Collision – Liability ––Crossing rules – Narrow channel rule – International Regulations for Preventing Collisions at Sea 1972, rules 15, 16 and 17
eBlue_economy_The Crossing and Narrow Channel Rules
The Supreme Court has, for the first time in nearly 50 years, provided clarification on the construction of 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.
On 11 February 2015 a collision occurred between the claimant’s VLCC Alexandra 1 and the defendant’s 75,246 grt container vessel Ever Smart. The incident took place at night but in clear visibility within the pilot boarding area just outside the outer limit of a narrow channel leading to the port of Jebel Ali in the United Arab Emirates(the “channel”). Alexandra 1 was slowly approaching from the seawood along a rather irregular course waiting to pick up her pilot, while Ever Smart, was proceeding out of Jebel Ali on a steady course down the narrow channel at a much faster speed.
At the time of the collision the speed of Ever Smart was 12.4 knots, whereas the speed of Alexandra 1 was 2.4 knots. Alexandra 1 had Ever Smart on her starboard side, if the crossing rules applied, Alexandra 1 was therefore the give-way vessel. Despite the irregularities in Alexandra 1’s course and the changing speed of both vessels, the two ships remained on a steady compass bearing of each other for the whole of the 23-minutes period before the collision.
Rule 7 of the Collision Regulations and the reported decisions of the courts as well as the advice of the nautical assessors all made it clear that the approach of another vessel on a steady compass bearing is the surest sign that there is a risk of collision. The compass bearing of an approaching vessel may easily be measured by day or by night by radar or by the use of a compass.
The collision caused ships amounted to over US$35 million in damage to the two ships, prompting both parties to claim that the other was at fault.
Lower Courts judgment
The trail judge found that those navigating Ever Smart failed to keep a good visual lookout so that they only sighted Alexandra 1 at the last moment, while those navigating Alexandra 1 failed to keep a good audio lookout and therefore misinterpreted a radio message from the port control so that they thought wrongly that Ever Smart had been ordered to pass behind Alexandra 1’s stern. Both were therefore to blame for the collision. As a result, Ever Smart was deemed 80% liable for the damage caused by the collision and Alexandra 1 to be 20% liable.
The owner of Ever Smart had alleged that the crossing rules applied so that Alexandra 1 should have kept well clear of her. The judge decided that, although the two ships were crossing on a steady compass bearing and therefore with the risk of collision, nonetheless the crossing rules did not apply.
This was for two reasons: first, the Alexandra 1 was not on a steady course although Ever Smart was; second, the crossing rules were overridden by the narrow channel rule. The Court of Appeal agreed unanimously with the judge and dismissed Ever Smart owners’ appeal. It was satisfied that the navigation of Ever Smart was governed by the narrow channel rule and Alexandra I by Rule 2.
On their further appeal, the Supreme Court has decided unanimously that the crossing rules did apple to the encounter of the two ships, and therefore Alexandra 1 should have kept well clear of Ever Smart. Thus, the appeal is allowed.
The Decision of the Supreme Court
The two issues for the Supreme Court, sitting with two Nautical Assessors, to decide were:
1) The proper construction of the Collision Regulations. In particular whether the crossing rules were inapplicable, or whether they should be disapplied where an outbound vessel was navigating within a narrow channel and had a vessel on her port (or starboard) bow on a crossing course approaching the narrow channel with the intention of and in preparation for entering it.
2) On the proper construction of the Collision Regulations, in determining whether the crossing rules are applicable, whether there was a requirement for the putative give-way vessel to be on a steady course before the crossing rules can be engaged.
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.
First, where two approaching vessels are crossing on a steady compass bearing and therefore with a risk of collision, there is no requirement in the Collision Regulations that the give-way vessel which has the other ship on her starboard side should also be on a steady course before the crossing rules apply to both of them.
Although there are reported cases which have been interpreted by some as meaning that at least the other vessel as the stand-on vessel must first be on a steady course. The Collision Regulations do not make it a condition for the application of the crossing rules that either should first be on a steady course.
Such a condition would stand in the way of the pre-eminence and clear guidance given by the crossing rules once approaching vessels which are crossing are, because their steady compass bearings at clear risk of collision while it is usually easy to see whether another approaching vessel is on a steady compass bearings. It is not always so easy to see whether she is on a steady course.
The Supreme Court, citing the opinion of Lord Wright in The Alcoa Rambler [1949] AC 236 (Privy Council), have indicated that “wherever possible”, the crossing rules “ought to be applied and strictly enforced because they tend to secure safe navigation”.
Second, while the narrow channel rule will usually displace the crossing rules once two vessels are both navigating in opposite directions within the confines of a narrow channel. The position is more difficult when one is in the channel while the other is only approaching it. Contrary to the view of the lower courts, it is not enough that the vessel approaching the narrow channel is waiting or intending to enter it.
It is only when the approaching vessel is shaping her course to take her to the starboard side of the narrow channel on her final approach that the crossing rules are displaced.
Both reasons given by the lower court for the non-application of the crossing rules had the effect of downgrading the crossing rules from their essential function in preventing a risk of collision from becoming a reality and created a gap in the protection provided by the Collision Regulations where a clearly observable risk of collision existed, or could the principle of good seamanship satisfactorily fill that gap because without a rule clearly providing what both vessels must do, each vessel would be hampered in her efforts to avoid a collision by uncertainty as to the other vessel would likely to do.
In this case, Alexandra 1 and Ever Smart were approaching each other crossing on steady compass bearings for a substantial period of time with a clear risk of collision. Alexandra 1 was moving but waiting to pick up her pilot before entering the narrow channel.
She was not on her final approach or shaping her course to the starboard side of the channel, the crossing rules therefore applied. Since she had Ever Smart on her starboard side and was therefore the give-way vessel, Alexandra 1 was obliged to take early and substantial action to keep well clear of Ever Smart.
That conclusion does not mean that Alexandra was solely responsible for the collision. The apportionment to blame must be carried out afresh by the Admiralty Court on a proper appreciation that the crossing rules apply to the collision.
