WITNESSES AT SEA: EVIDENCE FROM THE HIGH SEAS

The judgment of Mr Justice Teare (sitting with two assessors) in  Sakizaya Kalon, Owners of The Vessel v Panamax Alexander, Owners of The Vessel [2020] EWHC 2604 (Admlty) shows some real advantages of being able to take witness evidence remotely.  The trial involved evidence given by the masters of three different ships. They gave evidence from all over the world.

THE CASE

The judge was assessing liability in what was, essentially, a three-vessel collision, on the Suez Canal.  The court heard evidence from each of the ship’s masters, who were in different parts of the world.

THE JUDGMENT

The judge set out how evidence from the three different masters of the vessels came from different parts of the world.

13.              Each vessel’s master give evidence. They did so by video link from South America, the South Atlantic and Greece. Two of the masters gave evidence from the master’s cabin on their current ship, one during a voyage (probably the first occasion on which evidence has been given to the Admiralty Court from the high seas). When so much is now reliably recorded by VDRs it may be asked why oral evidence is necessary, for the court’s findings of fact will be determined by the information extracted from the VDRs and not by the recollection of the masters two years later. However, when allegations of serious navigational fault are made it is only fair that the master, against whom such allegations are made, has an opportunity to respond to them in open court.    
14.              A Suez Canal pilot advised each of the masters. The pilots spoke amongst themselves by vhf in Arabic. There is no objection to the use of vhf in pilotage waters provided that its use does not interfere with the proper navigation of the vessels; see The Sanwa and Choyang Star [1998] 1 Lloyd’s Reports 283 at p.295 lhc per Clarke J., a case which also concerned the Suez Canal, albeit the approaches thereto. (See also, more generally with regard to the use of vhf, The Mineral Dampier v Hanjun Madras [2001] 2 Lloyd’s Reports 419 at paragraphs 36-40 per Lord Phillips.) None of the masters understood Arabic and it is, I think, fair to say that none of the masters particularly interrogated the pilot as to what he learnt from the other pilots, though some questions were asked immediately after AENEAS’ breakdown and in the immediate run up to the collisions. Of course, each master remained responsible for the navigation of his vessel and was able to observe the progress of the other vessels by radar, ECDIS and the AIS facility and so to navigate his vessel in accordance with the Collision Regulations.
15.              The master of OD, Lemuel Sacro of the Philippines, gave evidence by video link from the cabin of his current vessel which was in port in Chile. He had been provided with both electronic and hard copies of the trial documents. Although counsel for PA suggested that his evidence was confused and unhelpful, I formed the view that he gave his evidence with honesty, clarity and some firmness. It may be that his recollection on occasion differed from the contemporaneous record but that was inevitable and certainly did not suggest that he was not seeking to tell the truth as he recollected it. It was suggested by counsel for PA that his evidence that there had been an order to stop issued by the Suez Canal Authorities (when there had not been such an order) suggested that his evidence needed to be treated with considerable caution. The master referred to the order in his supplementary statement dated February 2020 and in his oral evidence. He did not do so in his main statement taken in August 2018. It seems to me likely that he had persuaded himself that there had been such an order and was not seeking to advance an account of events which he knew to be untrue. If so then he was not the only one to persuade himself that there had been such an order for the owners of PA, no doubt on the basis of someone’s evidence, expressly pleaded that there had been such an order. Significantly (in my judgment) the master accepted several matters put to him as to the conduct expected of a prudent master and as to assumptions made by him when navigating the Canal. That suggested to me that he was being candid with the court.
16.              The master of SK, Feng Jiwu of the People’s Republic of China, gave evidence from the cabin of his current vessel which was in the South Atlantic on a voyage to Brazil. Arrangements had been made for him to have electronic copies of the trial documents but it was not possible to get hard copies to him. For most of his evidence he needed the services of an interpreter. It was, however, apparent that he had no real recollection of the detail of the events of 15 July 2018. That is perhaps unsurprising. However, when presented with conflicts between his written statements and what in fact happened he was, it seemed to me, prepared to say whatever he could to explain the discrepancy, regardless of whether it was the truth. Indeed the transcript of a conversation between the master and the pilot of SK after the collisions on 15 July 2018 strongly suggested that the master was prepared to put in his report to owners what the pilot told him to say. That suggested that even on the day of the collision he had little knowledge himself of the events leading up to the collisions.
17.              The master of PA, Albert Secusana of the Philippines, gave evidence from a hotel in Athens. He had with him electronic and hard copies of the trial documents. He had a clear view that on 15 July 2018 he had monitored the vessels ahead of PA by radar and ECDIS and had kept a safe distance astern of SK but that the two vessels ahead, OD and SK created a dangerous situation by anchoring and blocking the Canal without advising PA of their intentions. When cross-examined he appeared keen not to depart from his written statement (which he maintained he had prepared himself without the assistance of lawyers) and was reluctant to accept what was clear from the VDR audio record. He had difficulty in answering questions about what good seamanship required when navigating the Suez Canal in a convoy, particularly when the answers to such questions threatened to paint his navigation on 15 July 2018 in a less than good light. I gained the impression that he was doing his best to defend his navigation of his vessel rather than to answer the questions put to him with candour and honesty.