Introduction
Sungleam Maritime Limited v The Owners and/or Demise Charterers of the Ship or Vessel “He Da 98” and Sister Ship “Shuncheng” (“The He Da 98”) [2011] 5 HKLRD 126 was the first decided case in Hong Kong in which the court ruled that one of the two vessels was wholly to blame and thus wholly liable for loss and damage caused in the ship collision. However, it seems that the decision should be treated with caution in view of the recent English court’s approach.

Facts
On 30 November 2007, the Plaintiff’s vessel, Pontodamon, collided with the Defendant’s vessel, He Da 98, at around 21:25 in the port area of Shanghai. Pontodamon is a bulk carrier of 38,684 gross tonnes with 224.95 metres in length and a beam of 32.24 metres whilst the He Da 98 is a general cargo vessel of 4,083 gross tonnes with 98.5 metres in length and a beam of 16.8 metres. It was undisputed that He Da 98 is more manoeuvrable than Pontodamon and that at the material time, Pontodamon was the “stand-on” vessel while He Da 98 was the “give-way” vessel according to the International Regulations for Preventing Collisions at Sea 1972 (“COLREGS”), which are the navigation rules to avoid collisions between vessels.

Prior to the collision, Pontodamon was heading roughly eastward at a speed of about 16 knots whilst the He Da 98 was heading south-westward at 6 – 7 knots. Ironically, it is also not disputed that had both vessels proceeded along the directions at their respective speeds, there would have been no collision albeit the passing distance between the two vessels would be very close.

Plaintiff’s Case
The Plaintiff’s case is that the crew of Pontodamon noticed He Da 98 at about 21:05 and attempted to contact her in order to ascertain her intention as a give-way vessel but in vain. At about 21:23, when it was observed that He Da 98 had crossed Pontodamon’s bow, the captain of Pontodamon decided to slightly turn Pontodamon to port for 10° to ensure a safer clearance between the two vessels.

Pontodamon assumed that He Da 98 would continue along her course because she did not respond to Pontodamon’s contact attempts by VHF, light and sound signals. To Pontodamon’s surprise, He Da 98 suddenly turned starboard by way of a desperate last-minute attempt to pass Pontodamon on her port side but it was apparently too late, leading to the collision.

Defendant’s Case
The Defendant argued that most or all of the blame for the collision should be attributed to Pontodamon. First, Pontodamon was navigating at an excessive speed of 16 knots. Second, she put herself in a dangerous position by not navigating within the traffic separation scheme lane, in breach of rule 10(b)(i) of the COLREGS. Further, Pontodamon, as a stand-on vessel, should keep her course and speed but she turned port by 10° at the material time without sounding two short whistle blasts according to rule 34(a) of the COLREGS while the He Da 98 was turning starboard, eventually resulting in the collision.

Court’s Decision
It was held that He Da 98 was wholly to blame for the collision because as a give-way vessel, she failed to turn to starboard at an earlier stage to avoid the collision and it was too late for her to turn when she had already crossed the bow of Pontodamon by 25%. The judge found that He Da 98 should have spotted Pontodamon from at least 5 nautical miles away when there was more than ample time for her to steer clear out of Pontodamon’s way and that the He Da 98 was sufficiently manoeuvrable.

The judge further held that the fact that Pontodamon failed to abide by the traffic separation scheme and was proceeding at a speed of 16 knots was not causative of the collision. Further, Pontodamon’s failure to give two short whistle blasts as warning before making port turn was not the source of blame for the collision.

Analysis
It should be noted that under the English line of authorities, when two moving vessels collide with each other, it is rarely the case that only one vessel is to blame, particularly in this case where Pontodamon was herself in default of COLREGS. According to section 3(1) of the Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (Cap 508) (similar to section 187 of Merchant Shipping Act 1995 in UK), if damage or loss is caused to one or more vessels by the fault of these vessels, the liability shall be in proportion to the degree in which each vessel was in fault. Further, under section 3(2), if it is not possible to establish degrees of fault, the liability shall be apportioned equally.

Whilst the Hong Kong court did not take Pontodamon’s defaults as a source of blame, it was held in recent English authorities that a vessel was to blame for failure to announce that she was altering its course by appropriate sound and light signals,[1] for failure to proceed in the appropriate traffic lane[2] and for travelling at excessive speed[3] which are exactly what Pontodamon did. Further, the approach of the English court would be to apportion the liabilities between the Pontodamon and He Da 98, instead of justifying Pontodamon’s faults by the more serious defaults of He Da 98.

According to the recent English authorities, the only situation where the Court has awarded 100% liability is when a vessel stuck another vessel while that vessel was at anchor[4].

It is interesting to note that after the Defendants in the He Da 98 case filed an appeal against the court’s decision, the parties themselves agreed to re-apportion the liability to 75 per cent for He Da 98 and 25 per cent for Pontodamon. It appears that even the parties are of the view that the court should not have decided that the Defendants were wholly liable for the collision. Therefore, the court’s approach in the He Da 98 case should be treated with caution, particularly in view that Pontodamon was not entirely faultless, and the decision was inconsistent with the approach of recent English authorities in which the English Court usually apportions the vessels’ liability according to the respective degree of faults of the vessels instead of attributing 100% liability to one of the vessels in a collision. Since there are yet to be any reported judgments in Hong Kong which considered the He Da 98 case, it remains to be seen if the approach will be followed by Hong Kong courts.

[1]    Samco Europe and The MSC Prestige [2011] EWHC 1580 (Admlty) [2]    The Hagieni and The Barbarossa [2000] 2 Lloyd’s Rep. 292 QB [3]    The British Aviator [1965] 1 Lloyd’s Rep. 271 CA [4]    Global Mariner v The Owners and Bareboat Charterers of the vessel Atlantic Crusader [2005] EWHC 380

For enquiries, please contact our Litigation & Dispute Resolution Department:

E: shipping@onc.hk

T: (852) 2810 1212

W: www.onc.hk

F: (852) 2804 6311

19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.