The container vessel Nordlake narrowly avoided a collision with the container vessel Seaeagle in the entrance to the port of Mumbai but shortly thereafter collided with the Indian warship Vindhyagiri. The collision caused damage to both the Nordlake and the Vindhyagiri.

The Union of India, the owner of Vindhyagiri, brought a claim against the owner of the Nordlake in the Indian courts. In that suit, the Nordlake's claim against the Vindhyagiri would also be decided.

The owner of the Nordlake brought a claim against the owner of the Seaeagle for damages arising out of the collision in the England and Wales High Court. The owner contended that the collision was caused by the negligence of those on board the Seaeagle and by the negligence of three Indian warships, the Vindhyagiri, the Godavari, and a vessel described as the 'Lead Warship'.

The owner of the Seaeagle brought a claim against the owner of the Nordlake in the England and Wales High Court. They submitted that the collision was caused by the negligence of those on board the Nordlake and by the negligence of those on board the same three Indian warships.

There was also a counterclaim by the owners of the Nordlake to limit their liability (if any) to the owners of the Seaeagle.

Held: The liability was apportioned 60 per cent to the Nordlake, 20 per cent to the Vindhyagiri, 10 per cent to the Godavari and 10 per cent to the Seaeagle.

The owners of the Seaeagle did not admit the right of the owners of the Nordlake to limit their liability, but no positive case that the owners of the Nordlake are not entitled to limit their liability has been pleaded. A person challenging a right to limit has the burden to allege and prove conduct barring the right to limit. It follows that the owners of the Nordlake are entitled to a declaration that they can limit their liability pursuant to the Merchant Shipping Act 1995 (UK) (the Act). It is common ground that the amount of that limit is 6,680,800 SDRs pursuant to the LLMC 1996.

Since the Union of India was not a party to the English proceedings and the Court had received no evidence from those on board the three Indian warships, any findings of fault and any apportionment of liability would be based on the evidence adduced by the owners of the Nordlake and the Seaeagle, and would not be binding on the Union of India.

The collision was caused by the fault of four vessels. Two of the vessels were not before the Court. The question was whether the Court could take into account the degree to which those two vessels were at fault.

Section 187 of the Act, 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.

Both the Nordlake and the Seaeagle were entitled to require, pursuant to s 187 of the Act, that their liability 'shall be in proportion to the degree in which each ship was at fault'. Unless account is taken by the Court of the degree in which the Vindhyagiri and the Seaeagle were at fault, the proportions in which the Nordlake and the Seaeagle were held liable for the damage will exceed the degree in which the Nordlake and the Seaeagle were at fault. That would be contrary to s 187 of the Act.

Pursuant to s 187 the Court must take into account the causative fault not only of those vessels which are party to the action before the Court, but also the causative fault of any other vessel, even if that vessel is not party to the action before the court.

Apportionment pursuant to s 187 required an apportionment of liability in proportion to the degree in which each ship was at fault. This requires an assessment of relative liability, as was made clear in a case involving damage caused by the fault of three ships, Miraflores (Owners) v George Livanos (Owners) [1967] 1 AC 826 (CMI2274). The correct approach is to consider and weigh the faults of each ship separately and individually, and then arrive at an apportionment of liability that justly reflects the relative degree of fault between all ships.