Admiralty and Shipping Law
| Author | TOH Kian Sing LLB (Hons) (National University of Singapore), BCL (Oxon); Advocate and Solicitor (Singapore). |
| Date | 01 December 2019 |
| Published date | 01 December 2019 |
| Publication year | 2019 |
2.1 In 2019, the High Court in The Mount Apo1 handed down yet another important decision involving collisions between vessels in Singapore waters. The decision provides some guidance on the obligations of a vessel crossing traffic lanes in a Traffic Separation Scheme under the International Regulations for Preventing Collisions at Sea 1972 (“COLREGS”), as well as the proper use of very high frequency (“VHF”) radio communications between vessels. It is an important addition to a growing number of collision cases which Singapore courts have decided in recent years.
2.2 The decision in The Mount Apo arose out of a collision between a capesize bulk carrier, Mount Apo (“Mt Apo”), and a liquefied natural gas carrier, Hanjin Ras Laffan, within the westbound lane of the Traffic Separation Scheme (“TSS”) in the Singapore Strait on 8 August 2015 at 9.59am. The facts of the case can be summarised as follows:
(a) Hanjin Ras Laffan was transiting in the Singapore Strait from east to west, in an attempt to overtake another vessel, Dalian Venture, while Mt Apo had just left the port of Singapore and was attempting to cross the westbound lane of the TSS into the eastbound lane.
(b) Before disembarking at 9.40am, the pilot had advised the captain of the Mt Apo, a Captain Rajesh, to follow Ocean Sapphire's course, the latter vessel being directly ahead of Mt Apo and also on an eastwards course, and to proceed eastwards outside the TSS's northern boundary to cross the westbound lane near Pilot Eastern Boarding Ground “C”.
(c) At 9.43am, Frontier Leader, which had been travelling eastwards along the eastbound lane of the TSS began turning to
port to commence crossing the westbound lane of the TSS to head into the port.(d) Up to 9.50am, Mt Apo had been following Ocean Sapphire in turning gradually to port, with its heading changing from 140 degrees at 9:42am to 100 degrees at 9:50am. At 9:50am, Mt Apo was about 0.5 nautical miles from the northern boundary of the westbound lane of the TSS. It was at this point that Captain Rajesh decided it was no longer possible to continue following Ocean Sapphire, as Mt Apo was in a crossing situation with another vessel, Frontier Leader, and had to keep clear of Frontier Leader since Mt Apo was the give-way vessel in this crossing situation. However, Captain Rajesh decided to maintain Mt Apo's heading.
(e) Meanwhile, the captain of the Hanjin Ras Laffan, a Captain Kim, observed that the Mt Apo turning to port and concluded that the Mt Apo would not cross the TSS ahead of the Hanjin Ras Laffan, he therefore put Hanjin Ras Laffan from full ahead to full navigation.
(f) At 9.52am, when Frontier Leader was about 0.7nm from Mt Apo, Captain Rajesh decided to alter course to starboard to keep clear of Frontier Leader. Immediately thereafter, Captain Rajesh noticed that the Frontier Leader had made a substantial alteration of course to starboard and decided to put the helm amidships to maintain course.
(g) The Mt Apo crossed into the westbound lane of the TSS at 9.54am at a shallow angle of 32 degrees. The Mt Apo was advised by the Singapore Maritime Port Authority's Vessel Traffic Information Service (“VTIS”) over VHF to maintain a good lookout and to cross safely. The VTIS then advised the Hanjin Ras Laffan that the Mt Apo was going eastbound and to keep a good lookout for the Mt Apo. At 9.55am, the Hanjin Ras Laffan contacted the Mt Apo over VHF and sought clarification of the Mt Apo's intentions as well as to request for a green-to-green (starboard-to-starboard) passing (“the 9.55 Conversation”). The Mt Apo replied to say that she had stopped her engines to “make you pass our bow”.
(h) Both the Mt Apo and Hanjin Ras Laffan reduced their speeds incrementally, and by 9.55am the distance between the two vessels was less than 1.2nm. The Mt Apo then radioed the Hanjin Ras Laffan at 9.57am for a port-to-port passing, which was rejected, and eventually mutually agreed on a green-to-green passing after negotiating over the VHF. The Hanjin Ras Laffan moved from slow to dead slow and altered its course to port whilst the Mt Apo stopped its engines.
(i) Shortly before 9.58am, upon observing that Hanjin Ras Laffans alteration of course to port had caused her stern to swing towards Mt Apo, Captain Rajesh ordered hard to port to try to avoid Hanjin Ras Laffan. Approximately 20 seconds before the collision, at 9.58.57am, the Mt Apo called Hanjin Ras Laffan on VHF to request that Hanjin Ras Laffan go hard on starboard in order to swing her stern away from the Mt Apo to minimise collision impact. This was not done, and the Mt Apo collided with the Hanjin Ras Laffan at 9.59.15am within Singapore territorial waters.
2.3 As a result of the collision, the owner of Mt Apo brought an action against the owner and/or demise charterer of Hanjin Ras Laffan. A related action was brought by both the owner and the demise charterer of the Hanjin Ras Laffan against the owner and/or demise charterer of Mt Apo in respect of the same collision. Both actions were subsequently consolidated, with the owner and the demise charterer of the Hanjin Ras Laffan treated as counterclaiming defendants in the consolidated action. The trial before Pang Khang Chau JC (as his Honour then was) was confined solely to the apportionment of liability between the parties. Although there was a preliminary issue concerning the demise charterer of Hanjin Ras Laffan's title to sue, that is not relevant for the purpose of this note.
2.4 Before embarking on an analysis of the parties' conduct leading to the collision, Pang JC helpfully considered the law relating to the apportionment of liability. Pang JC noted that the apportionment of liability under s 1 of the Maritime Conventions Act 19112 depended on causative fault.3 The court reiterated the principles on apportionment of liability set out in The NordLake4 as approved and applied in The Dream Star,5 that is, the apportionment of liability involves a broad, commonsensical and qualitative assessment of the culpability and causative potency of both vessels.6
2.5 The first issue that Pang JC considered was whether Mt Apo was at fault for crossing the TSS at the time and in the manner she did. This gave rise to two sub-issues: (a) whether it was safe for Mt Apo to cross the TSS at the time Captain Rajesh made the decision to cross; and (b) whether Mt Apo was at fault to cross the TSS at the shallow angle of 32 degrees.
2.6 On the first sub-issue, in considering r 10(c) of the COLREGS which concerns vessels crossing traffic lanes in a TSS, Pang JC applied the observations of Hirst LJ in The Century Dawn7 that the question whether it was safe for a vessel to cross should be answered by reference to the conditions prevailing at the time the decision to cross was made and not the conditions prevailing at the time when the vessel entered the TSS.8 Pang JC held that the inquiry into whether it was unsafe to cross centred on what the traffic condition was in the TSS, as opposed to whether there were any other options open to the vessel. An unsafe crossing cannot be considered to be safe just because there are no other options open to the vessel at that time. The lack of safer options merely goes towards the issue of culpability.9
2.7 Pang JC also clarified the obligations of a stand-on vessel in a crossing situation under r 17 of the COLREGS. After considering the principles set out in The Taunton10 and The Topaz,11 Pang JC held that there is a distinction between alterations of course and speed by a stand-on vessel to avoid collision (which is precluded by r 17(a)(i) of the COLREGS) and alterations of course and speed by a stand-on vessel in the ordinary course of navigation for the object she had in view (which is not precluded by r 17(a)(i) of the COLREGS).12
2.8 On the facts, Pang JC held that it was unsafe for Captain Rajesh to have decided at 9.50am to cross the TSS given that Captain Rajesh himself had admitted that it was not prudent to cross at 9.50am when there were several vessels approaching in the westbound lane at that point in time, and that there were at least two safer options available to Mt Apo to pursue.13 The first option was for the Mt Apo to go westwards and then
2.9 In respect of the second sub-issue, Pang JC noted at the outset that r 10(c) of the COLREGS was applicable to vessels crossing only one lane of a TSS to join the other lane as well as vessels crossing the entire TSS to reach the opposite coast. Pang JC held that, as a matter of good seamanship, the master of a vessel should, where possible, ensure that the vessel follows a heading at 90 degrees to the general direction of traffic flow when crossing a TSS, except where safety of navigation or other good reasons required otherwise.16 On the facts, Pang JC found that Mt Apo was in breach of r 10(c) of the COLREGS by crossing the TSS at an angle of 32 degrees when it was practicable for Mt Apo to cross at right angles instead.17 Pang JC also disagreed with the Plaintiff's expert that a turn to starboard to cross at right angles would be inconsistent with a stand-on vessel's duty to keep her course and speed, whose views were based on a misapprehension of r 17(a)(i) of the COLREGS. Since a vessel intending to cross a TSS would, in the ordinary course of navigation, line herself up at right angles, r 17(a)(i) of the COLREGS does not preclude such a manoeuvre by a stand-on vessel.18
2.10 In the circumstances, Pang JC found that this was a...
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