7—COLLISION CLAIMS

16 Oct, 2015 MARITIME LAW 0

Chapter 7

Collision Claims

Collision Claims Must Be Commenced in the Admiralty Court

7.1 Actions to enforce claims for damage or loss of life or personal injury arising out of:

(i) a collision between ships, or
(ii) the carrying out of, or the omission to carry out, a manoeuvre in the case of one or more of two or more ships, or
(iii) non-compliance, on the part of one or more of two or more ships, with the collision regulations,¹

are known as “collision claims” and must be commenced in the Admiralty Court.²

Restrictions on Collision Claims in Personam

7.2 The International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision³ limit the exercise of jurisdiction by Contracting States in collision claims. Although this Convention has not been directly enacted into English law, effect has been given to its provisions by section 22 of the Senior Courts Act 1981. Thus, the court may not exercise jurisdiction in a collision claim⁴ in personam unless⁵:

(a) the defendant has his habitual residence or place of business within England or Wales⁶; or
(b) the cause of action arose within the inland waters⁷ of England and Wales or within the limits of a port⁸ of England and Wales⁹; or
(c) an action arising out of the same incident or series of incidents is proceeding¹⁰ in the High Court or has been heard and determined in the High Court¹¹; or
(d) the defendant has submitted or agreed to submit to the jurisdiction of the High Court.¹²

7.3 Furthermore, where the claimant has previously¹³ brought proceedings in any court outside England and Wales against the same defendant in respect of the same incident or series of incidents, the court is prevented from exercising jurisdiction until such proceedings have been discontinued or otherwise come to an end.¹⁴

Collision Claims in Rem May Be Stayed Pending Security

7.4 There are no such restrictions upon the exercise of jurisdiction in a collision claim in rem.¹⁵ However, where a collision claim has been brought in rem and a cross-claim in rem is subsequently begun, or a counterclaim is made, arising out of the same collision or occurrence, if the ship against which the first claim is brought has been arrested or security provided and the ship against which the cross-claim is brought or the counterclaim made cannot be arrested¹⁶ and security has not been provided, the court may stay proceedings in the first claim until security has been provided in respect of the cross-claim or counterclaim.¹⁷

7.5 This provision does not assist a claimant who has provided security, and so a counterclaim cannot be stayed pending the provision of security by a defendant,¹⁸ nor can a cross-claim in rem be stayed pending provision of security to a claimant who has earlier commenced a claim in personam.¹⁹

Civil Jurisdiction and Judgments Act 1982 and Collision Claims

7.6 The provisions of the Civil Jurisdiction and Judgments Act 1982 apply to collision claims in rem and in personam as they apply to other claims. However, there is one important difference between the application of the Act to collision claims in rem and its application to other claims in rem.

7.7 In The “Deichland”²⁰ the Court of Appeal held that in order to establish jurisdiction in an Admiralty claim in rem by reason of the combined effect of article 57 of the 1968 Convention, section 9 of the 1982 Act and Article 7 of the 1952 Arrest Convention, it was necessary not only to serve the claim form in rem, but also to arrest the ship proceeded against. The crucial words of Article 7 of the Arrest Convention being ” The courts of the country in which the arrest was made shall have jurisdiction to determine the case upon its merits . .. “. It was not therefore sufficient to establish jurisdiction that security had been provided to prevent arrest.

7.8 However, in a collision claim in rem, the Court of Appeal held in The “Po”²¹ that jurisdiction may be established without an actual arrest if security has been provided, because of the difference between the wording of Article 1(1)(b) of the Collision Convention 1952 and Article 7 of the Arrest Convention. Article 1(1)(b) of the Collision Convention provides:

“An action for collision occurring between seagoing vessels, or between seagoing vessels and inland navigation craft, can only be introduced: . . .

(b) before the Court of the place where arrest has been effected of the defendant ship or of any other ship belonging to the defendant which can lawfully be arrested, or where arrest could have been effected and bail or other security has been furnished;. . . “

In order to rely upon this basis of jurisdiction under the 1982 Act, it is necessary to establish the following:

(a) that the claim is one which falls within the Collision Convention;
(b) that arrest has been effected or that arrest could have been effected and security has been provided.

7.9 The claims which fall within the Collision Convention are claims for collision between seagoing vessels, or between seagoing vessels and inland navigation craft. However, Article 4 provides that:

“This Convention shall also apply to an action for damage caused by one ship to another or to the property or persons on board such ships through the carrying out of or the omission to carry out a manoeuvre or through non-compliance with regulations even when there has been no actual collision.”

The circumstances in which an arrest could have been effected are that a claim form in rem has been served on the ship. Thus the combination of service of a claim form in rem and the provision of security is sufficient to establish jurisdiction under the Collision Convention.

Article 28²² of the Brussels I Regulation and Collision Claims

7.10 In The “Happy Fellow”²³ the question arose as to whether a collision action in France and a limitation action were “related actions” so as to give rise to a risk of “irreconcilable judgments” within the meaning of the predecessor provision to Article 28 of the Brussels I Regulation (Article 22 of the Brussels Convention). At first instance Longmore J said²⁴:

“it does not seem to me necessarily to follow that any action in which it is alleged that a shipowner is liable must inevitably be related to any action in which a shipowner is seeking to limit his liability. If, for example, it is clear that the Court trying the liability action does not consider itself seised of the issue of limitation and the main issue in the liability action is, for example, whether a duty of care is owed by the defendant to the plaintiff, it might well be that the actions would not be related actions for the purpose of art. 22.

Nevertheless on the facts of the present case, the English action and the French action do seem to me to be related for two main reasons.

First, no admission of liability has been made by the owners of Darfur. The French action will, therefore, have to canvass questions of failure of the vessel’s steering-gear, the reasons for such failure, whether the owners of Darfur were negligent or at fault and the degree of such fault. There is an obvious overlap between such issues and the issues that will arise in the limitation action viz. whether the claimants’ loss resulted from the personal act or omission of the company owning Darfur ‘committed recklessly and with knowledge that such loss would probably result’, to quote the wording of art. 4 of the 1976 Convention.

Secondly, I am persuaded that the French Court will take the view not only that it is seised of limitation issues in respect of the Happy Fellow claimants but also (so far as it may be relevant) that it was so seised before the institution and service of the English limitation action. M. Brajeux for the Happy Fellow interests so believes (second affidavit par. 25, Bundle 2/462). M. Simon for the Darfur interests is unable to say whether the Commercial Court of Le Havre would decide if it was first seised of limitation but recognizes that the Court has already so decided albeit in an interlocutory context only (second affidavit par. 15, Bundle 2/659). He deposes to his opinion however, that the Court of Appeal would come to a different conclusion. My own view is that the French Court will regard itself as seised of limitation. It is therefore the case that the actions are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. It must follow that, on the present facts, the actions are related.”

7.11 On appeal the learned judge’s two reasons were challenged and in addition there had now been an admission of liability in the French proceedings and it was argued that this meant that there could no longer be any risk of irreconcilable judgments. The appeal was rejected. The Court of Appeal held that the reasoning of the judge could not be faulted and that the admission of liability in the French proceedings did not assist.

As to this point Saville LJ said²⁵:

” In my view this Court should not take this matter into account. It seems to me that as a general rule, and save perhaps in the most exceptional circumstances, the question whether actions are related must be judged on the basis of the material put before the Court first concerned with this question. To allow otherwise would be to encourage appeals and thus to add to delay and expense in deciding which Court in the Community should deal with the substantive rights and obligations of the parties. This can hardly be in the interests of the proper administration of justice within the Community.

I consider there to be no exceptional circumstances in this case. No reason was advanced to explain why the admission of liability was only made shortly before the hearing of this appeal, rather than before Mr Justice Longmore (where liability was not admitted) and the irresistible inference is that this was done for tactical reasons, in an attempt to bolster the appellants’ case on appeal. It seems to me that what Lord Templeman said in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 Lloyd’s Rep 1 at p. 3; [1987] 1 AC 460 at p. 465, albeit in relation to a different aspect of competing jurisdictions, is equally applicable to questions arising under section 8 of the Convention.”

On the more general question of whether a collision claim and a limitation claim are so closely related to each other as to give rise to a risk of irreconcilable judgments within the meaning of Article 28, a narrow view of irreconcilability would suggest they were not:

“In The Happy Fellow it was doubted whether an action against a shipowner to establish liability shared identity with proceedings to limit the shipowner’s liability: but it is submitted that there really should have been no doubt about it, for a finding that the shipowner is liable to another is not irreconcilable with a decree limiting the total liability of the shipowner to all claimants.”²⁶

However, Saville LJ in The “Happy Fellow” took a different view:

“There is no doubt that the French Court will now hold Darfur liable for the collision, but the surveyors are continuing their investigations and there is at the least a strong possibility that in giving judgment the French Court will adopt the conclusions of the Court experts on the sequence of events (including who was to blame) which led to the failure of the steering gear. To my mind it is self-evident that there is a risk that those conclusions could turn out to be irreconcilable with the conclusions reached in a separate limitation action in this country.”

The debate as to whether irreconcilability in Article 28 should be construed narrowly as requiring a conflict between final judgment orders or whether it has a wider meaning which would encompass potentially conflicting conclusions on matters of fact or law in the narrative part of a judgment remains unresolved and is beyond the scope of this book.²⁷ What is clear following The “Happy Fellow” is that where a collision claim is commenced in one Member State and a limitation claim in another, an application pursuant to Article 28 of the Brussels I Regulation for a stay by the Defendant in the later of the two courts seised is likely to be made.

Where the Brussels I Regulation Permits Recourse to Domestic Jurisdictional Rules Collision Claims May Be Stayed in England on Forum Non Conveniens Grounds

Two-stage test for a stay

7.12 In cases where Article 4 of the Brussels I Regulation permits recourse to domestic jurisdictional law, a collision claim commenced in England may be stayed according to the common law principles of forum non conveniens. The test for the granting of such a stay is no different in a collision claim. There is a two-stage process.

7.13 Stage one: the burden of proof is upon the defendant seeking a stay to show that there is some other available forum having competent jurisdiction, which is clearly or distinctly a more appropriate forum for the trial of the claim than England, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.²⁸

7.14 Stage two: If the defendants succeed at stage one, the court will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay be refused, and the burden of proof of establishing such circumstances is upon the claimant.²⁹

7.15 What is significant about collision claims is that there will often be no “natural” (i.e. clearly more appropriate forum) and therefore a stay will often be refused. In The “Spiliada’’ Lord Goff expressed the view³⁰ that: “there are cases where no particular forum can be described as the natural forum for the trial of the claim. Such cases are particularly likely to occur . .. in Admiralty, in the case of collisions on the high seas. I can see no reason why the English court should not refuse to grant a stay in such a case, where jurisdiction has been founded as of right.”

7.16 A very similar view had previously been expressed by Sheen J in The “Coral Isis”³¹ where referring to a collision in international waters between ships of different nationalities he said³²:

“It must frequently happen that when such a collision has occurred no court can properly be described as ‘the natural forum’ or even ‘a natural forum’. The reasons are self evident: the two ships may be registered in different countries; their owners or managers may be companies incorporated in yet other countries; the master and crew may be nationals of still different countries; after the collision the ships may go into repair yards in other countries and remain there until there comes a convenient moment to arrest them and thereby institute proceedings in rem.”

“A natural forum”—stay granted

7.17 Lord Goff in The “Spiliada” gave two examples of collision claims where there was a natural forum: The “Atlantic Star”³³ and The “Abidin Daver”.³⁴

7.18 In The “Atlantic Star” a collision occurred in Belgian territorial waters when a Dutch container ship which was attempting to enter a lock in sudden and dense fog without the aid of tugs collided with a Dutch owned barge moored alongside a Belgian barge causing both barges to be sunk with their cargoes, two men to be drowned and damage to be sustained by port installations. Both barge owners applied to the Antwerp Commercial Court for the appointment of a court surveyor. Subsequently, the Belgian barge owners commenced proceedings in Antwerp, but the Dutch barge owners commenced a claim in rem in England. The owners of the Dutch container ship applied for a stay of the English claim. Four other claims arising out of the collision were pending in the Antwerp Court. The natural forum was held to be Belgium.

7.19 In The ” Abidin Daver” ³⁵ a collision occurred in Turkish territorial waters between a Turkish ship manned by a Turkish crew and a Cuban ship manned by a Cuban crew, but piloted by a Turkish pilot to the place where she was brought to anchor at some time previous to the collision. The owners of the Turkish ship commenced proceedings in Turkey in the District Court of Sariyer and surveyors appointed by that court made a report on the collision within a few days of its occurrence and the damage to the Turkish ship was surveyed after the collision in a Turkish port. The owners of the Cuban ship brought a claim in rem in England. Turkey was held to be the natural forum.

7.20 To those two cases should be added two more.

7.21 In The “Wellamo”³⁶ a collision occurred in Swedish territorial waters between a Finnish ship manned by a Finnish crew and carrying a Finnish Swedish-speaking liner pilot entitled to pilot her through the pilotage waters of the approaches to Stockholm, and a Belgian ship in the care of a Swedish pilot. A VHF conversation between the pilots in Swedish had preceded the collision. Sheen J held that Sweden was the natural forum.

7.22 In The “Xin Yang”³⁷ a collision occurred at Vlaardingen in Holland when the Jo Aspen which was moored alongside a berth at the Van Ommeren Tank Terminal and in the process of loading cargo was struck by the defendants’ vessel Xin Yang which was manned by a Chinese crew but in the charge of a Dutch pilot at the time. Clarke J held that Holland was the natural forum. He also took into account that the managers of the claimant’s vessel Jo Aspen were also Dutch.

7.23 These cases are all consistent with the principles stated by the Court of Appeal in The “Albaforth”³⁸ where Ackner LJ said³⁹: “The jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute.” In the same case Robert Goff LJ said⁴⁰: “If the substance of the alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the Courts of that jurisdiction are the natural forum.”

7.24 Under stage two of the test the potential impact of different limitation periods and any procedural benefits which may have accrued to the Defendant in another jurisdiction may come into play. Lord Goff in The “Spiliada” itself said at page 483:

“suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction . . . or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff’s claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction . . .

But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that . . . the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings (for example, by issuing a protective writ) in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country.”

Lord Goff noted that his view was consistent with the approach of Sheen J in The “Blue Wave” [1982] 1 Lloyd’s Rep 152.

“A natural forum”—stay refused

7.25 In The “Sidi Bishr”⁴¹ a collision occurred in Egyptian territorial waters between an Egyptian ship and a Moroccan ship having been anchored by Egyptian pilots. The crew of one ship was Egyptian and spoke Arabic, the language of the Egyptian court. Sheen J held that Egypt was the natural forum for the trial of the claim. However, he refused to grant a stay because he did not believe that the defendants genuinely wanted trial in Egypt. They had filed a preliminary act, and there had been a serious delay before they had issued their motion for a stay.

7.26 In The “Vishva Ajay”⁴² a collision occurred at an Indian port between an Indian ship and another ship. Sheen J held that it was clear that the Indian court was the natural forum for the claim, but he refused to grant a stay principally on the ground that the likely delay in the case coming to trial in India of at least six years and possibly more than 10 years constituted a denial of justice because it was in the interests of justice that a claim should come to trial at a time when witnesses can reasonably be expected to have some recollection of the events in question. He also took into account that a successful litigant in India would not be awarded his costs on a realistic basis and would have to bear a substantial portion of the litigation costs himself. This was an advantage of litigating in England that accrued to both parties.

No “natural forum”—stay refused

7.27 In The “Coral Isis”⁴³ a collision occurred in international waters off Denmark between a Panamanian ship and a ship registered in Curacao and managed in Holland. ¸ Proceedings were commenced in Holland shortly before the proceedings commenced in England. Sheen J refused to grant a stay of the English proceedings. He said⁴⁴: ” This Court is an appropriate forum for the determination of the dispute between the parties. The Dutch Court exercising Admiralty jurisdiction is an equally appropriate forum. But neither Court can claim to be ‘a natural forum’.” He went on to say that in a case in which there is more than one appropriate forum, but no natural forum, a mere accident in time in the commencement of suit is not necessarily decisive of the question in which court should the claim proceed.

7.28 Merely because a collision has occurred in territorial waters does not make that forum the natural forum or clearly more appropriate forum, especially if neither ship has any connection with the forum. Thus in The “Po”⁴⁵ a collision occurred in Brazilian territorial waters between an Italian ship and a United States ship, but neither ship was being navigated by a local pilot at the time. The International Regulations for Preventing Collisions at Sea were applicable, and the court could read from the chart everything which it was necessary to know about the place of the collision. In these circumstances, Sheen J held that there was no natural forum. He went on to consider whether the Brazilian court was clearly or distinctly more appropriate than the English court, and found that it was not, particularly as some of the witnesses spoke English and the log books being in English, trial in England would involve less interpretation and translation than a trial in Brazil. In the Court of Appeal⁴⁶ Ralph Gibson LJ (dissenting) disagreed with that conclusion, but the majority of the court held that there was no error in principle in the judge’s reasoning and that it could not be said that he was plainly wrong and therefore the Court of Appeal would not interfere with his exercise of discretion.

7.29 It is submitted that Sheen J’s division of stage one of the Spiliada test into two parts: the search for a natural forum and then the comparison of the suggested forum with England is an unnecessary over-refinement. Lord Goff makes no such distinction between the “natural forum” and “Clearly more appropriate forum”. In particular he refers to the expression used by Lord Keith in The “Abidin Daver”⁴⁷ when he referred to the “natural forum” as being that with which the claim had the “most real and substantial connection” and Lord Goff therefore suggests⁴⁸ that it is connecting factors in this sense that the court must look for, e.g. availability of witnesses, governing law, residence of the parties etc. The exercise which ought to be carried out by the court is simply to determine whether the suggested forum is in all the circumstances “clearly or distinctly more appropriate” than England.

Limitation of liability and the forum for collision claims

7.30 There presently exist two international conventions for the limitation of liability for maritime claims: the 1957 Convention and the 1976 Convention.⁴⁹ The former provides for lower limits of liability, but an easier means of establishing unlimited liability by breaking the limit while the latter provides for higher, but essentially unbreakable, limits. It is clear that depending upon which regime is applicable there may be a juridical advantage to one or other of the parties. This dichotomy of regimes has not surprisingly provided fertile ground for forum shopping in collision cases⁵⁰ and given rise to a line of cases⁵¹ grappling with the problem of what effect to give to an argument that a stay should or should not be granted by reason of the other forum applying the 1957 Convention, England applying the 1976 Convention.

7.31 In The “Herceg Novi”⁵² the Court of Appeal, in a short and robust judgment, resolved that a stay should be granted to a 1957 Convention forum if it was the appropriate forum for the trial of the collision claim. The court said⁵³:

“We reach that decision for three reasons:

(1) The 1976 Convention has not received universal acceptance, or anything like it. It is not ‘an internationally sanctioned and objective view of where substantial justice is now viewed as lying’. It is simply the view of some 30 states.
(2) The International Maritime Organisation is not a legislature. It may commend the 1976 Convention to the international community. But if by doing so it were found to have enacted an international consensus, that would be to deprive sovereign states to a large extent of their right to stay with some other regime. We say that because jurisdiction could often be obtained by arresting a ship in a 1976 country, and if that action were allowed to proceed despite there being a more appropriate forum where 1957 prevailed, the 1957 country would be left with no effective use for its own law.
(3) In our view it is quite impossible to say that substantial justice is not available in Singapore, seeing that there is a significant body of agreement among civilized nations with the law as it is there administered. The preference for the 1976 Convention has no greater justification than for the 1957 regime. Loss in the cases we are considering will often be borne by the insurers of one side or the other. The 1976 Convention provides a greater degree of certainty, which they will perhaps welcome. But in terms of abstract justice, neither Convention is objectively more just than the other. Our task is not to decide whether our law is better than the law of Singapore. It is to decide whether substantial justice will be done in Singapore. In our view it will be. This appeal should be allowed, and an unconditional stay of the English action granted.’’

The view taken in The “Herceg Novi” of the limited status of the 1976 Convention, has subsequently been reiterated by the Court of Appeal in The “Western Regent”.⁵⁴

Procedure in Collision Claims

Filing collision statements of case

7.32 The procedure in an action to enforce claims for damage or loss of life or personal injury arising out of a collision between ships, is different from other Admiralty claims.

7.33 In a collision claim, collision statements of case in a prescribed form⁵⁵ have to be filed in the Admiralty and Commercial Registry by both the claimant and the defendant within two months of the date on which the defendants acknowledge service of the claim form.⁵⁶ After the collision statement of case has been filed notice must be given to the other party that this has been done.⁵⁷ Within 14 days after the last collision statement of case has been filed each party must serve a copy on the other party.⁵⁸ Thus the parties in collision claims must plead their case “blind”, i.e. without knowledge of what the other party alleges. Even though the party which has acknowledged service of the claimant’s claim form is known as the “Defendant” the Defendant’s statement of case in a collision claim will therefore not be a defence in the ordinary sense because it will not respond at all to the case advanced by the Claimant. It is very common for collision actions to be tried solely on the basis of the two collision statements of case, neither of which refers to or responds to the other. Where matters proceed in this way the first time the Claimant will know the Defendant’s response to the allegations of fault and causation made in his statement of case will be when the Defendant serves his skeleton shortly before the trial of the claim. The origin for this unique mode of pleading is a rule introduced in 1855 requiring parties in collision claims to file a unique form of pleading called a “preliminary acts”.⁵⁹ The information required to be stated in the preliminary act is the same information still required today in Part I of the CPR collision statement of case. The idea behind the requirement of filing a preliminary act was to force both parties to provide essential information about the circumstances of the collision without having the opportunity to frame his evidence defensively to meet the case set up by the other vessel.⁶⁰ However, under the old practice it was just the information in the preliminary acts which was provided without knowledge of the other party’s case. The rest of the pleadings containing detailed allegations of fault and causation proceeded in standard sequential fashion (i.e. claim, defence, reply etc).⁶¹

Claims not requiring collision statements of case

7.34 A collision statement of case is only required in claims in respect of a collision claim involving two or more “ships” which will include the case where the owners of cargo carried in a barge claim against the owners of a ship which collided with the barge.⁶² Collision statements of case are not required in a claim arising out of a collision between a ship and a fixed or floating structure such as a landing stage,⁶³ nor in a claim for damage to cargo arising from a collision between ships where the cargo owner sues the owner of the ship on which his cargo is carried,⁶⁴ nor in a claim for breach of a contract of towage by the tow against the tug for towing her into another vessel.⁶⁵

Notice of filing of collision statements of case

7.35 Upon filing of his collision statement of case each party must give notice to the other party that he has done so.⁶⁶ Within 14 days after the last collision statement of case is filed in the claim each party must serve on every other party a copy of his collision statement of case.⁶⁷

The collision statement of case is in lieu of an ordinary statement of case

7.36 The collision statement of case⁶⁸ is the statement of case of the person filing it: the particulars of claim of the claimant and the defence (and counterclaim) of the defendant, and it must be verified by a statement of truth.⁶⁹

Counterclaims and cross-claims

7.37 CPR Part 61.4(9) envisages two types of claims which a Defendant to a collision claim might wish to make:

(a) A “Part 20 claim” ⁷⁰;
(b) A “cross-claim in rem”.⁷¹

7.38 Part 61.4(9) is not, however, concerned with the procedure for filing a counterclaim. It is concerned only with the provision of security.⁷² Both CPR Part 61 and the accompanying practice direction are silent on the procedure for bringing cross-claims and counterclaims in collision actions.

Counterclaims

7.39 The reference in CPR 61.4(9) to a “Part 20 claim” would appear to be a reference to an in personam claim which any Defendant may bring subject to CPR Part 20. There are two difficulties. First, a minor terminological problem. “Part 20 claims” ceased to exist with effect from 6 April 2006.⁷³ CPR Part 20 now provides for counterclaims and other additional claims. Secondly, even if “Part 20 claim” in Part 61 is interpreted to mean “a counterclaim” brought under CPR Part 20 the procedural rules in CPR Part 20 itself do not fit well to the procedure for collision claims. A counterclaim under CPR Part 20 may only be filed against the claimant without the Court’s permission if it is filed with the Defendant’s defence. In all other cases, the permission of the Court is required.⁷⁴ The problem with applying this rule to collision claims is no “defence” as such is filed for the reasons explained in paragraph 7.33 above. It is perhaps permissible to read “collision statement of case” for “defence” in CPR 20.4. If this interpretation is not adopted, it would mean that Defendants in collision claims would always need permission to make a counterclaim, which cannot be right and does not accord with the practice of the Court. It would clearly be preferable for there to be a specific provision counterclaims in Part 61 itself.

7.40 There is a further practical problem with relying on CPR Part 20.4(2) in a collision claim. The problem is that the two-year limitation period which applies to collision claims commonly expires very soon after the Claimant has issued his claim form. Investigations into the circumstances of the collision and negotiations on liability and quantum often take up much of the two-year limitation period. If one party issues a claim form near the end of the limitation period and the Defendants wait until the very end of the two-month period allowed to file a counterclaim under CPR 20.4(2), he may well find that his counterclaim though permitted under the CPR is time barred by section 190(3) of the Merchant Shipping Act 1995.⁷⁵ Only a clear agreement extending limitation until the end of the two month period for filing the collision statement of case will suffice to protect the Defendant who fails to issue his own claim form within the two year period under section 190(3) of the 1995 Act.

Cross-claim in rem

7.41 By far the safest course is for a Defendant to issue his own in rem claim form. The Defendant can be certain of whether his own cross-claim has been issued in time or not regardless of the Claimant’s position. The claim and counterclaim will each have their own folio number. Strictly speaking, the two proceedings ought to proceed independently with Claimant and Defendant each filing collision statements of case in both actions. However, the usual practice is that by consent⁷⁶ the two actions are joined together with the claimant whose in rem action was commenced first in time being treated as the claimant in the consolidated proceedings.⁷⁷ The pleadings and orders are all treated as being made in the joined actions and the evidence is admitted in both actions. The only sign that two actions are in play will be in the existence of two folio numbers in the top right hand corner of the filed evidence. An alternative course is for the later of the two claims to be stayed by consent.⁷⁸

7.42 Like all in rem claims, an in rem cross-claim must be commenced by the issue of an in rem claim form. This follows from the wording of CPR 61.3(2). There is therefore it seems strictly no such thing as an in rem counterclaim. Under the CPR, it would appear that there are only in personam counterclaims (pursuant to CPR Part 20) and in rem cross claims.

The contents of the collision statement of case

7.43 A collision statement of case is in a prescribed form⁷⁹ and is in two parts.⁸⁰ The first part consists of answers to a series of questions concerning the circumstances in which the collision occurred and the manoeuvres of and observations made by the ship owned by the party on whose behalf it is filed. The second part consists of any other facts and matters relied upon, together with the allegations of negligence made by the party on whose behalf it is filed and the remedy or relief which that party seeks. The information required to be included in the collision statement of case is as follows⁸¹:

Part One

7.44

(i) The names of the ships which came into collision and their ports of registry;
(ii) The length, breadth, gross tonnage, horsepower and draught at the material time of the ship and the nature and tonnage of any cargo carried by the ship;
(iii) The date and time (including the time zone) of the collision;
(iv) The place of the collision;
(v) The direction and force of the wind;
(vi) The state of the weather;
(vii) The state, direction and force of the tidal or other current;
(viii) The position, the course steered⁸² and speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier⁸³;
(ix) The lights or shapes, (if any) carried by the ship⁸⁴;
(x)
- (a) The distance and bearing of the other ship if and when her echo was first observed by radar;
- (b) The distance, bearing and approximate heading of the other ship when first seen;
(xi) What light or shape combination of lights or shapes (if any) of the other ship were first seen;
(xii) What other lights or shapes or combination of lights or shapes (if any) of the other ship were subsequently seen before the collision, and when⁸⁵;
(xiii) What alterations (if any) were made to the course and speed of the ship after the earlier of the two times referred to in Article VIII up to the time of the collision, and when, and what measures (if any) other than alterations of course or speed, were taken to avoid the collision, and when;
(xiv) The heading of the ship, the parts of each ship which first came into contact and the approximate angle between the two ships at the moment of contact;
(xv) What sound signals (if any) were given, and when;
(xvi) What sound signals (if any) were heard from the other ship, and when.

Part Two⁸⁶

7.45

(i) A statement that the particulars in Part One are incorporated in Part Two;
(ii) A statement of any other facts and matters on which the party filing the collision statement of case relies⁸⁷;
(iii) A statement of all allegations of negligence or other fault which the party filing the collision statement of case makes⁸⁸; and
(iv) A statement of the remedy which the party filing the collision statement of case claims.⁸⁹

Difficulties in completing the collision statement of case

7.46 A party may be required to file a collision statement of case under the Rules and yet have insufficient knowledge of the facts and circumstances of the collision to be able to complete the answers required, such as in the case of a cargo-owner or a widow. Under the RSC, the proper course was to apply to the Admiralty Registrar by summons for leave to dispense with Part One of what was then known as a preliminary act⁹⁰ or for some other order as to how the case should be dealt with. The court acted on the principle of mutuality as regards the filing of preliminary acts, and if there could be no mutuality it would not order them to be filed,⁹¹ nor would the court make an order at the instance of one defendant that the other defendant should file a preliminary act.⁹²

7.47 In The “El Oso”⁹³ the following guidelines were given by Lord Merrivale P as to cases where there may be difficulty in completing the answers to the preliminary act⁹⁴:

“The practice as to requiring preliminary acts, outside of the cases in which the parties to the collision by their vessels are parties to the litigation, is a matter for the discretion of the Court. There is no difficulty with regard to the normal damage case. That is the case where vessels have been in collision and the owners of one vessel bring their suit against the owners of the other in the Admiralty jurisdiction to determine the liabilities. The rule undoubtedly applies in its full force in those cases. The difficulty arises with regard to what I call ‘third party’ collisions. It seems to me that the mode in which it ought to be dealt with is that, where both parties in a damage case, a case of collision, are not the parties to the collision, i.e. where one of them sues in respect of the negligence of those in charge of a vessel which is not a party to the collision, the proper course is that there should be communication between the solicitors . . . if both parties are not ready to deliver preliminary acts, or one of them declares himself unable or unwilling, then the matter should be raised by summons in the Registry . .. In my view the Court has jurisdiction to order them to deliver a preliminary act if in the opinion of the Court it shall appear that there is mutuality in the exchange of preliminary acts or that there may be . . . I had recently before me a case where parties had gone to the Registry and an order for preliminary acts had been obtained, but one of them in fact delivered a blank document. That of course is in the nature of an affront to the order of the Court.”

7.48 Thus in The “Beaverford”⁹⁵ a port authority was required to file a preliminary act and it was said by Hewson J⁹⁶:

“It seems to me that, when you have a port official directing or taking an active part in the movement of one or other of the vessels which came into collision, a preliminary act should be filed by the colliding vessels and should also be filed by that directing authority. He at least should be able to answer the most important Article in the preliminary act, namely Article [XIII]⁹⁷.”

7.49 Under the RSC a widow has been ordered to file a preliminary act,⁹⁸ as has a defendant who denied that any collision took place with his vessel.⁹⁹

7.50 There is no equivalent to RSC, O. 75, r. 18(1) under the CPR and so a collision statement of case would appear to be required in every case. However, the Court’s broad case management powers under CPR Part 3.1 extend to dispensing with statements of case in appropriate cases. The former principles were developed at a time when a preliminary act comprised only what is now Part One and when subsequently there were statements of case¹⁰⁰ in collision actions and these would usually still have had to have been served.¹⁰¹ Usually a full statement of case will be helpful and any claimant ought to be able to complete at least some of the answers to the questions in Part One. If there are others which really cannot be answered then the claimant should say in answer to them that it is unable to answer and provide a reason why the question cannot be answered. That a party may not be able to answer some of the questions is acknowledged in The Admiralty & Commercial Courts Guide:

“Each party is required, so far as it is able, to provide full and complete answers to the questions contained in part 1 of the Collision Statement of Case.”¹⁰²

7.51 Where there has been pre-action disclosure under the spirit of the CPR protocols then there is even less reason for any claimant to be unable to answer the questions in Part One of the collision statement of case. Collision statements of case are only filed as between a claimant and a defendant and so a defendant has no right to demand a co-defendant file a collision statement of case unless he issues a claim form against him.¹⁰³

The function and effect of a collision statement of case

7.52 CPR Part 61 provides that the law relating to preliminary acts continues to apply to collision statements of case.¹⁰⁴ The function of a preliminary act was explained by the author of the rule by which they were first instituted, Dr Lushington, in The “Vortigern”¹⁰⁵:

“Preliminary acts were instituted¹⁰⁶ for two reasons, to get a statement from the parties of the circumstances recenti facto,¹⁰⁷ and to prevent the defendant from shaping his case to meet the case put forward by the plaintiff.”

A preliminary act was a formal statement of facts and “an admission in a preliminary act is an admission binding on the party making it, and not to be departed from without leave”.¹⁰⁸ The contents of a preliminary act were thus evidence against the party filing it and it was possible to rely solely upon the admissions contained in the other party’s preliminary act and to call no other evidence at trial.¹⁰⁹ This position continues under the CPR in relation to collision statements of case. The Admiralty & Commercial Courts Guide now provides that the answers provided to Part I of the collision statement of case are treated as admissions and that leave to amend such answers will only be given in exceptional circumstances.¹¹⁰

7.53 The court will not allow a mistake in a collision statement of case to be amended even to correct a mere clerical error and even though an application is made before the hearing and supported by affidavit.¹¹¹ The correct course is to seek leave at the case management conference, or at trial, to be permitted to lead evidence contrary to the collision statement of case, and such leave will be granted where the mistake in the collision statement of case is shown to have been a genuine mistake and to have been made bona fide, and is not an attempt to alter the party’s case in the light of knowledge of the case of the other party.

7.54 In Topaz v Irapua¹¹² Gross J set out the principles for leave to amend at [13]–[14], which were affirmed in the later case of Pearl v Jahre Venture¹¹³ at [7]:

i) As to the relevant principles, there is an important difference between Part I and Part II of the PA.
- a) Part I of the PA (now a Collision Statement of Case) is not a pleading; it constitutes a set of formal admissions which the party concerned must file promptly and “blind” (i.e., without sight of the opposing case): see, Marsden, Collisions at Sea (12th ed., 1998), at paras. 18-79–18-80 and 18-85; it is well-established that leave to amend in this regard is not lightly given because any such amendment involves departure from a formal admission and is likely to be made with knowledge of the opposing case; see too, Meeson, Admiralty Jurisdiction and Practice (2nd ed., 2000), at paras. 7-044 and following, where it is said that the correct course is not to amend the PA but to lead evidence contrary to it—plainly a course which cannot be followed when there is no such evidence. For the avoidance of any doubt, there is no suggestion that in the era of the CPR there will be any greater readiness to permit amendments to Part I of the Collision Statement of Case; to the contrary, the law relating to PAs continues to apply: see PD61, para. 4.5 and the Admiralty & Commercial Courts Guide (August 2002), para. N5.4. In practical terms, a refusal of leave to amend Part I of a PA may not be the end of the matter; while the party concerned will be held to the admissions contained in the PA, the Court is not similarly bound; the Court must, regardless, proceed on the evidence which “it deems most accurate and trustworthy”: Marsden (ibid).
- b) By contrast, Part II of a PA is deemed to be a pleading; the usual rules as to amendments apply.

7.55 The importance of the collision statement of case was emphasised by Bateson J in The “Channel Queen”¹¹⁴:

“The Preliminary Act in an Admiralty case embodies the party’s case. He cannot change it. If it is drawn on half the evidence it very likely will land the party in difficulties. It is essential to get up a case in Admiralty at the beginning. It is no use to have independent witnesses, as they are called, after the other party has defined his issue. He may delay that for months. I do not think that any self respecting junior, if he could avoid it, would settle a preliminary act unless he had all the evidence before him that could be obtained.”¹¹⁵

7.56 Similarly in The “Seacombe”, The “Devonshire”¹¹⁶ Fletcher Moulton LJ described a preliminary act as follows¹¹⁷:

“They are not mere pleading allegations. They are statements of fact made under such circumstances that they rank as formal admissions of fact binding the party making them perhaps as strongly as any admission of fact can do. An admission of fact, as such, does not constitute an estoppel. It may be shown that it was made under a mistake, and the Court may be satisfied that such was the case; but it is evidence against the party making it, its strength varying according to the conditions under which it was made. An admission,under circumstances which necessitate that it must have been made after full consideration, has an evidential value far higher than a casual admission made without any opportunity of reflection or verification. The statements of fact in a preliminary act are statements which must be presumed to be made after the most careful examination and consideration. To my mind they carry such weight, from the nature of a preliminary act and from the circumstances under which it is made, that I should doubt whether otherwise than under the most special circumstances, and with special leave of the Court, a party would be allowed to depart from the admissions in the preliminary act, at all events as far as evidence-in-chief is concerned.”

7.57 In The “Semiramis” ¹¹⁸ Willmer J re-affirmed that view of preliminary acts, saying¹¹⁹:

“It may be said that in recent years this Court has been less rigid than of old in holding parties to admissions made on their behalf in preliminary acts. If that is so, it is a fact which I should, I think, acknowledge with contrition; for as long as forty years ago the Court of Appeal laid it down in no uncertain terms in the case of The ‘Seacombe’, The ‘Devonshire’ that a statement in a preliminary act is a binding admission against the party making it, not to be departed from in evidence except with the leave of the Court, which leave will only be given in very exceptional circumstances.”

He observed again shortly afterwards in another case¹²⁰:

“The sanctity of answers given in a preliminary act has so frequently been the subject of decision in this Court that I need not add any further words, beyond reminding myself once more that an admission in a preliminary act is an admission binding on the party making it, and not to be departed from without leave.”

More recently Sheen J said¹²¹: “I have said on a previous occasion, and I cannot emphasize too strongly, that I regard the answers given to questions in a preliminary act as binding admissions.”

7.58 An intentionally imperfect answer to an Article in the preliminary act has under the old rules been considered to be an attempt to mislead the court and will cause a party to be regarded with suspicion. The party will be ordered to answer the Article properly.¹²² Under the CPR a collision statement of case has to be verified by a statement of truth¹²³ and the consequences of a deliberately wrong answer are therefore now all the more serious. Proceedings for contempt of court may be brought against a person who has verified a document by a statement of truth without an honest belief in its truth.¹²⁴ In addition, as has already been referred to above (paragraph 7.50), the Admiralty & Commercial Courts Guide provides that every party is required, so far as it is able, to provide full and complete answers to the questions contained in Part I of the collision statement of case.¹²⁵

7.59 Where the facts which emerge either prior to trial or from the evidence at trial differ from the parties’ pleaded cases the court has allowed an appropriate amendment to what would now be Part Two of the collision statement of case.¹²⁶ The fact that the answer to a collision statement of case is a binding admission does not of course mean that it has to be accepted by the court because “the Court is not bound by the pleadings of parties and must proceed upon the evidence which it deems to be most accurate and trustworthy” .¹²⁷

Costs of collision statements of case

7.60 Being such a crucial document in a collision claim, collision statements of case should be settled by counsel, and counsel’s fees for such a task will be allowed on assessment. A party is entitled to obtain all the evidence necessary to establish his case before he files his collision statement of case and to enable counsel to settle it. Accordingly, if the claim is subsequently discontinued the costs of obtaining such evidence will be allowed on assessment.¹²⁸

7.61 Where at trial the facts proved differ materially from a party’s collision statement of case the court may order the costs of the collision statement of case to be disallowed on assessment.¹²⁹ A party may also be deprived of the costs of his collision statement of case where he fails to complete it properly without good reason.¹³⁰

No interrogatories as to contents of collision statement of case

7.62 Interrogatories are not usually allowed as to matters which are contained in the collision statement of case,¹³¹ except in special circumstances. For example, interrogatories have been allowed of the defendants as to the facts of the collision, including the facts contained in the collision statement of case, where the claimants’ vessel was lost with all of the crew who could give evidence as to the collision.¹³² Interrogatories are now part of what may be asked for under a Request for Further Information and regulated by CPR Part 18. The Admiralty Court is likely to continue its previous practice in relation to interrogatories in exercising its powers under Part 18.

Failure to file a collision statement of case

7.63 Where any party fails to file a collision statement of case within the required time,¹³³ any other party who has filed a collision statement of case may apply for judgment in default.¹³⁴

7.64 In a claim in personam judgment may be obtained in accordance with the ordinary rules for default judgments under the CPR.¹³⁵ A request for judgment should be made in Form N227.¹³⁶

7.65 In a claim in rem an application has to be made in form ADM13 accompanied by a certificate¹³⁷ proving proper service of the claim form and evidence proving the claim to the satisfaction of the court.¹³⁸ The collision statement of case filed by the party may be used for this purpose as it contains a statement of truth.¹³⁹

7.66 The court has power to set aside or vary a judgment obtained in default of filing a collision statement of case upon such terms as it thinks just.¹⁴⁰

Further proceedings in collision claims

7.67 As previously mentioned the filing of collision statements of case takes the place of statements of case in collision claims. Thus after collision statements of case have been filed and copies exchanged, the next step is a case management conference.¹⁴¹ The claimant must apply for a mandatory case management conference within seven days after the last collision statement of case is filed¹⁴² and it will normally take place on the first available date five weeks thereafter.¹⁴³

7.68 Case management in collision claims is no different in principle to case management in any other Admiralty & Commercial Court claim. One of the matters which has to be considered in any Admiralty claim, but which typically arises only in collision claims, is whether nautical assessors are required. The case management information sheet¹⁴⁴ asks: “Do you consider that the court should sit with nautical or other assessors? If you intend to ask that the Court sit with one or more assessors who is not a Trinity Master please state the reasons for such application.”

Nautical assessors

7.69 It has long been the practice in collision claims for the court to be advised at trial by one or more nautical assessors. The current practice is recorded in Admiralty & Commercial Courts Guide N14.1:

“In collision claims and other cases involving issues of navigation and seamanship, the Admiralty Court usually sits with assessors. The parties are not permitted to call expert evidence on such matters without the leave of the court: rule 61.13.”

7.70 Usually the assessors will be two members of Trinity House¹⁴⁵ and are therefore sometimes referred to as “Trinity Masters”.¹⁴⁶ However, neither the Admiralty and Commercial Courts Guide nor CPR 61.13 prescribe the use of Trinity House as a provider of nautical assessors. Both provisions simply refer to the use of assessors without identifying any particular organisation from which they might be drawn.¹⁴⁷ Thus, it would be open to the Court to appoint a nautical assessor, who was not a member of Trinity House. In principle, there is nothing to prevent the Court appointing, for example, a suitably qualified person nominated by the Honourable Company of Master Mariners instead of Trinity House.¹⁴⁸ This does not occur in practice because it is the standard practice of the Admiralty & Commercial Court Registry to contact Trinity House once it is clear that a collision case is going ahead and is listed for trial. In some cases it may be more appropriate to have some other combination of qualifications or experience such as experience of fishing vessels in the case of a collision involving a fishing vessel,¹⁴⁹ or an engineering assessor where some technical issue is concerned,¹⁵⁰ or a certificated master with experience of handling small vessels where small or high speed vessels are involved.¹⁵¹ If an assessor from another field is considered to be desirable by either party this is something which ought to be raised at the case management conference and advance notice should be given in the case management information sheet.¹⁵²

7.71 The assessors should not have at any time been in the service of any of the parties to the claim.¹⁵³ If Trinity House is a party, two assessors who are not members of Trinity House will be used.

Function of nautical assessors

7.72 The function of nautical assessors is to advise the court as to matters of navigation and seamanship. Nautical assessors do not “assess” anything in the modern sense of that word. The name derives from the original meaning of assessor, namely one who sits next to another (in the capacity of an assistant).

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