[1968] Vol. 2 Lloyd's Rep.

165

ADMIRALTY DIVISION in (inter alia) failing to keep a good look-out; proceeding at excessive
speed; failing to stop her engines and in crossing the buoyed channel
July 9, 10, 11, 1968 when it was unsafe to do so. Marimar contended that Scotland was
negligent in (inter alia) failing to keep a good look-out, failing to
____________________ make proper use of radar and proceeding at excessive speed.
-Held, by CAIRNS, J., (1) that Scotland was at fault in proceeding at
THE "MARIMAR"
too high a speed in the conditions of fog; (2) that there was
Before Mr. Justice CAIRNS, sitting with Captain J. E. BURY and misjudgment on the part of Marimar's pilot in deciding to cross
channel and that that misjudgment amounted to a fault; but that having
Captain F. W. WHITE, Elder Brethren of Trinity House, as
decided to cross he was not negligent in proceeding at half speed; and
Nautical Assessors that order for full astern on Marimar was not a wrong one in the
Collision - Fog - Radar - Excessive speed - Look-out-Failure to make special circumstances that existed; (3) that Marimar was not keeping a
proper use of radar - Whether vessel was negligent in crossing good look-out; (4) that Scotland was to blame in failing to attend
channel, in fog, to anchor-Collision Regulations, 1960, Rules 16 (c), continuously to her radar; (5) that blameworthiness of Scotland was
(d), 25 (a), 27. double that of Marimar but causative potency of fault of Marimar's
pilot was greater than causative potency of any of Scotland's faults;
Plaintiffs' outward-bound motor vessel Scotland and defendants' and that, therefore, liability would be apportioned as to Scotland: 60
inward-bound motor vessel Marimar collided, in fog, in the Downs. per cent.; Marimar: 40 per cent.
Both vessels were in the charge of pilots. Scotland was proceeding in -British Aviator, [1965] 1 Lloyd's Rep. 271, followed.
buoyed channel at stand by full ahead (11 knots). After passing Elbow
Buoy visibility deteriorated and Scotland commenced sounding fog ____________________
signals. As Scotland approached Gull Stream Buoy pilot saw echoes
of two ships ahead or on starboard bow. Scotland altered 5 deg. to The following case was referred to:
starboard on to course of 227 deg., bringing echoes of two vessels on British Aviator, [1965] 1 Lloyd's Rep. 271.
to port bow. Scotland reduced to slow ahead off Gull Stream Buoy.
When Scotland was abreast of North Goodwin Buoy her master and ____________________
mate left radar unattended to look visually for the other two ships.
Marimar was sighted four points on Scotland's port bow heading In this case, the plaintiffs, owners of the motor vessel
across Scotland's course. Scotland's wheel was put hard-a-starboard Scotland, claimed damages against the defendants, owners of
and engines full ahead, one-short-blast signal being sounded. Answer the motor vessel Marimar, in respect of a collision between the
of three short blasts was heard from Marimar. Scotland's wheel was vessels in the Downs, off Kent, at about 6 39 a.m. on Jan. 21,
put hard-a-port. Collision occurred between stem of Marimar and port
1966.
side of Scotland. Marimar's case was that she had reduced to half
speed and commenced fog signals after passing West Goodwin Buoy. Both sides made cross-allegations of negligent navigation,
Marimar's pilot intended to anchor to west of channel owing to danger including failure to keep a good look-out, excessive speed in
from shoals on east side of channel. After reaching North West fog, failure to stop engines on hearing fog signals forward of
Goodwin Buoy her pilot decided to cross channel and, stopping his their beam, failure to keep to their starboard side of the fairway,
engines, altered course a point to port. Marimar's engines were put and breaches of the Collision Regulations, 1960. Each side
half ahead and her helm to port. She was steady on course of N.N.W.
claimed damages, to be assessed on a reference, and costs.
when one blast was heard to starboard. Her engines were immediately
put to full astern. Another blast heard on her starboard bow was According to the plaintiffs' statement of claim, shortly before
answered by Marimar with one long blast. Scotland's lights were 06 38 hours on Jan. 21, 1966, the Scotland, a steel single screw
sighted four points on starboard bow crossing Marimar's course from motor vessel of Leith, of 2271 tons gross and 998 tons net
starboard to port. Marimar gave several 3-short-blasts signals. register, about 344 ft. in length and about 46 ft. in beam,
Collision occurred shortly afterwards. Scotland alleged that Marimar powered by diesel engines of 2000 b.h.p. and manned by a crew
was negligent
of 30 hands all told was in the
[1968] Vol. 2 Lloyd's Rep.
Adm. The "Marimar"
Downs in the course of a voyage from London to Southampton
laden with a part cargo of 1373 tons of general cargo. Her
draught at that time was about 14 ft. 4 in. forward and about 15
ft. 6 in. aft. The weather was fog; there was a gentle westerly
breeze, and the tide was flood, flowing in a southerly direction
with a force of two to three knots. The Scotland, which had
passed the Gull Buoy to port, was on a course of about 210 deg.
(true) and with her engines at stand by full ahead was making
about 11 knots through the water. The Scotland was exhibiting
two white masthead lights, both side lights and a stern light.
Single prolonged blasts for fog were being sounded on the
Scotland's whistle in accordance with the Regulations and a
good look-out was being maintained on board her.
In those circumstances, the echoes of two small vessels were
observed distant about three miles and bearing about a point or
a little more on the starboard bow. When the Gull Stream Buoy
was passed to starboard the Scotland's course was altered to 227
deg. (true) and her engines were reduced to half speed ahead
and very shortly thereafter they were further reduced to slow
speed ahead because visibility was about three cables. After
altering course as aforesaid the echo of one of the small vessels
was about 10 deg. to port and the other was slightly broader.
The echoes were carefully watched and seen to broaden on the
bow and it appeared that the Scotland would pass these vessels
port to port in the buoyed channel. Shortly thereafter in reply to
a fog signal sounded by the Scotland the fog signal of a vessel
was heard apparently about two points on the port bow and very
shortly thereafter the fog signal of another vessel was heard
from about the same direction. Thereafter there was a further
exchange of fog signals between the Scotland and one of the
other vessels, followed by a further signal from the Scotland.
Very shortly thereafter the loom of two white masthead lights
of a vessel which proved to be the Marimar emerged from the
fog distant about two cables and bearing two to three points on
the port bow, whereupon the Scotland's wheel was put
hard-a-starboard and her engines were put full speed ahead and
a signal of one short blast was sounded on her whistle. The
Marimar was heard to reply with a signal of three short blasts,
whereupon the Scotland sounded a further signal of one short
blast and gave a double
166
ring of full ahead and then the Marimar repeated her signal of
three short blasts. The Marimar, however, came on and with her
stem struck the port side of the Scotland amidships at about a
right angle, doing substantial damage.
The plaintiffs said that the collision occurred in a position
distant eight cables and bearing 014 deg. from the Brake Buoy.
They alleged that those on board the Marimar were negligent
in that they failed to keep a good look-out; proceeded at an
excessive speed in the prevailing weather conditions; having
heard, apparently forward of their beam, the fog signal of a
vessel, the position of which was not ascertained, failed to stop
their engines and then navigate with caution; failed to sound
their whistle for fog in accordance with the Regulations;
crossed the buoyed channel from their starboard side to the port
side when it was unsafe so to do; failed to let go an anchor or
anchors in due time or at all; and failed to comply with Rules 15
(c) (i), 16 (a) and (b), 25 (a) and 27 as qualified by Rule 29 of
the Collision Regulations, 1960.
According to the defence and counter-claim, shortly before 06
40 hours (G.M.T.) on Jan. 21, 1966, the Marimar, a single
screw steel motor vessel of Seville, of 684 tons gross and 323
tons net register, 69 metres in length and 11 metres in beam,
fitted with a Fiat diesel engine of 1400 i.h.p., and manned by a
crew of 15 hands all told was in the North Sea navigating
through the Downs while in the course of a voyage from
Almeria to London part laden with 150 tons of general cargo.
On board the Marimar there was a duly licensed first-class
Cinque Ports pilot and her draft was 8 ft. forward and 10 ft. 2
in. aft. The wind was westerly, force 2, the weather was fog and
the tide was flood setting in a southerly direction with a force of
about two knots. The Marimar had been proceeding at reduced
speed on a course of 20 deg. (true) so as to pass the North West
Goodwin Buoy close to starboard when she decided because of
the fog to anchor to the northward of the Brake Buoy and her
engines were stopped. As she approached the North West
Goodwin Buoy the lights of an anchored vessel were seen one
to two cables to the northward of the buoy whereupon her
wheel was ported and very
[1968] Vol. 2 Lloyd's Rep.
Adm. The "Marimar"
shortly afterwards her engines were put half ahead. The
regulation two white masthead lights, red and green side lights
and white stern light were being exhibited on board the
Marimar. The regulation fog signals of one prolonged blast
were being sounded at intervals of about a minute and a good
look-out was being kept on board the Marimar.
In those circumstances, when the Marimar had reached a
heading of about N.N.W. and was making about four to five
knots through the water, a signal of one prolonged blast was
heard to starboard. Thereupon the engines of the Marimar were
put full astern and a like signal sounded in reply. Almost
immediately afterwards the Scotland was seen distant about a
quarter of a mile and bearing three to four points on the
starboard bow, showing her two white masthead lights and red
side light, heading about south-south-westerly whereupon a
signal of three short blasts was sounded by the Marimar and her
wheel was ordered amidships. Several further signals of three
short blasts were sounded by the Marimar as the Scotland
closed, altering to starboard at the last and, when the Marimar
had taken off her way, the Scotland, while crossing ahead, with
her port side amidships struck the stem of the Marimar at about
a right angle causing damage.
The defendants said that the collision occurred about a quarter
of a mile W.N.W. of the North West Goodwin Buoy.
They alleged that those on board the Scotland negligently
failed to keep a good look-out; failed to make a proper use of
their radar; proceeded at an excessive speed in fog; failed on
hearing, apparently forward of their beam, the fog signals of
vessels, the position of which were not ascertained, to stop their
engines and then navigate with caution until danger of collision
was over; failed to sound signals of one prolonged blast at
intervals of not more than two minutes in due time or at all;
failed to keep the Scotland to that side of the fairway or
mid-channel which lay on her starboard side; failed to starboard
their wheel in due time, sufficiently, or at all; put and/or kept
their engines full ahead and increased their full ahead speed at
improper times; failed to ease, stop or reverse their engines in
due time or at all; failed to let go an anchor or anchors in due
time or at all; and failed to comply with Rules 15, 16, 25, 27
and 29 of the Collision Regulations, 1960.
167
Cairns, J.
Mr. Barry Sheen, Q.C., Mr. Michael Thomas and Mr. David
Steel (instructed by Messrs. Ince & Co.) represented the
plaintiffs; Mr. Gerald Darling, Q.C., and Mr. A.
Stewart-Richardson (instructed by Messrs. Bentleys, Stokes &
Lowless) appeared for the defendants.
JUDGMENT
Mr. Justice CAIRNS: This action arises out of a collision
between the plaintiffs' motor vessel Scotland and the
defendants' motor vessel Marimar in darkness and fog in the
early hours of Jan. 21, 1966, in the Downs. The Scotland was
outward bound from London and the Marimar was inward
bound for London. The stem of the Marimar struck the port
side of the Scotland amidships almost at a right angle causing a
large gash in the port side of the Scotland and causing
substantial damage to the stem of the Marimar.
The Scotland is a steel single screw motor vessel registered at
the port of Leith, 2271 tons gross and 998 tons net register,
about 344 ft. in length and about 46 ft. in beam, powered by
diesel engines of 2000 b.h.p. and manned at the time by a crew
of 30 hands all told. There was on board a duly licensed Trinity
House pilot. The vessel is equipped with radar and she was
laden with a part cargo of 1373 tons of general cargo. Her
draught was about 14 ft. 4 in. forward and about 15 ft. 6 in. aft.
The Marimar is a single screw steel motor vessel of 684 tons
gross and 323 tons net register belonging to the port of Seville;
about 238 ft. in length and about 36 ft. in beam, fitted with a
Fiat diesel engine of 1400 i.h.p. and was manned at the time by
a crew of 15 hands all told. She also had on board a duly
licensed pilot. Her draught was 8 ft. forward and 10 ft. 2 in. aft.
She was not equipped with radar.
The tide was flowing southerly with a force of two to three
knots and there was a gentle westerly breeze about force 2. At 2
30 a.m., when the pilot boarded the Scotland at Gravesend, the
weather was clear, but fog developed later and, after partially
clearing, it became thicker again until at the time of the
collision, which was about 06 38 hours, visibility was two to
212 cables only.
The channel through the Downs is a narrow one running
roughly north-east and south-west and is marked by a series of
light buoys. North of the Downs, off the
[1968] Vol. 2 Lloyd's Rep.
Adm. The "Marimar"
North Foreland, is a buoy called the Elbow, and then going
from north to south the buoys marking the channel are called
the Gull, the Gull Stream, North Goodwin, North West
Goodwin, the Brake, the West Goodwin, the South Brake and
the Goodwin Fork.
The only oral evidence that was called was that of the two
pilots. Mr. Spring, the pilot of the Scotland, was a very
experienced pilot. He said that at all material times he was on
the bridge with the master and an officer and, part of the time,
an apprentice. In addition, there was the man at the wheel and
there was a look-out on the forecastle head. The radar was in
operation all the time and was working well. The full speed of
the Scotland was 1212 knots and her stand by full ahead speed
11 knots. At first while the weather was clear the Scotland
proceeded at full ahead. Off Whitstable visibility was reduced
to about half a mile and the speed was reduced to half speed.
The visibility improved, the engines were put on full ahead
stand by and so remained until the vessel reached the Downs.
The Elbow Buoy was picked up well on the radar and was
seen visually at about seven cables. The west side of the
channel is marked by the Gull, the Gull Stream and Brake
Buoys and, in accordance with normal practice, the pilot kept
the ship well to his starboard side of the channel. After passing
the Elbow Buoy visibility deteriorated. Several ships were
picked up on the radar passing north on the port side of the
Scotland. These were seen at five or six cables distant. Before
reaching the Gull Buoy the Scotland began sounding her
whistle. At the Gull she altered course for the Gull Stream
Buoy. As she approached the Gull the pilot saw the Brake Buoy
on the extreme edge of his radar screen. When he got near the
Gull Stream Buoy he saw echoes of two small ships ahead or on
the starboard bow. He brought the Scotland round 5 deg. to
starboard and so came on to a course of 227 deg. (true). He
expected that with the tide flowing his actual course would be
221 deg. This alteration brought the echoes of the two ships on
to his port bow. He sighted the Gull Stream Buoy at three
cables. He went on slow ahead just off the Gull Stream Buoy.
Just west of that buoy he saw a ship at anchor at about five
cables. Meanwhile, the two ships which he had seen on the
radar on the port bow broadened, he said, satisfactorily. The
mate saw the North Goodwin Buoy
168
Cairns, J.
flash at four cables. The pilot heard the bell of the vessel at
anchor. When he was abreast of the North Goodwin he and the
master went to the port wing looking for signs of the two ships.
That meant leaving the radar unattended. They then heard fog
signals, two distinct signals. Shortly after that the pilot sighted
one of the two ships (it was in fact the Marimar) which to his
great surprise was four points on his port bow showing two
masthead lights and the green side light so positioned as to
show that she was heading right across his course. He thought
the best way to avoid collision was to go hard-a-starboard and
in order to get a good swing he ordered the engines full ahead.
He considered that this would not increase his speed because of
the retarding effect of the rudder. He blew one short blast and
heard an answer of three short blasts. Similar signals were
exchanged once or twice more. The Marimar came on at speed
and then the Scotland's pilot ordered hard-a-port in order to
lessen the impact of the collision which, by this time, was
inevitable. He thought he was travelling at not more than six
knots at the moment of collision although in cross-examination
he admitted that it might have been seven knots. From certain
readings made after the collision he estimated the place of it as
eight cables and bearing 014 deg. from the Brake Buoy. This
would put the ships well to the west of the channel.
In cross-examination the pilot said that he thought he was
justified in expecting five cables visibility and that it would
have been lazy for him not to remain under way. His radar had
ranges of one, three and 10 miles, but he had stayed on the
three-mile range all the time and it was picking up plenty of
detail. He agreed that it must have been when he was out on the
wing that the Marimar altered course and at that time nobody
was watching the radar. If, when he had first heard fog signals,
he had stopped his engines, the collision might have been
avoided. With full astern he could have pulled up in about three
ship's lengths. He thought his whistle signals were given at
intervals of about one minute or 112 minutes, but it could have
been rather more.
Statements of four other witnesses for the plaintiffs were read.
The first was a seaman who took over the wheel at 06 30 hours.
He said that shortly afterwards the speed of the vessel was
reduced. Soon after that he saw the lights
[1968] Vol. 2 Lloyd's Rep.
Adm. The "Marimar"
of the Marimar and he received and carried out the orders of
hard-a-starboard and hard-a-port. The Scotland's whistle had
been sounding and soon after the hard-a-starboard order he
heard an answering signal of two or three short blasts.
The second engineer of the Scotland was controlling the
engines and said that up to 06 19 hours they were on full ahead
stand by; then on half ahead for half a minute; then on slow
ahead until 06 3712 hours and then on full ahead. The fifth
engineer corroborated this evidence.
Finally, the master of a German vessel, the Wiking, said that
because of poor visibility he had anchored at 06 00 hours south
west of the Gull Stream Buoy. He exhibited anchor lights and
rang his bell. Half an hour later the Scotland came by sounding
her whistle at frequent intervals. Visibility, he said, was bad. He
put it at not more than 100 metres. He said that he exchanged
signals with the Scotland, he heard the fog signals of two other
vessels farther south and the Scotland appeared to exchange two
or three signals with them. One of them gave three short blasts
and, shortly afterwards, he heard the crash of the collision.
The only oral evidence for the defendants was that of Mr.
Moroney, the pilot of the Marimar. He was a younger man than
Spring and had had shorter experience, but he had held a pilot's
licence for 12 years and he gave his evidence impressively. He
boarded the Marimar at Dungeness at 03 53 when visibility was
about nine cables. They proceeded at full speed, which was
about 11 knots, and nothing abnormal took place up to the
Goodwin Fork. Approaching the West Goodwin Buoy the
weather was closing in. They passed the South Brake and the
West Goodwin. The pilot was able to see the West Goodwin
Buoy from the South Brake, a distance of about a mile. They
passed the West Goodwin and he saw the North West Goodwin,
but at a shorter distance. He realized that visibility was not so
good, he reduced to half speed and started his whistle. Because
of the deterioration in the visibility he began to consider
anchoring. He intended to anchor clear of the channel and
decided to go to the west of it. He said that nobody would
willingly anchor on the east side of this channel because the
shoals there were continually changing. He reached the North
West Goodwin Buoy and saw the loom of lights which proved
to be a vessel
169
Cairns, J.
close to the northward of that buoy just in the channel and on
the Marimar's starboard hand. Visibility by this time had
diminished, the pilot thought, to about a quarter of a mile. He
heard no signals and decided to cross the channel. He stopped
his engine, continued to whistle and altered about a point to
port. Then he put his engines to half ahead and his helm to port
again. He steadied about N.N.W. (mag.) and carried on on that
course. Shortly after this he heard one blast to starboard. He
immediately crashed from half ahead to full astern. Again he
heard a whistle on his starboard bow and answered himself with
one long blast. Then he sighted lights on the starboard bow
about four points on the bow and he thought at a distance of
about two cables. He blew three short blasts and repeated this
signal several times. The other ship was approaching rapidly
crossing his course from starboard to port. He thought the place
of collision, which occurred very soon afterwards, was a quarter
of a mile W.N.W. of the North West Goodwin. This would
place it well within the channel.
In cross-examination this pilot said that the officers of the
Marimar had not much command of English. He said that the
bridge of the vessel was roughly above the engine which made
a considerable noise. If he had heard the bell or fog signals
forward of his beam he would have stopped his engines.
Between the West Goodwin and the North West Goodwin he
could not see marks which he would have seen if the visibility
had been good. In that area, according to the latest chart, there
is a substantial area of a depth of more than five fathoms which
would be safe for him to anchor in. But, he said, these buoys
had been altered six times between 1958 and 1965 and he was
very reluctant to go to the east of the starboard buoys. He would
not necessarily expect trouble, but he could not guarantee
safety. He said that when he crashed from half speed to full
astern he thought he reduced his speed by about five knots and
he believed that his vessel was almost stopped by the time of
the collision. He agreed that he might have heard signals better
if he had had his engines stopped. He did not hear any report
from anybody on the forecastle head.
Statements were read from three officers of the Marimar. The
chief officer was on the bridge and his statement corresponds in
material respects with the pilot's
[1968] Vol. 2 Lloyd's Rep.
Adm. The "Marimar"
evidence. He said that there was a man on the forecastle head
keeping a look-out to whom he wished to pass a message and as
this man did not appear to near the message the chief officer
sent the helmsman to him shortly before the collision and
himself took over the steering.
The second engineer gave evidence of engine movements
which corresponds with the pilot's evidence. Both the chief
officer, and the second engineer, at first stated that the engine
speed from 06 30 hours was half ahead, but both of them altered
this to slow ahead before signing their statements. It is,
however, accepted by the defendants' Counsel that half ahead
was right.
The third engineer spoke to the full astern order, but added
nothing fresh.
Finally, there was an agreed report made by a surveyor
instructed by the defendants who examined the damage to both
vessels and drew the conclusion that the Scotland was travelling
at seven knots and the Marimar at five knots at the moment of
collision.
For the plaintiffs it was conceded that the Scotland was
travelling too fast in the weather conditions prevailing and that
this was a contributory cause of the collision. It was, however,
contended that the overriding cause was the Marimar's action in
crossing the channel. But, said Mr. Sheen for the plaintiffs, the
Marimar's faults started earlier. Her pilot, approaching the
North West Goodwin, had no way of forming a reliable
estimate of visibility and he should have reduced speed much
more. Indeed, his proper course was to edge to the east of the
channel and anchor there. He could have gone just outside the
line of buoys and waited there until the fog cleared. He could
have anchored due south of the North West Goodwin Buoy as
soon as he saw it. He says the visibility was then about a quarter
of a mile which would have given him ample time to anchor
safely on that side of the channel. Certain calculations based on
logs of the Marimar, however, suggest that that ship was not
more than a distance of a cable from the North West Goodwin
when that buoy was sighted. In this case, says Mr. Sheen, the
pilot had greatly over-estimated the visibility and if he had
judged it rightly he should have been going much slower. In
deciding to cross the channel with no radar to assist him he was
taking a great risk and if he was going to do it at all he needed
extra careful look-out. So far as the
170
Cairns, J.
evidence shows there was no look-out. Then it is said he made
it more difficult to hear signals by keeping his engines going; he
was travelling too fast and he took the wrong action in ordering
full astern instead of stopping his engines.
The plaintiffs rely on breaches by the defendants of Rules 16
(b) and 25 (a) of the Collision Regulations, 1960. Rule 16 (b)
reads:
A power-driven vessel hearing, apparently forward of her
beam, the fog-signal of a vessel the position of which is not
ascertained, shall, so far as the circumstances of the case
admit, stop her engines, and then navigate with caution until
danger of collision is over.
and Rule 25 (a) reads:
In a narrow channel every power-driven vessel when
proceeding along the course of the channel shall, when it is
safe and practicable, keep to that side of the fairway or
mid-channel which lies on the starboard side of such vessel.
For the defendants, the case against the plaintiffs was put
under four headings: excessive speed; poor look-out; failure to
stop engines probably when two echoes were seen fine on the
bow and certainly on hearing the fog signals. And, fourthly,
putting the engines full ahead instead of full astern when the
Marimar was sighted.
As to speed, Mr. Darling says that the Scotland had no reason
for travelling at so high a speed as the seven knots which is
indicated by the surveyor's report and accepted as possible by
her pilot and that, in those weather conditions, it was a grossly
excessive speed. Once the echoes of the two vessels were seen
it should have been obvious that a dangerous situation might
arise and it was an obvious precaution to reduce speed further.
Once the fog signal of the Marimar was heard it should have
been clear that a dangerous situation had arisen and there was
then no excuse for continuing at the same speed. Then it is said
that putting the engines full ahead when the Marimar was
sighted meant that the speed if not increased was at any rate not
reduced and that any impact was likely to be the more violent
than if full astern had been ordered. The defendants rely
particularly on the new Rule 16 (c) which provides:
A power-driven vessel which detects the presence of another
vessel forward of her beam before hearing her fog signal or
[1968] Vol. 2 Lloyd's Rep.
Adm. The "Marimar"
sighting her visually may take early and substantial action to
avoid a close quarters situation but, if this cannot be avoided,
she shall, so far as the circumstances of the case admit, stop
her engines in proper time to avoid collision and then navigate
with caution until danger of collision is over.
It was not conceded that there was any fault on the part of the
Marimar. It was contended that her pilot rightly decided to
anchor and although some risk was involved in any anchoring
the lesser risk was to cross the channel, there being no
indication of any approaching vessel. Having once made that
decision, the proper speed at which to cross was half speed,
balancing the necessity of not lingering in the middle of the
channel against the necessity of not proceeding at full speed in
fog. The Scotland, it is said, could not have been seen nor her
signals heard earlier and as soon as the Marimar pilot became
aware of her presence he took the right action in going full
astern.
Now, dealing first with the speed of the Scotland my advisers
have calculated from a fix taken at 06 00 hours and from the
time of passing the Gull Buoy at 06 20 hours that her speed
over the ground at this stage was 1214 knots. From the Gull to
the place of collision was 312 miles and took 18 minutes
making the speed 1112 knots over the ground or, say, nine
knots through the water. This tends to show that the estimate of
seven knots at the time of the collision is by no means an
over-estimate and that the Scotland was proceeding at far too
high a speed in the conditions of fog. This was not only
negligence in itself, but has a bearing on other matters alleged
against the Scotland. For her pilot and master to cease to
observe the radar was clearly wrong and I am advised that,
while at the speed at which she was going it might well be that
at that stage the radar might not have provided information
which would have enabled the Scotland to avoid the collision, if
she had been travelling at a proper speed the indication might
well have been sufficient. I am further advised that at whatever
speed she was running before the echoes of the two ships were
seen she should then have been put at dead slow and a fortiori
when fog signals were heard. Having failed to make any
reduction in speed before the Marimar was sighted it may well
be that at that stage it was better to go full ahead and
hard-a-starboard than to put the engines at
171
Cairns, J.
full astern, but if she had been going dead slow when the
Marimar was sighted the right action would have been full
astern.
On all these matters I accept the advice I have received and
conclude that the Scotland was guilty of a high degree of fault
causally connected with the accident.
The case against the Marimar is of an entirely different
character. She was faced with a situation of obvious difficulty
and the main question is whether her pilot was guilty of fault in
the principal decision that he took and in his means of executing
it. It is to be borne in mind that the Marimar was a less well
equipped vessel than the Scotland, having no radar, her bridge
being subject to more engine noise and there being possible
difficulty of communication because of difference of language
between the pilot and officers. Her pilot may have misjudged
the extent of visibility, but if he was travelling too fast when
approaching the North West Goodwin it does not appear that
this was the cause of his subsequent procedure. My advisers
take the view that while he was reasonably reluctant to anchor
to the east of the channel, the risk he would have incurred in
doing so was less than the risk of crossing the channel when the
visibility was so low. In my view there was a misjudgment on
his part in deciding to cross and it was a misjudgment
sufficiently serious to amount to a fault. Having decided to
cross I am satisfied that he was not negligent in selecting half
speed as the best speed to use. I accept the argument that he had
to balance one set of considerations against another and it could
not be said that it would have been more prudent to go either
faster or slower. But it was important to keep a specially good
look-out. There should certainly have been a man with sharp
ears on the forecastle head and matters should have been so
arranged that there was immediate communication between him
and the bridge. I am satisfied that the Scotland was sending
signals all the time and if there had been a good look-out the
look-out man would probably have heard those signals at an
earlier stage and avoiding action could have been taken earlier
than it was. I do not consider that the order for full astern was a
wrong one. The situation was one where Rule 16 (b) had to give
way to Rule 27 under the special circumstances that existed. I
am advised, and accept, that at that stage it was the right course
to put the engines to full astern.
[1968] Vol. 2 Lloyd's Rep. 172
Adm. The "Marimar" Cairns, J.

In apportioning liability I take account of what I consider to be to follow the principles laid down in The British Aviator, [1965]
the respective degrees of blameworthiness and their causative 1 Lloyd's Rep. 271, by the Court of Appeal and not to be
potency. I am of the opinion that the blameworthiness of the unduly influenced by the fact that in that case the Court of
Scotland was much the greater. Blame for her excessive speed Appeal, in quite different circumstances, held the 60/40 division
cannot be mitigated by consideration of any difficulty in which to be mistaken.
she was put. Nor was there any excuse for her failure to reduce
speed when the presence of other vessels in this narrow channel ____________________
was known. The failure to attend continuously to the radar was (After discussion the Judge made the following order: "There
most blameworthy and it does not lie in the mouth of the will be judgment for the plaintiffs on the claim for two-fifths of
plaintiffs to say "it was useless to go on looking at the radar their damage; judgment for the defendants on the counterclaim
then because we were travelling at such a speed that the radar for three-fifths of their damage, usual reference to assess the
could not give us any further help". damages. Costs up to June 20, 1968, the defendants shall have
On the other hand, there is, it appears to me, mitigation to the one-fifth of their costs against the plaintiffs; from June 20 the
pilot of the Marimar's decision to cross the channel. He was in plaintiffs to have their costs against the defendants")
a position of real difficulty. As to the matter of look-out the
evidence does not establish one way or the other whether the
look-out was actually on the forecastle head, whether he was
competent or what he was doing. I am satisfied that the officers
of the Marimar believed that there was a look-out there and had
no cause until very shortly before the collision to have doubts as
to whether he was performing his duties properly. In these
circumstances, while I consider that more care should have
been taken by those in charge of the Marimar with regard to
look-out, I do not consider that a high degree of blame attaches
to the failure to exercise that degree of diligence.
I should assess the blameworthiness of the Scotland at double
that of the Marimar. To assess the causative potency of the
different faults is a difficult exercise. It is, however, right to say
that if the Marimar had not crossed the channel the situation
which brought about this collision would never have arisen.
With regard to all the other faults it can only be said that the
collision would probably have been avoided, or its seriousness
lessened, if more care had been exercised. For this reason I
regard the causative potency of this particular fault of the
Marimar's pilot as being greater than the causative potency of
any of the faults on the Scotland's part. I therefore apportion the
liability in the proportion of 60 per cent. to the Scotland and 40
per cent. to the Marimar. In reaching this decision I have
endeavoured