HCAJ 133/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ADMIRALTY ACTION NO. 133 OF 2006
Admiralty action in rem against : The ship or vessel “VEMABALTIC”
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BETWEEN
THE OWNERS OF THE SHIP OR VESSEL “iRan huwayzeh” Plaintiffs
and
THE OWNERS AND/or demise charterer OF THE SHIP OR VESSEL “VEMABALT Defendants
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Before: Hon Stone J in Chambers (Open to Public)
Date of Hearing: 22 June 2009
Date of Judgment: 30 June 2009
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J U D G M E N T ON L I A B I L I T Y
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This case
1. This is an admiralty action about a minor ship collision which occurred at 08.03 hours on 4 July 2004 in the South China Sea between two large oil tankers immediately prior to an underway mooring and a ‘ship to ship transfer’ (‘STS’) of oil from the mother ship, the Iran Huwayzeh, to the daughter ship, Vemabaltic.
2. Not a great deal of damage was suffered by either ship; indeed, that which occurred was no more than that which, in motor vehicle parlance, simply would be described as a ‘fender bender’, although clearly within the present context the scale is significantly greater.
3. Although the issue of quantum is not presently before this court, the provenance of this liability hearing had its roots squarely in the quantum issue when the solicitors for the Vemabaltic, Messrs Holman Fenwick & Willan, took the unusual step of issuing a summons asking that the issue of quantum be tried before the issue of liability.
4. This is not quite as odd as it sounds at first blush, and the defendants’ reasoning apparently was thus: whilst the cost of repair of the physical damage claimed by the Iran Huwayzeh was no more than the sum of something in the region US$50,000, in addition to, say, a further sum of US$40-50,000 incurred in sundry surveyor’s/dry dock fees and so forth, the real sting in the tail of this case was the plaintiff owners’ claim for vessel loss of hire, which ramped the claim up by a further (and not insignificant) US$600,000 to take account of the off-hire time spent in dry dock whilst the superficial damage to the Iran Huwayzeh’s plating was being repaired.
5. Hence, the defendants’ reasoning went, if and in so far as the court could be persuaded to adjudicate on validity of the ‘off hire’ claim, and if this claim could be shown to be clearly unsustainable – not least since, I am told, the Iran Huwayzeh was to be in dock anyway for propeller repair – then in light of the relatively small amount of this physical damage claim, the overwhelming probability was that common sense would prevail and that this case would settle.
6. I pause to note that this may have been a pious hope: the Iranian owners of the Iran Huwayzeh appear consistently to have adopted a hard line in their view of the merits of this collision, and appear determined to extract some money therefor from the Greek owners of the Vemabaltic, so much so that the costs of this collision claim to-date must be very considerable indeed, and almost certainly far outstrip the repair costs in fact incurred by the physical damage to the Iran Huwayzeh consequent upon the collision.
7. Be that as it may. In the event this court declined to accede to the defendants’ novel suggestion of adjudicating quantum in advance of liability, but consequent upon that decision nevertheless it was agreed between the parties that the simple issue of liability for such ‘metal to metal’ contact as indubitably had taken place between these ships would be adjudicated by this court solely upon the assembled case papers, and after argument by the solicitors representing the parties, Mr Hirst for the plaintiff, and Mr Lamplough for the defendant.
8. This appeared to be the immediately practical and cost‑effective solution, and it is this liability hearing, therefore, in this restricted form, which now forms the subject-matter of this judgment.
9. For present purposes, I will adopt the shorthand of the hearing and refer to the two vessels as the ‘IH’ and the ‘VB’.
The background circumstances leading to the collision
10. There is a good deal that is common ground and/or is undisputed in this case.
11. It had been agreed that on 4 July 2004 there was to be an underway mooring operation carried out between the IH and the VB in order to carry out a ship to ship (‘STS’) transfer of an oil cargo from the IH, the ‘mother ship’ to the VB, the ‘daughter ship’.
12. This is not an unusual occurrence on the high seas, and indeed on the vast majority of occasions in which this manoeuvre is performed it passes off without mishap; on this occasion, however, a problem occurred, and there was ‘metal to metal’ contact, albeit minor in nature.
13. A protocol is in existence regarding such STS transfers: this is the ‘Ship to Ship Transfer Guide (Petroleum)’, 3rd ed. 1997, which contains recommendations on safety, minimum equipment levels, and good operating practices, and during the course of this hearing the court frequently has been referred to this document.
14. One of the practices which has evolved within the STS context, when there is to be an underway mooring and resultant oil transfer, is that “overall control should be vested in one individual”; on this particular occasion the individual in question was a Captain Andrew Middleton of Fender Care Marine Limited, a highly seasoned ‘mooring master’ of some 30 years experience, and an ‘approved mooring master’ by all oil majors for underway STS operations.
15. In broad terms, the manner in which the underway mooring operation works is as follows.
16. The mooring master, in this instance Captain Middleton, is sited on the bridge of the daughter ship, in this instance the VB, which positions itself astern of the starboard side of the mother ship, in this instance the IH, at an oblique angle.
17. Both vessels maintain a constant speed and heading, with the daughter ship making a slightly greater speed as it approaches the mother ship ‘target’ from astern, and as the daughter ship closes on the mother ship, it endeavours to bring itself up to a position parallel to the mother ship and about 1 cable (182.5 metres) apart, and thereafter, by virtue of small changes in heading and speed, the daughter ship then performs what perhaps best can be described as a ‘crabbing’ sideways manoeuvre toward the mother ship, until the two vessels are steaming parallel in close proximity, and in the desired position whereby the position of the manifolds of the two vessels – that is, the intake valves through which the oil will flow – are approximately opposite to each other, thereby facilitating the pipeline connection.
18. If all goes well – and I am informed by Mr Hirst that the available statistics demonstrate that this type of underway mooring operation generally does go off without adverse incident – then the ships initially are connected by virtue of a thin ‘heaving line’ thrown across to connect the vessels, which by this stage are about 100-200 feet apart, followed shortly thereafter by a thicker ‘messenger line’, and lastly by the pipe through which the oil itself is to flow between the two ships as part of the cargo transfer; once the vessels thus are ‘moored’ whilst remaining underway, the STS operation takes place, and upon completion the pipe is withdrawn, the ships are unconnected, and they then separate and go their respective ways.
19. Whilst the theory of this type of operation is not difficult to describe, it must be acknowledged that in practice, and whilst undoubtedly a frequent occurrence, this is far from a simple operation, and a significant degree of skill clearly is required on the part both of the mooring master engaged for that particular operation, and also on the part of the masters of the two vessels involved, upon whom the responsibility for the safety of their vessels ultimately rests.
20. The sheer scale and size of these types of ships also must be borne firmly in mind.
21. This was brought graphically home to the court by virtue of one of the ‘plots’ of the two vessels produced by Mr Lamplough – to which documents I subsequently refer in greater detail – whereon, for purpose of exposition, he had interposed for comparative reference purposes the scale dimension of a rugby field when placed against the scale dimensions of the two ships involved in this case.
22. Thus, the IH can be seen to be roughly the length of three rugby fields, and about as wide, whilst the VB is about the length of 2.5 rugby fields, and slightly less wide. In tonnage terms, also, these vessels are behemoths: the IH was a 299,242 MT deadweight VLCC, and the VB was a 107,544 deadweight oil tanker, with both ships displacing a colossal volume of water, of in or about some 4-500,000 tonnes.
23. On the day in question, the weather conditions, if not benign, did not raise undue cause for concern; it is not disputed that visibility was good, and the sea state was 3 to 4, that is, moderate; the wave height was 1 to 2 metres, and the wind was generally from the south west, or west south west, and about force 4.
24. Radio communications between the two ships were established, and on both vessels primary and secondary fenders were in place.
25. Proficient helmsmen appear to have been at the wheel of both ships, and it is agreed that the mother ship, the IH, was steering 345 degrees up until the time of the collision; it also is common ground that Captain Middleton directed the IH to make 5.5 knots.
26. In fact, in his statement Captain Middleton states, and for present purposes I see no reason not to accept this evidence, that he was satisfied that when the two ships were steaming parallel at a distance of about 1 cable apart, and prior to the VB manoeuvring towards the IH in order “to bring the two ships together parallel, gently and safely”, both the IH and the VB were making 5.5 knots.
27. This ‘matching’ of speed is described by Captain Middleton as “extremely important” in the underway mooring process, and thus the mooring master must find a speed that both ships can match; in his experience he says that 5 knots is a good starting mark from which matching speeds can be found, and in this instance, when he was satisfied that both ships were making about 5.5 knots and all was in order, he instructed the helmsman to steer 342 degrees (from the parallel heading of 345 degrees) for the final approach of the VB to the IH.
28. Thereafter we know that all did not go precisely according to plan and, as the ship’s logs indicate, at 8.03 am on that 4 July morning the two vessels scraped together and made ‘metal to metal’ contact between the starboard shoulder of the IH and the port bow of the VB, thereby causing superficial plate damage to both vessels, albeit this judgment focuses solely upon the plaintiffs’ claim for such damage to the IH.
29. The occurrence of this incident did not, however, affect the subsequent STS operation, which thereafter continued in normal course, the superficial damage to the respective vessels being, I am told, subsequently ascertained by surveyors; thankfully there was no serious damage, such as the breaching of the integrity of oil tanks, and the damage, as I have indicated, was confined in effect to scrapes and abrasions to, and the denting of, the outward steel plating.
30. I refer later in this judgment to the respective perceptions of this collision, and of the allegations of blame therefor, but at this juncture I should make mention of the state of the evidence assembled for this case, and make reference, also, to the parties’ respective cases upon the issue of liability.
The evidence
31. As indicated at the outset, the only ‘evidence’ which has been marshalled for this case is documentary, in the form of witness statements – the truth of which of course have not been deposed to on oath, nor, obviously, has there been opportunity for any cross-examination thereon – and the assembled case papers of various types, such as the Ship to Ship Transfer Guide, mentioned above, and, for example, useful colour photographs available of the site and extent of the damage to the IH, copy ship’s log books, incident reports, copy safety check lists and so on.
32. From the court’s point of view, wherein the analysis is conducted solely upon the available papers, the most interesting element of this documentary collection lies in the witness statements which have been collected for this case.
33. For the plaintiff there are four such statements: those of the Master of the IH, Captain Mohammed Amin Kashani, Mr Hedayatollah Makvandi, her Third Officer, Mr Mehrab Shahmoradi Varnamkhasti, watchkeeper at the relevant time, and Mr Terence Charles Floyd, a solicitor of Ince & Co, whose participation in this case appears to have been to collect data on the incidence of contact damage on board tankers engaged in underway STS operations.
34. For the defendant, the only statements are two statements by the mooring officer, Captain Andrew Middleton; he gave his initial statement on 29 May 2008, and a supplemental statement, responsive to certain evidence of the plaintiff’s witnesses, on 7 May 2009.
35. I have read and considered all these statements, and would simply comment that I have found the greatest assistance in the comments of the Master of the IH, and those of Captain Middleton, to whose respective versions of events I shortly advert.
The respective cases
36. On behalf of the plaintiff, Mr Hirst made it clear that his firm case was that this collision was caused solely by the negligence of those on board the VB, the daughter ship, and that “there is no contemporaneous evidence that there was any negligence on the part of the plaintiffs in the navigation of the Iran Huwayzeh.”
37. Moreover, he said, if, which was denied, there was any fault on the part of the plaintiffs for failing to warn the VB as to the risk of collision, he maintained that “any such failure was not causative of the collision” for two reasons: first, that there would have been insufficient time for VB to have taken any effective action to avoid the collision as had occurred; and second, that VB was, or should already have been aware of, the danger.
38. It followed from the foregoing, Mr Hirst submitted, that since there was no negligence on the part of IH, it followed that the accident could not have occurred without the negligence of the VB, and thus “the defendants bore the evidential burden of proving the absence of any negligence on their part”.
39. Alternatively, he said, to the extent that it was necessary for the plaintiffs positively to prove negligence on the part of the defendants, Mr Hirst spread his net wide and submitted that the VB was negligent in failing to maintain a proper lookout, and/or adopting an excessive angle of approach to the IH, and/or failing to achieve a parallel course to IH at the appropriate times, and/or adopting an excessive speed of approach and/or failing to reduce VB’s speed to match speeds with the IH by the time parallel contact should have been made, and/or “failing to anticipate the effects of interaction (if any) when manoeuvring the VB close to the IH”, and/or failing to follow good operating practice for STS operations as set out in the ‘Ship to Ship Transfer Guide (Petroleum)’, which was the product of the Oil Companies International Marine Forum and the International Chamber of Shipping.
40. At bottom, Mr Hirst’s case really was focused upon the allegedly deficient manoeuvring of the VB during this operation; at one stage he did attempt also to make an argument as to ‘deficient fendering’ on the part of the daughter ship, but this ambitious contention – as to which there was no evidence, save for the fact that the fenders as were employed clearly had not prevented the metal to metal contact – was rejected by the court during the course of argument, as was the somewhat strained submission that the Master of the IH implicitly had ‘warned’ the VB as to her allegedly incorrect approach by the mere process of reiterating the speed and heading of the IH during the VHF transmissions.
41. For the defendant owners of the VB, Mr Lamplough was wholly disinclined to apportion blame for that which had occurred.
42. So far as his client was concerned, his primary case was that the plaintiffs bore the burden of proof of negligence, and that this liability action should be dismissed because this incident had occurred without any proven negligence on the part of those on board the VB, the daughter ship, and that such minor collision as had occurred had taken place solely as the result of risks inherent in the underway mooring, in which operation both parties had agreed to participate when they had agreed to perform an STS transfer on the high seas.
43. In other words, that this was just one of those things which regrettably (and inevitably) occur from time to time even in the best‑regulated of worlds.
44. Strictly speaking, Mr Lamplough said, the failure of the plaintiffs to discharge the burden of proof should be dispositive of the case, which should therefore be dismissed.
45. However, he was willing to take the matter further and to provide a reasonable explanation as to why what had happened had happened – and in this regard, as we shortly shall see, he laid considerable stress upon the concept of ship to ship ‘interaction’.
46. Alternatively, said Mr Lamplough, if he was incorrect in his primary contention, his secondary case was that the collision had taken place either wholly due to the negligence of the IH or was due to the negligence of both vessels, and that as a consequence, in this event the court would be faced with making the type of apportionment with which it was familiar when dealing with negligence/contributory negligence situations.
47. However, Mr Lamplough left the court in no doubt but that the position he wished to press was that represented by his primary case.
The respective accounts of the incident
48. In terms of the respective perceptions of this incident, I have found the statements of the Master of the IH, Captain Kashani, and that of Captain Middleton, the mooring master on board the VB, to be particularly pertinent.
49. These statements speak for themselves, and for present purposes I attempt to extract only their main thrust.
The Iran Huwayzeh perspective
50. So far as Captain Kashani is concerned, he recites the general modus operandi of an underway mooring, and notes that this was the third time in which he had performed such an operation; he says that it was his practice to remain on the bridge wing at all times on the side of the vessel to which the daughter vessel was to come alongside. He also notes that it is his practice to keep in VHF radio contact with the daughter vessel, so that the latter regularly is reminded of the course and speed of the mother ship, thus enabling the course and speed of the daughter ship to be adjusted accordingly.
51. He says that on the day in question, 4 July 2004, by first light the weather conditions had improved, with south westerly force 5 winds and corresponding seas. He first sighted the Vemabaltic visually, about 3 miles distant: “She was drifting, as were we, and astern of Iran Huwayzeh”.
52. The mooring master contacted the IH at about 0545 hours on the VHF, and he requested Captain Middleton to give him 30 minutes notice of commencement of the mooring operation; in the event, he says, the mooring master called back at 0600 hours requesting the IH to get underway and proceed to the STS rendezvous position.
53. At 0630 hours the mooring master contacted him and requested that the IH steer 345 degrees and 3 knots, and at 0642 the STS Transfer Check List (‘Before operations commence’) was completed by the Chief Officer on the IH and the mooring master on the VB.
54. The Duty AB, Mr Shahmoradi, maintained course at 345 degrees, and the Third Officer kept radar watch on the VB. Visibility, he says, was about 6-7 miles, and 3 VHF sets were on and in use.
55. At 0645 hours the mooring master requested the IH to increase speed to 5 knots, and to remain heading at 345 degrees, which he did, and upon achieving this speed and heading, the Captain says he could see the Vemabaltic “proceeding at a speed slightly greater than the Iran Huwayzeh and on a course slightly to the west”; at this stage he estimates that the speed of the VB was about 6.5 knots and at a heading of about 320 degrees: “she was, of course, shaping to come alongside Iran Huwayzeh starboard side, with her port side to”, and that “she was approaching as she was expected to”.
56. At 0700 hours the mooring master requested the IH to increase speed to 5.5 knots and to remain on course of 345 degrees, and at 0718 Check List 3 (‘Before Run-In and Mooring’) was completed on both vessels.
57. Captain Kashani maintains that the course recorder trace indicated that the course of the IH did not deviate from 345 degrees, and that from 0705 hours the Doppler system indicated that the IH did not fall outside 5.4-5.6 knots from 0705 hours. He also says that when the VB was about one cable astern of the mother ship “she appeared to be steering a course of about 325 degrees” when at this point she should have been running parallel to the IH at 345 degrees.
58. He then says that after reminding the VB as to IH’s course and speed, he hoped that the VB would come around slightly to starboard in order to match IH’s course, and that “at about 0756 hours, Vemabaltic’s bow was about abeam of Iran Huwayzeh’s stern and about 120-125 metres off”, but that VB still had not altered course to starboard so as to run parallel with IH.
59. The Captain says that he reminded the VB again at 0800 hours of the course and speed of his vessel, and that on every occasion on which he did so the mooring master on the VB would confirm the transmission.
60. His perception was that the VB continued to pass the IH, and that from his position on the starboard bridge wing of the IH, he formed the impression that possibly she was going “a little faster than she should have”, and whilst from his perspective it was not easy to tell precisely what her heading was, he thought that it was not the same as the IH “as it should have been”, but possibly that it was about 10 degrees west of IH’s course, thus making it about 335 degrees. Captain Kashani then continues:
“At this stage of the mooring operation, Vemabaltic should most certainly have been running parallel to Iran Huwayzeh and at about the same speed, possibly a fraction greater. She would then ease off once the vessels’ manifold were aligned and let interaction take effect. Vemabaltic however continued to get closer to Iran Huwayzeh at a greater speed and on a converging course.
At 0803 ….the port bow of Vemabaltic made contact with the starboard bow flare of Iran Huwayzeh. At the time of the contact, Iran Huwayzeh’s course was 345 degrees and her speed was 5.5 knots. Vemabaltic’s course was about 335 degrees and she was proceeding at about 6.5 knots.
Following the contact, Vemabaltic continued moving ahead of Iran Huwayzeh. She had probably proceeded no further ahead than the anchor pipe of the Iran Huwayzeh…Towards the closing minute or so before the contact, Vemabaltic did not shear to port (and neither did Iran Huwayzeh shear to starboard). Vemabaltic maintained her course of about 335 degrees and speed, a knot or so greater than Iran Huwayzeh. I believe that Vemabaltic misjudged the course that she was supposed to come alongside the Iran Huwayzeh…I do not know whether there was miscommunication between the Mooring Master and Master of the Vemabaltic as to how the mooring operation was going to be performed. The manner in which Vemabaltic came alongside Iran Huwayzeh was not usual practice.”
61. The Captain finally states that following the contact the mooring master presented him with a document headed ‘Incident Report’, and that in the report the mooring master had stated that as the vessels were lining up, 2 or 3 degrees heading difference, the IH had “appeared to take a shear to starboard”, and that he can “categorically say” that this is not correct, the course recorder trace maintaining that the IH had maintained her heading.
62. The Captain also states that following the contact, “the passing of the mooring lines, the mooring operation and STS operation proceeded without incident”.
The “Vemabaltic” account
63. The defendants’ account of events comes exclusively from the mooring master at the time, Captain Andrew Middleton.
64. In his first statement, Captain Middleton begins by relating the preliminary events of 2 July 2004 when he arrived on board the VB in the early hours of that day; he apparently had arrived early in order to familiarize himself with that vessel.
65. He says that he had checked that the mooring ropes for the operation were repaired and of the correct length, and he also indicates his preparations with regard to the fenders which were to be positioned on the port side of the VB: four large fenders of approximately 3.3 times 6.5 metres, and one baby fender of 1.5 metres in diameter and 2 metres long, which was to be sited over the port bow of the vessel. In this regard Mr Middleton notes that it is important to ensure that the fenders are correctly positioned along the side of the daughter ship that will come into contact with the mother ship; he concludes that “I was satisfied that all four floating fenders were correctly positioned” on the VB.
66. As to the events of the day in question, 4 July 2004, he agrees with the Master of the IH as to the weather conditions and visibility. He notes that prior to the commencement of the STS operation, he had a discussion in English with the Masters of the VB and the IH regarding the forthcoming mooring operation, and stressed to both men that if they were unhappy with any aspect of the operation that they should inform him and that he would either change or abort the operation.
67. Mr Middleton recounts the instruction he gave to the IH in terms of speed of 5 knots and a course heading of 345 degrees throughout the mooring operation, and that he manoeuvred the VB into a position a half mile astern and one quarter of a mile to starboard of the IH, commenting that the course of 345 degrees put the weather and the swell on the port quarter of the IH, and thus gave a lee on her starboard side for the VB to come in on.
68. Mr Middleton says that he was on the bridge of the VB with his assistant, the Master, third officer and helmsman, and he quickly gained confidence in his bridge team. He watched the radar carefully, and monitored the situation visually from the port bridge wing of his vessel. Whilst the weather was “not ideal”, he comments that the VB experienced no difficulties closing in on the IH.
69. He then says that when the VB was abeam to starboard of the IH and at a distance of about 1 cable, he brought the VB onto a parallel course of 345 degrees, and “looked around to see if everything was okay”. However, he found that his vessel was having difficulty matching the 5 knots the IH was making, and thus he asked the mother ship to increase speed to 5.5 knots, and that when this was achieved he started the mooring operation, and instructed his helmsman to steer 342 degrees for the final approach. He states that at the time that he gave this order, his vessel was abeam to starboard of IH, and that the two ships “were on parallel courses and about one cable apart”, with the bridge of the VB about 10-20 metres forward of the bridge on the IH.
70. His version of events thereafter is that when the VB was parallel to and within a heaving line distance of IH, that is, about 100‑200 feet, he began to give various helm orders to the helmsman of the VB, “including port 5, amidships, port 10” and also “starboard 5 and starboard 10” with the purpose of bringing the VB gently and parallel alongside the IH, and that as the two ships closed, the crew of the VB commenced passing lines to the crew of the IH.
71. He says that at all times he was satisfied with the helmsman’s ability to steer the ship and to follow his directions, and although he is unable to say how long each helm order was maintained, he states that as she came alongside the IH, the athwartship speed of the VB was about half a knot or less.
72. However, at about 0800 hours, when the VB was very close to the mother ship, probably no more than 100 feet away, the IH “suddenly appeared to me to shear to starboard towards the Vemabaltic”, thus changing the angle between the two ships by one or tow degrees, and that he immediately ordered helm to steer away from the IH. He continues:
“However, Vemabaltic was too close to Iran Huwayzeh at the time and the starboard side of Iran Huwayzeh made contact (steel on steel) with the port bow of the Vemabaltic. The angle of contact was very fine leading forward on both ships. The speeds of both ships at the time of contact was about 5.5 knots. When contact was made, the heading of Vemabaltic altered to starboard.
I cannot say for certain why Iran Huwayzeh appeared to behave as she did. There was obvious and significant interaction between the ships, which resulted in Iran Huwayzeh sucking Vemabaltic in amidships. Therefore, although it appeared to me at the time that Iran Huwayzeh sheered to starboard, it is probably more likely that Vemabaltic was sucked towards the mother ship.”
73. Mr Middleton goes on to emphasise that up to the point when the Iran Huwayzeh appeared to sheer towards the Vemabaltic, everything was proceeding normally, and that throughout the operation he constantly had communicated with the mother ship on the VHF, and that at no point had the Master of the Iran Huwayzeh asked any questions or expressed any alarm about the mooring operation as it was progressing.
74. He further points out that none of the fenders were damaged in the operation, and that whilst he had experienced ship to ship ‘interaction’ many times during STS operations, this is the only time in his career in which he has been involved in a case of ‘steel on steel’ contact between two ships in an underway mooring, noting that by this stage he had carried out over 170 such underway mooring operations, and that he had worked with the operators of Iran Huwayzeh, National Iranian Tankers Company, on numerous previous occasions.
75. He further observes that the STS Transfer Safety Checklists, which are in standard form and are completed by the masters and chief officers of both ships, and by himself as mooring master, generally are signed after the vessels have moored, and that in this case the Master of the Iran Huwayzeh signed the documents in the usual course – and, this court specifically notes, absent adverse observation or comment.
The approach of the court
76. Before deciding the issue of liability, I should give some indication of the broad approach of the court towards making a decision in the unusual situation in which, absent viva voce evidence – and thus the absence of the forensic advantage which would accrue therefrom – the court is in the unusual situation of being required to come to a conclusion as to liability solely on the face of the available papers.
77. There is, and can be, no doubt but that in this regard the plaintiffs bear the burden of proof, a position which Mr Hirst clearly ultimately accepted, notwithstanding his introductory emphasis to the effect that the defendants bore the evidential burden of explaining how the incident had occurred absent their negligence in a situation wherein, as he firmly asserted, the plaintiffs clearly could be regarded as not having been negligent – this latter submission, it seemed to me, serving to beg a primary question which was before the court for decision.
78. In any event, in the course of his detailed address Mr Lamplough drew my attention to the observations on the burden of proof of Langton J in The Kite [1933] P 154, a case involving the collision of a lighterer’s barge, then being towed by a tug, which had collided with one of the abutments of Cannon Street Railway Bridge; the learned judge said, at 170:
“…what the defendants have to do here is not to prove that their negligence did not cause this accident. What they have to do is to give a reasonable explanation which, if it be accepted, is an explanation showing that it happened without their negligence. They need not even go as far as that, because, if they give a reasonable explanation, which is equally consistent with the accident happening without their negligence as with their negligence, they have again shifted the burden of proof back to the plaintiffs to show – as they always have to show from the beginning – that it was the negligence of the defendants that caused the accident…”
79. As earlier noted, Mr Lamplough emphasized that although it was open to him simply to submit that on the available evidence the plaintiffs had failed to discharge the legal burden which was upon them, nevertheless he wished to provide a cogent explanation for what had occurred absent any negligence on his client’s part – hence his reliance on the foregoing dictum of Langton J, which for present purposes I am content to accept and apply.
80. For reasons which shortly will become clear, the court’s attention also was drawn by Mr Lamplough to the judgment of David Steel J in The “Pelopidas” [1999] 2 Lloyd’s LR 675, a case involving a collision in the access channel to Buenos Aires between the plaintiffs’ vessel Pelopidas and the defendants’ vessel Concord, in which that eminent judge, vastly experienced in admiralty matters, discussed the role of reconstructive plotting, and sagely observed (at 682):
“The third point is that this case re-emphasised to me the importance of keeping the role of plotting in perspective. While margins of error are no doubt more limited than previously…they cannot be eliminated…
I am anxious to stress this point because there is a danger of losing sight of the true value of reconstructions. Of course they enable the Court and the parties to have a broad bird’s eye view of the events leading up to the collision. But their true probative value is that they may sometimes enable the Court to determine, not what may have happened, but what could not possibly have happened. It is important, where a plot is to be relied upon to demonstrate what the tracks of the vessels must have been, parties understand that the impact of the plotting is more effective if, despite assuming every margin of error in favour of a particular hypothesis, that outcome can be demonstrated to be highly improbable, if not impossible…” (emphasis added)
Decision on liability
81. Merely on the face of the assembled case papers, and no more, I should have found this a difficult decision fairly to make, although I am constrained to observe that, in the event, and after carefully examining all the evidence, I probably should have come to the conclusion that the plaintiffs had not discharged the burden of proof, and hence would have dismissed this action on that basis alone.
82. However, this view significantly is fortified, in my judgment, by an important additional aspect of Mr Lamplough’s submission, which consisted of 6 diagrammatic ‘plots’ which sought figuratively to portray the incident solely on the basis of the account of the incident as given by the Master of the Iran Huwayzeh.
83. What these ‘plots’ illustrate is that, on the basis of the Master’s account, this incident could not have occurred in the manner that we know it did in fact – and to which the colour photographs of the damage bear witness – that is, essentially a glancing blow/scrape between the IH and the VB at a position approximately between the forward starboard shoulder of the IH and the port bow of the VB at or about Frames 95-96.
84. In short, by extrapolating on the ‘plots’ the positions of the IH and the VB on the basis of Master Kashani’s evidence as to what he perceived to have occurred in terms of relative ship positions, speeds, headings and timings, the defendants were able to make the cogent (and, in the circumstances, the highly persuasive) submission that if this incident had taken place as the plaintiffs contended, then the collision between these two vessels would have occurred at the relevant time by the port shoulder of Vemabaltic striking the Iran Huwayzeh astern on its starboard quarter at an angle more acute than the fine/ oblique angle at which these two vessels in fact briefly touched – at a wholly different forward position – when they scraped together.
85. I wish to emphasise that in coming to the view that I have, these ‘plots’ form part and parcel of the overall evaluation of the evidence, and the formation of a view as to the probabilities of that which took place, although, as David Steel J cogently pointed out in The “Pelopidas”, op cit, they also have been of assistance to the Court in sorting out, on the present restricted state of the evidence, that which, on the probabilities, could not have happened.
86. So I do not think the incident in question occurred as Master Kashani has described it.
87. Nor, for that matter, does Mr Middleton.
88. In this supplementary statement dated 7 May 2009, Mr Middleton recounted having been shown, inter alia, the Preliminary Act of the Iran Huwayzeh dated 28 April 2008, and also that of the Vemabaltic dated 30 June 2008, and he further had reviewed his initial statement of 29 May 2008.
89. At paragraphs 4-8 of the supplementary statement, he recounts, with comment, his own version of the sequence of events, and at paragraphs 9-12, he further comments specifically upon the version of events put forward by those on board the Iran Huwayzeh in the following terms:
“I understand that those on board Iran Huwayzeh have said that before 0750 Vemabaltic was about one cable astern of Iran Huwayzeh and on a course of 325 degrees. This is quite unbelievable. I would never close on a mother ship at an angle of 20 degrees [the difference between 345 and 325 degrees] in a underway mooring operation when the vessels were so close together. That would be very poor seamanship and improper ship handling.
I also understand that those on board the Iran Huwayzeh have said that by about 07.56 (that is only a few minutes before the ships came together) Vemabaltic was still not running parallel to Iran Huwayzeh. They are mistaken. Vemabaltic had already come onto a parallel course with Iran Huwayzeh, as explained in my statement, and I had successfully matched the speeds of the two vessels at 5.5 knots.
I further understand that those on board Iran Huwayzeh have said that when the two ships came into contact, Vemabaltic was on a course of 335 degrees and making about 6.5 knots. Again they are mistaken. I would never bring two ships together in this manner. Shortly before the two vessels came into contact, the crew of Vemabaltic were already passing lines to Iran Huwayzeh. It would have been unsafe to do this if the speeds of the two vessels were not matched and more dangerous still if Vemabaltic had been closing on Iran Huwayzeh at an angle of 10 degrees. Had the two ships come together in the manner suggested by those on board the Iran Huwayzeh, the damage would have been much more significant than it was.
When the two ships came together, their speeds were matched at about 5.5 knots. In paragraph 23 of my [earlier] statement I explained that as Iran Huwayzeh appeared to sheer to starboard, I immediately ordered starboard helm. The amount I ordered was not dramatic. It was about 5-10 degrees. My intention was to steer away from the Iran Huwayzeh.”
90. In light of the position of the point of contact on the respective vessels, the nature and extent of the damage in fact done – superficial scraping/indenting of steel plates – I find this account of Captain Middleton both plausible and objectively highly probable, and prefer it to the version of Master Kashani.
91. True it is that the court has not had the opportunity to see Captain Middleton in the flesh, and to witness how he would have stood up to cross-examination; moreover, during his attractive submission Mr Hirst pressed on the court the argument that the ‘plots’ as produced by Mr Lamplough may be in error given that Master Kashani on the IH was perceiving the situation from his position on the starboard bridge wing of his vessel, and that any error in his description of events resulting from this sideways-on perspective would throw the extrapolated ‘plots’ ‘out of whack’, and in turn would introduce a margin of error which, if corrected, might produce a very different situation to that which now diagrammatically was portrayed on these plots.
92. This may be true, but equally this is to speculate even more than is inherent within the restricted mode of proceedings as now agreed by the parties to be dispositive of the liability element of this collision. For present purposes, the court can do no better than the documentary materiel before it, redolent as it is with assorted ‘ifs’, ‘buts’ and ‘maybes’.
93. Accordingly, after taking into account (i) the entirety of the assembled papers, (ii) the photographs of the damage in fact occasioned and its incontrovertible contact site, and (iii) the extrapolated ‘plots’ based on the plaintiffs’ version of events, this court has little hesitation in concluding that the plaintiff has not discharged the burden upon it of establishing, on a balance of probabilities, that the defendants’ vessel Vemabaltic was negligent, and thus caused the incident which led to the damage to both vessels.
94. As I have said, for my own part I am inclined firmly to the view that there is little possibility that the collision could have occurred as the plaintiffs would have it.
95. As Captain Middleton remarked, had this been the case, and had the angle of approach been as the plaintiffs suggest, the damage would have been very much more significant than, happily, turned out to be the case. In this context it should not be overlooked that after this initial metal on metal ‘scrape’ on the first pass of the Vemabaltic, later on the same day the underway mooring operation in fact was smoothly effected, and the STS procedure duly completed; nor was there any complaint as to the Vemabaltic or Captain Middleton in the Checklists prepared and signed after the incident.
96. Having concluded, as I now have, that the plaintiff has failed in discharging the legal burden of proof upon it to establish the causative negligence of the defendants, strictly there is no necessity to go further and to state a view as to the likely cause this minor incident.
97. However, a good deal has been said on this subject in the course of submission, and in deference to the efforts of the advocates, each of whom has said all that fairly could be said on behalf of their clients, I wish to indicate that for my part I am minded to conclude that this may well have been one of those relatively rare occasions in which an underway mooring operation came to (restricted) grief by reason of the dynamic forces interacting upon these two huge vessels, which displace a vast volume of water, as they closed together.
98. ‘Interaction’ is a well-documented concept in this type of situation, and is the subject of learned treatises: see for example, Marsden on Collisions at Sea, 13th ed., at A14-07 et seq, in which the authors offer the following comments under the heading ‘Ship-Ship Interaction’:
“Where the flow around the ship is restricted transversely…by the presence of another vessel, the situation is complicated as both bodily lateral forces and yawing movements can result. The generic term “proximity pressure effects” might be used to cover all these phenomena. Experimentation both at model and full scale has taken place on ship-ship interaction…It should be noted that while ‘sinkage’ (or “squat”) is quite reliably calculable, other more complex interaction phenomena are only just becoming amenable to theoretical treatment, using modern computational fluid dynamics methods…
If a ship is near another then the effects of pressure fields of both ships must be considered relative to one another…
If the ships proceed to a position where they are abreast of each other and if one is much smaller than the other, the whole of the smaller ship may be in the reduced pressure field abreast of the larger ship and hence may be sucked in bodily to the larger ship. In doing so she will tend to yaw away from the larger ship but this yaw will be secondary to the bodily movement towards the larger ship…;
whilst latterly, at A14-10, under the carriage of “guiding principles with regard to interaction and particularly ship-ship interaction”, the authors point out, inter alia, that:
“· The pressure field produced by a ship is greater in proportion to its size and displacement…
· A smaller ship is always more affected by the pressure field of a larger ship than vice versa…
· When ships are in close proximity one to another, the resulting restriction of flow magnifies local changes in velocity normally present and hence increases these proximity effects…”
99. Moreover, as Captain Middleton remarked, “the effect of interaction on two ships during an underway mooring operation is always difficult to predict”, noting also that the residual swell from the storm which recently had passed through and the wind may have played a role in the manner in which he perceived the Iran Huwayzeh to have behaved – although whether this resulted, as Middleton believed, in a ‘sheer’ to starboard of the mother ship or whether this perception is incorrect, and that as a matter of fact the daughter ship actually was ‘sucked’ towards the mother ship, is a matter upon which this court does not have to express a concluded view.
100. Suffice it to say that the phenomenon of ‘interaction’, however it manifested, is almost certainly the root cause of that which happened, and not any incorrect manoeuvring or incorrect angle of approach/speed on the part of the Vemabaltic, as the plaintiffs so strongly have asserted.
Order
101. It follows from the foregoing that the Order of this court is as follows:
(i) The plaintiffs’ action on liability is dismissed;
(ii) There is to be an order nisi, this order to become absolute within 28 days of the date of this judgment unless application be made so to vary such order, that the costs of and occasioned by this action are to be to the defendants, to be taxed if not agreed;
(iii) There is to be liberty to apply as to the form of the Order.
(William Stone)
Judge of the Court of First Instance
High Court
Mr Harry Hirst, of Messrs Ince & Co, for the plaintiffs
Mr George Lamplough, of Messrs Holman Fenwick & Willan,
for the defendants
HCAJ 133/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ADMIRALTY ACTION NO. 133 OF 2006
Admiralty action in rem against : The ship or vessel “VEMABALTIC”
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BETWEEN
THE OWNERS OF THE SHIP OR VESSEL “iRan huwayzeh”
Plaintiffs
and
THE OWNERS AND/or demise charterers
OF THE SHIP OR VESSEL “VEMABALTIC”
Defendants
----------------------
Before: Hon Stone J in Chambers (Open to Public)
Date of Hearing: 22 June 2009
Date of Judgment: 30 June 2009
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J U D G M E N T ON L I A B I L I T Y
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This case
1. This is an admiralty action about a minor ship collision which occurred at 08.03 hours on 4 July 2004 in the South China Sea between two large oil tankers immediately prior to an underway mooring and a ‘ship to ship transfer’ (‘STS’) of oil from the mother ship, the Iran Huwayzeh, to the daughter ship, Vemabaltic.
2. Not a great deal of damage was suffered by either ship; indeed, that which occurred was no more than that which, in motor vehicle parlance, simply would be described as a ‘fender bender’, although clearly within the present context the scale is significantly greater.
3. Although the issue of quantum is not presently before this court, the provenance of this liability hearing had its roots squarely in the quantum issue when the solicitors for the Vemabaltic, Messrs Holman Fenwick & Willan, took the unusual step of issuing a summons asking that the issue of quantum be tried before the issue of liability.
4. This is not quite as odd as it sounds at first blush, and the defendants’ reasoning apparently was thus: whilst the cost of repair of the physical damage claimed by the Iran Huwayzeh was no more than the sum of something in the region US$50,000, in addition to, say, a further sum of US$40-50,000 incurred in sundry surveyor’s/dry dock fees and so forth, the real sting in the tail of this case was the plaintiff owners’ claim for vessel loss of hire, which ramped the claim up by a further (and not insignificant) US$600,000 to take account of the off-hire time spent in dry dock whilst the superficial damage to the Iran Huwayzeh’s plating was being repaired.
5. Hence, the defendants’ reasoning went, if and in so far as the court could be persuaded to adjudicate on validity of the ‘off hire’ claim, and if this claim could be shown to be clearly unsustainable – not least since, I am told, the Iran Huwayzeh was to be in dock anyway for propeller repair – then in light of the relatively small amount of this physical damage claim, the overwhelming probability was that common sense would prevail and that this case would settle.
6. I pause to note that this may have been a pious hope: the Iranian owners of the Iran Huwayzeh appear consistently to have adopted a hard line in their view of the merits of this collision, and appear determined to extract some money therefor from the Greek owners of the Vemabaltic, so much so that the costs of this collision claim to-date must be very considerable indeed, and almost certainly far outstrip the repair costs in fact incurred by the physical damage to the Iran Huwayzeh consequent upon the collision.
7. Be that as it may. In the event this court declined to accede to the defendants’ novel suggestion of adjudicating quantum in advance of liability, but consequent upon that decision nevertheless it was agreed between the parties that the simple issue of liability for such ‘metal to metal’ contact as indubitably had taken place between these ships would be adjudicated by this court solely upon the assembled case papers, and after argument by the solicitors representing the parties, Mr Hirst for the plaintiff, and Mr Lamplough for the defendant.
8. This appeared to be the immediately practical and cost‑effective solution, and it is this liability hearing, therefore, in this restricted form, which now forms the subject-matter of this judgment.
9. For present purposes, I will adopt the shorthand of the hearing and refer to the two vessels as the ‘IH’ and the ‘VB’.
The background circumstances leading to the collision
10. There is a good deal that is common ground and/or is undisputed in this case.
11. It had been agreed that on 4 July 2004 there was to be an underway mooring operation carried out between the IH and the VB in order to carry out a ship to ship (‘STS’) transfer of an oil cargo from the IH, the ‘mother ship’ to the VB, the ‘daughter ship’.
12. This is not an unusual occurrence on the high seas, and indeed on the vast majority of occasions in which this manoeuvre is performed it passes off without mishap; on this occasion, however, a problem occurred, and there was ‘metal to metal’ contact, albeit minor in nature.
13. A protocol is in existence regarding such STS transfers: this is the ‘Ship to Ship Transfer Guide (Petroleum)’, 3rd ed. 1997, which contains recommendations on safety, minimum equipment levels, and good operating practices, and during the course of this hearing the court frequently has been referred to this document.
14. One of the practices which has evolved within the STS context, when there is to be an underway mooring and resultant oil transfer, is that “overall control should be vested in one individual”; on this particular occasion the individual in question was a Captain Andrew Middleton of Fender Care Marine Limited, a highly seasoned ‘mooring master’ of some 30 years experience, and an ‘approved mooring master’ by all oil majors for underway STS operations.
15. In broad terms, the manner in which the underway mooring operation works is as follows.
16. The mooring master, in this instance Captain Middleton, is sited on the bridge of the daughter ship, in this instance the VB, which positions itself astern of the starboard side of the mother ship, in this instance the IH, at an oblique angle.
17. Both vessels maintain a constant speed and heading, with the daughter ship making a slightly greater speed as it approaches the mother ship ‘target’ from astern, and as the daughter ship closes on the mother ship, it endeavours to bring itself up to a position parallel to the mother ship and about 1 cable (182.5 metres) apart, and thereafter, by virtue of small changes in heading and speed, the daughter ship then performs what perhaps best can be described as a ‘crabbing’ sideways manoeuvre toward the mother ship, until the two vessels are steaming parallel in close proximity, and in the desired position whereby the position of the manifolds of the two vessels – that is, the intake valves through which the oil will flow – are approximately opposite to each other, thereby facilitating the pipeline connection.
18. If all goes well – and I am informed by Mr Hirst that the available statistics demonstrate that this type of underway mooring operation generally does go off without adverse incident – then the ships initially are connected by virtue of a thin ‘heaving line’ thrown across to connect the vessels, which by this stage are about 100-200 feet apart, followed shortly thereafter by a thicker ‘messenger line’, and lastly by the pipe through which the oil itself is to flow between the two ships as part of the cargo transfer; once the vessels thus are ‘moored’ whilst remaining underway, the STS operation takes place, and upon completion the pipe is withdrawn, the ships are unconnected, and they then separate and go their respective ways.
19. Whilst the theory of this type of operation is not difficult to describe, it must be acknowledged that in practice, and whilst undoubtedly a frequent occurrence, this is far from a simple operation, and a significant degree of skill clearly is required on the part both of the mooring master engaged for that particular operation, and also on the part of the masters of the two vessels involved, upon whom the responsibility for the safety of their vessels ultimately rests.
20. The sheer scale and size of these types of ships also must be borne firmly in mind.
21. This was brought graphically home to the court by virtue of one of the ‘plots’ of the two vessels produced by Mr Lamplough – to which documents I subsequently refer in greater detail – whereon, for purpose of exposition, he had interposed for comparative reference purposes the scale dimension of a rugby field when placed against the scale dimensions of the two ships involved in this case.
22. Thus, the IH can be seen to be roughly the length of three rugby fields, and about as wide, whilst the VB is about the length of 2.5 rugby fields, and slightly less wide. In tonnage terms, also, these vessels are behemoths: the IH was a 299,242 MT deadweight VLCC, and the VB was a 107,544 deadweight oil tanker, with both ships displacing a colossal volume of water, of in or about some 4-500,000 tonnes.
23. On the day in question, the weather conditions, if not benign, did not raise undue cause for concern; it is not disputed that visibility was good, and the sea state was 3 to 4, that is, moderate; the wave height was 1 to 2 metres, and the wind was generally from the south west, or west south west, and about force 4.
24. Radio communications between the two ships were established, and on both vessels primary and secondary fenders were in place.
25. Proficient helmsmen appear to have been at the wheel of both ships, and it is agreed that the mother ship, the IH, was steering 345 degrees up until the time of the collision; it also is common ground that Captain Middleton directed the IH to make 5.5 knots.
26. In fact, in his statement Captain Middleton states, and for present purposes I see no reason not to accept this evidence, that he was satisfied that when the two ships were steaming parallel at a distance of about 1 cable apart, and prior to the VB manoeuvring towards the IH in order “to bring the two ships together parallel, gently and safely”, both the IH and the VB were making 5.5 knots.
27. This ‘matching’ of speed is described by Captain Middleton as “extremely important” in the underway mooring process, and thus the mooring master must find a speed that both ships can match; in his experience he says that 5 knots is a good starting mark from which matching speeds can be found, and in this instance, when he was satisfied that both ships were making about 5.5 knots and all was in order, he instructed the helmsman to steer 342 degrees (from the parallel heading of 345 degrees) for the final approach of the VB to the IH.
28. Thereafter we know that all did not go precisely according to plan and, as the ship’s logs indicate, at 8.03 am on that 4 July morning the two vessels scraped together and made ‘metal to metal’ contact between the starboard shoulder of the IH and the port bow of the VB, thereby causing superficial plate damage to both vessels, albeit this judgment focuses solely upon the plaintiffs’ claim for such damage to the IH.
29. The occurrence of this incident did not, however, affect the subsequent STS operation, which thereafter continued in normal course, the superficial damage to the respective vessels being, I am told, subsequently ascertained by surveyors; thankfully there was no serious damage, such as the breaching of the integrity of oil tanks, and the damage, as I have indicated, was confined in effect to scrapes and abrasions to, and the denting of, the outward steel plating.
30. I refer later in this judgment to the respective perceptions of this collision, and of the allegations of blame therefor, but at this juncture I should make mention of the state of the evidence assembled for this case, and make reference, also, to the parties’ respective cases upon the issue of liability.
The evidence
31. As indicated at the outset, the only ‘evidence’ which has been marshalled for this case is documentary, in the form of witness statements – the truth of which of course have not been deposed to on oath, nor, obviously, has there been opportunity for any cross-examination thereon – and the assembled case papers of various types, such as the Ship to Ship Transfer Guide, mentioned above, and, for example, useful colour photographs available of the site and extent of the damage to the IH, copy ship’s log books, incident reports, copy safety check lists and so on.
32. From the court’s point of view, wherein the analysis is conducted solely upon the available papers, the most interesting element of this documentary collection lies in the witness statements which have been collected for this case.
33. For the plaintiff there are four such statements: those of the Master of the IH, Captain Mohammed Amin Kashani, Mr Hedayatollah Makvandi, her Third Officer, Mr Mehrab Shahmoradi Varnamkhasti, watchkeeper at the relevant time, and Mr Terence Charles Floyd, a solicitor of Ince & Co, whose participation in this case appears to have been to collect data on the incidence of contact damage on board tankers engaged in underway STS operations.
34. For the defendant, the only statements are two statements by the mooring officer, Captain Andrew Middleton; he gave his initial statement on 29 May 2008, and a supplemental statement, responsive to certain evidence of the plaintiff’s witnesses, on 7 May 2009.
35. I have read and considered all these statements, and would simply comment that I have found the greatest assistance in the comments of the Master of the IH, and those of Captain Middleton, to whose respective versions of events I shortly advert.
The respective cases
36. On behalf of the plaintiff, Mr Hirst made it clear that his firm case was that this collision was caused solely by the negligence of those on board the VB, the daughter ship, and that “there is no contemporaneous evidence that there was any negligence on the part of the plaintiffs in the navigation of the Iran Huwayzeh.”
37. Moreover, he said, if, which was denied, there was any fault on the part of the plaintiffs for failing to warn the VB as to the risk of collision, he maintained that “any such failure was not causative of the collision” for two reasons: first, that there would have been insufficient time for VB to have taken any effective action to avoid the collision as had occurred; and second, that VB was, or should already have been aware of, the danger.
38. It followed from the foregoing, Mr Hirst submitted, that since there was no negligence on the part of IH, it followed that the accident could not have occurred without the negligence of the VB, and thus “the defendants bore the evidential burden of proving the absence of any negligence on their part”.
39. Alternatively, he said, to the extent that it was necessary for the plaintiffs positively to prove negligence on the part of the defendants, Mr Hirst spread his net wide and submitted that the VB was negligent in failing to maintain a proper lookout, and/or adopting an excessive angle of approach to the IH, and/or failing to achieve a parallel course to IH at the appropriate times, and/or adopting an excessive speed of approach and/or failing to reduce VB’s speed to match speeds with the IH by the time parallel contact should have been made, and/or “failing to anticipate the effects of interaction (if any) when manoeuvring the VB close to the IH”, and/or failing to follow good operating practice for STS operations as set out in the ‘Ship to Ship Transfer Guide (Petroleum)’, which was the product of the Oil Companies International Marine Forum and the International Chamber of Shipping.
40. At bottom, Mr Hirst’s case really was focused upon the allegedly deficient manoeuvring of the VB during this operation; at one stage he did attempt also to make an argument as to ‘deficient fendering’ on the part of the daughter ship, but this ambitious contention – as to which there was no evidence, save for the fact that the fenders as were employed clearly had not prevented the metal to metal contact – was rejected by the court during the course of argument, as was the somewhat strained submission that the Master of the IH implicitly had ‘warned’ the VB as to her allegedly incorrect approach by the mere process of reiterating the speed and heading of the IH during the VHF transmissions.
41. For the defendant owners of the VB, Mr Lamplough was wholly disinclined to apportion blame for that which had occurred.
42. So far as his client was concerned, his primary case was that the plaintiffs bore the burden of proof of negligence, and that this liability action should be dismissed because this incident had occurred without any proven negligence on the part of those on board the VB, the daughter ship, and that such minor collision as had occurred had taken place solely as the result of risks inherent in the underway mooring, in which operation both parties had agreed to participate when they had agreed to perform an STS transfer on the high seas.
43. In other words, that this was just one of those things which regrettably (and inevitably) occur from time to time even in the best‑regulated of worlds.
44. Strictly speaking, Mr Lamplough said, the failure of the plaintiffs to discharge the burden of proof should be dispositive of the case, which should therefore be dismissed.
45. However, he was willing to take the matter further and to provide a reasonable explanation as to why what had happened had happened – and in this regard, as we shortly shall see, he laid considerable stress upon the concept of ship to ship ‘interaction’.
46. Alternatively, said Mr Lamplough, if he was incorrect in his primary contention, his secondary case was that the collision had taken place either wholly due to the negligence of the IH or was due to the negligence of both vessels, and that as a consequence, in this event the court would be faced with making the type of apportionment with which it was familiar when dealing with negligence/contributory negligence situations.
47. However, Mr Lamplough left the court in no doubt but that the position he wished to press was that represented by his primary case.
The respective accounts of the incident
48. In terms of the respective perceptions of this incident, I have found the statements of the Master of the IH, Captain Kashani, and that of Captain Middleton, the mooring master on board the VB, to be particularly pertinent.
49. These statements speak for themselves, and for present purposes I attempt to extract only their main thrust.
The Iran Huwayzeh perspective
50. So far as Captain Kashani is concerned, he recites the general modus operandi of an underway mooring, and notes that this was the third time in which he had performed such an operation; he says that it was his practice to remain on the bridge wing at all times on the side of the vessel to which the daughter vessel was to come alongside. He also notes that it is his practice to keep in VHF radio contact with the daughter vessel, so that the latter regularly is reminded of the course and speed of the mother ship, thus enabling the course and speed of the daughter ship to be adjusted accordingly.
51. He says that on the day in question, 4 July 2004, by first light the weather conditions had improved, with south westerly force 5 winds and corresponding seas. He first sighted the Vemabaltic visually, about 3 miles distant: “She was drifting, as were we, and astern of Iran Huwayzeh”.
52. The mooring master contacted the IH at about 0545 hours on the VHF, and he requested Captain Middleton to give him 30 minutes notice of commencement of the mooring operation; in the event, he says, the mooring master called back at 0600 hours requesting the IH to get underway and proceed to the STS rendezvous position.
53. At 0630 hours the mooring master contacted him and requested that the IH steer 345 degrees and 3 knots, and at 0642 the STS Transfer Check List (‘Before operations commence’) was completed by the Chief Officer on the IH and the mooring master on the VB.
54. The Duty AB, Mr Shahmoradi, maintained course at 345 degrees, and the Third Officer kept radar watch on the VB. Visibility, he says, was about 6-7 miles, and 3 VHF sets were on and in use.
55. At 0645 hours the mooring master requested the IH to increase speed to 5 knots, and to remain heading at 345 degrees, which he did, and upon achieving this speed and heading, the Captain says he could see the Vemabaltic “proceeding at a speed slightly greater than the Iran Huwayzeh and on a course slightly to the west”; at this stage he estimates that the speed of the VB was about 6.5 knots and at a heading of about 320 degrees: “she was, of course, shaping to come alongside Iran Huwayzeh starboard side, with her port side to”, and that “she was approaching as she was expected to”.
56. At 0700 hours the mooring master requested the IH to increase speed to 5.5 knots and to remain on course of 345 degrees, and at 0718 Check List 3 (‘Before Run-In and Mooring’) was completed on both vessels.
57. Captain Kashani maintains that the course recorder trace indicated that the course of the IH did not deviate from 345 degrees, and that from 0705 hours the Doppler system indicated that the IH did not fall outside 5.4-5.6 knots from 0705 hours. He also says that when the VB was about one cable astern of the mother ship “she appeared to be steering a course of about 325 degrees” when at this point she should have been running parallel to the IH at 345 degrees.
58. He then says that after reminding the VB as to IH’s course and speed, he hoped that the VB would come around slightly to starboard in order to match IH’s course, and that “at about 0756 hours, Vemabaltic’s bow was about abeam of Iran Huwayzeh’s stern and about 120-125 metres off”, but that VB still had not altered course to starboard so as to run parallel with IH.
59. The Captain says that he reminded the VB again at 0800 hours of the course and speed of his vessel, and that on every occasion on which he did so the mooring master on the VB would confirm the transmission.
60. His perception was that the VB continued to pass the IH, and that from his position on the starboard bridge wing of the IH, he formed the impression that possibly she was going “a little faster than she should have”, and whilst from his perspective it was not easy to tell precisely what her heading was, he thought that it was not the same as the IH “as it should have been”, but possibly that it was about 10 degrees west of IH’s course, thus making it about 335 degrees. Captain Kashani then continues:
“At this stage of the mooring operation, Vemabaltic should most certainly have been running parallel to Iran Huwayzeh and at about the same speed, possibly a fraction greater. She would then ease off once the vessels’ manifold were aligned and let interaction take effect. Vemabaltic however continued to get closer to Iran Huwayzeh at a greater speed and on a converging course.
At 0803 ….the port bow of Vemabaltic made contact with the starboard bow flare of Iran Huwayzeh. At the time of the contact, Iran Huwayzeh’s course was 345 degrees and her speed was 5.5 knots. Vemabaltic’s course was about 335 degrees and she was proceeding at about 6.5 knots.
Following the contact, Vemabaltic continued moving ahead of Iran Huwayzeh. She had probably proceeded no further ahead than the anchor pipe of the Iran Huwayzeh…Towards the closing minute or so before the contact, Vemabaltic did not shear to port (and neither did Iran Huwayzeh shear to starboard). Vemabaltic maintained her course of about 335 degrees and speed, a knot or so greater than Iran Huwayzeh. I believe that Vemabaltic misjudged the course that she was supposed to come alongside the Iran Huwayzeh…I do not know whether there was miscommunication between the Mooring Master and Master of the Vemabaltic as to how the mooring operation was going to be performed. The manner in which Vemabaltic came alongside Iran Huwayzeh was not usual practice.”
61. The Captain finally states that following the contact the mooring master presented him with a document headed ‘Incident Report’, and that in the report the mooring master had stated that as the vessels were lining up, 2 or 3 degrees heading difference, the IH had “appeared to take a shear to starboard”, and that he can “categorically say” that this is not correct, the course recorder trace maintaining that the IH had maintained her heading.
62. The Captain also states that following the contact, “the passing of the mooring lines, the mooring operation and STS operation proceeded without incident”.
The “Vemabaltic” account
63. The defendants’ account of events comes exclusively from the mooring master at the time, Captain Andrew Middleton.
64. In his first statement, Captain Middleton begins by relating the preliminary events of 2 July 2004 when he arrived on board the VB in the early hours of that day; he apparently had arrived early in order to familiarize himself with that vessel.
65. He says that he had checked that the mooring ropes for the operation were repaired and of the correct length, and he also indicates his preparations with regard to the fenders which were to be positioned on the port side of the VB: four large fenders of approximately 3.3 times 6.5 metres, and one baby fender of 1.5 metres in diameter and 2 metres long, which was to be sited over the port bow of the vessel. In this regard Mr Middleton notes that it is important to ensure that the fenders are correctly positioned along the side of the daughter ship that will come into contact with the mother ship; he concludes that “I was satisfied that all four floating fenders were correctly positioned” on the VB.
66. As to the events of the day in question, 4 July 2004, he agrees with the Master of the IH as to the weather conditions and visibility. He notes that prior to the commencement of the STS operation, he had a discussion in English with the Masters of the VB and the IH regarding the forthcoming mooring operation, and stressed to both men that if they were unhappy with any aspect of the operation that they should inform him and that he would either change or abort the operation.
67. Mr Middleton recounts the instruction he gave to the IH in terms of speed of 5 knots and a course heading of 345 degrees throughout the mooring operation, and that he manoeuvred the VB into a position a half mile astern and one quarter of a mile to starboard of the IH, commenting that the course of 345 degrees put the weather and the swell on the port quarter of the IH, and thus gave a lee on her starboard side for the VB to come in on.
68. Mr Middleton says that he was on the bridge of the VB with his assistant, the Master, third officer and helmsman, and he quickly gained confidence in his bridge team. He watched the radar carefully, and monitored the situation visually from the port bridge wing of his vessel. Whilst the weather was “not ideal”, he comments that the VB experienced no difficulties closing in on the IH.
69. He then says that when the VB was abeam to starboard of the IH and at a distance of about 1 cable, he brought the VB onto a parallel course of 345 degrees, and “looked around to see if everything was okay”. However, he found that his vessel was having difficulty matching the 5 knots the IH was making, and thus he asked the mother ship to increase speed to 5.5 knots, and that when this was achieved he started the mooring operation, and instructed his helmsman to steer 342 degrees for the final approach. He states that at the time that he gave this order, his vessel was abeam to starboard of IH, and that the two ships “were on parallel courses and about one cable apart”, with the bridge of the VB about 10-20 metres forward of the bridge on the IH.
70. His version of events thereafter is that when the VB was parallel to and within a heaving line distance of IH, that is, about 100‑200 feet, he began to give various helm orders to the helmsman of the VB, “including port 5, amidships, port 10” and also “starboard 5 and starboard 10” with the purpose of bringing the VB gently and parallel alongside the IH, and that as the two ships closed, the crew of the VB commenced passing lines to the crew of the IH.
71. He says that at all times he was satisfied with the helmsman’s ability to steer the ship and to follow his directions, and although he is unable to say how long each helm order was maintained, he states that as she came alongside the IH, the athwartship speed of the VB was about half a knot or less.
72. However, at about 0800 hours, when the VB was very close to the mother ship, probably no more than 100 feet away, the IH “suddenly appeared to me to shear to starboard towards the Vemabaltic”, thus changing the angle between the two ships by one or tow degrees, and that he immediately ordered helm to steer away from the IH. He continues:
“However, Vemabaltic was too close to Iran Huwayzeh at the time and the starboard side of Iran Huwayzeh made contact (steel on steel) with the port bow of the Vemabaltic. The angle of contact was very fine leading forward on both ships. The speeds of both ships at the time of contact was about 5.5 knots. When contact was made, the heading of Vemabaltic altered to starboard.
I cannot say for certain why Iran Huwayzeh appeared to behave as she did. There was obvious and significant interaction between the ships, which resulted in Iran Huwayzeh sucking Vemabaltic in amidships. Therefore, although it appeared to me at the time that Iran Huwayzeh sheered to starboard, it is probably more likely that Vemabaltic was sucked towards the mother ship.”
73. Mr Middleton goes on to emphasise that up to the point when the Iran Huwayzeh appeared to sheer towards the Vemabaltic, everything was proceeding normally, and that throughout the operation he constantly had communicated with the mother ship on the VHF, and that at no point had the Master of the Iran Huwayzeh asked any questions or expressed any alarm about the mooring operation as it was progressing.
74. He further points out that none of the fenders were damaged in the operation, and that whilst he had experienced ship to ship ‘interaction’ many times during STS operations, this is the only time in his career in which he has been involved in a case of ‘steel on steel’ contact between two ships in an underway mooring, noting that by this stage he had carried out over 170 such underway mooring operations, and that he had worked with the operators of Iran Huwayzeh, National Iranian Tankers Company, on numerous previous occasions.
75. He further observes that the STS Transfer Safety Checklists, which are in standard form and are completed by the masters and chief officers of both ships, and by himself as mooring master, generally are signed after the vessels have moored, and that in this case the Master of the Iran Huwayzeh signed the documents in the usual course – and, this court specifically notes, absent adverse observation or comment.
The approach of the court
76. Before deciding the issue of liability, I should give some indication of the broad approach of the court towards making a decision in the unusual situation in which, absent viva voce evidence – and thus the absence of the forensic advantage which would accrue therefrom – the court is in the unusual situation of being required to come to a conclusion as to liability solely on the face of the available papers.
77. There is, and can be, no doubt but that in this regard the plaintiffs bear the burden of proof, a position which Mr Hirst clearly ultimately accepted, notwithstanding his introductory emphasis to the effect that the defendants bore the evidential burden of explaining how the incident had occurred absent their negligence in a situation wherein, as he firmly asserted, the plaintiffs clearly could be regarded as not having been negligent – this latter submission, it seemed to me, serving to beg a primary question which was before the court for decision.
78. In any event, in the course of his detailed address Mr Lamplough drew my attention to the observations on the burden of proof of Langton J in The Kite [1933] P 154, a case involving the collision of a lighterer’s barge, then being towed by a tug, which had collided with one of the abutments of Cannon Street Railway Bridge; the learned judge said, at 170:
“…what the defendants have to do here is not to prove that their negligence did not cause this accident. What they have to do is to give a reasonable explanation which, if it be accepted, is an explanation showing that it happened without their negligence. They need not even go as far as that, because, if they give a reasonable explanation, which is equally consistent with the accident happening without their negligence as with their negligence, they have again shifted the burden of proof back to the plaintiffs to show – as they always have to show from the beginning – that it was the negligence of the defendants that caused the accident…”
79. As earlier noted, Mr Lamplough emphasized that although it was open to him simply to submit that on the available evidence the plaintiffs had failed to discharge the legal burden which was upon them, nevertheless he wished to provide a cogent explanation for what had occurred absent any negligence on his client’s part – hence his reliance on the foregoing dictum of Langton J, which for present purposes I am content to accept and apply.
80. For reasons which shortly will become clear, the court’s attention also was drawn by Mr Lamplough to the judgment of David Steel J in The “Pelopidas” [1999] 2 Lloyd’s LR 675, a case involving a collision in the access channel to Buenos Aires between the plaintiffs’ vessel Pelopidas and the defendants’ vessel Concord, in which that eminent judge, vastly experienced in admiralty matters, discussed the role of reconstructive plotting, and sagely observed (at 682):
“The third point is that this case re-emphasised to me the importance of keeping the role of plotting in perspective. While margins of error are no doubt more limited than previously…they cannot be eliminated…
I am anxious to stress this point because there is a danger of losing sight of the true value of reconstructions. Of course they enable the Court and the parties to have a broad bird’s eye view of the events leading up to the collision. But their true probative value is that they may sometimes enable the Court to determine, not what may have happened, but what could not possibly have happened. It is important, where a plot is to be relied upon to demonstrate what the tracks of the vessels must have been, parties understand that the impact of the plotting is more effective if, despite assuming every margin of error in favour of a particular hypothesis, that outcome can be demonstrated to be highly improbable, if not impossible…” (emphasis added)
Decision on liability
81. Merely on the face of the assembled case papers, and no more, I should have found this a difficult decision fairly to make, although I am constrained to observe that, in the event, and after carefully examining all the evidence, I probably should have come to the conclusion that the plaintiffs had not discharged the burden of proof, and hence would have dismissed this action on that basis alone.
82. However, this view significantly is fortified, in my judgment, by an important additional aspect of Mr Lamplough’s submission, which consisted of 6 diagrammatic ‘plots’ which sought figuratively to portray the incident solely on the basis of the account of the incident as given by the Master of the Iran Huwayzeh.
83. What these ‘plots’ illustrate is that, on the basis of the Master’s account, this incident could not have occurred in the manner that we know it did in fact – and to which the colour photographs of the damage bear witness – that is, essentially a glancing blow/scrape between the IH and the VB at a position approximately between the forward starboard shoulder of the IH and the port bow of the VB at or about Frames 95-96.
84. In short, by extrapolating on the ‘plots’ the positions of the IH and the VB on the basis of Master Kashani’s evidence as to what he perceived to have occurred in terms of relative ship positions, speeds, headings and timings, the defendants were able to make the cogent (and, in the circumstances, the highly persuasive) submission that if this incident had taken place as the plaintiffs contended, then the collision between these two vessels would have occurred at the relevant time by the port shoulder of Vemabaltic striking the Iran Huwayzeh astern on its starboard quarter at an angle more acute than the fine/ oblique angle at which these two vessels in fact briefly touched – at a wholly different forward position – when they scraped together.
85. I wish to emphasise that in coming to the view that I have, these ‘plots’ form part and parcel of the overall evaluation of the evidence, and the formation of a view as to the probabilities of that which took place, although, as David Steel J cogently pointed out in The “Pelopidas”, op cit, they also have been of assistance to the Court in sorting out, on the present restricted state of the evidence, that which, on the probabilities, could not have happened.
86. So I do not think the incident in question occurred as Master Kashani has described it.
87. Nor, for that matter, does Mr Middleton.
88. In this supplementary statement dated 7 May 2009, Mr Middleton recounted having been shown, inter alia, the Preliminary Act of the Iran Huwayzeh dated 28 April 2008, and also that of the Vemabaltic dated 30 June 2008, and he further had reviewed his initial statement of 29 May 2008.
89. At paragraphs 4-8 of the supplementary statement, he recounts, with comment, his own version of the sequence of events, and at paragraphs 9-12, he further comments specifically upon the version of events put forward by those on board the Iran Huwayzeh in the following terms:
“I understand that those on board Iran Huwayzeh have said that before 0750 Vemabaltic was about one cable astern of Iran Huwayzeh and on a course of 325 degrees. This is quite unbelievable. I would never close on a mother ship at an angle of 20 degrees [the difference between 345 and 325 degrees] in a underway mooring operation when the vessels were so close together. That would be very poor seamanship and improper ship handling.
I also understand that those on board the Iran Huwayzeh have said that by about 07.56 (that is only a few minutes before the ships came together) Vemabaltic was still not running parallel to Iran Huwayzeh. They are mistaken. Vemabaltic had already come onto a parallel course with Iran Huwayzeh, as explained in my statement, and I had successfully matched the speeds of the two vessels at 5.5 knots.
I further understand that those on board Iran Huwayzeh have said that when the two ships came into contact, Vemabaltic was on a course of 335 degrees and making about 6.5 knots. Again they are mistaken. I would never bring two ships together in this manner. Shortly before the two vessels came into contact, the crew of Vemabaltic were already passing lines to Iran Huwayzeh. It would have been unsafe to do this if the speeds of the two vessels were not matched and more dangerous still if Vemabaltic had been closing on Iran Huwayzeh at an angle of 10 degrees. Had the two ships come together in the manner suggested by those on board the Iran Huwayzeh, the damage would have been much more significant than it was.
When the two ships came together, their speeds were matched at about 5.5 knots. In paragraph 23 of my [earlier] statement I explained that as Iran Huwayzeh appeared to sheer to starboard, I immediately ordered starboard helm. The amount I ordered was not dramatic. It was about 5-10 degrees. My intention was to steer away from the Iran Huwayzeh.”
90. In light of the position of the point of contact on the respective vessels, the nature and extent of the damage in fact done – superficial scraping/indenting of steel plates – I find this account of Captain Middleton both plausible and objectively highly probable, and prefer it to the version of Master Kashani.
91. True it is that the court has not had the opportunity to see Captain Middleton in the flesh, and to witness how he would have stood up to cross-examination; moreover, during his attractive submission Mr Hirst pressed on the court the argument that the ‘plots’ as produced by Mr Lamplough may be in error given that Master Kashani on the IH was perceiving the situation from his position on the starboard bridge wing of his vessel, and that any error in his description of events resulting from this sideways-on perspective would throw the extrapolated ‘plots’ ‘out of whack’, and in turn would introduce a margin of error which, if corrected, might produce a very different situation to that which now diagrammatically was portrayed on these plots.
92. This may be true, but equally this is to speculate even more than is inherent within the restricted mode of proceedings as now agreed by the parties to be dispositive of the liability element of this collision. For present purposes, the court can do no better than the documentary materiel before it, redolent as it is with assorted ‘ifs’, ‘buts’ and ‘maybes’.
93. Accordingly, after taking into account (i) the entirety of the assembled papers, (ii) the photographs of the damage in fact occasioned and its incontrovertible contact site, and (iii) the extrapolated ‘plots’ based on the plaintiffs’ version of events, this court has little hesitation in concluding that the plaintiff has not discharged the burden upon it of establishing, on a balance of probabilities, that the defendants’ vessel Vemabaltic was negligent, and thus caused the incident which led to the damage to both vessels.
94. As I have said, for my own part I am inclined firmly to the view that there is little possibility that the collision could have occurred as the plaintiffs would have it.
95. As Captain Middleton remarked, had this been the case, and had the angle of approach been as the plaintiffs suggest, the damage would have been very much more significant than, happily, turned out to be the case. In this context it should not be overlooked that after this initial metal on metal ‘scrape’ on the first pass of the Vemabaltic, later on the same day the underway mooring operation in fact was smoothly effected, and the STS procedure duly completed; nor was there any complaint as to the Vemabaltic or Captain Middleton in the Checklists prepared and signed after the incident.
96. Having concluded, as I now have, that the plaintiff has failed in discharging the legal burden of proof upon it to establish the causative negligence of the defendants, strictly there is no necessity to go further and to state a view as to the likely cause this minor incident.
97. However, a good deal has been said on this subject in the course of submission, and in deference to the efforts of the advocates, each of whom has said all that fairly could be said on behalf of their clients, I wish to indicate that for my part I am minded to conclude that this may well have been one of those relatively rare occasions in which an underway mooring operation came to (restricted) grief by reason of the dynamic forces interacting upon these two huge vessels, which displace a vast volume of water, as they closed together.
98. ‘Interaction’ is a well-documented concept in this type of situation, and is the subject of learned treatises: see for example, Marsden on Collisions at Sea, 13th ed., at A14-07 et seq, in which the authors offer the following comments under the heading ‘Ship-Ship Interaction’:
“Where the flow around the ship is restricted transversely…by the presence of another vessel, the situation is complicated as both bodily lateral forces and yawing movements can result. The generic term “proximity pressure effects” might be used to cover all these phenomena. Experimentation both at model and full scale has taken place on ship-ship interaction…It should be noted that while ‘sinkage’ (or “squat”) is quite reliably calculable, other more complex interaction phenomena are only just becoming amenable to theoretical treatment, using modern computational fluid dynamics methods…
If a ship is near another then the effects of pressure fields of both ships must be considered relative to one another…
If the ships proceed to a position where they are abreast of each other and if one is much smaller than the other, the whole of the smaller ship may be in the reduced pressure field abreast of the larger ship and hence may be sucked in bodily to the larger ship. In doing so she will tend to yaw away from the larger ship but this yaw will be secondary to the bodily movement towards the larger ship…;
whilst latterly, at A14-10, under the carriage of “guiding principles with regard to interaction and particularly ship-ship interaction”, the authors point out, inter alia, that:
“· The pressure field produced by a ship is greater in proportion to its size and displacement…
· A smaller ship is always more affected by the pressure field of a larger ship than vice versa…
· When ships are in close proximity one to another, the resulting restriction of flow magnifies local changes in velocity normally present and hence increases these proximity effects…”
99. Moreover, as Captain Middleton remarked, “the effect of interaction on two ships during an underway mooring operation is always difficult to predict”, noting also that the residual swell from the storm which recently had passed through and the wind may have played a role in the manner in which he perceived the Iran Huwayzeh to have behaved – although whether this resulted, as Middleton believed, in a ‘sheer’ to starboard of the mother ship or whether this perception is incorrect, and that as a matter of fact the daughter ship actually was ‘sucked’ towards the mother ship, is a matter upon which this court does not have to express a concluded view.
100. Suffice it to say that the phenomenon of ‘interaction’, however it manifested, is almost certainly the root cause of that which happened, and not any incorrect manoeuvring or incorrect angle of approach/speed on the part of the Vemabaltic, as the plaintiffs so strongly have asserted.
Order
101. It follows from the foregoing that the Order of this court is as follows:
(i) The plaintiffs’ action on liability is dismissed;
(ii) There is to be an order nisi, this order to become absolute within 28 days of the date of this judgment unless application be made so to vary such order, that the costs of and occasioned by this action are to be to the defendants, to be taxed if not agreed;
(iii) There is to be liberty to apply as to the form of the Order.
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