Ove Skou Rederi v. Nippon Yusen Kaisha Ltd.

No lookout on the forecastle head.

On the Marie Skou this cannot have contributed to the accident. The lookout on the bridge did see a white light and the master then saw both top lights when still open to starboard. He noted the time as 0029, which is exactly in accordance with the evidence from the other side that the hard starboard order was given precisely at 0029. It might also be observed that the combined speed of the two ships being 24 knots and the collision having occurred three minutes later, this means that the lights of the Chitose Maru were effectively seen at the upper limit of the range of visibility estimated by the master of the Marie Skou that is 0.8 to 1.0 mile. On the other hand, the absence of a lookout on the forecastle of the Chitose Maru was much more serious her bridge being more than five hundred feet aft, not less than two hundred. Putting both ships in pari delicto on that account might be proper on an abstract technical consideration of the observance of the regulations, but, with respect, it is erroneous in the allocation of liability where actual influence in the outcome is the criterion.

Misuse of the radar.

“The courses in passing, it is said, are to be denoted only by plotting and plotting was neglected by both vessels”. Here again equal blame is laid on both ships although the situation was radically different. On the Chitose Maru there was not even proper observation of radar on account of insufficient personnel on the bridge. Such was not the case on the Marie Skou, while plotting

[Page 245] was not done there was not only proper and continuous observation, but also a bearing marker was used and precise observations were made and recorded. From those observations, it was possible to have what might be called a rudimentary plot prepared by the master of the Marie Skou, when he was examined on discovery and this was put in by the respondents at the trial as an exhibit. It shows that, while the two ships were on intersecting courses, they would not have come within close quarters in crossing starboard to starboard had they both continued on their respective courses of 288° (true) for the Marie Skou and 115° (true) for the Chitose Maru. Counsel for the respondents did not challenge appellants’ contention that it would have been so on that assumption. However, he pointed out that at 0025 the Chitose Maru had altered her course to 120° and at 0027 or 0028 to 125°. While this would not have brought her on a collision course he urged that it would have brought her within a few hundred yards which would have been a close quarters situation requiring caution on the part of the Marie Skou.

Counsel for the latter points out, however, that plotting will not reveal in a short time a small alteration in the course. It must therefore be concluded that on the part of the Marie Skou the omission of plotting did not contribute to the accident. Prior to the alteration of course, this would not have revealed any danger but merely confirmed what the master of the Marie Skou had correctly deduced from the radar observations, namely that safe starboard to starboard crossing was indicated. There is nothing in the evidence from which it can be deduced that plotting would have made the master of the Marie Skou aware of the danger sooner than he was by visual observations and no such finding was made. It should also be noted that even if a close quarters situation had been indicated somewhat sooner, a substantial speed reduction could not have been effected because, due to the intersecting courses, a slowing down would have increased the danger of collision by preventing the Marie Skou from keeping as far ahead as possible of the point of intersection.

Of course, if there was a regulation requiring plotting under the conditions prevailing at the

[Page 246] material time, those responsible for the omission of the plotting might have to be found equally guilty of a breach of such regulation irrespective of anything else. However, from the point of view of civil liability, those who, as a result of continuous, careful and systematic observations with notes and visual aids, rightly concluded that the courses of the two ships were leading to a safe starboard to starboard crossing cannot be put on par with those who, after insufficient, incomplete and erratic observations without notes or visual aids, wrongly anticipated a port to port crossing and made the improper manoeuvre that caused the collision.

Failure to comply with Rule 16(c).

This is effectively disposed of by what has just been said. When the presence of the Chitose Maru was detected, a close quarters situation was not indicated and her small alterations of course that subsequently created it could not be detected in proper time.

On the part of the Marie Skou, failure to proceed at a moderate speed.

Here again the crucial question is whether the speed did contribute to the collision. It is not the duty of the Court to decide whether, under present conditions, it is proper with radar to navigate a ship at a speed at which her stopping distance is greater than her range of visibility. In this particular case, as we have seen, the primary cause of the collision is not doubtful. It is the sudden starboard turn by the Chitose Maru that put her across the bow of the Marie Skou. This was clearly an improper manoeuvre and it is hard to see how it could be contended that those on board the Marie Skou should have anticipated it. However, unless they did, there was no reason for them to lessen their speed because, as previously noted, due to the fact that the courses were intersecting behind the Marie Skou, an early reduction in speed would have had the effect of bringing the intersecting point closer with consequent risk of collision unless the course of the ship as well as the speed was altered.

It is clear that in fog, unnecessary alterations of speed and of course are to be avoided because every alteration makes it more difficult for any

[Page 247] other ship to make a proper decision respecting her own course and speed. Here, the minor course alterations made by the Chitose Maru a few minutes before the accident were clearly not in accordance with good seamanship because they could not be promptly perceived by the other ship and were apt to cause confusion and uncertainty. In the absence of any indication of an impending close quarters situation, the master of the Marie Skou had no reason to anticipate a situation requiring a reduction of speed. As soon as he did, he ordered the engine stopped and reversed. Nothing shows that there was any delay in giving those orders and in executing them. Nothing shows that the necessity for doing this could have been perceived earlier. In fact, it is shown that the master of the Marie Skou did observe the starboard turn just as soon as it started to become apparent.

On the part of the Marie Skou, assuming the courses of the two vessels would lead to a starboard to starboard passing.

How can the Marie Skou be said to have been guilty of fault in so doing where this was a correct conclusion? The only reason for which this ultimately proved incorrect is the sudden turn. As we have just seen, this was clearly an improper manoeuvre that could not reasonably be anticipated.

On the part of the Marie Skou, going hard to port after sighting the port light of the Chitose Maru.