The Supreme Court has clarified the interpretation of an important aspect of the Collision Regulations, almost 50 years after a collision appeal was last heard by the House of Lords. After decisions taken in the Admiralty Court and Court of Appeal were overturned, Ian Short, Sam Jones and Joehunt Jinnah of CJC London and Singapore offices explain how crossing rules will apply to vessels entering and departing a narrow channel.
The case of Evergreen Marine (UK) Ltd v Nautical Challenge Ltd [2021] UKSC 6, concerned a collision between the vessels Ever Smart and Alexandra 1, in 2015. The collision occurred just outside the dredged entrance/exit channel to the port of Jebel Ali in the UAE. Alexandra 1 was the inbound vessel, standing by to enter the channel and was, although not stationary, waiting to pick up the same pilot who was at the time departing from the Ever Smart.
The case concerned the interpretation of the International Regulations for Preventing Collisions at Sea 1972 (the “Collision Regulations”) which are, of course, the “Rules of the Road” for the sea. Relevant rules for this matter included:
- Rule 2 which sets out the principles of good seamanship.
- Rule 9 which is the Narrow Channel Rule which provides that “a vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable”.
- Rule 15 which provides that when two vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.
- Rule 16 which provides that the give-way vessel shall, so far as possible, take early and substantial action to keep well clear.
- Rule 17 which sets out what the stand-on vessel should do, namely to keep its course and speed but to take action to avoid collision in circumstances, such as when the give-way vessel is not taking appropriate action.
The case concerned two key questions of the construction of the Collision Regulations:
- whether the crossing rules are inapplicable, or are to be disapplied, where an outbound vessel is navigating within a narrow channel and has a vessel on a crossing course approaching the narrow channel with the intention of and in preparation for entering it; and
- whether it is necessary for the putative give-way vessel (i.e. the vessel which, if the crossing rules apply, would be required to keep out of the way of the other vessel) to be on a steady course for the crossing rules to be engaged.
At both first instance and in the Court of Appeal, it had been held that the crossing rules were not engaged at all or, if engaged, were overridden by the narrow channel rules. These decisions, as further set out below, have been overturned by the Supreme Court.
Facts
On 11 February 2015, the Alexandra 1 arrived off Jebel Ali anchorage, anchoring 1.7nm from the western edge of the pilot boarding area. At 22:47 that evening, the vessel was instructed by Jebel Ali Port Control (the “Port Control”) to proceed to Buoy No.1, where she would pick her pilot. The pilot was, at that time, on board the outbound Ever Smart, which was also navigating through the port approach channel, towards Buoy No. 1. The Port Control advised that Alexandra 1 could enter the port approach channel once Ever Smart was clear.
By 23:15, Alexandra 1 had arrived in the pilot boarding area, approximately 1.4nm west-north-west of Buoy No. 1. Ever Smart was, at this time, still navigating the port approach channel.
At 23:27 Alexandra 1 had moved to 1nm from Buoy No. 1, with her engines set to dead slow ahead. The engines were stopped four minutes later and put back to dead slow ahead a minute after that, at 23:32. This was ten minutes before the collision.
Six minutes later, at 22:38, Alexandra 1, on a course of 102 degrees, and a heading of 90 degrees, set her engines to slow ahead.
At 22:40, two minutes before the collision, the master of Alexandra 1 observed that the Ever Smart was abeam of Buoy No. 1 and was concerned as to why she was not turning to port, as he had expected her to. This understanding was in error and arose due to a mistaken belief that Port Control had directed Ever Smart to proceed one mile astern of Alexandra 1. However, this communication from Port Control was actually addressed to a nearby tug, and not the Ever Smart. It was at this point that the engines of Alexandra 1 were put full astern. This had little effect, with Alexandra 1 maintaining a speed of around 2.3 knots. The master informed Port Control that unless Ever Smart altered her course, there would be a collision.
At just after 23:41, the engines of Alexandra 1 were set to dead slow astern, and the master communicated with Ever Smart via VHF, to turn hard starboard. At about the same time, Port Control also contacted Ever Smart to verify whether she was clearing to starboard.
At 23:42 the starboard bow of Alexandra 1 struck the port bow of Ever Smart.
Chart of the movements of Ever Smart and Alexandra 1 as provided for in the judgment at page 59 (Annexe A)
Supreme Court Decision
(i) The Second question – is it necessary for the give-way vessel to be on a steady course for the crossing rules to be engaged?
The second question was considered first by the Supreme Court, which took the view that the crossing rules were not to be treated lightly and that they should be applied unless necessity required otherwise. The court referred to the dicta of Lord Wright in The Alcoa Rambler[1], the same case which the High Court Judge had relied upon, and to which the Court of Appeal upheld, as authority for the conclusion that the crossing rules did not apply as Alexandra 1 was not on a steady course. However, the Supreme Court stated that The Alcoa Rambler established no such proposition of the requirements of the course of the putative give-way vessel.[2]
The court also considered practical considerations such as the many reasons why a vessel moving over the ground may not necessarily be on a steady course. The reasons stated included traffic density as well as influence of the wind or tide. If there was such a steady course requirement, the putative give-way vessel may be relieved of her duty to keep well clear of the stand-on vessel even where a risk of collision exists. In addition, Rule 7(d)(i) of the Collision Regulations states that there exists a risk of collision where the compass bearing of two vessels approaching each other does not appreciably change. This is regardless of whether or not either of them is on a steady course.[3]
For these reasons, the court concluded that engagement of the crossing rules is not dependent upon the putative give-way vessel, or stand-on vessel, being on a steady course. There was no such requirement.[4]
On a review of the factual scenario, and in particular the final half hour before the collision, the three following events were identified by the Court:
- Alexandra 1 was moving in a general East-South-Easterly direction;
- Alexandra 1 and Ever Smart were approaching each other; and
- the compass bearing of each vessel, in relation to the other, did not appreciably change.
Therefore, and as this was not either a head-on or overtaking situation, the vessels were held to be crossing, and crossing so as to involve a risk of collision. The crossing rules (15-17 set out above) were held to apply to both vessels.
(ii) The First question – are the crossing rules inapplicable, or to be disapplied, where an outbound vessel is navigating within a narrow channel and has a vessel on a crossing course approaching the narrow channel with the intention of and in preparation for entering it?
The court moved on to address the first question and considered the extent to which the crossing and narrow channel rules would apply to vessels which are intending and preparing to enter the channel but are waiting to enter rather than entering.
Consideration was given to the area just outside the entrance of the approach channel, and the activities in which a vessel may be engaged in while in that area. The Court divided these into the following three groups[5]:
- vessels which are approaching the entrance of the channel, heading across it, on route between start and finishing points unconnected with the channel;
- vessels which are intending to enter, and on their final approach to the entrance, adjusting their course to arrive on their starboard side of it; and
- vessels approaching which are also intended and preparing to enter, but are waiting to enter rather than entering. Such a vessel may be stationary, or moving, although still waiting to enter.
It was common ground between the parties that in relation to the first group the crossing rules would apply between the vessel leaving the channel and the vessel approaching the channel, regardless of which of them was on starboard. It was also agreed that, with reference to the second group, that the narrow channel rules apply. This is because the vessel intending to enter the channel is on their final approach, having adjusted its course and speed in order to enter the channel.
The situation of Alexandra 1 fell within the third group and, with reference to The Alcoa Rambler and The Ulrikka[6], the crossing rules should be applied wherever they can. They should not be overridden in the absence of an express stipulation unless there is a compelling necessity to do so. Such is the case for vessels in the second group, but not the third.
It was therefore held that such “waiting vessels, or any vessel approaching the channel intending to enter it, which was yet to shape her course to enter it on her starboard side of it” would be subject to the crossing rules[7]. Therefore, Alexander 1, as the give-way vessel, was obliged to take early and substantial action to keep well clear of Ever Smart.
The High Court will redetermine apportionment on the basis that the crossing rules applied and that the Alexandra 1 was the give-way vessel.
Comment
The Supreme Court’s decision offers clarity in reiterating the importance of the crossing rules; in essence the crossing rules will apply except in clear circumstances. The decision removes potential ambiguity as to when the crossing rules apply. In this case, it was not a requirement for a vessel to be on a “steady course” for the rules to apply, thus obviating the need for mariners to consider this contemporaneously nor parties to prove this thereafter. Likewise, the judgment provides clarity in that the crossing rules also apply in the vicinity of the end of a narrow channel where there is a risk of collision between two vessels that are on crossing courses and a steady bearing. In the context of a narrow channel entrance, the crossing rules will only be disapplied when the approaching vessel is on its final approach shaping to in fact enter the channel, adjusting its course so as to reach the entrance on the starboard side of it.
The full judgment of the Supreme Court can be found here.