Collisions at Sea: Volume 2: Case Studies

By Harry Hirst

It has been over forty years now since the present International Regulations for Preventing Collisions at Sea—the Collision Regulations—came into force. It’s been over forty years in which there have been considerable technological improvements in ship design and equipment. Despite these improvements, however, mariners are still having collisions; and marine lawyers are still being called upon to settle liability for these collisions. Understanding how the courts interpret the Collision Regulations and apportion liability, therefore, will benefit both the mariner and the marine lawyer and all those involved in teaching the rules and investigating the causes of collisions at sea. This book is for you.

• Language: English
• Publisher: Xlibris UK
• Release date: Jan 29, 2021
• ISBN: 9781664113787

Harry Hirst

Harry Hirst went away to sea after leaving school in 1975 and qualified as a Master Mariner in 1988. A graduate in both Nautical Studies and Law, he qualified as a solicitor in England in 1992. He is now a partner with Ince & Co and currently working in Singapore. He has spent his entire legal career specialising in Admiralty law, and he has personally investigated and advised on the apportionment of liability for many collisions at sea. He is recognised to be one of the leading Admiralty lawyers in the World today.

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CONTENTS

INTRODUCTION

The Plots

Captain Bruce Ewen, Director, Aulis Insights Pte Ltd

CHAPTER 1   RULE 13: OVERTAKING

*The Nowy Sacz [1976] 2 Lloyd’s Rep.682

*The Nowy Sacz [1977] 2 Lloyd’s Rep.91 (CA)

The Iran Torab [1988] 2 Lloyd’s Rep.39

The Koscierzyna [1996] 2 Lloyd’s Rep.124 (CA)

CHAPTER 2   RULE 14: HEAD-ON SITUATION

*The Sea Star [1976] 1 Lloyd’s Rep.115

*The Sea Star [1976] 2 Lloyd’s Rep.477 (CA)

The Selat Arjuna [1998] 2 Lloyd’s Rep.488

The Selat Arjuna [2000] 1 Lloyd’s Rep.627 (CA)

CHAPTER 3   RULE 15: CROSSING SITUATION

*The Roanoke [1908] P.231 (CA)

*The Alcoa Rambler [1949] AC 236 (PC)

*The Tojo Maru [1968] 1 Lloyd’s Rep.365

*The Auriga [1977] 1 Lloyd’s Rep.385

The E.R. Wallonia [1987] 2 Lloyd’s Rep.485

The Angelic Spirit [1994] 2 Lloyd’s Rep.595

The Lok Vivek [1995] 2 Lloyd’s Rep.230

The Enif [1999] 1 Lloyd’s Rep.643

The Hanjin Madras [2000] 1 Lloyd’s Rep.282

The Hanjin Madras [2001] 2 Lloyd’s Rep.419 (CA)

The Topaz [2003] 2 Lloyd’s Rep.18

The Samco Europe [2011] 2 Lloyd’s Rep.579

CHAPTER 4   RULE 19: RESTRICTED VISIBILITY

The Sanshin Victory [1980] 2 Lloyd’s Rep.359

The Roseline [1981] 2 Lloyd’s Rep.411

The Oden [1989] 1 Lloyd’s Rep.280

The Tenes [1989] 2 Lloyd’s Rep.367

The Maloja II [1993] 1 Lloyd’s Rep.48;

The Maloja II [1994] 1 Lloyd’s Rep.374 (CA)

The Skyron [1994] 2 Lloyd’s Rep.254

The Aleksandr Marinesko [1998] 1 Lloyd’s Rep.265

The Hakki Deval [2006] EWHC 2809

The Rickmers Genoa [2010] EWHC 1949

CHAPTER 5   RULE 9: NARROW CHANNELS

*The Empire Brent (1948) 81 Ll.L.Rep.306

*The Canberra Star [1962] 1 Lloyd’s Rep.24

*The Koningen Juliana [1973] 2 Lloyd’s Rep.308

*The Koningen Juliana [1974] 2 Lloyd’s Rep.353 (CA)

*The Koningen Juliana [1975] 2 Lloyd’s Rep.111 (HL)

*The Troll River [1974] 2 Lloyd’s Rep.181

The Maritime Harmony [1982] 2 Lloyd’s Rep.400

The Satya Padam [1985] 1 Lloyd’s Rep.338

The Faethon [1987] 1 Lloyd’s Rep.538

The Regina D [1990] 2 Lloyd’s Rep.227

The Regina D [1992] 1 Lloyd’s Rep.543 (CA)

The Nordic Ferry [1991] 2 Lloyd’s Rep.591

The Devotion [1993] 2 Lloyd’s Rep.464

The Devotion [1995] 1 Lloyd’s Rep.589 (CA)

The San Nicolas [1994] 2 Lloyd’s Rep.582

The Pelopidas [1999] 2 Lloyd’s Rep.675

The Sitarem [2001] 2 Lloyd’s Rep.107

CHAPTER 6   RULE 10: TRAFFIC SEPARATION SCHEMES

The Achilleus [1985] 2 Lloyd’s Rep.338

The Century Dawn [1994] 1 Lloyd’s Rep.138

The Century Dawn [1996] 1 Lloyd’s Rep.125 (CA)

The Barbarossa [2000] 2 Lloyd’s Rep.292

The Siboeva [2002] 2 Lloyd’s Rep.210

CHAPTER 7   RULE 2: SEAMANSHIP - GENERALLY

The Kapitan Alekseyev [1984] 1 Lloyd’s Rep.173

The Navios Enterprise [1998] 2 Lloyd’s Rep.16

The Forest Pioneer [2007] 1 Lloyd’s Rep.26

CHAPTER 8   RULE 2: SEAMANSHIP – ANCHORED VESSELS

The Arya Rokh [1980] 1 Lloyd’s Rep.68

The Coral I [1982] 1 Lloyd’s Rep.441

The St. Louis [1984] 2 Lloyd’s Rep.174

The St. Louis [1986] 2 Lloyd’s Rep.125 (CA)

The Ouro Fino [1986] 2 Lloyd’s Rep.466

The Ouro Fino [1988] 2 Lloyd’s Rep.325 (CA)

The Pearl [2003] 2 Lloyd’s Rep.188

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INTRODUCTION

This is the second volume of my book, Collisions at Sea.

In Volume 1, I examined those Rules of the International Regulations for Preventing Collisions at Sea, 1972 (the Collision Regulations) which the mariner must particularly consider when determining whether there is risk of collision and what action to take to avoid collision. These are the same Rules which the maritime lawyer must particularly consider when determining fault and how liability for a collision at sea should be apportioned. The Collision Regulations came into force internationally on 15 July, 1977 and since their entry into force the English Courts have been called upon to apportion liability in over 50 cases involving collisions at sea. In this, Volume 2, I examine the judgments in most of these cases where the decision was reported on or before 31 December, 2018.

I have grouped the reported judgments together into separate chapters according to which of the ‘Manoeuvring’ Rules (see Volume 1, Chapter 2: at page 33) applied, and in the same order that I examined these Rules in Volume 1. All of the judgments are from cases involving a collision at sea between two commercial power-driven vessels. As with Volume 1, I have not included cases of so-called multiple ship collisions or putting by incidences. I have however, included the judgments from some cases decided by the English Courts under earlier versions of the Collision Regulations. I have done so because I believe these cases are still particularly relevant when deciding how the current Rules are to be applied. So for example, in Chapter 3 on collisions involving the crossing rule, Rule 15, I have included The Alcoa Rambler [1949] AC 236 (PC) case because it is still the leading case today, for determining when a vessel is on a course for the purposes of applying the Collision Regulations. I have however, marked these cases with an asterisk (*) to show they were decided under earlier versions of the Collision Regulations. Also, when quoting from the judgments in these cases I have replaced the references to a numbered rule from an earlier version of the Collision Regulations with their current equivalents, which I have shown in square brackets.

I examine each judgment by firstly summarizing the actions (navigation) of the two vessels as determined by the court, which are then illustrated pictorially in a full page plot. I then set out the faults of the two vessels as found by the court, and the apportionment of liability, quoting the relevant passages in the judgment. Where appropriate, I then add a note highlighting those points which I believe the mariner and maritime lawyer should particularly note from the judgment; and these points are reiterated in my comments on the judgments at the end of each chapter.

When reading this volume of my book I would encourage you to pause after the factual summary and viewing the plot for each case, and before continuing, to consider what in your opinion the two vessels did wrong; what faults the two vessels committed and how you would apportion liability for the collision.

The reference C - denotes time before collision in minutes. The reference CA denotes a judgment of the Court of Appeal; HL denotes a judgment of the House of Lords (now the Supreme Court); and PC denotes a judgment of the Privy Council. References to courses and speeds are to courses and speeds through the water unless otherwise stated.

The Plots

All of the plots in this volume of my book have been very kindly prepared for me by Captain Bruce Ewen, Director, of Aulis Insights Pte Ltd.

The plots are based on such details about the navigation of the two vessels as I was able to extract from the judgments, based on the court’s findings in each case. Those details vary in scope with each judgment, and are often only approximate and particularly so with the older cases. In some cases, like The Nowy Sacz [1976] 2 Lloyd’s Rep.682 for example (see Chapter 1), the facts as found by court and reported in the judgment cannot all be correct as it is not possible otherwise, for the collision to have occurred in the manner described. The plots in this volume of my book however, are for illustrative purposes only; to show in pictorial form how the vessels came into collision. The plots are not intended to be an exact and accurate representation of how each collision occurred, although Captain Ewen has taken extraordinary care to ensure the plots are as accurate as they possibly can be in every case.

All of the plots are to scale, and the tracks of the two vessels have been orientated so as to make best use of the space available on the page. The scale is shown at the top of each plot in a box which also contains a compass rose showing the orientation of the vessels’ tracks, the wind direction and strength (using the Beaufort Scale), and the current direction and strength.

Captain Bruce Ewen, Director, Aulis Insights Pte Ltd

Bruce started his seagoing career in 1966 as a midshipman on general cargo vessels sailing mostly out of Birkenhead’s Vittoria Dock (see Chapter 5, and The Empire Brent collision plot). In late 1970 he migrated to sailing on tankers, working for one of the oil majors initially and later joining the leading private shipowner of those days.

After serving 15 years in command, he was invited ashore and spent the next 5 years piloting combined fleets though the early ISM Code and USCG Vessel Response Plans, gaining experience in the safety and operational management of tanker and bulk carrier fleets.

Thereafter he worked in the Singapore correspondent’s office for an International Group P&I Club, where he spent 9 years conducting a wide variety of surveys and investigations on almost every kind of vessel. During this period he also began to develop his skills in recreating collision and grounding incidents using 2D and 3D graphical tools, and as an expert witness in formal legal settings.

In 2008 Bruce was asked to join the marine team of a leading international law firm, where he became Senior Master Mariner working in their Singapore office. For the next 6 years he investigated numerous maritime casualties, writing detailed technical reports for help in developing legal strategies and gave expert evidence in court.

In 2014 Bruce retired from formal employment and started his own company, Aulis Insights Pte Ltd, which is a boutique maritime consultancy firm in Singapore. He continues to be actively engaged in investigating maritime casualties, and is regularly instructed as an expert witness to give evidence in court and other legal proceedings in Singapore, Malaysia and Hong Kong. His 2D and 3D collision reconstructions (like the plots in this book) are recognised to be of high quality, and were used for example, in the Mount Apo and Hanjin Ras Laffan collision trial in Singapore (The Mount Apo and the Hanjin Ras Laffan [2019] SGHC 57) where he also gave evidence as an expert witness. When not overly busy, Bruce develops video presentations on topical matters of interest for the maritime community. Some of those can be viewed and downloaded from his website at aulisinsights.com.

Bruce continues to live and work in Singapore with his wife, where he enjoys occasional small gatherings with friends, walking in the shade, and spoiling his two Pomeranians.

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CHAPTER 1

Rule 13: Overtaking

Rule 13: Overtaking

(a) Notwithstanding anything contained in the Rules of part B, sections I and II, any vessel overtaking any other shall keep out of the way of the vessel being overtaken.

(b) A vessel shall be deemed to be overtaking when coming up with another vessel from a direction more than 22.5 degrees abaft her beam, that is, in such a position with reference to the vessel she is overtaking, that at night she would be able to see only the sternlight of that vessel but neither of her sidelights.

(c) When a vessel is in any doubt as to whether she is overtaking another, she shall assume that this is the case and act accordingly.

(d) Any subsequent alteration of the bearing between the two vessels shall not make the overtaking vessel a crossing vessel within the meaning of these Rules or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear.

Rule 16: Action by give-way vessel

Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear.

Rule 17: Action by stand-on vessel

(a) (i)Where one of two vessels is to keep out of the way the other shall keep her course and speed.

(ii)The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.

(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.

(c) A power-driven vessel which takes action in a crossing situation in accordance with subparagraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.

(d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way.

*The Nowy Sacz [1976] 2 Lloyd’s Rep.682

*The Nowy Sacz [1977] 2 Lloyd’s Rep.91 (CA)

The Nowy Sacz collided with the Olympian in the Atlantic Ocean off Cape St. Vincent at about 0400 on 14 February, 1972.

The weather was fine with good visibility. There was no material wind or current.

The Olympian was a motor vessel of 12,211 grt and 158 metres in length. She was in ballast, proceeding on a course of 331˚ in hand steering with her engine at ‘full ahead’ and making a speed of about 14.5 knots.

The Nowy Sacz was a bulk carrier of 3,809 grt and 109 metres in length. She was in laden condition, proceeding on a course of 341˚ in automatic steering with her engine at ‘full ahead’ and making a speed of about 12.5 knots.

The court found that the Nowy Sacz first visually observed the masthead lights of the Olympian at about C-115, bearing about 25˚ to 30˚ abaft the beam at a range of about 3 miles, but that the two vessels only came in sight of one another when the Olympian could also visually observe the Nowy Sacz. This was a short time before C-60, when the distance between the two vessels was a little over 2 miles. The Olympian could now see the two white masthead lights and green sidelight of the Nowy Sacz and the Nowy Sacz could now see the two white masthead lights and red sidelight of the Olympian. By C-30 the two vessels were abeam of one another and the distance between them had reduced to about one mile. At C-15 the Nowy Sacz engaged hand steering with the Olympian now bearing about 30˚ forward of the beam. Neither vessel took any avoiding action however, until very shortly before the collision, at about C-1.5 when the Olympian put her rudder hard to starboard, and the Nowy Sacz put her engine first to ‘half astern’, and then to ‘full astern’. These actions were ineffectual, only causing the headings of both vessels to change by about 10˚ to 15˚ to starboard on collision. The angle between the two vessels on impact was about 10˚, the starboard bow of the Nowy Sacz making contact with the port quarter of the Olympian.

[NOTE: It is impossible to reconstruct the tracks of the two vessels based on the ranges and bearings reported in the judgment. The plot which follows shows the Olympian on a broadly steady bearing throughout, of about 36˚ abaft the beam of Nowy Sacz, and at ranges of about 6 miles at C-115; 3 miles at C-60, 1.5 miles at C-30, and 0.75 miles at C-15.]

The owners of the Nowy Sacz argued that the overtaking rule applied because when the Olympian was first observed visually, she was bearing more than 2 points (22.5˚) abaft the beam and proceeding at a greater speed and therefore overtaking the Nowy Sacz.

The owners of the Olympian argued that by the time when she had approached close enough to the Nowy Sacz for the Collision Regulations to apply, she was no longer bearing more than 2 points (22.5˚) abaft the beam of the Nowy Sacz; and that as the two vessels at this time were on crossing courses the crossing rule applied.

PLOT%2001.jpg

Findings of the Court [Brandon J]

At first instance, Mr Justice Brandon considered the crossing rule (now Rule 15) applied, relying upon earlier authorities which suggested the Collision Regulations only applied when there was a risk of collision; that risk of collision only arose at about C-30 when the two vessels were about one mile apart; and that at this time, the Olympian was bearing less than 2 points (22.5˚) abaft the beam of the Nowy Sacz. He said:

"[Rule 11] ... provides that [Rules 11 to 18] are to apply only to vessels in sight of one another. [Rule15] further expressly provides that it shall only apply when two ships are crossing so as to involve risk of collision. [Rule 13] does not contain any similar provision but it has been held that it is impliedly subject to a similar limitation: The Banshee (1887) 6 Asp.Mar.Law Cas.321; The Manchester Regiment (1938) 60 Ll.L.Rep.279.

...

Having regard to [Rule 11] ... and to the authorities referred to above, it is clear that the overtaking rules would only have been applicable in the present case if before 0300 [C-60], when the Olympian was still bearing more than two points abaft the beam of the Nowy Sacz, two conditions were fulfilled: firstly, that the two ships were by then already in sight of one another; and secondly, that risk of collision between them had by then already arisen."

As regards the first condition, he found that the two vessels were already in sight of one another before C-60. As regards the second condition, he found that risk of collision did not exist at this time but only first arose some time later, at about C-30. In doing so, he considered the visible range of a stern light and the closing speed of the two vessels.

"... I have some doubt whether [Rule 13] was ever intended to apply to a situation in which the two ships concerned are more than 2 miles apart. I say that because ... stern lights only have to be visible at a minimum distance of 2 miles, so that at night a ship overtaking another may not be able to see the stern light of the latter when the distance between them is appreciably greater than that. I do not, however, consider that it is necessary to decide that point in this case, for ... the main factor in deciding at what time they apply in any particular case must be the speed at which the two ships are closing."

He went on:

"In my opinion it cannot fairly be said that before 0300 [C-60], when the distance between the two ships was still ... a little over two miles, with a closing speed of 2 to 2½ knots, there was already a risk of collision between them. It seems to me that such risk did not arise until much latter, when the distance between the ships had decreased to something like a mile...

...

For the reasons I have given I hold that the situation in the present case ... was a crossing situation and not an overtaking situation."

He then went on to apportion liability on this basis.

As regards the division of blame, I have no doubt that the Nowy Sacz was much more to blame than the Olympian, in that it was her fault which allowed a dangerous close quarters situation to arise at all, whereas the fault of the Olympian lay only in her failure to take the right emergency action at the right time in the situation so created.

The owners of the Nowy Sacz appealed, maintaining this was an overtaking situation and that in these circumstances the Olympian should have to bear 75% of the blame, which was not challenged by the owners of the Olympian.

Findings of the Court [Court of Appeal]

The Court of Appeal considered the overtaking rule (now Rule 13) applied.

"Now the contest in this case has revolved around one question of law and one question of fact. The question of law is: Does [Rule 13] operate only when the positions, courses and speeds of the ships are such as to involve risk of collision? If that question is to be answered in the affirmative then the question of fact is: Was a risk of collision involved in this case before the Olympian had ceased to be more than two points abaft the beam of the Nowy Sacz?"

In deciding that as a matter of law, risk of collision is not necessary in order for the overtaking rule [Rule 13] to apply, the Court of Appeal noted nevertheless, that there was impressive judicial authority for implying such a requirement. It went on however:

Considering the matter apart from authority, it is indeed a striking feature of the rules that in every other rule which prescribes which vessel is to keep out of the way of another the qualification so as to involve risk of collision" is expressed...

The latter part of [Rule 13 – Rule 13(b)] contemplates that there may be alterations of bearing after the rule has begun to apply. Since a constant bearing between two ships points to a risk of collision and an alteration of bearing points against such a risk, this part of the rule suggests that the rule applies before there is a risk of collision."

The Court of Appeal then noted that the only indication in the rule itself that it does not begin to apply as soon as the vessels are in sight of one another is the words coming up with ... ; and considered that these words involved a certain degree of proximity in space or time between the ships. The Court of Appeal continued:

"It does not, however, follow that for one to be coming up with the other there must be a risk of collision between them. For instance, if two ships are on parallel courses and one is abaft the other and travelling faster, we think a time could come when the faster ship should be considered to be coming up with the other, provided that the courses were not more than a few cables apart, even though if each ship maintained its course there would be no risk of collision.

... It follows that in our opinion the time when one vessel can be said to be coming up with another, while it does involve an element of proximity, may be before the time when there is a risk of collision."

In support of this proposition, the Court of Appeal quoted two earlier cases which sought to define when vessels could be said to be in an overtaking situation:

"In The Franconia (1876) 2 P.D.12 Sir David Brett J.A. gave this definition:

... that if the ships are in such a position, and are on such courses and at such distances, that if it were night the hinder ship could not see any part of the sidelights of the forward ship, then they cannot be said to be crossing ships, although their courses may not be exactly parallel ... And then if the hinder of the two such ships is going faster than the other she is an overtaking ship.

The Main (1886) 11 P.D.132 was decided at a time when the regulations ... required a stern light to be displayed only when a ship was being overtaken. The headnote reads as follows:

A ship is being overtaken within the meaning of [Rule 13] when another ship is going faster than, and is coming nearer to her, on a course which may ultimately lead to a position of danger, and when the following ship is within the space not covered by the lights of the first ship, and is thus in a position in which these lights cannot be seen by those onboard the following ship...

...

Lord Hershell, presiding in the Court of Appeal, said:

... it has been contended for the plaintiffs that a vessel is only being overtaken when the course of the overtaking ship is such that if it be left unchanged a collision will ensue. [This] is, I think, certainly too narrow a construction..."

...

Lord Justice Fry said:

... Taking that view, it appears to me that one vessel may be said to be overtaking the other when she is within the space not covered by the green or red light, and is approaching the other ship..."

The Court of Appeal noted that The Franconia was cited with approval in The Main, and considered this construction to be more in keeping with the decisions in earlier cases. It concluded:

"We would hold accordingly that [Rule 13] begins to operate before there is a risk of collision and as soon as it can properly be said that the overtaking ship is coming up with the overtaken ship. When exactly that will be may not always be easy to determine but we see no reason to suppose that it will be any more difficult than the decision as to when the situation involves a risk of collision."

Having reached this decision on the question of law, the question of fact was no longer relevant but the Court of Appeal agreed with Mr Justice Brandon that risk of collision only arose at about C-30 when the distance between the two vessels had reduced to about one mile.

As the Court of Appeal decided risk of collision is not necessary in order for the overtaking rule [Rule 13] to apply, it went on to decide that the overtaking rule applied in this case, and not the crossing rule, and to apportion liability on this basis, reversing the decision of Mr Justice Brandon.

"By the time that the vessels were in sight of each other and less than three miles apart we are of the opinion that the Olympian was coming up with the Nowy Sacz. It follows that from that time the Nowy Sacz was, in our judgment, the stand-on ship and the Olympian was the give-way ship."

NOTE: This case is very important because of the finding by the Court of Appeal that risk of collision is not a necessary requirement in order for Rule 13 to apply, and that is still currently the position under English law.

I believe this finding is wrong (see Volume 1, Chapter 5: at pages 112-120); and as the Court of Appeal acknowledged, there is impressive judicial authority for implying such a requirement. In making this finding I believe the Court of Appeal construed the words risk of collision too narrowly as meaning a situation where the CPA is zero, vis:

For instance, if two ships are on parallel courses and one is abaft the other and travelling faster, we think a time could come when the faster ship should be considered to be coming up with the other, provided that the courses were not more than a few cables apart, even though if each ship maintained its course there would be no risk of collision. (my emphasis)

In open waters I believe a safe passing distance for vessels in sight of one another is a distance (CPA) of at least 5 cables (0.5 miles) and ideally one mile (see Volume 1, Chapter 3: at pages 64-65). There would be risk of collision in this situation therefore, where the two vessels are going to pass not more than a few cables apart. I believe Mr Justice Brandon was accordingly correct to imply such a requirement but wrong to treat the closing speeds of the two vessels as the main factor for deciding when risk of collision arose. In my opinion, risk of a collision arises when that risk reaches a sufficient level (or degree) in the prevailing circumstances and conditions to constitute a risk of collision within the meaning of the Collision Regulations (see Volume 1, Chapter 4: at pages 72-76). The closing speed of the two vessels (their combined speed of approach) is only one of several factors to be taken into account. In an overtaking situation the combined speed of approach of the two vessels will invariably be slow (in this case it was about 2.5 knots), but the time during which the two vessels will remain in close proximity and during which there is a possibility of collision, will necessarily be much longer. This time in close proximity is another factor to be considered; and I think risk of collision in this case can be said to have arisen well before C-30 when the two vessels came abeam of one another, and before C-60 when the Olympian was still bearing more than 2 points abaft the beam of the Nowy Sacz and a little under 3 miles away.

In this regard, I believe the Court of Appeal was right to find that the overtaking rule [Rule 13], and not the crossing rule [Rule 15], applied in this case albeit for the wrong reasons. I believe the overtaking rule [Rule 13] applied because:

1. risk of collision is a requirement for the application of this rule [Rule 13] as it is with the other Manoeuvring Rules;

2. the CPA of the two vessels was such that the spatial element for risk of collision was always satisfied;

3. risk of collision arose when the temporal element was satisfied: when there was the necessary element of proximity in terms of time; that is, when the TCPA reduced below a certain level being, in this case, the time when the distance between the two vessels reduced to under 3 miles, or about C-90; and

4. at this time, C-90, the Olympian was then bearing more than 2 points abaft the beam of the Nowy Sacz.

The Iran Torab [1988] 2 Lloyd’s Rep.39

The Iran Torab collided with the Tan at 1026 on 12 September, 1984 in the Khor Musa Channel.

The weather was perfect with good visibility and little wind. The tidal current was flooding at a rate of about one knot.

The collision occurred during the war