MV “Hua Sheng Hai” v MV “Kirrixki”, MV “Hua Sheng Hai” v Rochelaise De Peche S.A.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 26 March 2024
• Neutral Citation: [2024] IEHC 182
• Docket Number: [No. 2019/7993 P]

MV “Hua Sheng Hai”

MFV “Kirrixki”

Between

The Owners and All Persons Claiming An Interest in the MV “Hua Sheng Hai”

Plaintiffs

and

The Owners and All Persons Claiming An Interest in the MFV “Kirrixki”

Defendants

MV “Hua Sheng Hai”

Between

Rochelaise De Peche S.A.

Plaintiff

and

The Owners and All Persons Claiming An Interest in the MV “Hua Sheng Hai”

Defendants

[2024] IEHC 182

[No. 2019/7993 P]

[No. 2019/8027 P.]

THE HIGH COURT

ADMIRALTY

JUDGMENT of Mr. Justice Denis McDonald delivered on 26 ^th March 2024

Table of Contents

Introduction	2
The case is to be resolved by reference to the Irish law of torts	3
The claim made on behalf the Hua Sheng Hai	5
The claim made on behalf of the Kirrixki	6
The Collision Regulations	8
The evidence of the witnesses as to fact on behalf of Hua Sheng Hai	13
The evidence of the sole witness as to fact on behalf of the Kirrixki	19
The expert evidence	27
The preliminary act of the Kirrixki	54
Findings of fact and fault	56
There was fault on the part of the Kirrixki	56
There was also fault on the part of the Hua Sheng Hai	68
The apportionment of fault	82

Introduction

1 . Both of these proceedings are concerned with a collision between two vessels which occurred off the southwest coast on 11 ^th October 2019 at 23:51: 04 or 23:51:05 UTC. The difference in timing is inconsequential. It arises from a slight difference between the views expressed by the experts retained on behalf of the parties. Both of the experts agree that the difference between them is of no significance. The collision occurred in international waters between a bulk carrier vessel, namely the “ Hua Sheng Hai” and a fishing trawler known as the “ Kirrixki”. The location of the collision lies about 24 nautical miles WNW of Inis Taraght Lighthouse on the Blasket Islands. The approximate coordinates for the location of the collision are 52° 09.2 North, 011° 18.3 West.

2 . The Hua Sheng Hai is a bulk carrier registered in Hong Kong and flying the flag of Hong Kong. The vessel was built in 2017 at the Chengxi Shipyard, Jiangyin, China. The owners and managers are Hua Sheng Hai Shipping Ltd and COSCO Bulk Shipping Company Ltd. The vessel has a gross tonnage of 44,103 tonnes and is 229 metres long. The beam is approximately 33 metres. On the night of the collision, the master of the Hua Sheng Hai was Mr. Chen Zhengfai. He was not on the bridge at the time of the collision and did not give evidence. At the time of the collision, the Hua Sheng Hai was in the course of carrying a cargo of 619,915 tonnes of bauxite from Port Kamsar in Guinea to Aughinish, County Limerick. In common with vessels of this size, the Hua Sheng Hai is fitted with a Voyage Data Recorder ( “VDR”) and the records available from the VDR have been of considerable assistance in reconstructing the events leading to the collision on 11 ^th October 2019.

3 . In contrast, the Kirrixki is a much smaller vessel with a gross tonnage of 363 tonnes. The Kirrixki is a motor fishing trawler built in 2000. In 2019, the trawler was sailing out of the port of Bayonne and flying the French flag albeit that, on the day of the collision, the trawler had commenced the day's operations in Dingle, County Kerry. The Kirrixki is 37.25 metres in length with a beam of approximately 8.4 metres. At the time of the collision, most of the crew of ten on the Kirrixki were Spanish and the skipper was Captain Joaquin Maria Antelo Malabe, who is also Spanish. The Kirrixki was engaged in demersal (i.e. bottom) trawling which involves the lowering of the trawl net to the seabed across which it is dragged with the intention of scooping up the available fish. The Kirrixki was not equipped with a VDR (and was not obliged to be). But the trawler was equipped with radar and an automatic identification system ( “AIS”) which is designed to transmit information about the vessel's location, identity, course and speed. It also permits a vessel to transmit information about its activities although the skipper of the Kirrixki did not avail of this facility. The information transmitted by the AIS is picked up by other vessels (and also by satellite and ground stations). As a consequence of a fire on the trawler some weeks after the collision, the information stored on the AIS equipment of the Kirrixki was not available at the trial. It does not appear to have been downloaded prior to the fire. However, the AIS information transmitted by the trawler was nonetheless available at the trial both because it was recorded by the VDR on board the Hua Sheng Hai and because it was available commercially from businesses which routinely collect such information about vessels and sell it for a fee.

4 . Both vessels contend that the other vessel was responsible for the collision. The owners and operators of the Hua Sheng Hai commenced proceedings on 15 ^th October 2019 as against the Kirrixki, while the owners of the Kirrixki commenced proceedings against the Hua Sheng Hai on 16 ^th October 2019. Both proceedings were subsequently the subject of a single trial which took place before me. The trial took place on a hybrid basis with witnesses as to fact participating remotely both from China and from Spain and the experts attending in person. The trial was confined to issues of liability only. It is intended that any issues of quantum will be addressed at a later stage. There is no dispute that both vessels suffered physical damage as a consequence of the collision.

5 . In advance of the trial, the parties had agreed that the witnesses of fact called on behalf of the Hua Sheng Hai should go first, followed by the witnesses of fact called on behalf of the Kirrixki, followed by the expert witnesses on behalf of the Hua Sheng Hai and concluding with the expert witness called on behalf of the Kirrixki.

The case is to be resolved by reference to the Irish law of torts

6 . Although the collision occurred in international waters, the parties are agreed that Irish law applies to the respective claims advanced by the parties as against each other. In this context, both parties have referred to Marsden & Gault “Collisions at Sea”, 15 ^th Ed., 2021, at para. 5-003, where the authors say:-

“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.”

7 . As noted above, each party blames the other for the collision. Both parties contend that the collision was caused by negligence, breach of duty and breach of statutory duty of the opposing party. Both parties accept that negligence and breach of duty are the principal torts in issue and that the conduct of those navigating a ship involved in a collision will be judged by the standards of prudent seamanship. Both parties also accept that an important element of any assessment as to whether the parties complied with those standards will be the extent to which the Collision Regulations have been complied with. These are the International Regulations for Preventing Collisions at Sea 1972 made by the International Maritime Organisation ( “IMO”) as amended by Resolutions A.464(12), A.626(15), A.678(16), A.736(18), A.910(22) and A.1004(25) which have been implemented in Ireland under the Merchant Shipping (Collision Regulations) (Ships and Water Craft on the Water) Order 2012 ( S.I. No. 507 of 2012) ( “the 2012 Regulations”). Regulation 5 of the 2012 Regulations applies the Collision Regulations to all States listed in Schedule 2. Both France and Hong Kong (being the flags under which the Kirrixki and the Hua Sheng Hai sailed) are included in Schedule 2. Although both parties, in asserting their claims, rely on the provisions of the Collision Regulations, they do not contend that, in advancing a cause of action, a breach of the Regulations gives rise to a breach of statutory duty enforceable by them independently of the law on negligence. This is consistent with the approach suggested by the authors of Marsden & Gault, op. cit., at para. 5–007.

8 . Notwithstanding the views expressed by the authors of Marsden & Gault, the Hua Sheng Hai also seeks to rely on s. 419(3) of the Merchant Shipping Act 1894 ( “the 1894 Act”) which deals with wilful default. Section 419(3) provides as follows:-

“If any damage to person or property arises from the non-observance by any ship of any of the collision...