FMG Sydney collision with MSC Apollo – the ‘bright light’ of the crossing rule

Posted: 21/07/2023

Contributory negligence is perceived as the norm in ocean-going collisions. So entrenched is the view among admiralty practitioners that collisions tend to be the fault of multiple vessels, that section 187 of the English Merchant Shipping Act 1995 seems almost presumptive in stating ‘where, by the fault of two or more ships, damage or loss is caused to one or more of those ships, …, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was in fault.’ Indeed, it does not even trouble to contemplate that a single vessel might be solely responsible.
 
It is rare for the Admiralty Court to attribute 100% liability to one vessel for causing a collision, and rarer still when both vessels are underway. Nonetheless, this is precisely the outcome of a recent judgment of Sir Nigel Teare concerning the collision between the ore carrier FMG Sydney and container ship MSC Apollo in the approaches to Tianjin, China in August 2020.

The decision reminds us of the importance of causative fault when assessing liability for collisions, along with the proper interpretation of the crossing rule. It also reiterates the court’s existing position on the use of VHF and the obligation to maintain course and speed (rule 17 of the Collision Regulations).

How did the collision occur?

Sydney was outbound between two other vessels, all of which had departed Tianjin and were headed for the eastbound lane of the Caofeidian traffic separation scheme. Chang Fa Long was on Sydney’s starboard quarter and Hai Yang Shi You 633 was on her port bow. By C-13 (thirteen minutes before the collision), Sydney’s speed over ground was 8.73 knots, but due to increase, as her engines had just been set to full ahead.

Apollo was inbound at a speed of 16 knots and by C-15 had reached the end of the westbound lane of the traffic separation scheme. At C-13, Apollo had all three of the above vessels fine on her starboard bow at distances of about 5.5 miles when she began to alter course to port. Then, at C-9.75, Apollo further increased to port with the intention of cutting across the paths of the three vessels in order to proceed direct to the anchorage south of the entrance to Tianjin. However, such a course would necessitate a series of starboard-to-starboard crossings contrary to Rule 15 of the Collision Regulations, which provides:

‘Where two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.’

Between C-6 and C-6.5, VHF communication was established between Apollo and the closest vessel Hai Yang Shi You, who consented to a starboard-to-starboard crossing. Thereafter, at about C-4, Apollo contacted the farthest vessel Chang Fa Long seeking agreement to pass starboard-to-starboard, which was declined, so Apollo acquiesced to a port-to-port crossing. 

Apollo crossed ahead of Hai Yang Shi You at C-3.75 and then turned hard to starboard at C-3.5, leading Sydney to infer that Apollo would cross Sydney port-to-port. Chang Fa Long turned to starboard at this time, thus giving Sydney more sea room, and so Sydney also turned to starboard at C-3, giving Apollo additional room to effect a port-to-port crossing. However, Apollo’s hard turn to starboard only lasted ten seconds before the master ordered the helm amidships, leading the judge to infer that ‘the master of Apollo had just appreciated the danger of collision with Sydney but was in great doubt as to what to do.’

At C-2, Apollo contacted Sydney by VHF and sought agreement to cross starboard-to-starboard. Sydney declined and advised Apollo to instead turn to starboard, but Apollo refused and insisted on a starboard-to-starboard crossing.

Sydney reacted by turning hard to starboard at C-1.5. By C-1, Apollo was still insisting on a starboard-to-starboard crossing and turned hard to port. Sydney’s port bow contacted Apollo’s starboard side just forward of her accommodation at an angle of about 40 degrees, resulting in damage to both vessels. Security was exchanged in the total amount of US$13.5 million.

What did the court find?

Sir Nigel Teare observed that, as the give-way vessel under rule 15, Apollo was required to ‘take early and substantial action to keep well clear’ of Sydney. Following the expert advice of the nautical assessors of Trinity House, the judge determined that Apollo should have taken such action by C-7 at the latest but failed to do so. Apollo’s decision to cross the paths of multiple vessels was ‘unseamanlike’, as was the confusingly brief turn hard to starboard after passing Hai Yang Shi You. Moreover, Apollo’s use of VHF as a means of seeking to circumvent the crossing rule was ‘inappropriate’.

The court acknowledged that VHF may serve as a collision-avoidance aid in enabling vessels to communicate their compliance with the collision rules. However, VHF should not be used to further an attempted departure from the rules, as Apollo had sought to do.  

Counsel for Apollo contended that, as Sydney could see both sidelights of Apollo from C-14 to C-9.5, there was a head-on situation pursuant to rule 14 of the Collision Regulations instead of a crossing situation, meaning Sydney should have turned to starboard in order to pass Apollo on the port side.

Rule 14 (b) states that ‘such a situation shall be deemed to exist when a vessel sees the other ahead … and by night she could see the masthead lights of the other nearly in line and/or both sidelights’.  As the rule refers to ‘vessel’ in the singular, it was suggested that only one vessel needed to see both sidelights of the other for the rule to apply.

Disposing of this argument, Sir Nigel Teare observed that rule 14 applies only if the vessels are ‘on reciprocal or nearly reciprocal courses’, whereas there was a difference of 17 degrees between Apollo and Sydney’s reciprocal headings. The judge also held that it was necessary for both vessels to see the sidelights of the other for there to be a head-on situation, whereas only Apollo’s lights were visible to Sydney.

It was also submitted on behalf of Apollo that, as the stand-on vessel in a rule 15 crossing situation, Sydney should have maintained her course and speed instead of turning to starboard at C-4 and increasing speed from 9.21 to 11.4 knots between C-12 and C-2. Relying on the advice of the nautical assessors, the judge observed that the starboard turn was the appropriate action, as the stand-on vessel is entitled to take evasive action under rule 17(a)(ii) once it becomes apparent that the give-way vessel is not complying with the rules. Furthermore, Sydney did maintain her engine speed throughout. The increase in speed through the water was merely a natural consequence of Sydney’s engines developing their capacity after being set to full ahead at C-13.

The court has observed in earlier cases that ’maintaining course and speed’ does not require a vessel to keep a fixed course and speed. Rather, the vessel is required to maintain and continue with its existing manoeuvre, which may involve adjusting its course or speed; for example, when picking up a pilot or navigating a sinuous channel.

Counsel for Apollo further contended that Sydney should have turned to port in response to the imminent risk of collision. However, the judge observed that rule 17(c) requires a vessel taking action to avoid collision where possible to ‘not alter course to port for a vessel on her own port side’. The nautical assessors accordingly observed that the hard turn to starboard at C-1.5 was the only action available to Sydney.

Apollo’s ‘flagrant breach of the crossing rule’ was found to have entirely brought about the collision without any causative fault on the part of Sydney. Accordingly, liability was found 100% against the MSC Apollo. It is understood that MSC has been given leave to appeal.  

Described as a ‘bright light to navigators’, the very purpose of the crossing rule is to prevent a close quarters situation from developing. It is well-established that its strict enforcement is of the highest importance to well-ordered navigation and, as such, the decision stands as a welcome deterrent to those who might consider flouting the rule, particularly through the inappropriate use of VHF. It is best not to cross the crossing rule.

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