Apportionment of Liability in Collision Cases Following “Nordlake” & “Seaeagle”

Author: Lara McDonnell
In: Article Published: Saturday 04 November 2017

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By Lara McDonnell

Should a Court ascertain fault and pass judgment if unable to render the guilty party/ies bound to the extent of their liability? Will this not be tantamount to rendering a sterile judgment – the legal pronunciation without the practical machinery to action it?

Further, should one render such a judgment in the absence of the party against whom it is made, particularly where the parties seeking the determination – the Claimants in the case – are themselves liable to some degree and are in a position to influence the decision-maker? Will justice be served by proceeding in such a manner?

The issue arose in the recent collision case of “Nordlake” & “Seaeagle”, which came before Mr Justice Teare in the English Admiralty Court. The learned Judge was called upon to apportion liability following a collision between two ships, Nordlake & Vindhyagirl, which he found was caused by the fault of four ships: Nordlake, Vindhyagirl, Godavari and Seaeagle. The owners of the Vindhyagirl and Godavari were not parties to the English Court proceedings. Consequently, the Court had to consider the question left open by Brandon J (as he then was) in the 1973 Bovenkerk Case, namely should a Court take into account of the degree of fault of a non-party?

Brandon J regarded the question as one of some difficultyand despite both leading counsel agreeing one should answer in the affirmative, on the basis of section 1 of the Maritime Convention Act 1911, the learned Judge stated that he would have required further argument on the point before ultimately passing judgment.

Brandon J was clearly not convinced, which begs the question, why such a well respected, experienced admiralty judge, who Mr Justice Teare regarded as having an unsurpassable knowledge of the assessment of damages in collision cases, regarded the issue with some difficulty. Naturally the issue caused Mr Justice Teare some concern although he concluded with an affirmative response to the question, which did appear rather evident to him.

In an attempt to canvass the matter one should perhaps commence by considering the factual matrix of the “Nordlake” and “Seaeagle” case and the relevant legislative provision.

On 30 January 2011 the “Nordlake” narrowly avoided a collision with the “Seaeagle” in the entrance to the port of Mumbai. The former container vessel shortly thereafter collided with an Indian warship, Vindhyagirl, after which a fire broke out on the warship. She sank the following day and was salved some five months later.

In February 2011 the owners of the Vindhyagirl, the Union of India, brought proceedings before the Indian Courts against the owners of the Nordlake

As the Union of India was not a party to the English Court proceedings, which were brought some two years later in January 2013, the principle of Lis Alibi Pendens would have not been a consideration. The conclusions reached by Mr Justice Teare as to the extent of Vindhyagirl’s liability could also not bind her in the Indian Court proceedings

The owners of the “Nordlake” brought their claim against the owners of the “Seaeagle” alleging that the collision was caused by the contributory negligence of the “Seaeagle” and three Indian warships: Vindhyagirl, Godavari and another “Lead Warship”. Four days later the owners of the “Seaeagle” reciprocated by bringing a claim against the owners of the “Nordlake” alleging the collision was caused by her fault and the same three Indian warships. As the Union of India was not a party and not represented, no evidence from those onboard the warships was tendered. Thus the finding of fault and liability for the damage was based solely on the evidence submitted by the two parties to the proceedings – “Nordlake” and “Seaeagle”.

Judgment was given by the Admiralty Court in December 2015, following a three day hearing in October.

Leading counsel for both parties agreed with leading counsel in the “Bovenkerk” case, such that as the collision was found to be caused by two or more vessels the Court was required, by virtue of section 187 of the Merchant Shipping Act 1995to apportion liability in proportion to the degree in which each vessel was at fault.

The wording of the relevant provisions reads:

“Where, the fault of two or more ships, damage or loss is caused to one or more of those ships, to their cargos or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was in fault.”

Thus Mr Justice Teare took into account the degree of fault of the non-parties on the basis that if he failed to do so the degree of fault of two litigating Claimants before him would be greater, and accordingly, their liability for the damage and loss, and this would be contrary to section 187: the mandatory law on the division of loss.

The learned Judge acknowledged that as non-parties he could not give judgment against the owner/s of the Vinhyagirl and Godavari to make good the damage to the extent of their pronounced individual liability.

Consequently, assessing the relative liability of the four ships the learned Judge apportioned liability: 60% to Nordlake, 20% to Vindhyagirl, 10% to Godavari and 10% to Seaeagle, accordingly, this resulted in 30% of the litigating parties i.e. “Nordlake” and “Seaeagle’s” damages and loss being irrecoverable, albeit they had a judgment in their hands.

Originally in Admiralty the rule had developed that where two ships were to blame for a collision, loss was to be divided equally, so that each party was responsible for one-half of the other’s damage. This approach was adopted largely due to the difficulties in proving negligence and apportioning the loss to the degree of fault. However, with the lapse of time the idea of liability for negligence developed and nautical experts began to be called to assist Admiralty Judges in deal with with questions of seamanship. Consequently, the original rule was abolished by the Maritime Conventions Act 1911, which was superseded by the Act and modern rule cited above

Causative fault as regards the collision as well as the resulting damage, and not moral blame, where to be deciding factorsFurther, the underlying principle and correct approach with regard to apportionment of liability, as enunciated by Sir Henry Brandon and applied by Mr Justice Teare, was to be a consideration and weighing of the faults of each ship separately and individually and then to arrive as a result that justly reflected the relative degrees of fault of the parties in question.

Of course the rule on the division of loss applies only where the collision is caused by the fault of both the Claimant and Defendant ship/s – and now as a consequence of the present case even non-party ships. Thus it would be inapplicable between concurrent tortfeasors and a third innocent ship, in such circumstances the innocent ship could recover her whole loss from either, or both parties liable.

So, are we left with a wholly satisfactory result when applying the legislation in question, in that the litigating party/ies are ultimately left out of pocket to the tune of 30%? Probably not, however the legislation is as it is, the particular circumstances of this case are novel and rare and the fact that the non-parties had no opportunity to present evidence to the Court in advance of a judgment on their respective degrees of fault being made cannot be viewed as resulting in an unjust result, per se, as the judgment will not be binding on them in any event. 

LARA MCDONNELL @ 2016

BARRISTER

33 BEDFORD ROW

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