apart – their respective mooring line(s) and anchor chain(s) had either become entangled or could become entangled as the vessels were too close to each other. The Tian E Zuo’s stern on the starboard quarter was close to the DL Navig8’s bow. The Tian E Zuo could not use her engines to move away for fear of entanglement as her propeller was too close to the anchor chain of the DL Navig8.

As the Tian E Zuo, together with the Marine Liberty and the DL Navig8, continued to drift across the anchorage, the Tian E Zuo, at about 0320 hours, dropped her starboard anchor. However, despite both anchors being in the water, the three vessels continued to drift together towards the Arctic Bridge. At 0330 hours, the drifting ceased and the three vessels came to a stop.

The Arctic Bridge had already noticed these three vessels drawing near and was making preparations to move away. At 0317 hours to 0320 hours, Captain Khuzhin ordered the chief officer to get the engines ready. At 0325 hours, the order to heave the Arctic Bridge’s port anchor was given and the order was carried out at 0329 hours. Eventually, this activity at the port anchor was abandoned as it was not possible to recover the remainder of the anchor chain in sufficient time and approximately three shackles of anchor cable remained in the water. At 0329 hours, her engines were ready. According to Captain Walker, just after 0331 hours, the engines were set to dead slow ahead. By 0333 hours, the Arctic Bridge was said to be “moving clear” of the Tian E Zuo. During the conversation with West Control (starting at 0334 hours), the Arctic Bridge confirmed to West Control that she would be able to shift north-west to another location to anchor.

It is useful to set out the Very High Frequency (“VHF”) conversation between West Control and the Arctic Bridge:

The Arctic Bridge was to pass north of an anchored vessel, the Kingfisher and proceed north-west. However, the Arctic Bridge was not able to do so and moved instead towards the Kingfisher. In order to avoid a collision with the Kingfisher, Captain Khuzhin said that at about 0337 hours, he ordered slow ahead on the engines and hard to port on the helm. According to the plaintiffs, as the Arctic Bridge turned to port, her bow went through the wind and the tidal stream. With her movement somewhat hampered by the action of the dredging port anchor, the Arctic Bridge was set towards the Tian E Zuo in a south-easterly direction, astern. In going astern, the Arctic Bridge crossed the bow of the Tian E Zuo at about 0343 hours. Subsequently, at about 0346 hours, the Arctic Bridge’s engines were put to slow ahead. Moving ahead, she passed the bow of the Tian E Zuo a second time. At about 0349 hours, the Arctic Bridge cleared the bow of the Tian E Zuo. According to the plaintiffs, the Arctic Bridge’s intention was to increase her distance between the Tian E Zuo, the Marine Liberty and the DL Navig8. The plaintiffs also indicated that 0350 hours was the most likely time at which the two vessels’ anchors or anchor chains became entangled. The entanglement resulted in the Tian E Zuo being towed by the Arctic Bridge for about 20 minutes whilst she proceeded north-west from about 0350 hours. Captain Khuzhin’s affidavit evidence-in-chief stated that, at about 0408 hours, the Arctic Bridge was parallel to the Stena Provence at a distance of about 50 metres. At 0410 hours, the bow of the Tian E Zuo collided with the port quarter of the Stena Provence at a speed of about 3 knots over the ground. The impact caused the bow of the Stena Provence to turn to port, towards the Arctic Bridge. At about 0411 hours, the port bow of the Stena Provence made contact with the Arctic Bridge. At the time of the collision, the Arctic Bridge was on a heading of about 284°. The Arctic Bridge maintained her forward movement, towing the Tian E Zuo along after the contact at 0411 hours. As a result, a second collision occurred between the Tian E Zuo and the Stena Provence at about 0427 hours. The Arctic Bridge contend that there was also a second collision between the Arctic Bridge and the Stena Provence. The defendant do not accept this as the second collision was not pleaded at all.

I conclude the summary of the factual narrative with a few observations. First, the entire sequence of events spanned over the course of about one hour 40 minutes, from 0247 hours to 0430 hours, on 12 June 2014. Secondly, although the Arctic Bridge was dredging her anchor, she was a vessel underway since 0333 hours. In contrast, the Tian E Zuo was a vessel at anchor from 0330 hours up until the time the involuntary towage started at 0350 hours (see [57] below). That the Tian E Zuo became a vessel underway during the period of the involuntary towage will be examined below. Finally, while there were events that occurred after 0430 hours, such as the Arctic Bridge slipping anchor after the related collisions to move away from the Tian E Zuo, these events are not material to the question of fault of the two vessels.

Preliminary evidentiary matters

Expert opinion

Divergence in expert opinion

Each side called expert evidence on matters of seamanship. The plaintiffs called Captain Walker and, as mentioned, Mr Singh was for the defendant. In urging the court to accept Captain Walker’s views, the plaintiffs compared Mr Singh’s expertise and experience with that of Captain Walker. Their point is that unlike Mr Singh, Captain Walker is an experienced mariner of 18 years who has had the opportunity to command a ship as a master and that his voice of experience should be given weight.

Despite the comparison, the plaintiffs did not object to Mr Singh being expert witness. Put simply, the plaintiffs in accepting Mr Singh as an expert to testify in this case were satisfied that the requirements of section 47(2) of the Evidence Act (Cap 97, 1997 Rev Ed) were met. The sub-section provides that a person is qualified to be an expert if he has “scientific, technical or other specialised knowledge based on training, study or experience” [emphasis added]. In Mr Singh’s case, he acquired his expertise as a master mariner having undergone a formal course of study in nautical science to attain his qualifications, and experience through practice in the course of his work. In brief, Mr Singh has been a Master Mariner (Singapore, Class 1) since 2000. He received training at Singapore Polytechnic in Nautical Studies, and much later pursued further education and training as an expert witness at Bond Solon Cardiff University. He has also conducted a number of casualty investigations (no less than ten instances). I note, in particular, that for some of these investigations, Mr Singh has had to interpret AIS data; data which he is called upon to interpret in the present dispute.

The plaintiffs’ objections actually relate to how the court resolves conflicting opinions of expert witnesses. One approach is to consider whether the nature of the issue in question falls within the expert’s particular area of expertise. Yong CJ in Tan Mui Teck v Public Prosecutor [2003] 3 SLR(R) 139 at [11] explained that weight may be assigned to the opinion of an expert where his familiarity with a subject is a relevant (though not sole) consideration. When an opinion on navigation of a vessel following the International Regulations for Preventing Collisions at Sea (“COLREGS”) (see the Merchant Shipping (Prevention of Collisions at Sea) Regulations (Cap 179, Rg 10, 1990 Rev Ed), The Schedule) and the dictates of good seamanship is firmly within the realms of navigational judgment, Captain Walker may have an edge over Mr Singh. However, the court will ultimately assess an expert’s opinion in the round, taking into account the independence of the expert and the underlying factual matrix of the case. In this case, for the reasons explained below, the differences of opinion of the experts, in most instances, could be resolved without preferring one view over the other. The differences of opinion between the experts did not have any material influence on the outcome of this action.

An expert’s involvement in the casualty investigations

The plaintiffs submit that little or no weight should be ascribed to Mr Singh’s evidence as he had “a clear conflict of interest” in acting as an expert in the proceedings. He was criticised for failing to disclose his prior involvement in conducting casualty investigations on behalf of the defendant. There is no merit in the plaintiffs’ assertions. First, Mr Singh did disclose his involvement in the casualty investigations on at least two instances. It is only necessary to refer to the disclosure in Mr Singh’s affidavit dated 1 July 2017 at paragraph 2: “I was involved in the investigations into the collisions between the vessels “STENA PROVENCE” and “TIAN E ZUO” and between “STENA PROVENCE” and “ARCTIC BRIDGE”” [emphasis added]. Second, unlike the expert in The Dream Star (see at [34]), Mr Singh had not improperly supplemented the factual evidence of the crew in his testimony. His evidence was limited to his opinion of the case based on his expertise.

The Avenca video

The defendant had identified discrepancies between the video and the VDRs and wished to cross-examine Dr Baines. As it transpired, the defendant’s stance on the matter was not unreasonable. At the trial proper, Dr Baines provided, in his supplemental affidavit of evidence-in-chief, additional information which sought to explain the discrepancy in the rudder angles. This was also the first matter he addressed in the witness box. He explained that there was incomplete information at the time when the video was made in 2015 and since then, had discovered the additional information contained in his supplementary affidavit:

What was put in the video was only information of the rudder sensor angles and not the rudder orders as well. Instead of remaking the video with both information, Dr Baines explained that one would have to look at the video with the added graph from his supplemental affidavit. The graph shows a 7–8° variance in the rudder angle.

Dr Baines also accepted that the information that his company put in the video to produce a reconstruction of the events leading to the related collisions was not based entirely on the VDR data of the Arctic Bridge and the Tian E Zuo alone. For example, the anchoring circles around the bow of each vessel was not from the VDR data. It was based on information from the instructing lawyers and Dr Baines confirmed that he was in no position to verify the information given. In short, Dr Baines had used the information at face value to make the video.

In making the video, the defendant would not have had an opportunity to witness the reconstruction and is at liberty to test the common assumptions and premises. The Avenca video is demonstrative or illustrative evidence − demonstrative evidence is not the same thing as real evidence that has independent probative force especially where the basic facts have been proved in the usual way. Thus, “[t]he person who prepared the demonstrative evidence must be called or be available for cross-examination” to vouchsafe its accuracy or fidelity (see Halsbury’s Laws of Singapore Vol 10 and 10(2) (LexisNexis Singapore, 2016) at para 120.368).

Other preliminary matters

Arguments on pleadings

Both sides objected to certain submissions made by the other party on grounds of pleadings. For the plaintiffs, it was the defendant’s reliance on novus actus interveniens. For the defendant, it was the plaintiffs’ submissions on the incompetence of the Tian E Zuo’s crew and lack of bridge team management.

I start with the plaintiffs’ objection to the defendant’s reliance on novus actus interveniens in their closing submissions. The objection on grounds of pleadings is surprising when the plaintiffs have clearly shown themselves to be sufficiently apprised of novus actus interveniens as an issue in their two earlier lead counsel’s statements (ie, 20 April 2017 and 2 May 2017) and later, in their opening statement for the trial.

I need only refer to one of the lead counsel’s statements and propose to quote the second lead counsel’s statement dated 2 May 2017 where counsel for the plaintiffs, Ms Magdalene Chew (“Ms Chew”), indicated the following as one of the “[a]dditional [i]ssues according to [the] Plaintiff[s]”:

Shortly thereafter, the plaintiffs filed their opening statement on 9 May 2017. Far from suggesting that they were taken by surprise, the plaintiffs developed substantive arguments along the following lines in their opening statement:

The paragraphs quoted above show that the plaintiffs have discerned a case of novus actus interveniens from the events pleaded in the defendant’s Preliminary Act. There is no merit in the plaintiffs’ objection on grounds of pleadings raised in closing submissions. It cannot be said that the plaintiffs were taken by surprised by the legal conclusion derived from the various intervening events pleaded and it is puzzling why an objection on pleadings is taken at all. As a matter of pleadings, the words of a legal defence need not be specifically pleaded (V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam [2015] 5 SLR 1422 (“V Nithia”) at [43]). Order 18, r 11 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) makes clear that a party may by his pleadings raise any point of law. It is sufficient that the pleadings disclose the material facts so as to give the opponent fair notice of the substance of a case (V Nithia at [43]).

I now turn to the defendant’s objection to the plaintiffs’ submission on the incompetence of the crew on board the Tian E Zuo. The defendant observed in its reply submissions that:

The plaintiffs’ pleaded case against the defendant was directed at the negligence of the crew. At first blush, the plaintiffs’ arguments on the crew’s lack of competency that rendered the crew unsuitable for the role on board in their closing submissions appeared to blur the distinction between negligence and incompetence. Ordinarily, “[i]ncompetence is to be distinguished from negligence” (The “Eurasian Dream” [2002] Lloyd’s Rep 719 at [129(3)]). The incompetence of a crew generally refers to the inadequate ability, training or proficiency of the crew. It usually goes towards issues relating to the seaworthiness of a vessel. Negligence, on the other hand, is concerned with whether the crew had acted in the manner that has fallen short of the standards expected of a seaman of ordinary care and skill in a given situation. While confusingly labelled as the crew’s incompetence, the “incompetence” of the crew on board the Tian E Zuo is liken to negligence in the circumstances and hence could be termed as negligence.

As regards the defendant’s objection to the plaintiffs’ closing submissions on the lack of bridge management, the plaintiffs in their closing submissions accepted that lack of bridge management was not a pleaded issue. Curiously, they urged this court to make a finding on lack of bridge management on the back of the following argument:

Having not sought leave to amend the pleadings in the course of the trial, the plaintiffs’ submission that the court could make a finding on an issue that is not pleaded is plainly wrong.

The plaintiffs’ reliance on the “but for” test

The plaintiffs’ case is that the Arctic Bridge was forced to extricate herself from a situation of danger created by the negligence of those on board the Tian E Zuo and that the negligence set off a chain of events which culminated in the related collisions. Their approach is that but for the Tian E Zuo dragging anchor and coming close to the Arctic Bridge, the latter would not have been forced to manoeuvre from her safely anchored position. Thus what happened thereafter was causative of the defendant’s negligence as the entire sequence of events was one continuous incident.

The defendant who is represented by counsel, Mr Loo Dip Seng (“Mr Loo”), argues that the Tian E Zuo’s anchor drag was causatively irrelevant to the related collisions. The Tian E Zuo’s anchor drag started at 0247 hours but the Tian E Zuo stopped dragging and drifting at 0330 hours. In short, the Tian E Zuo was a vessel at anchor, and what happened after 0330 hours were the consequences of the acts or omissions of the Arctic Bridge as the vessel underway in the anchorage. The Arctic Bridge entangled the Tian E Zuo’s anchor or anchor chain by 0350 hours and towed the Tian E Zuo for about 20 minutes before she was propelled towards the anchored vessel, the Stena Provence. That the Arctic Bridge created the situation described is relevant for it will assist in determining the relative causative potency of each of the vessel’s fault. This consideration is different from the plaintiffs’ reliance on the “but for” test.

It is convenient to deal with the plaintiffs’ reliance on the “but for” test at this stage bearing in mind that acceptance of this test as advocated by the plaintiffs would mean that the defendant’s negligence in permitting the Tian E Zuo to drag her port anchor at 0247 hours is as a matter of fact and of law the single effective cause or even chronologically the last cause of the related collisions that occurred between the Stena Provence and the Tian E Zuo at 0410 hours, the Stena Provence and the Arctic Bridge at 0411 hours, and a second contact between the Stena Provence and the Tian E Zuo at 0427 hours. There might have been another second contact between the Stena Provence and the Arctic Bridge but this collision, as stated, did not feature in the plaintiffs’ Preliminary Act.

There are two limitations with the “but for” test. The first is that there are exceptions to the “but for” test. The second is that the “but for” test is concerned with factual causation; there is a further need to establish legal causation.

On the first point, the commentary in Marsden and Gault on Collisions at Sea (Sweet & Maxwell, 14th Ed, 2016) (“Marsden”) is helpful. Marsden observed that “[a]lthough in general the principle is that a defendant is liable for damage only if it would not have happened but for his fault, this is not invariably so”. One instance where the “but for” test would be insufficient is where there are multiple causes arising from the faults of the claimant and defendant (see Marsden at para 15-005).

As stated, the plaintiffs have premised their case on a single causative event and criticises the defendant for “chop[ping] up” the sequence of events leading up to the related collisions. I disagree with the plaintiffs’ criticisms as the defendant was simply identifying the existence of other causal events that were left out in the plaintiffs’ analysis. Whilst the defendant accepts that the Tian E Zuo had dragged anchor, the defendant drew attention to the other events that played out after the Tian E Zuo’s initial negligence. By 0330 hours, the Tian E Zuo had become an anchored vessel. At the same time, she could not move away unaided as she had at her stern the Marine Liberty and the DL Navig8. Factually, the Arctic Bridge was the only vessel underway in the vicinity of the Tian E Zuo. Given how the Tian E Zuo ended up contacting the Stena Provence, how and why the related collisions happened are relevant matters of fact and law which the plaintiffs have not factored in their reliance on the “but for” test. I will elaborate on this below. For present purposes, it is necessary to assess as a matter of fact, the causal effect of the Tian E Zuo’s negligence arising from her dragging anchor on the subsequent manoeuvres of the Arctic Bridge.

According to Captain Walker, the Tian E Zuo commenced dragging anchor at about 0247 hours. She dragged astern and eventually collided into the DL Navig8. At about 0313 hours, the Tian E Zuo, the Marine Liberty and the DL Navig8 tracked towards the Arctic Bridge. Once it became clear that a close quarters situation was developing between the three vessels and the Arctic Bridge, the chief officer on board the Arctic Bridge alerted Captain Khuzhin of the situation at 0317 hours and he started making preparations to move. However, Captain Walker’s report stated that while there was “sufficient concern on ‘ARCTIC BRIDGE’ for the crew to prepare the engine … the risk of collision had dissipated when the ‘TIAN E ZUO’ subsequently drifted to the south east”. Arguably, this assessment goes against the plaintiffs’ depiction of the Arctic Bridge as a vessel that was thrust into a situation of danger that continued to operate throughout until the occurrence of the related collisions. On this alone, it follows that the initial negligence of the Tian E Zuo can hardly be said to have an influence over the subsequent manoeuvres taken by the Arctic Bridge.

Captain Walker, however, indicated a reappearance of a risk of collision between the Tian E Zuo and the Arctic Bridge at about 0327 hours. Captain Walker said that at about 0327 hours, an order to heave port anchor was recorded on the Tian E Zuo’s VDR transcript and that the heaving of the port anchor caused the vessel to move in a north-westerly direction, across a distance of 86 metres, towards the Arctic Bridge. With that in mind, Captain Walker described 0327 hours as a critical period because from about 0327 hours, “[a] risk of collision … returned when those on ‘TIAN E ZUO’ decided to weigh their deployed port anchor”. This risk of collision was then said to be the reason for the Arctic Bridge having to move away from her anchored location and the consequential difficulties that followed:

In other words, but for the Tian E Zuo coming close, the Arctic Bridge would not be forced to dredge her anchor to move away from her anchored location and consequently, would not have experienced the various problems relating to the dredging of the anchor.

Mr Singh, in response, pointed out several problems with Captain Walker’s analysis:

I agree with Mr Singh. First, the allegation that the Tian E Zuo had heaved anchor at about 0327 hours was not seriously pursued at trial. Secondly, Mr Singh’s point that as a matter of physics, an attempt at heaving the port anchor would cause the Tian E Zuo’s bow to swing to port rather than starboard was not rebutted. Thirdly, in any event the Tian E Zuo ceased drifting by 0330 hours and this was noticed by Captain Khuzhin. Thus, even if there were an initial danger, this would have ceased after 0330 hours when the Tian E Zuo stopped drifting and the Arctic Bridge herself started to manoeuvre clear. The actions the Arctic Bridge took after West Control’s VHF conversation at 0334 hours would not have operated under the same circumstances as when the Tian E Zuo was initially observed to have dragged anchor towards the Arctic Bridge. By 0336 hours, the Arctic Bridge had managed to put some distance between the vessels but at 0341 hours, the Arctic Bridge stopped her engines which caused her to be set back onto the Tian E Zuo. With that set back, the distance between the two vessels was closer than when the Arctic Bridge had initially moved away from her anchored position. From 0343 hours to 0350 hours, the Arctic Bridge took a course that led to her fouling the anchor or anchor chain of the now anchored Tian E Zuo. Having failed to fully appreciate the fouling and picking up of the anchor or anchor chain of the Tian E Zuo, the Arctic Bridge ended up towing the Tian E Zuo into the port quarter of the Stena Provence. By reason thereof, new circumstances developed from the Arctic Bridge’s manoeuvres. In other words, factually, new causal events arose.

The second point on the limitations of the “but for” test relates to legal causation. Causation is made up of two elements – factual and legal causation. While factual causation is an important starting point to any inquiry of causation, it is not the end. Factual causation alone is insufficient to satisfy the second element of legal causation. The interplay between factual and legal causation was enunciated by the Court of Appeal in Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782 at [52]–[54]:

As highlighted by the Court of Appeal, a single act or omission may set in motion a chain of events that provides a factual link between the initial negligence and eventual damage. That said, the court must still determine the legal cause to attribute responsibility.

In my view, the problem with the plaintiffs’ case is their approach to the question of causation. They have focused on one single event as the primary causal fault, downplaying other significant events that demonstrate that this is a case involving multiple faults each capable of contributing to the related collisions. In doing so, they have assumed that factual causation as advocated would satisfy legal causation when this is not the case. The position as described is borne out in the plaintiffs’ closing submissions and Captain Walker’s reports. The upshot of this is that Captain Walker expressed minimum views on the entanglement of the anchors or anchor chains of the Arctic Bridge, a vessel underway, and the Tian E Zuo, which was still at anchor, and the subsequent involuntary towage of 20 minutes leading to the related collisions. Expert’s opinion of the events on or after 0350 hours are to be gathered from Mr Singh’s reports. That said, I will have to weigh his evidence together with all the overall evidence when examining the matter.

Finally, there is one other related point, namely, the defendant’s reliance on novus actus interviens raised in response to the plaintiffs’ primary case that the initial negligence of the Tian E Zuo was the direct cause of the related collisions. For all the reasons stated in this judgment, it is not necessary to deal with the doctrine in this case.

I now turn to the various allegations of faults.

Faults of the Arctic Bridge

The defendant draws a distinction between a vessel underway and a vessel at anchor. This distinction is important. A vessel underway is bound, as a matter of seamanship, to keep clear of a vessel at anchor (see Marden at para 4-036; The “Viper” [1926] 24 Ll L Rep 10 at 11). Indeed, this flows from one of the most important principles underlying good seamanship – the duty to avoid, so far as possible, a close quarters situation (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 (“MCC Jakarta”) at [72]).

The Hong Kong Court of First Instance in the MCC Jakarta explained the structure, purpose and objective of the COLREGS as follows (at [71]):

Captain Walker references rule 2 of the COLREGS in his report since he regarded the events in this case as exceptional. Rule 2 reads as follows:

I can do no better than to adopt the explanation of Rix J in The “Navios Enterprise” and “Puritan” [1998] 2 Lloyd’s Rep 16 on this rule. After setting out rule 2 in full, Rix J said at 24:

Rule 3 sets out the general definitions of the COLREGS. Rule 3(i) defines a vessel “underway” as a vessel that is not at anchor, or made fast to the shore, or aground. Hence, a vessel at anchor in the context of the COLREGS is simply a vessel that is made fast to the seabed by her anchor. Indeed, in the case of The “Palembang” [1929] 34 Ll L Rep 5 (“The Palembang”), the court there held that a vessel at anchor is a vessel that is “actually holden by and under the control of her anchor” (at 111).

I accept Ms Chew’s submission that the Tian E Zuo was not a ship at anchor during the time she dragged her anchor in the prevailing squall (see The “Pearl” [2003] 2 Lloyd’s Rep 188 at [46]). It is not disputed that the Tian E Zuo was a vessel at anchor from 0330 hours until 0350 hours. During this period, she had two of her anchors in the water. In contrast, the Arctic Bridge was a vessel at anchor before the period 0331 hours and after 0333 hours through to the related collisions, she was a vessel underway. I will explain later why I consider the Tian E Zuo to be a vessel underway during the period of the involuntary towage (see [161]–[160] below).

Mr Loo, on behalf of the defendant, accepts that the Tian E Zuo failed to prevent herself from dragging anchor towards the DL Navig8 and that she collided with the DL Navig8 at 0314 hours. Mr Loo also accepts that there was poor lookout on board the Tian E Zuo during this period, in breach of rule 5 of the COLREGS (see [95] below), but say that these faults did not result in the entanglement of the anchors or anchor chains of the two vessels, the Arctic Bridge and the Tian E Zuo. The defendant further submits that the faults in navigation and seamanship that arose after 0330 hours fall entirely on the Arctic Bridge as the vessel underway.

Mr Loo’s concessions on the faults identified in [58] above were proper. With these faults in mind, I turn to the experts who were of the opinion that it was reasonable for the Arctic Bridge to move from her anchored position with three shackles of her anchor chain in the water. The implication of this opinion is that the experts accept that the Arctic Bridge’s preparation to move away and her manoeuvres before 0334 hours were reasonable.

That said, the Arctic Bridge’s manoeuvres and Captain Khuzhin’s decisions on navigational matters should be examined against the backdrop of the VHF conversation between West Control and the Arctic Bridge starting from 0334 hours, and the decision of the Arctic Bridge to shift to another location in the anchorage. As stated above, Captain Khuzhin noticed that the Tian E Zuo had stopped drifting by 0330 hours. At 0334 hours to 0335 hours, any close quarters situation or risk of collision apprehended earlier by those on board the Arctic Bridge would have abated, judging from the VHF conversation with West Control (see [16] above). It would appear that the Arctic Bridge’s decision to shift to a new location to anchor was not because the Tian E Zuo was posing any immediate risk of collision. West Control’s intention at that time was to give the Tian E Zuo sea room to free herself from the Marine Liberty and the DL Navig8. I have already set out the transcript of the VHF conversation between West Control and the Arctic Bridge (see [16] above). In that conversation, the Arctic Bridge was told that the Tian E Zuo together with the two other vessels could not extricate themselves from the aftermath of an earlier collision. I also note that, at the trial, Captain Khuzhin accepted the reason for West Control’s request to the Arctic Bridge to shift was to give sea room to the Tian E Zuo to move away from the DL Navig8 and the Marine Liberty. For completeness, I now set out the certified translated VDR transcript tendered by the plaintiffs between West Control and the Tian E Zuo:

West Control also informed the DL Navig8 that “the ARCTIC BRIDGE [would be] shifting further north … [to] give sufficient space to the TIAN E ZUO” and that the Tian E Zuo would thereafter move.

Now it is clear that West Control had twice checked with the Arctic Bridge whether she was “confident” to shift to another location on her own, and the Arctic Bridge’s reply was in the affirmative (see [16] above). Having seen West Control make similar queries of the Marine Liberty, the DL Navig8 and the Tian E Zuo in previous conversations, I interpret this query “to shift on your self” (sic) to mean without pilot on board. It was open to the Arctic Bridge to request pilot assistance if she needed it. In addition, the Arctic Bridge told West Control that she was heaving her anchor when in reality she did not complete the task and instead manoeuvred with three shackles of her anchor chain in the water. Thus, to focus on the Tian E Zuo’s initial negligence without considering these further aspects of the case underscores the defendant’s point on why the present case, after taking into consideration the overall events, is not one involving a single continuous chain of events that originated from the Tian E Zuo’s initial negligence. The Arctic Bridge’s faults, if any, must be viewed against the aforementioned circumstances.

The parties had devoted considerable time and effort in examining the Arctic Bridge’s manoeuvres from 0334 hours to 0336 hours. According to Captain Khuzhin’s affidavit of evidence-in-chief, the manoeuvre to head north-west brought the ship “into the wind”. He ordered starboard 25° on the helm and the engines remained slow ahead. He tried to maintain a heading of about 300° to clear the Kingfisher. However, at about 0336 hours, despite the starboard helm ordered, he noticed that the Arctic Bridge had an approximately 10° rate of turn to port in the direction of the Kingfisher. He thus ordered the engines to stop as he was concerned with colliding into the Kingfisher. Shortly after 0337 hours, he ordered slow ahead and the helm hard to port. He decided that it would be safer to pass to the south of the Kingfisher instead. As a result, the Arctic Bridge found herself in a passage between the stern of the Kingfisher and the bow of the Tian E Zuo.

The Arctic Bridge’s difficulty in tracking north to a new anchor location north-west of the Kingfisher and the reasons for the difficulty– whether it was the Arctic Bridge’s dredging anchor action that affected her manoeuvrability or the speed at which she was proceeding on (dead slow ahead) or Captain Khuzhin’s decision not to use the bow thruster, among other things – are matters not determinative of the outcome this case. Hence, it is unnecessary for this court to make a finding on Captain Khuzhin’s seamanship or any breach of the rules in the COLREGS between 0334 hours to 0336 hours. This is because any finding on this point would simply serve to answer the question of why the Arctic Bridge found herself in the passage between the stern of the Kingfisher and the bow of the Tian E Zuo rather than answer the key question as to why the related collisions occurred and who would be legally responsible for the occurrences. In this regard, it bears mentioning my view that the “but for” test as advocated by the plaintiffs does not answer the key question. The overall events show that this case is not one involving a single continuous chain of events that stemmed from the Tian E Zuo’s initial negligence. In addition, only faults that are causative are relevant. Not every breach of seamanship or the COLREGS would give rise to a finding of causative fault (The Dream Star at [49]).

I now turn to the events that occurred after 0336 hours. The Arctic Bridge had abandoned the plan to clear north-west of the Kingfisher and Captain Khuzhin purportedly decided to clear south of the Kingfisher (see [70] below). As mentioned, Captain Khuzhin adjusted his rudder from starboard to helm hard to port shortly after 0337 hours and ordered slow ahead. Between 0338 hours to 0339 hours, Captain Khuzhin ordered midships on helm. In his affidavit of evidence-in-chief, Captain Khuzhin explained that he did so having satisfied himself that the Arctic Bridge had cleared the Kingfisher. However, as the Arctic Bridge turned to port, her bow passed through the wind and at about 0339 hours, the wind was almost at her starboard beam. As a result, the Arctic Bridge began to set bodily to the south-east in the direction of the Tian E Zuo. The defendant submits that the Arctic Bridge was at fault for failing to proceed south to clear the stern of the Kingfisher but instead continuing her turn to port, moving towards the Tian E Zuo. In the defendant’s view, this constituted a breach of rules 8(a) and (d) of the COLREGS:

If the Arctic Bridge had cleared south of the Kingfisher, so the argument developed, she would be sailing in the direction away from the Tian E Zuo and would have cleared both the Kingfisher and the Tian E Zuo. In this regard, Captain Khuzhin, during cross-examination, testified as follows:

Captain Khuzhin accepted that had the Arctic Bridge proceeded forward at an increased engine speed, between 0339 hours to 0341 hours, the Arctic Bridge would have been able to clear both the Kingfisher and the Tian E Zuo. The significance of Captain Khuzhin’s testimony is that the related collisions would not have happened if the aforesaid manoeuvre were taken.

Ms Chew in re-examination sought clarification of Captain Khuzhin’s explanation for not clearing south of the Kingfisher:

I find Captain Khuzhin’s answer in re-examination as an attempt to obfuscate his clear answer during cross-examination. As the radar screenshots of the Arctic Bridge show, there were no nearby vessels that would have hindered a safe passage forward. Moreover, Captain Khuzhin’s answer did not address his failure to employ a higher engine speed to successfully clear south of the Kingfisher.

I pause here to note an inconsistency between Captain Khuzhin’s affidavit evidence-in-chief and his oral testimony on the matter of his failure to clear south of the Kingfisher. Captain Khuzhin, in his affidavit of evidence-in-chief, expressed difficulty in clearing south of the Kingfisher due to the unfavourable elements that operated against the Arctic Bridge. Captain Khuzhin’s answer during re-examination, however, had nothing to do with the wind conditions faced by the Arctic Bridge at the material time. It is clear that the answer he gave during re-examination was a mere afterthought.

In justifying the Arctic Bridge’s failure to clear south of the Kingfisher, Captain Walker opined on something that Captain Khuzhin did not talk about – that the port anchor of the vessel had caught on to something in the seabed and was holding fast:

He also explained that under the circumstances, not only would the Arctic Bridge be hampered from proceeding forward, but that if she had done so, the vessel would only be pulled further to port thereby risking a collision with the Tian E Zuo. I do not accept Captain Walker’s evidence: there is no factual basis for his opinion, and is at best speculative.

In his report, Captain Walker explained that the Arctic Bridge was unable to clear north of the Kingfisher as the “dredging was either affecting progress or [the anchor] had been caught on an unknown subsea obstruction”. However, the contention in the report that the anchor had caught an unknown subsea obstruction was made without factual reference. It must be emphasised that in his report, Captain Walker was referring to the port anchor becoming embedded to explain why the Arctic Bridge could not proceed north of the Kingfisher. However, at the trial, Captain Walker began to hinge his explanation for various other events on the same speculation. Apart from seeking to justify the Arctic Bridge’s failure to clear south of the Kingfisher on the basis of the embedded anchor, he later appeared to reason that the astern movement and forward movement of the Arctic Bridge at about 0341 hours to 0350 hours was the Arctic Bridge’s attempt to dislodge the embedded anchor. However, when asked if he could point out the factual basis of his explanations, Captain Walker could not provide an answer:

While the weight of the port anchor in the water might have somewhat hampered the manoeuvrability of the Arctic Bridge, it is a different matter to assert that the anchor had become embedded into the seabed. An embedded anchor would have been a completely new development quite different from the earlier time the Arctic Bridge dredged anchor to move away from the Tian E Zuo at around 0331 hours. Moreover, Captain Khuzhin’s evidence did not extend so far as to suggest that the anchor was embedded in the seabed. All that was mentioned is that the weather conditions and the weight of the port anchor in the water had affected the manoeuvrability (or movements) of the Arctic Bridge. In any event, had the anchor truly been embedded, the Arctic Bridge would not have been able to navigate as she would have effectively become a vessel at anchor. No such assertion was ever made. For these reasons, I do not accept Captain Walker’s opinion the Arctic Bridge’s port anchor had become firmly embedded in the seabed.

Apart from his view that the Arctic Bridge ought to have increased engine speed and cleared the Tian E Zuo, Mr Singh did not provide further assistance in relation to the justifications mentioned by Captain Khuzhin and Captain Walker on the failure to clear south of the Kingfisher.

With the finding that the Arctic Bridge’s anchor was not embedded and was not holding fast to the seabed, coupled with the heading of the Arctic Bridge at the material time (ie, 280.9° at 0337 hours, 263.2° at 0338 hours, 240.9° at 0339 hours and 224.0° at 0340 hours), as well as the fact that it was open to the Arctic Bridge to employ a higher engine speed, it follows that the option to clear south of the Kingfisher, putting herself away from the Tian E Zuo, was available as a viable option, and I so find. There was no justification as to why the Arctic Bridge did not clear south of the Kingfisher. In this regard, the composite failure of the Arctic Bridge was in her not taking this option and in continuing to turn to port, in the direction of the Tian E Zuo. I find this to be poor seamanship on the Arctic Bridge’s part.

Aside from the option to pass south of the Kingfisher, the experts also discussed the possibility of the Arctic Bridge holding position to recover her port anchor between 0337 hours to 0341 hours. Although this opportunity to hold position was raised by Captain Walker, he opined that recovery of the port anchor would be difficult and that the decision of Captain Khuzhin’s hard to port order was reasonable in the circumstances. In this respect, Captain Walker in an earlier part of his report said:

He later concluded that:

When it came to the trial, Captain Walker explained the difficulty of recovery citing the anchor as being well-embedded in the seabed:

I have already rejected as speculative his view that the Arctic Bridge’s anchor was well-embedded. Mr Singh’s evidence on the matter is unhelpful. Whilst he considers it pointless to hold position if the anchor cannot be recovered, he does not opine one way or the other whether the port anchor could be recovered if the Arctic Bridge attempted it at that time. I also note that this option was not asked of Captain Khuzhin much less stated in his affidavit of evidence-in-chief that he contemplated recovering the port anchor at that time. In the circumstances, I reach no conclusion on this particular option to recover the port anchor.

Continuing with the narrative, between 0341 hours to 0343 hours, the Arctic Bridge’s engines stopped. This resulted in her going astern and eventually coming into close proximity with the Tian E Zuo. At about 0344 hours, the Arctic Bridge was effectively in the same position as she was at when she first started to navigate from her anchored position to clear away from the Tian E Zuo. The defendant submits that the Arctic Bridge’s decision to stop her engines from 0341 hours to 0343 hours was a serious fault as this was the action that resulted in the Arctic Bridge drifting astern and coming into a close quarters situation with the Tian E Zuo. The defendant, in particular, highlighted that the decision to stop engines was a breach of rule 8(d) of the COLREGS.

According to Mr Singh’s report, there was no reason to stop the engines for two minutes:

He further added in his supplemental report that the decision to stop the engines was unreasonable:

Captain Walker also accepted that it was wrong for Captain Khuzhin to have stopped the Arctic Bridge’s engines but he sought to justify the decision:

Captain Walker’s justification for Captain Khuzhin’s decision to stop the engines – operating under the uncertainties that were the consequences of dredging anchor – is yet another attempt at drawing unwarranted links to the initial difficulties faced by the Arctic Bridge when she had to dredge anchor to move away from the Tian E Zuo before 0334 hours. I am not persuaded by Captain Walker’s justification.

I find that the decision to stop the engines was a serious fault despite Captain Khuzhin’s insistence that having stopped the engines, he did not lose control of the vessel. During re-examination, Captain Khuzhin tried to justify his decision to stop the engines:

Quite clearly Captain Khuzhin’s claim that he had control of his vessel even though he had stopped the vessel’s engines is unbelievable. The fact of the matter is that having stopped the Arctic Bridge’s engines for two minutes, the Arctic Bridge drifted astern and created a close quarters situation with the Tian E Zuo, which was a vessel at anchor. As stated at [52] above, a vessel underway is to keep clear of a vessel at anchor.

To elaborate on the astern movement, the wind direction between 0341 hours to 0343 hours was in a general south-westerly direction with speeds between 17.5 knots to 25.40 knots; the tidal stream remained at 119° true with a speed of about 1.46 knots. In the two minutes during which her engines stopped, influenced by the elements, the Arctic Bridge drifted astern past the Tian E Zuo’s bow. The Arctic Bridge was observed to go astern, moving from port side to the starboard side of the Tian E Zuo, ahead of the Tian E Zuo’s bow. The Arctic Bridge’s bow was eventually observed to be almost perpendicular to that of the bow of the Tian E Zuo.

According to Captain Khuzhin’s affidavit of evidence-in-chief, the Arctic Bridge’s bow passed clear of the Tian E Zuo’s bow by about 10 to 20 metres, at about 0344 hours. This appears to be Captain Khuzhi’s visual estimate. According to Captain Walker, the Arctic Bridge’s port side was approximately 23 metres from the bow of the Tian E Zuo at about 0343 hours, as measured from the Avenca video. On the other hand, Mr Singh calculated the distance between the two vessels to be approximately 42 metres at 0343 hours, and approximately 66 metres at 0344 hours (see annex 2 for a graphical depiction of relative position and distance between the vessels at 0344 hours as produced in Mr Singh’s report). Regardless of whichever distance is accepted by this court, in stopping her engines, the Arctic Bridge created a close quarters situation; she ended up passing the Tian E Zuo at an unsafe distance. Far from keeping clear of the Tian E Zuo, the Arctic Bridge now found herself in a similar position as she was when the Tian E Zuo had dragged towards her almost an hour earlier. I find this to be poor exercise of seamanship on the Arctic Bridge’s part as well as failure to take appropriate action to keep clear of the Tian E Zuo to avoid collision in accordance with rule 8.

Turning now to the events that transpired between 0344 hours to 0351 hours (the defendant uses the timeframe between 0345 hours to 0350 hours; in reality, nothing turns on this difference) when the Arctic Bridge, in passing ahead crossed the bow of the Tian E Zuo for the second time. Between 0345 hours to 0346 hours, the Arctic Bridge stopped her engines again and appeared to hold position momentarily. She then increased her engines to half ahead at 0347 hours causing her to move forward and crossed the Tian E Zuo’s bow for a second time. According to Mr Singh’s calculations based on VDR data, the vessels were 25 metre apart at 0349 hours, barely an eighth of the Arctic Bridge’s length. At 0350 hours, the Arctic Bridge clears the Tian E Zuo. At 0351 hours, the Tian E Zuo’s heading begins to change – her bow turned, signalling the start of the involuntary towage. After 20 minutes, at about 0410 hours, the Tian E Zuo was towed into the port quarter of the Stena Provence, a vessel at anchor. Annex 3 provides a graphical depiction, extracted from Mr Singh’s report, of the respective headings and movements of the Arctic Bridge and the Tian E Zuo between 0351 hours to 0408 hours.

I consider the manoeuvres and movements of the Arctic Bridge from 0344 hours to 0410 hours to be critical. This was the period during which the Arctic Bridge crossed the bow of the Tian E Zuo and proceeded in the direction of the Stena Provence without appreciating that she had fouled and picked up the Tian E Zuo’s anchor or anchor chain. The Tian Zuo was dragged by the Arctic Bridge for 20 minutes until the first contact between the Tian E Zuo and the Stena Provence. It is the plaintiffs’ case that throughout this period Captain Khuzhin did not realise that the Tian E Zuo was being towed by the Arctic Bridge. Even if, for the sake of argument, there were some situational awareness, Captain Khuzhin took no steps at all to avoid the related collisions.

For the reasons stated below, I find that the factual causative features of the case to be the crossing of the bow of the Tian E Zuo at 0347 hours at an unsafe distance, the entanglement of the vessels’ anchors or anchor chains, the involuntary towage, the distance travelled during the involuntary towage, the speed and heading of the Arctic Bridge, and the overall lack of or inadequate situational awareness on the part of the Arctic Bridge that set the Tian E Zuo on a collision course.

I must, however, highlight that while the entanglement is a key causal feature, the actual timing of the entanglement is immaterial. In this regard, Mr Singh opined that the anchors or anchor chains were fouled between 0343 hours to 0344 hours, whereas Captain Walker opined that the fouling occurred at around 0350 hours. While both experts could not agree on the precise time at which the anchors or anchor chains fouled, they agreed that this question was “academic”. I agree; the timing of the entanglement is not determinative of the outcome of this action for two reasons. First, it is not denied that the Arctic Bridge fouled the Tian E Zuo’s anchor or anchor chain. Secondly, the defendant’s primary case is not dependent on the timing of the entanglement. The defendant’s case is that the direct cause of the related collisions was Captain Khuzhin’s failure to heed West Control’s suggestion to maintain her heading of 245°, proceed for two and a half cables and stop. The point being that had the Arctic Bridge stopped, the Tian E Zuo would not have been towed towards the Stena Provence, irrespective of when the anchors or anchor chains of the vessels had fouled.

Returning to the defendant’s submissions, it is the defendant’s case that the Arctic Bridge breached rules 5, 7(a), 7(b) and 8(a) of the COLREGS during this period as not only did the Arctic Bridge crossed ahead of the Tian E Zuo at an unsafe distance, the Arctic Bridge failed to appreciate that the anchors or anchor chains of both vessels would likely have fouled as a result.

Rule 5 provides:

Rule 5 is an important provision. The failure to keep proper lookout would often mean that other provisions could be breached. To illustrate, if proper lookout were not maintained, the mariner denies himself the opportunity to use all available means appropriate to determine if a risk of collision exists in accordance with rule 7, and accordingly, is unable to take appropriate action to avoid collision in accordance with rule 8.

Proper lookout comprises the proper use of sight and hearing, and an appreciation of the situation and the risk of collision (see Marsden at para 5-184). I emphasise that merely keeping a lookout without applying one’s mind to the developing situation is not enough. As Gross J in The “Global Mariner” and “Atlantic Crusader” [2005] Lloyd’s Rep 699 at [80] said:

Rule 7 reads as follows:

Rule 8 (a) is already quoted above at [65].

During cross-examination, Captain Khuzhin agreed that it is wrong to cross the bow of another vessel at close quarters, however highlighted that the circumstances were extraordinary:

He did not elaborate on why he found the situation extraordinary between 0344 hours to 0350 hours. In Captain Walker’s view, Captain Khuzhin’s decision to cross the bow of the Tian E Zuo was reasonable. And this view can be understood in two ways: (a) that the decision to cross the bow was not a fault at all; and (b) even if it were a fault, Captain Khuzhin was justified in doing so given the “extraordinary” circumstance. Taking on the second view (b) first, the plaintiffs’ submit that “[t]here was no other realistic option for [the Arctic Bridge] at that time just as there was no other realistic option for [the Arctic Bridge] at 0331 [hours]”. Their argument is essentially that at 0344 hours, the Arctic Bridge had found herself back in a position similar to the initial close quarters situation with the Tian E Zuo at 0331 hours. Captain Khuzhin simply wanted to get away from the Tian E Zuo. The plaintiffs contend that defendant’s criticism has the benefit of hindsight and urge the court to accept Captain Walker’s comparison between the aforesaid two scenarios in that they were both similar; the point being that in both instances the Arctic Bridge was only trying to extricate herself from a situation that started with the Tian E Zuo dragging anchor at the outset.

In reply, the defendant submits that the comparison advanced by Captain Walker is an inappropriate analogy and adds nothing to the analysis. I agree. While it is understandable that as a result of the Tian E Zuo’s initial negligence, the Arctic Bridge had to dredge anchor and that she continued to dredge her anchor throughout the events that culminated in the related collisions, the circumstances at 0331 hours and at 0347 hours are different. There are two points to note. First, the plaintiffs again seek to use the same argument which is that the Arctic Bridge was forced by the initial negligence of the Tian E Zuo to dredge anchor and that continued to hamper the Arctic Bridge’s manoeuvrability. In my view, inasmuch as the dredging of the anchor affected the manoeuvrability of the Arctic Bridge, it was not and could not be taken as the sole cause of the difficulties encountered by the Arctic Bridge from time to time. Secondly, the state of affairs from 0331 hours have changed. Certainly by 0347 hours, an appreciable interval of time has elapsed with different events occurring since 0330 hours, when the Tian E Zuo became a vessel at anchor. The Arctic Bridge as the vessel underway was obligated to keep clear of the bow of the Tian E Zuo but ended up in positions that would serve to compound the risk of fouling the anchors or anchor chains of both vessels; a view held by Mr Singh as well. These reasons reinforce my view that the “but for” test as advocated by the plaintiffs is insufficient to establish both factual and legal causation. As stated, the present case is not one involving a single causal event.

Unlike the situation at 0331 hours, where through no fault of her own, the Arctic Bridge found herself in a close quarters situation with three other vessels, the close quarters situation at 0347 hours arose out of her own decision to stop the engines at 0341 hours. In other words, the difference between 0331 hours and 0341 hours is in how the situation in which the Arctic Bridge found herself arose.

I now turn to the point at [101] above that the decision to cross the bow was not a fault at all. This relates to the suggestion by the plaintiffs that the Arctic Bridge had crossed or go round the bow of the Tian E Zuo as Captain Khuzhin wanted to collect the vessel’s anchor:

First, Captain Khuzhin’s decision to cross or go around the Tian E Zuo’s bow was to get away from the three vessels, the Tian E Zuo, the Marine Liberty and the DL Navig8, and not to “collect his anchor”. Accordingly, the suggestion that the Arctic Bridge crossed the Tian E Zuo’s bow to collect anchor is an afterthought. Secondly, the mere fact of crossing at an unsafe distance and not keep clear of a vessel at anchor is poor seamanship. Thus whatever is the reason for crossing the Tian E Zuo’s bow, and in this case, the reason given was Captain Khuzhin’s purported intention to collect the Arctic Bridge’s anchor, is irrelevant.

Mr Singh also raised the option of the Arctic Bridge slacking her anchor chains to gain distance and thereafter re-assess the situation at 0347 hours, instead of going around the Tian E Zuo’s bow. There was no agreement between the experts on its viability. Given my findings in this judgment, it is unnecessary for me to resolve this debate, which is a peripheral matter.

To sum up, in crossing the Tian E Zuo’s bow at 25 metres, the Arctic Bridge passed the Tian E Zuo at an unsafe distance and failed to fully appreciate the developing circumstances, and I so find. This is a breach of rule 5 and rule 8(a).

Turning to the defendant’s primary case (see [93] above), as the Arctic Bridge was crossing the Tian E Zuo’s bow, at 0348 hours, West Control contacted the Arctic Bridge and the following conversation took place:

The defendant submits that the Arctic Bridge’s failure to heed West Control’s advice on where to anchor was a serious fault. This is because the Arctic Bridge was in a position where if she had kept her heading of 245°, proceeded forward and stopped two and a half cables away, the Tian E Zuo would not have been eventually towed towards the Stena Provence.

Captain Walker sought to characterise West Control’s advice as merely a suggestion and nothing more. However, as was pointed out by Mr Loo, regardless of whether West Control’s statement was a suggestion or an instruction, a prudent seaman would consider it since it came from the local port authority with knowledge of the anchorage and on matters of pertaining to navigation in the anchorage; a point which Captain Walker subsequently agreed. Further, if West Control’s suggestion were unsuitable for the Arctic Bridge, Captain Khuzhin ought to have responded by indicating so.

Captain Khuzhin, on the other hand, accepted during cross-examination that had the Arctic Bridge complied with West Control’s aforesaid suggestion, the related collisions would not have happened:

In re-examination, Captain Khuzhin attempted to undo his admission and claimed that he tried to proceed to the direction indicated by West Control but was hampered by the port anchor. This part of the evidence was not in his affidavit of evidence-in-chief. Furthermore, his oral explanation was with hindsight reasoning:

To overcome Captain Khuzhin’s admission in cross examination (see [111] above), the plaintiffs resorted to using a list of rhetorical questions at paragraph 165 of their closing submissions. The essence of those questions is this – even if the Arctic Bridge had heeded West Control’s suggestion, the possibility of a collision between the Tian E Zuo, the DL Navig8 and the Marine Liberty and the Arctic Bridge would nonetheless exist. The rhetorical questions posed by the plaintiffs were most unhelpful and they miss the point. The court is not concerned with any collision, be it between the Arctic Bridge and the Marine Liberty or the Arctic Bridge and the Tian E Zuo or the Arctic Bridge and the DL Navig8, but with the related collisions. In any case, the rhetorical questions would not have assisted in overcoming Captain Khuzhin’s admission. The pertinent point here is that the Arctic Bridge did not stop at any point in time prior to the first contact with the Stena Provence; an involuntary towage developed at about 0351 hours, and the Arctic Bridge increased engine speed thereafter – from half ahead at 0351 hours to full ahead at 0401 hours and she continued to go full ahead even after the first contact between the Tian E Zuo and the Stena Provence, and the Arctic Bridge and Stena Provence, respectively.

This leads me to my next point. The entanglement of the anchors or anchor chains alone would be insufficient to cause the related collisions. For the related collisions to occur, the Tian E Zuo must necessarily have been towed from where she was at anchor since 0330 hours into the port quarter of the Stena Provence. It would also mean that the Arctic Bridge must have towed the Tian E Zuo in a certain direction, at a certain speed, over a certain distance. In this connection, there was sufficient opportunity in the 20 minutes during the towage for the crew on board the Arctic Bridge to have appreciated and avoided physical contact with the Stena Provence. This raises the question of whether the Arctic Bridge breached rule 5 of the COLREGS to keep a proper lookout and consequently, rule 7.

The defendant’s raised at least three instances of the Arctic Bridge’s failure to keep proper lookout; each adding up to the eventual related collisions.

First, having passed the Tian E Zuo’s bow twice at an unsafe distance and not keeping clear of an anchored vessel, the Arctic Bridge ought to have appreciated the risk of fouling anchors. This is especially so since the Arctic Bridge was dredging anchor and the Tian E Zuo had both her anchors down. At trial, Captain Khuzhin and his chief officer claimed that they did not know the Tian E Zuo had her anchors down. This cannot be true. First, the plaintiffs’ Preliminary Act indicated that the Tian E Zuo was seen to be exhibiting anchor lights. Even if the anchor lights could not have been seen given the interference from other light sources, the Arctic Bridge must have known that the Tian E Zuo had at least one anchor in the water since the Arctic Bridge knew that the Tian E Zuo was dragging one anchor. The very anchor that the Arctic Bridge fouled and picked up was the same anchor the Tian E Zuo had dragged. Under these circumstances, any suggestion to excuse the fouling of the anchor is without merit.

Second, and quite critically, the Arctic Bridge ought to have fully appreciated the fact that she was towing the Tian E Zuo. The plaintiffs submit that the Arctic Bridge could not have discerned the difference between dredging her anchor and towing the Tian E Zuo. The plaintiffs further added that the Arctic Bridge could not tell if the Tian E Zuo was moving on her own motive power even though Captain Khuzhin had acknowledged in his affidavit of evidence-in-chief that as the Arctic Bridge moved ahead and to the west, he noticed that “the bow of [the Tian E Zuo] began to swing to port” and could see the Tian E Zuo “follow” the Arctic Bridge.

Dealing first with the plaintiffs’ second point that there no way of telling if the Tian E Zuo was using her engines during the period of the towage, this assertion is not supported by the objective evidence. The Arctic Bridge was clearly cognisant of the Tian E Zuo’s inability to move. She had remained at the same position with the two vessels at her stern since 0330 hours. I also refer to the transcript of the conversation with West Control at 0334 hours (see [16] above). Under such circumstances, even if the Arctic Bridge did not know the state of the Tian E Zuo’s engines, the Arctic Bridge would have, at the very least, observed at 0343 hours that the Tian E Zuo and the two other vessels remained entangled and that the Tian E Zuo had not moved, contrary to West Control’s earlier message at 0334 hours. In short, a reasonable inference to be drawn from these matters is that the Tian E Zuo was incapable of propulsion on her own.

Turning to the plaintiffs’ other point, it must be remembered that for more than 20 minutes, approximately between 0351 hours to 0402 hours, the Arctic Bridge was not only towing the Tian E Zuo but the two other vessels as well. The Tian E Zuo is a significantly larger ship with a gross tonnage of 43,718 tonnes with cargo on board, the DL Navig8 weighing 30,964 tonnes and the Marine Liberty weighing 3,828 tonnes. The Arctic Bridge had steamed at full speed ahead for the most part during the 20 minutes of towing. Yet she did not appreciate that at full ahead she was making speeds of merely one to two knots, going down to a low of 0.9 knots at 0400 hours and a maximum speed of only 3.2 knots over the ground at the time of the first collision between the Stena Provence and the Tian E Zuo at 0410 hours. This in contrast to the vessel’s capacity to travel at 12.8 knots full speed ahead as indicated in the manoeuvring characteristics section of the vessel’s Capacity Plans. Mr Singh said that even taking into account the dredging action of the anchor, the greatly reduced speed of the Arctic Bridge would have been a red flag:

There were multiple indicators of the ongoing towing that ought to concern Captain Khuzhin. Yet Captain Khuzhin did not appreciate that the Tian E Zuo was following the Arctic Bridge as the latter navigated westwards away from the Tian E Zuo. This was despite knowledge that the Arctic Bridge was dredging anchor, that the Tian E Zuo had at least one anchor in the water and that the Arctic Bridge could not achieve her expected engine speed. In these circumstances, a prudent seaman in Captain Khuzhin’s position would have appreciated that his vessel’s anchor chain might have fouled another vessel’s anchor chain. In the premises, I am unable to accept the plaintiffs’ submission that the Arctic Bridge was unaware that she was towing the Tian E Zuo.

Captain Khuzhin was at fault in failing to observe the tow. Either there was no situational awareness or the lookout was simply inadequate to keep watch on the Tian E Zuo, a vessel that the Arctic Bridge had passed and shortly after, noticed a change in the heading. In all probability, the reality was that on the basis of inappropriate factual assumptions as regards the Tian E Zuo, Captain Khuzhin paid insufficient attention to the true situation of the towage and nothing was done on board the Arctic Bridge to alleviate the effect of the Arctic Bridge pulling the Tian E Zuo. As a result, the Arctic Bridge dragged the Tian E Zuo by her anchor or anchor chain over a distance of about one kilometre across the anchorage. This segues into the point below.

Third, the Arctic Bridge sailed close to the Stena Provence and that was itself a breach of good seamanship. Those on board the Arctic Bridge failed to keep proper lookout for the presence of anchored vessels like the Stena Provence. According to the chief officer of the Arctic Bridge, he had the Stena Provence in sight at 0400 hours. This was reported to Captain Khuzhin. At about 0408 hours, Captain Khuzhin candidly mentions in his affidavit of evidence-in-chief that the Arctic Bridge “had moved up parallel to ‘STENA PROVENCE’ at about 50 metres distant” with the Tian E Zuo “still following astern to the starboard” and concluded that the Arctic Bridge had “got closer to ‘STENA PROVENCE’ than … planned”. At trial, Captain Khuzhin accepted that his vessel had come into a close quarters situation and that it was wrong for his vessel to have done so. Yet there has been no evidence that at earlier points in time, the crew on board the Arctic Bridge had taken measures to determine her course. This is despite the Stena Provence attempting to contact the Arctic Bridge over VHF for at least five times at 0406 hours. Further, there was at least 10 minutes from the time the chief officer saw the Stena Provence to the point of first contact between the Stena Provence and the Tian E Zuo. Had the Arctic Bridge plotted her course during this period, she could have determined a developing close quarters situation or a risk of collision between herself and the Stena Provence. Steps could have then been taken to avoid a coming into close quarters with the Stena Provence. As Mr Singh explained:

As regards the Stena Provence attempting to contact the Arctic Bridge over VHF for at least five times at 0406 hours, there was no satisfactory explanation why those on board the Arctic Bridge did not keep a rule 5 lookout by hearing. By hearing means continually listening to VHF.

In his affidavit of evidence-in-chief, Captain Khuzhin attempted to explain that the Arctic Bridge’s navigation towards the Stena Provence was through no fault of the Arctic Bridge as the “wind in combination with dredging the anchor … made manoeuvring the vessel more difficult”. However, at trial, Captain Khuzhin accepted that the port anchor and the north-westerly wind (as he had then incorrectly assessed) would not have pulled the bow of the Arctic Bridge to starboard, closer to the Stena Provence but to port. The Arctic Bridge, therefore, cannot be excused for not keeping clear of the Stena Provence, a vessel at anchor.

During re-examination Captain Khuzhin added that the anchor might have jumped over from the port side to the starboard side thus resulting in the turn towards the Stena Provence. This explanation was neither pleaded nor mentioned in his affidavit of evidence-in-chief. I therefore reject this explanation.

In the light of abovementioned acts and/or omissions, I find that the Arctic Bridge breached rules 5 and 7 of the COLREGS. It was the composite failure in appreciating the risk of fouling, the commencement and continuance of the towage without appreciation and assessment of the situation, and not keeping clear of the Stena Provence that was the fault of the Arctic Bridge.

Before I turn to examine the final timeframe of the incident, there remains the issue of the speed and course of the Arctic Bridge maintained from the start of the involuntary towage to the first contact between the Tian E Zuo and the Stena Provence. As I mentioned above, the direction and speed at which the Arctic Bridge was sailing would be an important consideration as it is the combination of these factors that set the Tian E Zuo on a collision course. In this connection, rule 6 of the COLREGS provides that “[e]very vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions”. In determining a safe speed, rule 6 also states the factors to be taken into account. These factors include “the state of wind, sea and current, and the proximity of navigational hazards” as well as “the traffic density including concentrations of… any other vessels”. In this vein, rule 8(e) adds that “[i]f necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion”.

From 0350 hours to 0410 hours, the Arctic Bridge’s engine speed increased from slow ahead to full ahead. During this time, the Arctic Bridge gradually came close to the Stena Provence. The defendant contends that the Arctic Bridge ought to have altered her course during this period. Specifically, the defendant highlighted that the Arctic Bridge had persisted on course for the Stena Provence from 0401 hours to 0407 hours, maintaining helm on midship. The Arctic Bridge only went hard to port at 0407 hours. This change in direction would not have significantly altered the trajectory of the Tian E Zuo and as matters turned out, the first contact between the Tian E Zuo and the Stena Provence was at 0410 hours. As mentioned above at [121], the chief officer had the Stena Provence in sight at 0400 hours. There would have been ample time for those on board the Arctic Bridge to appraise and appreciate the situation and for the Arctic Bridge to not only alter her course but also reduce her speed. As this was not done, I agree with the defendant’s contention.

Coming now to the final timeframe of the incident, at 0410 hours, the Tian E Zuo made contact with the port quarter of the Stena Provence. The impact caused the Stena Provence to turn to port towards the Arctic Bridge, thereby making contact with the Arctic Bridge at 0411 hours. There was subsequently another set of collisions. While the plaintiffs did not plead any damage in relation to the other set of collisions, this was present in the defendant’s pleadings. According to the defendant, the Arctic Bridge continued to proceed forward after the first set of collisions and it caused the Tian E Zuo to come into contact for the second time with the Stena Provence at 0427 hours. The defendant contends that the Arctic Bridge failed to appreciate the risk of further collisions. I agree.

The Arctic Bridge was sailing full ahead at 0410 hours during the first set of collisions and maintained this speed all the way up to 0414 hours before reducing her speed to below half ahead, and at 0433 hours, to dead slow ahead. At trial Captain Khuzhin accepted that in continuing forward, the Arctic Bridge caused the second set of collisions:

While Captain Khuzhin did express the concern that he was not able to stop the Arctic Bridge, he accepted that there were steps he could have taken to have alleviate the situation. In failing to do so, I find that the Arctic Bridge had failed to display good seamanship in the circumstances.

In summary, I have found the following to constitute the faults of the Arctic Bridge:

(a) The failure to clear south of the Kingfisher between 0336 hours to 0341 hours;

(b) The order to stop engines between 0341 hours to 0343 hours which caused the Arctic Bridge to drift into a close quarters situation with the Tian E Zuo;

(c) The passing ahead and crossing of the Tian E Zuo’s bow at close quarters between 0344 hours to 0351 hours thereby increased the risk of fouling and picking up the anchors or anchor chains of both vessels;

(d) The failure to stop at any point in time as she proceeded towards the Stena Provence.

(e) The composite breaches of rule 5 of the COLREGS for failing to appreciate the risk of fouling, the commencement and continuance of the involuntary towage, and the navigation into a close quarters situation with the Stena Provence that was the fault of the Arctic Bridge (between 0351 hours to 0410 hours);

(f) The speed and direction of the Arctic Bridge which set the Tian E Zuo on a collision course (0351 hours to 0410 hours); and

(g) The failure to appreciate a further risk of collision after the first contact between the Tian E Zuo and the Stena Provence, and the Arctic Bridge and the Stena Provence respectively (between 0410 hours to 0427 hours).

Of the faults listed in this summary, only the specific faults that go towards the issue of causative potency or the apportionment of liability will be discussed in this judgment.

Agony of the moment as a defence

The plaintiffs submit that the faults of the Arctic Bridge ought to be excused as they were made in the agony of the moment. In the locus classicus case of The Bywell Castle (1879) 4 PD 219 (“The Bywell Castle”) (see Thorben Langvad Linneberg v Leong Mei Kuen [2013] 1 SLR 207 at [82] where the Court of Appeal acknowledged The Bywell Castle to have been the likely origin of the doctrine), Cotton LJ enunciated the principle as follows (at 228):

In the words of James LJ (at 223):

And in the speech of Brett LJ (at 226–227):

In their submissions, the plaintiffs contend that the agony of the moment “principle applied to two timings”, from 0329 hours to 0331 hours and from 0336 hours to 0343 hours and “continued all the way”. Having regard to their entire submissions, it is unclear how the plaintiffs have understood the agony of the moment. On the one hand, the plaintiffs seem to suggest that the two time points above frame the period during which the agony of the moment operated. On the other hand, the plaintiffs could have meant that two time points represented separate periods during which the agony of the moment principle applied. The introduction of the phrase “continued all the way” in their closing submissions is an extension which is imprecise. In the light of the aforesaid ambiguities, and to make sense of the arguments, I have viewed the plaintiffs’ case on the agony of the moment as a response to the defendant’s counterclaim. In this regard, insofar as the plaintiffs’ case is that the Arctic Bridge was operating under the agony of the initial negligence of the Tian E Zuo in dragging anchor, this would simply be a re-characterisation of the “but for” test as advocated by the plaintiffs and for reasons stated above, the contention is rejected. If the defence of agony of the moment is raised in respect of individual faults of the Arctic Bridge as described above, the defence as a matter of law is not made out. I shall now elaborate.

As regards the faults of the Arctic Bridge between 0337 hours to 0351 hours, the principle is inapplicable because the agony of the moment is a relational concept. As quoted above at [132], “a vessel is not to be held guilty of negligence, or as contributing to an accident, if in a sudden emergency caused by the default of negligence of another vessel” (emphasis added) (see also the speeches of James LJ and Brett LJ quoted above at [133]–[134]). At 0330 hours, the Tian E Zuo became a vessel at anchor and remained so until the start of the involuntary towage. The Tian E Zuo, at anchor, committed no faults during this period and hence no agony of the moment situation could have arisen. As regards the faults of the Arctic Bridge from 0351 hours onwards, an agony of the moment situation never arose. There was no sudden emergency during the involuntary towage; the Arctic Bridge had sufficient time to react to the developing close quarters situation with the Stena Provence but simply failed to do so for want of situational awareness and breach of the lookout rule. In any event, the plaintiffs were not specific in the application of the principle during this timeframe. Accordingly, I reject the plaintiffs’ submissions on the agony of the moment defence.

Faults of the Tian E Zuo

Having addressed the issue of pleadings and the plaintiffs’ advocated position on the “but for” test, and having regard to the fact that some of the allegations initially pleaded in the plaintiffs’ Preliminary Act were not pursued in their submissions, I now turn to examine the alleged breach of rule 5 by those on board the Tian E Zuo after the Arctic Bridge fouled and picked up the port anchor or anchor chain of the Tian E Zuo (ie, during the period of the involuntary towage).

The plaintiffs contend that the Tian E Zuo was in a better position to have been aware that she was being towed. Had those on board the Tian E Zuo been keeping proper lookout, they would have noticed that the Tian E Zuo was being towed and could have alerted the Arctic Bridge. The contention is that the Arctic Bridge did not know that the Tian E Zuo’s engines was stopped, or if the Tian E Zuo was moving on its own engine propulsion. In response, the defendant submits that because the Tian E Zuo had two of her anchors in the water and had been at anchor since 0330 hours, those on board did not expect the Tian E Zuo to move and did not immediately understand the reason for her forward movement. The defendant further submits that as a vessel at anchor, she could not be faulted.

I propose to deal first with the dispute relating to the lookout on board the Tian E Zuo before turning to address the defendant’s further submissions that as a vessel at anchor, she could not be faulted. For the reasons I will come to in due course, my findings on the faults of the Tian E Zuo depart from how the parties have interpreted the evidence; which I do not accept as correct. As I have said elsewhere, “[t]his is not controversial since the court is not bound to confine its decision to the version advanced by the parties, if, as was the case here, the evidence or the reading of it showed otherwise” (Koon Seng Construction Pte Ltd v Chenab Contractor Pte Ltd [2008] 1 SLR(R) 375 at [9]).

As stated, the plaintiffs’ position is that those on board the Tian E Zuo did not realise that they were being towed as none of the crew members kept a proper lookout. They highlighted that Captain Zou failed to realise that the Tian E Zuo started to move at 0350 hours and that he only noticed that the vessel was moving at 0404 hours. They also emphasised that the second officer, who was supposed to be monitoring the radar, had failed to notice the movement of the Tian E Zuo. The chief officer, who was supposed to keep a lookout at the bow of the Tian E Zuo, likewise failed to notice that the vessel was moving forward. Captain Zou claimed, in his affidavit of evidence-in-chief, to have only realised that his vessel was moving at 0404 hours and was confused by what was causing the vessel to move ahead.

Having examined the overall evidence on this area, I am not persuaded by the plaintiffs’ arguments on poor lookout as they saw it. In this regard, I also do not believe Captain Zou’s testimony that he had only realised that his vessel was moving at 0404 hours and that he was earlier confused by what was causing the vessel to move ahead. In my judgment, the evidence is to be explained on the footing that those on board the Tian E Zuo, to begin with, were more interested in monitoring the Marine Liberty and the DL Navig8 as they cleared the Tian E Zuo’s stern during the period of time unexpected assistance was being rendered by the Arctic Bridge, as she pulled the Tian E Zuo away from her anchored position. Viewed from this assessment of the evidence, it can fairly be said that the Tian E Zuo failed in due time to use her engines to keep clear of the Stena Provence. Neither did the Tian E Zuo use sound signals to warn the Arctic Bridge, whose engines had been kept at full ahead all the time that she was pulling the Tian E Zuo towards the Stena Provence. Specifically, I find that at about 0355/0400 hours Captain Zou appreciated that the Tian E Zuo was moving and heading in a similar direction as the Arctic Bridge. I also find that those on board the Tian E Zuo had appreciated the appearance of opportune moments represented by her trailing behind the Arctic Bridge that could and did enable the Tian E Zuo to come clear of the Marine Liberty and the DL Navig8. I further find that those on board the Tian E Zuo waited for the Marine Liberty and the DL Navig8 to clear away from her stern and that the Tian E Zuo’s engines was ready for use before and by the time Captain Zou gave astern orders at 0407 hours in an attempt to avoid the Stena Provence. And I find that the Tian E Zuo took belated actions to avoid a collision and that she made contact with the port quarter of the Stena Provence. In the context of good watch keeping to determine if any risk of collision exists, I find that the Tian E Zuo’s appraisal of the developing situation at her stern did not include a lookout and assessment of the situation in front of her as the Arctic Bridge navigated ahead and the presence of the anchored vessel, the Stena Provence. I shall now elaborate on the evidence and the breach of rules 5 and 7 bearing in mind the failures to keep a proper lookout and availability of information to negate the risk of collision.

I begin with the question posed by Ms Chew to Captain Zou as to what he was doing at about 0350 hours, when the heading of the Tian E Zuo was observed to have changed due to the commencement of the involuntary towage:

Captain Zou explained that he was trying to contact West Control to arrange for a tugboat to assist the Tian E Zuo in moving away from the DL Navig8. This is also borne out in the VHF conversation between West Control and the Tian E Zuo as recorded in the certified transcript tendered by the plaintiffs (the transcript records West Control as Port Control; this difference is immaterial). Captain Zou was advised to seek the assistance of an emergency tug to pull the Tian E Zuo clear of the two vessels at her stern:

At round about the same time, the Tian E Zuo found herself moving forward with her anchor cables pulling in opposite directions. As I have mentioned above, at about 0350 hours, the heading of the Tian E Zuo began to turn to port. Her change of heading was a sign of manoeuvring. By 0351 hours, the anchors or anchor chains of both vessels had become entangled. Around this time, those on board began raising suspicions that they were being towed. According to Captain Walker, the second officer was heard on the VDR making the following statements at about 0352 hours: “How come the ship shake so violently”; “The ship shake”; and “It is hit the anchor chain, that ship in the front”. However, despite the concerns raised by the second officer in the bridge, there appeared to be no response from Captain Zou who was also there in the bridge. As these statements were made in mandarin, Captain Walker had a colleague provide the translation. At the trial, Mr Loo raised certain doubts as to the accuracy of the translation from Mandarin to English. While the statements highlighted by Captain Walker were not tendered as translations of a qualified translator, I note that Mr Singh, in his report, had also picked up on a similar conversation and indicated that the conversation took place at about 0351 hours:

Similarly, in a certified translated VDR transcript tendered by the plaintiffs, the conversation on board the Tian E Zuo was consistent with a suspicion that the anchor chains of the Tian E Zuo had become entangled:

Although the speakers in the transcript was not clearly identified and that the possibility of entanglement was dismissed, it is plain that the possibility of entanglement was raised and had, at the very least, come to Captain Zou’s attention.

As stated, Captain Zou claimed, in his affidavit of evidence-in-chief, to have only realised that his vessel was moving at 0404 hours and was confused by what was causing the vessel to move ahead. He further claimed that he only appreciated that his vessel was being towed after the first contact between the Tian E Zuo and the Stena Provence, and the Arctic Bridge and the Stena Provence, respectively. Captain Zou’s evidence, however, is untenable and I find his testimony unbelievable in the light of the other objective evidence before me. I find that Captain Zou appreciated that the Tian E Zuo was moving forward at an earlier point in time, at about 0355/0400 hours, and he also appreciated that his vessel was being towed by the Arctic Bridge. Apart from the VDR conversations I have highlighted above indicating suspicion that the Arctic Bridge had entangled the Tian E Zuo’s anchor chain and was being towed, the affidavits of evidence-in-chief of at least two of the defendant’s witnesses show that those on board noticed signs of the entanglement as early as 0400 hours and that they reported these developments to Captain Zou. The chief officer, who was stationed at the bow of the vessel, in his affidavit of evidence-in-chief, said:

In short, the chief officer reported two matters to Captain Zou: the Arctic Bridge movement close ahead of the Tian E Zuo and the port anchor cable (which was the same anchor that was fouled) becoming “very tight”.

Zhang, the able-bodied seaman, stated in his affidavit of evidence-in-chief that he had noticed the Tian E Zuo move forward at about 0400 hours:

Notably, Zhang went off duty when he was stationed at the bow. It was more probable than not that Zhang went to the bridge to report what he saw earlier to Captain Zou. When he got to the bridge wing, he saw the Tian E Zuo moving away from the Marine Liberty and the DL Navig8. Inside the bridge, he saw on the radar the Tian E Zuo moving forward but the main engine was on astern movement.

Besides the crew on board the Tian E Zuo, the vessels anchored close by the Tian E Zuo also contemporaneously noticed her moving forward around 0401 hours. Indeed, the DL Navig8 was observed to have called West Control at that time stating:

Shortly thereafter at about 0403 hours, the Kingfisher called West Control regarding the similar sighting:

Interestingly, the incident report of the Tian E Zuo signed by Captain Zou recorded that the following matters happened at 0355 hours:

This report, written on the day of the Incident and signed off by Captain Zou, was an exhibit to Captain Zou’s affidavit of evidence-in-chief. This incident report contradicts his affidavit of evidence-in-chief, ie, that he noticed the vessel moving only at 0404 hours.

In the light of the overall evidence above, it was more probable than not, and I find, that by about 0400 hours, Captain Zou, the chief officer, the second officer and Zhang were aware that the Tian E Zuo was being towed and Captain Zou permitted the towage to continue for a duration of 20 minutes to enable the Tian E Zuo to become free of the Marine Liberty and the DL Navig8. I also find the conversations in the bridge telling of the sentiments of those on board even though the time of the conversations and the speakers (in particular crew 6) were not identified by name. The fact of the matter is that the conversations took place:

The statement by crew 6 that the stern was “coming out” and that if the “situation” continued to develop favourably, “things will be solved” (meaning the situation with the Marine Liberty and the DL Navig8 at her stern) lends support to the view that those on board the Tian E Zuo were opportunistic in the circumstances. As it turned out, from the period between 0402 hours to 0406 hours, the Marine Liberty and the DL Navig8 were able to disengage from the Tian E Zuo. In his affidavit of evidence-in-chief, Captain Zou stated that at 0407 hours, he checked the stern of the Tian E Zuo before ordering slow astern. The time at which Captain Zou checked the stern of the Tian E Zuo was after the Marine Liberty and the DL Navig8 departed. In short, Captain Zou had hitherto focused on the Marine Liberty and the DL Navig8 and I find that Captain Zou had waited for “things to be solved” before deciding to take action to counter the forward movement of the vessel which he, all the while, had appreciated. By the time the astern orders were taken, it was too late and the collision with the Stena Provence happened at 0410 hours.

The plaintiffs, as well as Captain Walker, criticised the Tian E Zuo’s crew for failing to keep a lookout and to alert the Arctic Bridge of the entanglement and the involuntary towage. It was argued that the crew’s inaction was consistent with incompetence, lack of situational awareness and poor bridge management. In my view, the plaintiffs and Captain Walker, had simply misinterpreted the evidence: what played out was Captain Zou’s decision to capitalise on the unexpected opportunity to free his vessel from the Marine Liberty and the DL Navig8. When queried by Ms Chew on the violent shaking as identified by Captain Walker above, Captain Zou said that he might have been busy at that point in time. On further questioning, he explained that he did not pay attention as he could have been attempting to arrange for a tugboat assistance to disengage the Tian E Zuo from the two other vessels:

His answers are plainly evasive. The testimony of the second officer, the chief officer, and Zhang at trial suggested that those on board the Tian E Zuo knew about the towage but simply deferred to Captain Zou’s decision on the towage. The second officer alluded to Captain Zou’s knowledge of the situation and that the crew had to follow Captain Zou’s instructions and could not do things on their own:

Similarly, when queried if he found it unusual that the vessel was moving forward despite having two anchors in the water and that the anchors were pulling in opposite directions, the chief officer simply replied stating that he awaited Captain Zou’s orders:

The defendant in its closing submissions contends that there was no reasonable opportunity to take steps to alleviate the situation prior to 0407 hours as the Marine Liberty was tied alongside her and the DL Navig8 was close to her stern. In other words, the Tian E Zuo could not have used her propellers prior to 0407 hours as the two other vessels had not moved away from the Tian E Zuo’s stern. I am not persuaded for the reason already stated above. Besides, between 0400 hours to 0410 hours, the Tian E Zuo could have contacted the Arctic Bridge. In this regard, defendant argues that any attempts to contact the Arctic Bridge would have been in vain as demonstrated by the Arctic Bridge’s unresponsiveness to previous attempts. In my view, the Arctic Bridge’s unresponsiveness is hindsight reasoning; it does not excuse the Tian E Zuo for not contacting the Arctic Bridge. After all good watch keeping requires the mariner to use all available means and this includes the use of VHF to contact the Arctic Bridge or West Control. Moreover, it was open to the Tian E Zuo to have sounded warning signals during the period that she was being towed. Indeed, Mr Singh held the opinion that the Tian E Zuo could have sounded the appropriate signal when in doubt. In this relation, Rule 34 of the COLREGS provides that:

As stated earlier, a good watch keeping is to determine if any risk of collision exists. The Tian E Zuo did not keep a proper lookout of what was in front of her, namely the direction of the Arctic Bridge and the Stena Provence. Those on board the Tian E Zuo were concerned with the disengagement of the two vessels at the stern. A good lookout means appreciating and assessing the presence of the Stena Provence. In this case, the lookout and consideration of the presence of the Stena Provence fell short of good watch keeping. The Stena Provence was already too close to the Tian E Zuo by the time the astern orders were made. Accordingly, the Tian E Zuo breached rule 5 and consequently, rule 7 of the COLREGS.

I now come to the defendant’s argument that the Tian E Zuo is to be regarded as a vessel at anchor during the period of the involuntary towage. The defendant, in its submissions, referred me to The “Foreric” [1926] 24 Ll L Rep 329 (“The Foreric”) which was a case involving three vessels and the fouling of anchors. The Sedburgh had anchored too close to the Foreric and in the course of attempting to move away, picked up the Foreric’s anchor and towed the latter into collision with the Belvedere, which was at the relevant time at anchor. In addressing the contention that the Foreric should have displayed signals to alert others that they were being towed, the Lordships said that they (at 332):

The Foreric decision does not assist the defendant. Having had her anchor fouled and finding herself dragged away from her anchored position by the Sedburgh towards the direction of the Belvedere, their Lordships began their analysis by treating the Foreric as a vessel underway (at 331):

Having done so, the precise question for their Lordships was whether the manner in which the Foreric as a vessel underway could be considered a vessel involved in “towing” within the meaning of the relevant regulation and if so, whether she had to exhibit regulation lights. In my view, applying the test in The Palembang (see [56]) above), a vessel whose anchor has been fouled and picked up by another vessel and consequently dragged away from her anchored position is no longer holden by and under control of her anchor and is therefore not a vessel at anchor. Accordingly, the Tian E Zuo was a vessel underway during the period of the involuntary towage.

Now the related collisions comprise of two sets of collisions: (a) the contact between the Tian E Zuo and the Stena Provence at 0410 hours, and the contact between the Arctic Bridge and Stena Provence at 0411 hours; and (b) the contact between the Tian E Zuo and the Stena Provence at 0427 hours. I have already dealt with the circumstances leading to the first contact between the Tian E Zuo and the Stena Provence above. As regards the second contact, the collision at 0427 hours was the result of the Arctic Bridge continuing to navigate full ahead despite having already made contact with the Stena Provence earlier at 0411 hours. After the first contact, the Tian E Zuo was observed reducing her engine speed before coming to a complete stop at 0418 hours. The Tian E Zuo remained at the stern of the Stena Provence during this time; the Tian E Zuo stopped her engines even though she was still being dragged along by the Arctic Bridge at full ahead. The Arctic Bridge towed her into a second collision with the Stena Provence at 0427 hours. A good lookout means appreciating and assessing the presence of the Stena Provence and to determine if a risk of collision exists. Not only was there a breach of rule 5, Captain Zou’s decision to stop her engines at 0418 hours meant that he would have no control of the Tian E Zuo. There is therefore fault on the part of the Tian E Zuo for the collision with the Stena Provence at 0427 hours.

Causative potency and apportionment of liability

I now come to the question of liability. In apportioning liability, the court considers the relative blameworthiness and causative potency of the faults of each vessel. As summarised in The “Samco Europe” and “MSC Prestige” [2011] 2 Lloyd’s Rep 579 at [81], and subsequently adopted in The “Nordlake” and the “Seaeagle” [2016] 1 Lloyd’s Rep 656 (“The Nordlake”):

In relation to the relative blameworthiness of the vessels, this is a qualitative as opposed to a quantitative assessment. As Teare J in The Nordlake puts it, “[th]e number of faults on one side or the other is not decisive. It is the nature and quality of a ship’s faults, rather than their number, that matter” (at [149(i)]).

In relation to causative potency, the court is concerned with the causative impact each fault has on the eventual collision and loss. To use the words of the court in The Nordlake (at [149(iii)]):

I have earlier identified the factual causative features of this case that culminated in the related collisions (see [92] above); namely, the crossing of the bow at 0347 hours, the entanglement, the involuntary towage, the distance travelled during the towage, the speed and heading of the Arctic Bridge, and overall lack of situational awareness and manifest inaction(s) that set the Tian E Zuo on a collision course. This is because it is the accretive effect of each of these features present in this case that resulted in the related collisions and the damage sustained by the vessels. Thus, in terms of the causative potency of the Arctic Bridge’s faults, it is the Arctic Bridge in crossing port to the bow of the Tian E Zuo at an unsafe distance, at about 0347 hours, and thereafter, proceeding full ahead in the direction of the Stena Provence without stopping and without keeping a good visual lookout and monitoring the progress of the Tian E Zuo at her stern, that were the faults that linked the Arctic Bridge’s negligence with the damage sustained in the related collisions. By so doing, the effect of the entangled anchor chains on the related collisions manifested: the entangled anchors or anchor chains enabled the Arctic Bridge to drag the Tian E Zuo from her anchored position, and without fully appreciating that the Arctic Bridge was dragging the Tian E Zuo, an involuntary towage lasting 20 minutes at full ahead in the direction of the Stena Provence ensued, and culminated in the first contact at 0410 hours. Further, despite having contacted the Stena Provence herself at 0410 hours, the Arctic Bridge (whether or not fully appreciating that she was still towing the Tian E Zuo) continued to navigate full ahead thereby dragging the Tian E Zuo into a second collision at 0427 hours. The causal link to the further damage to the Stena Provence and the Tian E Zuo, was the Arctic Bridge’s failure to take preventive action(s) to prevent the second collision.

Turning then to the causative potency of the faults of the Tian E Zuo, her failure to keep proper lookout ahead of the Tian E Zuo for the Arctic Bridge and the Stena Provence must be taken to be causatively potent as it contributed to the eventual related collisions. I have earlier found that the Tian E Zuo was a vessel underway during the involuntary towage and also explained that vessels underway have an obligation to keep clear of other anchored vessels. In taking advantage of the involuntary towage, the Tian E Zuo’s attention was focused on disengaging herself from the two other vessels at her stern and failed to fully appreciate the presence and proximity of the Stena Provence. Put another way, Captain Zou had not given particular attention to the Stena Provence any earlier than 0407 hours. Whilst Captain Zou took no action with reference to the Arctic Bridge, the Tian E Zuo took action with reference to the Stena Provence too late to be effective to avoid the eventual collision. Thus inasmuch as the Arctic Bridge is to be blamed for the dragging the Tian E Zuo into the port quarter of the Stena Provence, the Tian E Zuo’s delayed action to avert a collision with the Stena Provence also reflects her contribution to the related collisions. I have also considered the Tian E Zuo stopping her engines at 0418 hours when the Arctic Bridge still continued to sail at full ahead pulling the Tian E Zuo as a fault that is causatively potent as this contributed to the second contact between the Tian E Zuo and the Stena Provence.

In terms of the relative blameworthiness, there were serious faults as described in respect of each vessel. Having regard to the causative potency and blameworthiness, both vessels are equally to blame and a fair apportionment is 50:50.

Conclusion

Annex