Julian Clark
Ince, London
JulianClark@incegd.com

Reema Shour
Ince, London
​​​​​​​reemashour@incegd.com

In Evergreen Marine (UK) Limited v Nautical Challenge Ltd (Ever Smart c/w Alexandra I) [2021] UKSC 6, the United Kingdom Supreme Court (which replaced the UK House of Lords in October 2009) had the opportunity to consider its first collision appeal. This was almost half a century after a collision appeal had last been heard by the House of Lords. The relative rarity with which collision cases reach the UK's highest appellate court makes this judgment of particular interest to both admiralty lawyers and mariners alike.

Significantly, the Supreme Court overturned the decisions of both the Admiralty Court and Court of Appeal in finding that Rules 15 to 17 of the crossing rules applied to the encounter between Ever Smart and Alexandra I. In doing so, it emphasised that the Crossing Rules should be applied wherever possible and should not be overridden, unless there is a compelling reason to do so.

The decision will be of considerable interest to the global maritime community as it relates to international shipping rules and regulations. Specifically, how to construe the International Regulations for Preventing Collisions at Sea 1972, as amended (the 'Collision Regulations') for the purposes of applying Rules 15 to 17 of the Crossing Rules. The Supreme Court clarified the circumstances in which the Crossing Rules will apply to vessels proceeding in the vicinity of the entrance to a narrow channel and, in particular, to vessels making to proceed outbound from and inbound to a narrow channel.

Rules and regulations

The Collision Regulations are international 'rules of the road'. They promote safe navigation, apply uniformly to all types of vessel, and are intended to be understood and enforced consistently by all mariners worldwide.

Rules 15 to 17 of the Crossing Rules apply when two vessels are on crossing courses so as to create a risk of collision. The vessel that has the other on her starboard side (the 'give-way vessel') must take early and effective action to keep well clear of the other vessel. The other (the 'stand-on vessel') is to keep her course and speed. In the past, the English 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 paid 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.

Background

In February 2015, a collision occurred between Ever Smart and Alexandra I within the pilot boarding area, just outside the entrance/exit of the channel to the port of Jebel Ali, United Arab Emirates (UAE). At the material time, Ever Smart was proceeding along the channel outbound in a north-northwest (NNW) direction, and Alexandra I was in the pilot boarding area, moving very slowly in an east-southeast (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.

The court was asked to determine the liability of each vessel for the collision. In order to do so, it assessed each vessel's faults, applying the Collision Regulations. A key issue was whether the encounter was governed by the Crossing Rules or the Narrow Channel Rule. The Admiralty Court concluded that the Crossing Rules did not apply. Consequently, Alexandra I was not obliged to navigate to keep out of the way of Ever Smart. The court's reasoning was that there could not be two conflicting sets of rules intended to apply at the same time, that is, 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). Furthermore, the Crossing Rules could not have applied in any case as Alexandra I, as the putative give-way vessel, was not on a sufficiently defined course. Therefore, as a matter of good seamanship, Alexandra I had to be navigated 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, finding that the navigation of Ever Smart was governed by the Narrow Channel Rule and Alexandra I by Rule 2.

Supreme Court decision

The Supreme Court was advised by two nautical assessors on matters of nautical skill and seamanship. It unanimously allowed the appeal brought by Ever Smart interests.

The Supreme Court held that the Crossing Rules could be engaged, even where the putative give-way vessel is not on a steady course. Where it is reasonably clear that vessels are approaching each other on a steady bearing, then they will be crossing with a risk of collision, even if the putative give-way vessel is on an erratic course. Furthermore, the stand-on vessel need not be on a steady course to engage the Crossing Rules, although once they are engaged, she must keep her course and speed, in other words, the course that she happened to be on at the time the Crossing Rules were engaged.

This is a significant finding. Had the Supreme Court imposed a steady course requirement for the putative give-way vessel before the Crossing Rules were engaged, that 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. Instead, the Supreme Court clarified that there is no additional requirement to determine whether the approaching vessel is also on a steady heading or course. This is not relevant to determining whether a risk of collision exists. Therefore, the Crossing Rules should always be applied to crossing vessels, provided that the fact that the vessels are on crossing courses is easily observed from each vessel (keeping a seamanlike lookout).

For almost 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 significantly 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, this produced no appreciable change in the compass bearing between the two vessels. Consequently, subject to the effect of the Narrow Channel Rule in these circumstances, the Crossing Rules applied to both vessels and Alexandra I should have kept well clear of Ever Smart.

The Supreme Court then rejected the argument that the Crossing Rules are inapplicable or should 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 Supreme Court stated that, in situations in which only the Narrow Channel Rule applies to apparently crossing vessels (eg, ships proceeding in opposite directions up and down a curving narrow channel), there is no need to apply the Crossing Rules and to do so might result in conflicting requirements. There are, however, other situations in which 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.

As to the rules that apply just outside the entrance to a narrow channel, the Supreme Court found as follows:

• Where vessels 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. In this scenario, the approaching vessel is neither preparing nor intending to enter the channel nor shaping to enter it.
• Where vessels 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.
• Where vessels are intending and preparing to enter, but are waiting instead of entering the channel, the Crossing Rules, and not the Narrow Channel Rule, apply. This was the situation here, 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. Alexandra I, as the give-way ship, should therefore have kept out of the way of Ever Smart.

The Supreme Court confirmed that the Crossing Rules should be applied wherever possible and, unless otherwise expressly provided, should not be overridden, unless there is very good reason to do so. The Narrow Channel Rule need not 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 is no conflict between the obligations of the stand-on vessel to keep course and speed (Crossing Rules) and keep to the starboard side of the channel (Rule 9).

Conclusion

The Supreme Court has usefully resolved any past confusion as to how and when the Crossing Rules apply in these and similar circumstances. Its judgment reinforces the important role the Rules play in ensuring safe navigation across the globe. The decision provides useful and practical guidance to mariners confronted with encounters similar to that between Ever Smart and Alexandra 1.

Ince acted for the Ever Smart interests.