QCR Winter 2018: "But for" test rejected -"Agony of the moment" defence fails again
THE "TIAN E ZUO"  SGHC 93 HIGH COURT OF SINGAPORE
This was a collision claim brought by the Owners of "Arctic Bridge" against the Owners of "Tian E Zuo". As in any collision claim, the facts of the dispute are crucial to the court's findings but the facts of this case are particularly complex.
The vessels were anchored at the Western Petroleum B Anchorage at Singapore. Tian E Zuo had a bunker barge moored alongside her starboard side. To the north of Tian E Zuo was a vessel called Kingfisher, to the east was an oil tanker DL Navig8 and slightly further out north-east was Arctic Bridge.
A few minutes before Tian E Zuo started to drag her port anchor, the port authority broadcasted a warning to all ships announcing that the area was experiencing strong winds and advising vessels to keep a good anchor watch. When Tian E Zuo's anchor stopped holding, she moved astern dragging the bunker barge along with her in the direction of DL Navig8. The bunker barge collided with DL Navig8 first, but shortly thereafter Tian E Zuo also collided with DL Navig8. The three vessels did not move apart either because their mooring lines and anchor chains had become entangled, or because of the fear of entanglement, and all three continued to drift across the anchorage towards Arctic Bridge. Tian E Zuo dropped her starboard anchor but the three vessels continued to drift until they came to a stop at 03:30.
Arctic Bridge noticed the three vessels drawing near and was making preparations to move away. At 03:17 her master ordered her engines to be made ready. At 03:25 the order to heave Arctic Bridge's port anchor was given. However, it was not possible to recover the full anchor chain in sufficient time, and three shackles of anchor cable remained in the water. By 03:33 Arctic Bridge was said to be "moving clear" of Tian E Zuo. Arctic Bridge was to pass north of Kingfisher and proceed north-west. However, she was not able to do so and moved instead towards Kingfisher. In order to avoid a collision with Kingfisher, Arctic Bridge's master, at about 03:37, ordered slow ahead and hard to port. With her movement hampered by the dragging port anchor, Arctic Bridge was set astern towards Tian E Zuo and crossed the bow of Tian E Zuo at about 03:43. Subsequently, at about 03:46, Arctic Bridge's engines were put to slow ahead. Moving ahead, she passed the bow of Tian E Zuo a second time. At 04:49 Arctic Bridge cleared the bow of Tian E Zuo. Arctic Bridge's intention was to increase her distance between Tian E Zuo, the bunker barge and DL Navig8. However, at 03:50 the anchor chains of Arctic Bridge and Tian E Zuo became entangled. The entanglement resulted in Tian E Zuo being towed by Arctic Bridge for about 20 minutes. Arctic Bridge increased engine speed thereafter from half ahead to full ahead.
At 04:08 Arctic Bridge was parallel to Stena Provence at a distance of 50m. At 04:10 the bow of Tian E Zuo collided with the port quarter of Stena Provence. The impact caused the bow of Stena Provence to turn to port, towards Arctic Bridge. At about 04:11 the port bow of Stena Provence made contact with Arctic Bridge. Arctic Bridge maintained her forward movement, towing Tian E Zuo along after the contact at 04:11.
After the first contact Tian E Zuo reduced her engine speed before coming to a complete stop at 04:18. Tian E Zuo remained at the stern of Stena Provence during that time. Tian E Zuo stopped her engines even though she was still being dragged along by Arctic Bridge at full ahead. Arctic Bridge towed her into a second collision with Stena Provence at 04:27.
Owners of Arctic Bridge argued that but for the negligence of Tian E Zuo in allowing her anchor to drag, the related collisions would have be avoided. Had Tian E Zuo not dragged her anchor and came close to Arctic Bridge, the latter would not have been forced to move from her safely anchored position. Owners of Arctic Bridge submitted that the agony of the moment principle applied from 03:29 to 03:31 and from 03:36 to 03:43, and continued throughout.
Owners of Tian E Zuo argued that she stopped dragging her anchor at 03:30 and became a vessel at anchor, and was a vessel at anchor when Arctic Bridge entangled her anchor chain and towed her towards the anchored vessel, Stena Provence.
Both vessels submitted that the other was 100% to blame for the collisions.
The Court held:
- Owners of Arctic Bridge could not say that but for the negligence of Tian E Zuo in allowing her anchor to drag, the related collisions would have been avoided. This was a case involving multiple faults each capable of contributing to the related collisions.
- Although Arctic Bridge was dragging her anchor, she was a vessel underway since 03:33 while Tian E Zuo was a vessel at anchor from 03:30 up until the time the involuntary towage started. Arctic Bridge was at fault in failing to clear south of Kingfisher; ordering the engines to be stopped between 03:41 and 03:43, which caused Arctic Bridge to drift into a close quarters situation with Tian E Zuo; passing ahead and crossing Tian E Zuo's bow at close quarters twice which increased the risk of fouling and picking up the anchor chains of both vessels; failing to stop at any point in time as she proceeded towards Stena Provence; breaching Rule 5 of the Collision Regulations for failing to appreciate the risk of fouling, the commencement and continuance of the involuntary towage, and the navigation into a close quarters situation with Stena Provence; failing to appreciate the speed and direction of Arctic Bridge which set Tian E Zuo on a collision course; and failing to appreciate a further risk of collision after the first contact between Tian E Zuo and Stena Provence, and Arctic Bridge and Stena Provence respectively.
- The agony of the moment principle was inapplicable. At 03:30, Tian E Zuo became a vessel at anchor and remained so until the start of the involuntary towage. Tian E Zuo, at anchor, committed no faults during that period and hence no agony of the moment situation could have arisen. As regards the faults of Arctic Bridge from 03:51 onwards, an agony of the moment situation never arose. There was no sudden emergency during the involuntary towage; Arctic Bridge had sufficient time to react to the developing close quarters situation with Stena Provence, but simply failed to do so for want of situational awareness and breach of the lookout rule;
- Tian E Zuo was at fault in failing to keep a proper lookout and in failing to alert Arctic Bridge of the entanglement and the involuntary towage. Tian E Zuo was not to be regarded as a vessel at anchor during the period of the involuntary towage. A vessel whose anchor had been fouled and picked up by another vessel and consequently dragged away from her anchored position was no longer under control of her anchor, but was a vessel underway. Not only was there a breach of Rule 5, but the decision of the master of Tian E Zuo to stop her engines at 04:18 meant that he would have no control of Tian E Zuo. There was therefore fault on the part of Tian E Zuo for the collision with Stena Provence at 04:27;
- In terms of relative blameworthiness, the court found that there were serious faults on the part of each vessel. Having regard to the causative potency and blameworthiness, both vessels were found equally to blame; liability was split 50:50.
The defence of "alternative danger" or "agony of the moment", established in The Bywell Castle (1879) 4 PD 219, is a counter-defence to contributory negligence. The vessel pleading the defence might be able to show that she acted under the stress of the circumstances forced upon her by another vessel, whereupon she may do some act which brings about the collision, or where the actions of the claimant's vessel forced the defendant to act in the agony of the moment to avert a peril resulting from the negligence of the claimant's vessel. It is said that "where one ship has, by wrong maneuvers, placed another ship in a position of extreme danger, that the other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind".
The defence of "alternative danger" or "agony of the moment" is rarely successfully invoked. Given the wording of the Collision Regulations, specifically Rule 2 (Responsibility) which provides as below, it is not surprising that in the majority of collision claims responsibility is shared/ apportioned between the vessels;
"(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precautions which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger [emphasis added]",
In accordance with Rule 2, a ship's responsibility is not only to follow the Collision Regulations, but also to take all necessary actions to avoid the risk of collision and the dangers of navigation. Rule 2(a) requires the vessel to follow both the rules and 'the ordinary practice of seamen'. This means that the ship's crew must always use common sense. Rule 2(b) allows the vessel to depart from the rules in circumstances where departing from the rules is the only way to avoid an immediate danger.