These proceedings concerned a collision between two vessels, the Hong Kong-registered bulk carrier Hua Sheng Hai and the French-flagged fishing trawler Kirrixki, in international waters off the south-west coast of Ireland on 11 October 2019. Both vessels contended that the other was responsible for the collision. This trial was confined to issues of liability only. 

Held: The case is to be resolved by reference to the Irish law of torts. An apportionment of liability as to 85% to the Kirrixki and 15% to the Hua Sheng Hai represents a fair reflection of their respective degrees of fault for the collision.

Although the collision occurred in international waters, the parties agreed that Irish law applies to the respective claims advanced by the parties as against each other. Both parties referred to Marsden and Gault, Collisions at Sea (15th ed, 2021), para 5-003:

Apart from certain special rules, there is as far as English law is concerned no transnational or global maritime law of wrongs. Admittedly the High Court of Admiralty once affected to apply a kind of transnational civil law independent of national rules. But the modern view is strongly against the idea that there is any such overarching lex maritima to be applied in the place of national law. On the contrary: Admiralty claims now emphatically reflect the practice of the English admiralty court, and of other English courts exercising parallel jurisdiction. Brett LJ expressed what has become the modern view in 1882, when he said:

Now the first question raised on the argument before us was what is the law which is administered in an English Court of Admiralty, whether it is English law, or whether it is that which is called the common maritime law, which is not the law of England alone, but the law of all maritime countries. About that question, I have not the smallest doubt. Every Court of Admiralty is a court of the country in which it sits and to which it belongs. The law which is administered in the Admiralty Court of England is the English maritime law.

Thus in England today the law of tort is generally applicable to collisions at sea in the same way as it governs torts on dry land. To succeed in an action in tort for damages arising out of a collision at sea, a claimant must prove the facts giving rise to the tort on which he relies. He must also prove that he has suffered the damage complained of, that the damage was caused by the tort and that it is not too remote a consequence of the breach of duty.

Having reviewed the evidence in the light of the Collision Regulations, the Court found that both vessels were at fault. In such circumstances, s 46 of the Civil Liability Act 1961 (the 1961 Act) applies. Section 46 re-enacts (with certain amendments) s 1 of the Maritime Conventions Act 1911 (the 1911 Act) [which is in turn based on arts 3 and 4 of the Collision Convention 1910]. Section 46(1) of the 1961 Act deals with collisions between two or more vessels:

(a) Where, by the fault of two or more vessels, damage is caused to one or more of those vessels or to another vessel or to the cargo of any of those vessels or any property on board, and an action is brought for such damage, the liability of each vessel in respect of such damage shall be in proportion to the degree in which such vessel was in fault and accordingly there shall be no right of contribution in respect of such apportioned liability: provided that -

(i) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally among the vessels in fault;

(ii) nothing in this subsection shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law.

(b) For the purposes of paragraph (a) of this subsection the liability of a vessel for damage shall mean the liability of those responsible for the proper navigation and management of the vessel ...

The English decisions on s 1 of the 1911 Act are helpful in understanding the principles of apportionment under s 46. Prior to the enactment of s 46, it was well settled that the only faults to be taken into account in apportioning liability under the 1911 Act were faults that contributed to the damage or loss concerned. It is also important to bear in mind, in considering the respective fault on the part of both vessels, that s 80 of the 1961 Act has abolished the 'last opportunity rule'. Thus, it is necessary (as Brandon J observed in his article 'Apportionment of Liability in British Courts under the Maritime Conventions Act 1911' (1977) 51 Tulane LR 1025, 1031) to ask and answer two questions: (a) What faults were committed by the ships concerned?; (b) Which of those faults contributed to the loss or damage in issue? In the same article, Brandon J (at 1031-1032), made clear that, in considering the 'fault' of the vessels, the court takes into account not only faults which had a causative potency, but also faults in the nature of culpability or blameworthiness (irrespective of the extent to which those faults contributed to the damage concerned). That seems to be consistent with the express language of s 46(1)(a) of the 1961 Act. Brandon J (at 1037) stressed that each case must depend on its own particular circumstances. Nonetheless, he identified a number of broad lines of approach that he suggested will be generally useful 'on the basis of practical experience of apportionment in numerous cases over many years'.

These principles have subsequently been usefully summarised by Teare J in The Nordlake and The Seaeagle [2016] 1 Lloyd’s Rep 656, 675:

(i) The number of faults on one side or the other is not decisive. It is the nature and quality of a ship’s faults, rather than their number, that matter.

(ii) Breaches of the obligations imposed on ships in certain defined situations by the Collision Regulations will usually be regarded as seriously culpable. One such rule is the narrow channel rule.

(iii) Causative potency has two aspects. The first is the extent to which the fault contributed to the fact that the collision occurred. The second is the extent to which the fault contributed to the damage resulting from the casualty.

(iv) In most cases though not all it will be right to treat the fault of a ship that creates a situation of difficulty or danger as greater than that of the ship that fails to react properly to such situation after it has been created.

(v) The fact that a fault consists of a deliberate act or omission may in certain circumstances justify the court in treating it as more culpable than a fault which consists of omission only.

In this case, even if the Kirrixki was otherwise entitled to be considered the stand-on vessel, it was plainly not entitled to take a sudden turn into the path of the approaching Hua Sheng Hai without even considering whether it was safe to do so and without keeping any lookout (either physically or on the radar). That action of the Kirrixki did not simply create a crossing situation; it set the Kirrixki on a collision course with the Hua Sheng Hai. Such an action is entirely inconsistent with the rationale underlying Rule 17(a)(i) of the Collision Regulations which requires the stand-on vessel to maintain its course and speed. Thus, even if the Court is wrong in finding that the Kirrixki was not engaged in lowering its nets and gear into the water, this would not alter the outcome of these proceedings. Even as a stand-on vessel, the Kirrixki would not have been entitled to behave in the way that it did. Likewise, the Kirrixki cannot claim the status of stand-on vessel in circumstances where it created a situation of danger where none existed before then. Absent this manoeuvre by the Kirrixki, there would have been no risk of collision. The failures on the part of the Kirrixki were many times more significant than the failure of the Hua Sheng Hai to take timely action to avoid an unexpected and sudden danger created by the Kirrixki. Notwithstanding the finding of fault on its part, the Hua Sheng Hai is in a much less blameworthy position. Up to the point that the Kirrixki made its foolhardy turn to the north-west without looking, the Hua Sheng Hai was not obliged to second-guess what the previously drifting trawler might do. In particular, it could not have predicted that the Kirrixki would suddenly pick up speed and cross the ship’s path with no thought for any approaching traffic.