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Supreme Court collides with navigational rules

Insights / 19-02-2021 / London

Evergreen Marine (UK) Limited v. Nautical Challenge Ltd (Ever Smart c/w Alexandra I) [2021] UKSC 6

In the first collision appeal to come before the Supreme Court, and nearly 50 years after a collision appeal was last heard by the House of Lords, the Supreme Court has provided clarification on how to construe the International Regulations for Preventing Collisions at Sea 1972, as amended (“the Collision Regulations”) for the purposes of applying the Crossing Rules (Rules 15-17).  In holding that the Crossing Rules applied to the encounter between the Ever Smart and Alexandra I, it has overturned the decisions of both the Admiralty Court and Court of Appeal.

This decision gives welcome clarity and certainty to the circumstances in which the Crossing Rules will apply in the context of vessels proceeding in the vicinity of the entrance to a narrow channel and in particular in the context of vessels making to proceed outbound from and inbound to a narrow channel. 

The background facts

The case involved a collision between the large container vessel, Ever Smart, and the laden VLCC, Alexandra I, which occurred within the pilot boarding area, just outside the entrance/exit of the channel to the port of Jebel Ali, UAE at 23:42LT on 11 February 2015.  At the material time, Ever Smart was proceeding along the channel outbound in a NNW direction and Alexandra I was in the pilot boarding area, moving very slowly in an ESE direction, waiting to pick up a pilot from Ever Smart before entering the channel. The channel is a “narrow channel” for the purpose of rule 9 of the Collision Regulations.

A reconstruction of the vessels’ tracks can be found at the end of this article.

The Collision Regulations

The Collision Regulations are designed to promote safe navigation and are intended to be capable of being understood and applied uniformly by all mariners worldwide and in all ranges of vessels. They provide international “rules of the road”.

The Crossing Rules (Rules 15-17) apply when two vessels are on crossing courses so as to create a risk of collision. The vessel which has the other on her starboard side is to take early and substantial action to keep well clear of the other (the “give-way vessel”). The other (the “stand-on vessel”) is to keep her course and speed.  The courts have indicated that wherever possible, the Crossing Rules ought to be applied and strictly enforced because they are intended to secure safe navigation.

The Narrow Channel Rule (Rule 9(a)) requires a vessel proceeding along the course of a narrow channel to keep as near to its starboard outer limit as is safe and practicable.

Rule 2 sets out the principles of good seamanship and provides that nothing in the Collision Regulations authorises mariners to neglect these principles and that due regard has to be given to the dangers of navigation and collision and to any special circumstances that make a departure from the Collision Regulations necessary to avoid immediate danger.

The lower Court decisions

At first instance, a principal issue in dispute was whether the encounter was governed by the Crossing Rules or the Narrow Channel Rule.  The Admiralty judge held that the Crossing Rules did not apply and, therefore, that Alexandra I was not obliged to navigate to keep out of the way of Ever Smart.

The Judge did not think that it could have been intended that there should be two sets of rules with different requirements applying at the same time, i.e. for Ever Smart to keep to the starboard side of the channel (Rule 9) at the same time as maintaining her course and speed (Rule 17).  Further, in his view, the Collision Rules could not have applied in any event as Alexandra I, as the putative give-way vessel, was not on a sufficiently defined course. Instead, as a matter of good seamanship, her duty was to navigate in such a manner that when she reached the channel she would be on the starboard side in accordance with the Narrow Channel Rule.

The Court of Appeal upheld this decision. It was satisfied that the navigation of Ever Smart was governed by the Narrow Channel Rule and Alexandra I by Rule 2.

The Supreme Court decision

The Supreme Court, sitting with two Nautical Assessors, was asked to decide two questions, which it considered in reverse order on the basis that Question 2 raised the engagement of the crossing rules. These were:

  1. 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 (Question 1).
  2. Whether it is necessary for the putative give-way vessel to be on a steady course for the Crossing Rules to be engaged (Question 2).

Question 2: Does the give-way vessel have to be on a steady course to engage the Crossing Rules?

The Supreme Court’s answer was ‘no’. So long as it is reasonably apparent to those navigating the vessels that they are approaching each other on a steady bearing, then they will be crossing with a risk of collision, even if the course of the putative give-way vessel is erratic.

The Supreme Court also confirmed that the stand-on vessel need not be on a steady course to engage the Crossing Rules, although once they are engaged then she must keep her course and speed, i.e. the course that she happened to be on at the time the Crossing Rules were engaged. The requirement to keep her course and speed is a qualified obligation imposed on her once the Crossing Rules are engaged; it is not a condition for the engagement of the Crossing Rules in the first place. In any event, the Court confirmed that the requirement to keep her course does not mean that she must literally maintain her precise course; it means she must simply maintain the course she happened to be on when the relevant Rule became engaged.

This finding is important. If the Supreme Court had introduced a steady course requirement for the putative give-way before the crossing rules were engaged, that give-way vessel might have been relieved of what would otherwise be her obligation to keep well clear of the putative stand-on vessel, even though there was a deemed risk of collision. Disagreeing with previous authorities that may have suggested otherwise, the Supreme Court considered that the Privy Council decision in the Alcoa Rambler establishes no general proposition that there is an additional requirement to ascertain whether the approaching vessel is also on a steady heading or course.  This steadiness of the approaching vessel’s course is not relevant to determining whether a risk of collision exists.   As such, the Crossing Rules should always be applied to crossing vessels provided that the fact that the vessels are on crossing courses is readily to be observed from each vessel (keeping a seamanlike lookout).

For just under half an hour before the collision, Alexandra I was moving over the ground in an ESE direction and approaching Ever Smart on a compass bearing that did not appreciably change. Both vessels could observe they were approaching each other. Although the course and speed of Alexandra I was not steady and neither was the speed of Ever Smart, these changes were self-cancelling as they produced no appreciable change in the compass bearing between the two vessels.  As such, subject to the effect of the Narrow Channel Rule as posed in Question 1, the Crossing Rules applied to both vessels. Alexandra I should therefore have kept well clear of Ever Smart.

Question 1: Should the Crossing Rules be disapplied where an outbound vessel is navigating within a narrow channel and is on a crossing course with another vessel which is approaching the narrow channel with the intention of and in preparation for entering it?

Again, the answer was “no”. The Supreme Court noted the situations in which the Narrow Channel Rule alone is held to apply to apparently crossing vessels (for example, to ships proceeding in opposite directions up and down a curving narrow channel); in these situations, there is no need for the Crossing Rules to be applied and, to do so, might impose conflicting requirements.  It also noted scenarios where the Crossing Rules must fully apply to vessels in narrow channels, for example where two narrow channels intersect or where a vessel is navigating across or joining a narrow channel.

In relation to the rules that are to be applied just outside the entrance to a narrow channel, the Court identified three broad groups:

1) Vessels which are approaching the entrance of the channel, heading across it, on a route between start and finishing points unconnected with the narrow channel.

The Crossing Rules apply: the approaching vessel in this scenario is neither preparing or intending to enter the channel nor shaping to enter it.

2) Vessels which are intending to enter the channel and on their final approach, adjusting their course so that they enter the channel on its starboard side.

The Narrow Channel Rule applies to the exclusion of the Crossing Rules. Once the approaching vessel is shaping and adjusting her course to enter the narrow channel, her navigation is already being determined by the need to comply with the Narrow Channel Rule and enter the channel on its starboard side.

3) Vessels which are also intending and preparing to enter, but are waiting instead of entering.

This group covered the present case where Alexandra I was waiting to enter the narrow channel in a designated pilot boarding area but not shaping and adjusting her course to enter the narrow channel. It was held that the Crossing Rules, and not the Narrow Channel Rule, apply. Alexandra I, as the give-way ship, should therefore have kept out of the way of Ever Smart.

The Supreme Court made it clear that the Crossing Rules should be applied wherever possible and, in the absence of an express stipulation, should not be overridden unless there is a compelling reason to do so.  There is no need for the Narrow Channel Rule to govern an encounter where the waiting vessel has yet to shape her course to enter the channel on the starboard side. The approaching vessel can alter course or slow down to keep clear of the stand-on vessel when she is the give-way vessel or, if she is the stand-on vessel, she can simply keep her course and speed.  The vessel leaving the channel can keep her course and speed if she is the stand-on vessel or slow down or stop (or turn to starboard if not constrained by her draught in the narrow channel) if obliged to keep clear as the give-way vessel. In circumstances where the stand-on vessel is not obliged to keep a precise course, there can be no conflict between the requirements on the stand-on to keep course and speed (Crossing Rules) and keep to the starboard side of the channel (Rule 9).

Having found for Ever Smart interests on both questions, the appeal was allowed. 

Comment

Encounters such as that between Ever Smart and Alexandra I occur across the globe frequently.  This important decision provides welcome, and practical, guidance to mariners as to which rules apply in crossing situations at the end of a narrow channel and the obligations of each vessel.  The judgment also clears up any confusion introduced by the lower courts as to the application of what should be a straightforward rule and removes the additional steady course requirement that was in danger of creating a void in the protection provided by the Crossing Rules that would have left vessels at risk of collision without telling them what to do about it.

It is now settled that in the vicinity of the end of a narrow channel, the Crossing Rules are to apply where there is a risk of collision between two vessels that are on crossing courses and a steady bearing. The Crossing Rules will only be disapplied when the approaching vessel is shaping to enter the channel, adjusting her course so as to reach the entrance on the starboard side of it, on her final approach. 

Ince (Christian Dwyer, Sophie Henniker-Major, James Drummond and Clare Birchenhough) in consultation with Stann Marine Ltd (Faz Peermohamed) acted for the successful appellants in this matter.

Chart of vessels’ movements

Chart of vessels movements

Christian Dwyer

Christian Dwyer Global Head of Admiralty

James Drummond

James Drummond Admiralty Manager

Sophie Henniker-Major

Sophie Henniker-Major Managing Associate

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