This was a collision between container vessel X-Press Mahanada (XPM) and product tanker Burgan at the Gupta Crossing in the Karnaphuli River approaching the Bangladeshi port of Chattogram. Both vessels were under pilotage. The Burgan contended that the collision was due to the fault of a third vessel, the Shakti Sanchar (SS), an amphibious warfare ship operated by the Bangladeshi army. That vessel, which was not a party to this action, entered into the channel navigating broadly east to west between the two vessels fairly shortly before the collision occurred.

Held: The Court apportions 65% of the fault to the Burgan. The SS was also at fault as to 35%.

This case involves the negligent navigation of three vessels, only two of which are before the Court. Section 187(1) of the Merchant Shipping Act 1995 (UK) provides:

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.

The approach to be taken to the task of apportionment in cases where three or more ships are alleged to be to blame was set out by the House of Lords in The Miraflores & The Abadesa [1967] AC 826 (CMI2274). The Court's task is to decide whether the collision was caused by the fault of two or more vessels and, if so, to apportion liability by reference to each one of them. Teare J held that the same approach to the task of apportionment is applicable where one or more of the vessels at fault is not before the Court: The Nordlake v The Sea Eagle [2016] 1 Lloyd's Rep 656 [144]-[148] (CMI2534).

In determining whether a party is at fault, it is established that both culpability and causative potency must be taken into account: see The Nordlake at [149] and Brandon, 'Apportionment of Liability in British Courts under the Maritime Conventions Act 1911' (1977) 51 Tulane LR 1025, 1031-1032.

Although the Court was referred to these various loci classici in respect of apportionment, regard should also now be had to the recent Donald O’May lecture by Sir Nigel Teare,' Apportionment of Liability for Damage Caused by Two or More Vessels: is it a Simple or a Complex Exercise?' [2023] LMCLQ 225. In that lecture he both considers the earlier sources and draws on his practice at the Admiralty Bar and his experience as Admiralty Judge. In particular, Sir Nigel says the following:

Apportionment is therefore a crucial part of collision litigation and must, whether it be simple or complex, be conducted carefully. ... Let me begin with what you should not do. As has been said in several cases, you do not count the number of faults. The number is not decisive. What matters is their nature and quality, which must be assessed by reference to the two elements of fault: causative potency and blameworthiness. ... Sir Henry Brandon explained that causative potency had two aspects: 'The first aspect is the extent to which the fault concerned contributed to the fact that the collision or other casualty occurred at all. The second aspect is the extent to which the fault concerned contributed to the damage or loss resulting from the collision or other casualty.' … the causative potency of the vessel which fails to react to a situation of danger which has been created by another vessel will usually be regarded as less than that of the vessel which created the situation of danger. … [T]he ultimate enquiry in collision litigation is as to the relative causative potency and blameworthiness of each vessel. ... When comparing the faults of one vessel with those of another, the court must inevitably form a value judgment not only about particular aspects of the vessels' navigation but also about the vessels’ navigation as a whole. ... How does one reach the ultimate decision as to relative degrees of fault expressed in terms of fractions or percentages? The court usually asks itself how many more times ship A was at fault than ship B.

Ultimately, it is clear that the Burgan was much more at fault, in a number of serious ways, which interacted with each other and were causative. Its faults were therefore not just more numerous, they were more important and more causative than the faults of the other vessels. The Court apportions 65% of the fault to the Burgan. The SS was also at fault - 35% is the appropriate apportionment of fault to the SS.