In the first appeal in a collision action to come before the Supreme Court, the Court considered whether there was a ‘steady course’ requirement for the crossing rules and the inter-relationship between the crossing rules and the ‘narrow channel rules’.

Factual background

Shortly before midnight on 11 February 2015 the “EVER SMART”, a laden container vessel owned by the appellant, collided with the “ALEXANDRA 1”, a laden VLCC owned by the respondent. The collision occurred outside the dredged channel that served as the entrance and exit to the port of Jebel Ali in the UAE. At the point of collision, the “EVER SMART” was exiting the channel and making 12.4 knots over the ground. “EVER SMART” had been slightly to the (wrong) port side of the channel and had made a course correction to bring the vessel back to the starboard side of the channel, but this did not appear to have had any effect. “ALEXANDRA 1” was making 2.4 knots over ground, was waiting to pick up a pilot at the entrance to the channel and was headed in a broadly ESE direction so as to cross the approaches to the channel which was to starboard of “ALEXANDRA 1”. Instead of turning starboard to enter the channel “ALEXANDRA 1” continued to cross the channel. The master of “ALEXANDRA 1” appears to have misheard or misunderstood a VHF conversation between port control and a tug believing that “EVER SMART” had been directed to pass astern of “ALEXANDRA 1”.

The damage was in the region of US$32 million for the “ALEXANDRA 1” and almost US$4 million for the “EVER SMART”.

At first instance, the judge held that “EVER SMART” was governed by the narrow channel rule of the Collision Regulations (rule 15), and “ALEXANDRA 1” by rule 2, the ordinary practice of seamen. The crossing rule (rule 9) was inapplicable because the “ALEXANDRA 1” was not on a sufficiently constant heading to be herself on a course as, at the time, she was waiting to embark her pilot, and was not obliged to give way.

The “EVER SMART” was held to be 80% at fault for the collision both in terms of relative culpability – for her failures in keeping an adequate visual and aural lookout – and in terms of causative potency due to her excessive and unsafe speed. The “ALEXANDRA 1” was found 20% liable for failing to keep adequate aural lookout.

The Court of Appeal dismissed the appeal in its entirety and agreed on both issues and on apportionment with the first instance judge.

The appellant further appealed to the Supreme Court, which considered the following two questions:

Whether the crossing rules were inapplicable or were to be disapplied where an outbound vessel was navigating within a narrow channel and had a vessel on a crossing course approaching the narrow channel with the intention of and in preparation for entering it. This concerned the inter-relationship between the crossing rules and the ‘narrow channel rules; Rule 9(a) required vessels proceeding along the course of a narrow channel to keep as near to its starboard outer limit as is safe and practicable.

Whether it was necessary for the putative give-way vessel to be on a steady course for the crossing rules to be engaged. The ‘putative give-way vessel’ was the vessel which, if the crossing rules applied, would be required by rule 15 to keep out of the way of the other vessel. In practical terms it was the vessel which had the other vessel on her starboard side. The other vessel was referred to as the ‘putative stand-on vessel’.

Legal analysis

The Collision Regulations were an International Maritime Organisation 1972 Convention given the force of law in the United Kingdom and applied to United Kingdom ships ‘wherever they may be’. They were applicable in this case because the registered owner of “EVER SMART” was a UK registered company.

The focus of the appeal was the crossing rules and they were at the heart of the scheme for avoiding collisions where two vessels were approaching each other on a steady bearing (other than overtaking or head-on) and were thereby at risk of collision.

Was it necessary for the putative give-way vessel to be on a steady course for the crossing rules to be engaged?

The Supreme Court dealt with this issue first because it questioned the engagement of the crossing rules.

There might be many reasons why a vessel which was moving over the ground might not be on a steady course, such as manoeuvring through a crowded anchorage or picking up a pilot. A practical and purposive analysis of this question needed to start with a clear appreciation that two crossing vessels might be approaching each other and remain on a steady bearing (with consequent risk of collision) without either vessel being on a steady course. This was because the change in bearing which an alteration in course would otherwise cause on its own might be cancelled out by a change in her speed, or by a change in either the course or (as here) the speed of the other vessel.

The question was important because, if there was such a steady course requirement before the crossing rules were engaged, the putative give-way vessel might in any of those situations be 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.

Looking at rule 15 (which alone dictated when the crossing rules were engaged) did not suggest that, in addition to the express requirements for engagement (two power driven vessels, crossing, so as to involve a risk of collision) there was an additional requirement that either vessel had to be on a steady course.

The Court held that if two vessels, both moving over the ground, were crossing so as to involve risk of collision, the engagement of the crossing rules was not dependent upon the give-way vessel being on a steady course. If it was reasonably apparent to those navigating the two vessels that they were approaching each other on a steady bearing (over time) which was other than head-on, then they were indeed both crossing, and crossing so as to involve a risk of collision, even if the give-way vessel was on an erratic course. In such a case, unless the overtaking rule applied, the crossing rules would apply.

In the current case, both vessels were throughout that period in fact on bearings from each other, which did not appreciably change, and this was readily observable from each vessel. Therefore, both vessels were crossing within the meaning of rule 15 and, because they were approaching each other on a steady bearing, deemed to be, and in fact, crossing so as to involve risk of collision and engaged the crossing rules.

Therefore, subject only to the effect of the narrow channel rules, the crossing rules applied to both vessels. “ALEXANDRA 1” was the give-way vessel and “EVER SMART” was the stand-on vessel. “ALEXANDRA 1” should therefore have kept well clear of “EVER SMART”.

Did the narrow channel rules disapply the crossing rules?

Where an outbound vessel in a narrow channel was crossing with an approaching vessel so as to involve a risk of collision, the crossing rules were not overridden by the narrow channel rules merely because the approaching vessel was intending and preparing to enter the narrow channel. The crossing rules were only overridden if and when the approaching vessel was shaping to enter, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.

In light of the above, the Supreme Court allowed the appeal concluding that the crossing rules applied to “ALEXANDRA 1” and “EVER SMART” for the whole of the relevant period of just under half an hour before their collision. However, it did not necessarily follow that this should result in some different apportionment of liability for the damage, or even responsibility for the collision having occurred and it was the respondent’s case that it should make no difference.

Neither of the parties had asked the Supreme Court to re-consider the apportionment of blame or liability, if minded to allow the appeal and in the circumstances the High Court was to redetermine the apportionment of liability between the two parties.

Comments

It has now been clarified at highest authority that there is no requirement for a vessel to be on a ‘steady course’ for the crossing rules to apply.

The Supreme Court also placed emphasis on the fact that as an international convention the Collision Regulations should be interpreted by reference to broad and general principles of construction rather than any narrower domestic law principles.

The international character of the Collision Regulations and the safety of navigation meant that they had to be capable of being understood and applied by mariners of all nationalities in a wide range of vessels and in worldwide waters and should be interpreted in a practical manner so as to provide clear and readily ascertainable navigational rules capable of application by all mariners.