This judgment arose out of a collision between the MV NYK Falcon, the MV NYK Orpheus, and the MV Panamax Alexander in the Suez Canal. One of the issues before the Court was apportionment of liability for the collision.

Held: The comparative responsibility overall, and consequently the apportionment of liability, between Alexander, Orpheus, and Falcon (in that order) is in the proportion 5:5:2.

Section 187 of the Merchant Shipping Act 1995 (UK), which gives domestic effect to art 4 of the Collision Convention 1910, provides that:

Where, by the fault of two or more ships, damage or loss is caused to one or more of those ships, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was in fault.

Applying s 187 involves an assessment of the degree of blameworthiness and the causative potency of each ship's fault. Teare J summarised the approach in The Nordlake [2015] EWHC 3605 (Admlty) [149]:

(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.

As the Court of Appeal said in The Alexandra 1 and Ever Smart [2017] EWCA Civ 2173 [124] (reversed in the Supreme Court without affecting this point, [2021] UKSC 6), the aim is to derive 'a broad, commonsensical and qualitative assessment of the culpability and causative potency of both vessels'.

Where three ships are at fault, the Court should make a comparison of the fault of each with the fault of each of the others separately and should not in the case of any of the ships treat the others as 'one unit'. As Lord Morris explained in The Miraflores and the Abadesa [1967] 1 AC 826, 842:

The process necessarily involved comparisons and it required an assessment of the inter-relation of the respective faults of the three vessels as contributing causes of the damage or loss. If the faults of two vessels out of three are being grouped together there may be risk of making it difficult to make separate comparisons and assessments as between the three.

By a proviso in s 187(2), if the evidence is such that responsibility cannot be apportioned with any certainty, then as a default rule of last resort the liability should be apportioned equally.

In this case, all three ships were at fault. The collision would not have occurred had any one of them not been at fault:

(i) Falcon should have navigated past in a way that would not have got Alexander into difficulty, even though Alexander was moored imprudently, and despite its lack of effective use of the attending tugs. The operative fault on the part of Falcon was that it arrived still making just over 7 knots through the water, on a deceleration towards its intended slow passing speed. It should have set a steady, minimum safe speed for the pass. In that case, Alexander would not have broken free from its mooring so as to become a danger to Orpheus.

(ii) At the same time, though, that difference, between how Falcon was navigated and how it should have been, whilst it is enough for Falcon to have been negligent, ought never to have been a problem. Alexander's imprudently inadequate mooring is the root cause of all that followed and was a serious failure of good seafarership on board that stricken ship. Had Alexander been properly moored, it would not have broken free so as to become a danger to Orpheus.

(iii) That root fault was seriously compounded by Alexander's failure to raise the alarm when its stern lines parted and it found itself swinging into the channel.

(iv) At the same time again, though, there should not have been a collision, even after all the faults just summarised. Orpheus was proceeding with significantly excessive speed, leaving it too late in its progress towards Alexander's position before slowing for the pass; and having thus arrived in the vicinity sooner than it ought to have, at excessive speed, Orpheus failed to keep a proper lookout and failed to act with proper urgency and decisiveness when, finally, it did act. Without any one of those failings (speed, lookout, and response), the collision would not have occurred.

Both Alexander and Orpheus are substantially more to blame than Falcon for the collision in this case. Falcon was guilty of a clumsy, ill-judged approach to the passing manoeuvre, sufficiently so to have been negligent, but how it was therefore navigated was not different from how it should have been by a very wide margin. From its perspective, there is a large element of bad luck that the greater passing vessel forces it therefore generated interacted with so poorly secured a ship as Alexander so as to put it into the path of so poorly navigated a ship as Orpheus, and that both Alexander and Orpheus then reacted so inadequately to the situation.

Causative potency as regards the extent of damage does not add anything in this case. Despite all the faults and their combined consequences, Orpheus came close to stopping without hitting Alexander. However, given the position Alexander had attained, once there was a collision with Orpheus making any real headway at all, there was going to be major damage.

The inadequacy of Alexander's mooring arrangement was the more powerful of the faults in causing it to break free, given the distance it needed to be able to surge aft before its lines would part, which is what turned its induced motion from something uncomfortable or unnerving for those on board into an emergency and a collision risk. Orpheus's excessive speed of approach, and its and Alexander's faults in failing to respond to the developing emergency, were also more powerful causative factors than Falcon's initial poor navigation.

Alexander and Orpheus were equally at fault and responsible, overall. They have similarly weighty fault in creating the perilous situation, Alexander for being so inadequately secured at the side of the Canal, Orpheus for steaming up the Canal far too fast until far too late in its approach to Alexander's position. They each have substantial fault in failing to respond to Alexander's difficulty.

As between Falcon and each of Alexander and Orpheus, where there is a substantial disparity (Falcon much less to blame than either of the others), I think it useful to follow Teare J's practice of considering how many times more at fault it feels right to describe Alexander or Orpheus, respectively, than Falcon. Adopting that approach, Alexander and Orpheus were each more than twice but not as much as three times as blameworthy as Falcon.