How digital data is changing Admiralty Court collision trials: guidance from the recent Suez collision judgment

Posted: 15/10/2020

Judgment was handed down last week on a three-way collision that occurred in the Suez Canal on 15 July 2018. The vessels were the Sakizaya Kalon (SK), Osios David (OD) and Panamax Alexander (PA). This was Sir Nigel Teare's final case as Admiralty Judge and he used the opportunity to illustrate how collision trials in the Admiralty Court continue to evolve to meet the demands of – and use the opportunities presented by – digital evidence.

The case

The collisions occurred during passage of a southbound convoy in the Suez Canal in July 2018. The convoy consisted of eight vessels, the first of which anchored in the canal shortly after suffering a machinery problem. The PA was the last vessel in the convoy, astern of the SK and the OD was third from last. In response to the first vessel anchoring, the convoy had to come to a halt. This was no easy feat given the narrow width of the canal and lack of tug assistance. The following two to three knots of current also complicated mooring. Of these three ships, the OD moored first with mooring lines and an anchor. The SK eventually anchored/moored close astern of OD on the other side of the canal. The PA failed to moor and collided with the SK. The PA and SK thereafter contacted the OD and all three ships were then adrift in the canal forming a triangle and colliding several more times.

The PA appeared from the outset to be wholly to blame for the collisions. Nevertheless, her owners tried hard to shift blame to the SK and OD by alleging various faults, including failing to warn the PA before mooring, impeding her passage by mooring too close to each other and failing to take action to avoid collision. None of these arguments found favour with the court.

The judge found that the PA was causatively at fault for failing to stop. She did not keep a good lookout and therefore failed to appreciate that a risk of collision existed, in breach of the Collision Regulations. Lookout includes using ECDIS (and its AIS input) to remain alert to the actions of vessels further forward in the convoy. Had the PA’s crew done so, they would have noticed that the vessels at the head of the convoy had stopped, meaning the SK and OD inevitably also had to stop. The PA should therefore have tried to moor earlier.

The PA was found 100% to blame for the collisions (including a collision between the SK and OD).

Guidance from the judgment

The judge reflected on how collision trials have changed since the advent of VDRs.

• Establishing vessels’ navigation: In recent years, the court has become adept at using digital data to establish the navigation of each vessel. In this judgment, the judge went so far as to say that ”there is now, typically, no need for a trial to establish the navigation of each vessel leading up to the collision” [6]. This means a trial can concentrate on questions of fault (whether a vessel failed to comply with one or more of the Collision Regulations or the requirements of good seamanship) and questions of apportionment of liability (which requires assessment of the causative potency of a vessel's fault and the degree of blameworthiness of such fault). This should mean collision trials are usually shorter. That said, the judge noted that the wealth of digital information lends itself to highly detailed submissions. Even so, this trial, which took four and a half days, would probably have taken significantly longer before digital evidence was available given the complexity of the facts involving the navigation of three vessels.
• Reconstruction animations: Having found that animation videos did not assist in the Alexandra 1 v Ever Smart case, the judge found animations very useful in this case, to observe the positions of each vessel in the lead up to the collisions and thereby better understand their decision-making.
• Transcripts of VDR audio recordings: The judge commented (not for the first time) on the importance of the parties trying to agree transcripts of VDR audio. Such transcripts were heavily relied on during this case as they revealed what each vessel was told, when and what action was taken, which was critical information for assessing faults.
• Witness evidence: Despite the importance of digital information, the judge noted that witness evidence still has a place. Such evidence is not required generally to determine the navigation, but “when allegations of serious navigational faults are made it is only fair that the master, against whom such allegations are made, has an opportunity to respond to them in open court” [13]. All three masters were able to give evidence remotely, including, for the first time, one from a ship at sea.

The judgment also contains other useful guidance, including:

• Nautical assessors: The judgment confirms the recently developed procedure of enabling the parties to make submissions about the questions and the assessor's answers. There is also a useful lesson on how to deal with factual assumptions when proposing additional questions to pose.
• Decisions made “in the agony of the moment”: The case provided good examples of masters having to make important navigational decisions, in dangerous situations, which could be criticised in retrospect. The court confirmed that it will be slow to find negligence in a master's response to a perilous and difficult situation of another vessel’s making.
• Liability for subsequent collisions: The judge dismissed the PA's allegations that faults by the SK and OD caused the later collisions. It was noted that "the question of causation depends upon whether the effect of the first collision was continuing in such a way as not merely to provide the opportunity for the later collisions but as to constitute the cause of them" [298]. Having conducted a forensic analysis of the evidence (most of which was derived from digital sources) the judge was in no doubt that the first collision constituted the cause of the later collisions in this case.

Comment

Collision proceedings have changed remarkably within the last decade. This latest judgment confirms that the Admiralty Court is comfortable in assessing digital data and has implemented the necessary procedures to do so. There seems little doubt that adaptations will continue as the sources and amount of data increases. Collision trials should now be shorter, as the navigation will ordinarily have been agreed beforehand (which also increases the likelihood of cases settling before trial). Nonetheless, there is a danger of longer, more detailed submissions being made because of the availability of detailed data. As digital information proliferates in the coming years, practitioners’ knowledge and practical experience will become increasingly important to cut through the myriad data and maintain focus on potentially causative faults.

Preparation of VDR transcripts can be time consuming and expensive, particularly when there are several languages to be translated, but in cases where it is important to find out what the bridge teams knew and actions taken at specific times, it is essential this information is gathered at the earliest opportunity.

Witness statements, whilst generally no longer required to establish where vessels navigated, remain important to evidence how masters and officers of the watch perceived certain situations and why they took particular actions. Witness evidence should now be more straightforward to provide in trials: now that the technology is tested and the procedures are in place, it seems unlikely witnesses will routinely need to attend collision trials in person, even after the Covid restrictions are lifted.

The full judgment can be read here.

Following the 15 July 2018 collision, the Panamax Alexander was involved in another collision in the Suez Canal the following day. Penningtons Manches Cooper is representing the owners of a vessel involved in that incident.

Return to news headlines